On March 15, 2017, wereportedThird-Party ReimbursementSales of pharmaceutical products depend in significant part on the availability of coverage and adequate reimbursement by third party payors, such as state and federal governments, including Medicare and Medicaid, managed care providers, private commercial insurance plans and pharmacy benefit management (PBM) plans. Decisions regarding the extent of coverage and the amount of reimbursement to be provided for Firdapse®are expected to be made on aand in some cases, on aplan-by-plan,basis. Particularly given the rarity of LEMS, patient-by-patientCMS, andMuSK-MG, we anticipateour experience has been that securing coverage and appropriate reimbursement from third-party payors will requirerequires targeted education and highly skilled insurance navigation experts that have experience with rare disease launches and medical exception processes at insurance companies to provide patient coverage for important rare disease therapies. To that end, we have engaged a dedicated team of field-based market access account managers and reimbursement experts as well as a patient service center staffed with experienced personnel focused on ensuring that clinically-qualified patients have access to our product.There can be no assurance, however, as to whether payors will agreecontinue to cover our product, and if so, at what level of paymentreimbursement. Further, there can be no assurance as to whether payors will in the future require that patients try Ruzurgi®before they make forare treated with Firdapse®. In that regard, we have advised payors that we will provide free medication to support titration and confirm patient therapeutic benefit. Further, now thatwhen necessary, we have launched our product, we are providingprovide patients with access to therapy at no charge while those patients are awaiting coverage decisions.Our efforts to develop Firdapse®as a treatment of additional indicationsWe are currently evaluating Firdapse®for the treatment of three additional neuromuscular indications CMS,MuSK-MG, and SMA Type 3. The current status of our clinical trials evaluating Firdapse®for these additional indications is as follows:Ongoing phase 3 clinical trial evaluating Firdapse® for the treatment of CMSWe are currently conducting a Phase 3 clinical trial evaluating Firdapse® for the treatment of certain types of CMS. This trial, which will include approximately 23 adult and pediatric subjects, is being conducted at trial sites around the United States and Canada. Details of this trial are available onwww.clinicaltrials.gov (NCT02562066). Based on currently available information, we expect to reporttop-line results from this trial in the second half of 2019. There can be no assurance that any trial we conduct evaluating Firdapse® for the treatment of CMS will be successful or whether any NDA or NDA supplement that we may submit for Firdapse® for the treatment of CMS in the future will be filed by the FDA for review and approved.Previously completedMuSK-MGstudiesproof-of-concept studyIn February 2016, we announced the initiation ofinitiated an investigator-sponsored, randomized, double-blind, placebo-controlled, crossoverclinical trial evaluating the safety, tolerability and potential efficacy of Firdapseproof-of-concept®as a symptomatic treatment for patients withMuSK-MG.Seven patients participated inthistrial.proof-of-concept We provided study drug, placebo, and financial support for this study.top-lineresults from this trial. Both oftheco-primaryefficacy endpoints of change from baseline (CFB) in total Quantitative Myasthenia Gravis (QMG) score (p=0.0003) and CFB in total Myasthenia Gravis Activities of DailyLiving(MG-ADL)score (p=0.0006) were statistically and clinically significant in this trial. Several secondary efficacy measures also achieved statistical significance. Amifampridine phosphate was well tolerated in this population of patients.The results of this study were recently published in SAGE Open Medicine and can be accessed athttps://journals.sagepub.com/doi/pdf/10.1177/2050312118819013.Ongoing phase 3 clinical trial evaluating Firdapse® for the treatment ofMuSK-MGWe are currently conductingSubsequently, we engaged in a Phase 3 clinical trial(MSK-002)evaluating Firdapse®for the treatment ofMuSK-MG adults withMuSK-MG.Our trial was a multi-site, international (United States, Italy and Serbia), double-blind, placebo-controlled, clinical trial being conducted under a SPASpecial Protocol Assessment (SPA) with the FDA. The trial is a multi-site, international (United States and Italy), double-blind, placebo-controlled, clinical trial that is targeted to enroll approximatelyenrolled more than 60 subjects diagnosedwith MuSK-MG. The trial willMuSK antibody positive patients. It also enroll up toenrolled more than 10 generalized myasthenia gravis patients who will bewere assessed with the same clinical endpoints butendpoints. However, achieving statistical significance in this subgroup of patients iswas not required and only summary statistics will be provided. Therequired.On August 10, 2020, we announced thetop-lineresults from our Phase 3 clinical trial will employ a(MSK-002)evaluating Firdapse®for the treatment of adults withMuSK-MG.Unfortunately, theMSK-002trial did not achieve statistical significance on its primary endpoint of Myasthenia Gravis Activities of DailyLiving (MG-ADL) and aor its secondary endpoint, even though clinical improvement was observed by patients and investigators during the initial dose-titration period of Quantitative Myasthenia Gravis Score (QMG).We initiated thisthe trial and in January 2018 and are currently enrolling subjects. We currently expect toreport top-line resultsthe company’s previoustrial. However, we have recently concluded a detailed analysis of the data from this trial in an effort to understand why theproof-of-conceptMuSK-MGPhase 3 trial did not meet statistical significance on its endpoints. We found in our analysis that there was a large degree of symptom variability during the seconddouble-blind withdrawal period. We believe that sources of such variability can be addressed in a redesigned study that may better demonstrate the efficacy of our drug for the treatment ofMuSK-MG.With respect to theMuSK-MGindication, we plan to present our hypotheses and a revised protocol to the FDA for discussion during the first half of 2019. Details2021. However, there can be no assurance that the FDA will either grant a meeting, agree with our protocol design or, even if the study is successful, accept the results of thisa single study of a different trial are available on www.clinicaltrials.gov (NCT03304054).design as sufficient evidence for approval of theMuSK-MG13
Proof-of-concept
®
for the treatment of SMA Type 3Our exploratory study,
SMA-001
(A Randomized Placebo Controlled Crossover Study to Evaluate the Safety and Efficacy of Amifampridine Phosphate in Ambulatory Patients with Spinal Muscular Atrophy (SMA) Type 3, met the primary endpoint of a statistically significant difference for the Hammersmith Functional Motor Scale Expanded (HFMSE). Clinically, however, the effect was modest. The secondary endpoints were not statistically significant, although several individual quality of life measures demonstrated a positive nominally statistically significant change. Key opinion leaders with whom we have spoken believed that Firdapse®
needed to show a large clinically significant change if there was the possibility to affect disease progression through retrograde signaling from enhanced neuromuscular junction function. After considering all of these factors, we have concluded that the modest results exhibited in this study are unlikely to result in a sufficient modification of disease progression, and, particularly in light of the fact that there are now three approved disease modifying medications for SMA Type 3, we have decided not to pursue the SMA Type 3 indication further.HNPPstudy
proof-of-concept
We are currently conductingintend to conduct astudy evaluating Firdapsesymptomatic treatment for Hereditary Neuropathy with Liability to Pressure Palsies (HNPP). The scientific basis for considering this indication is that leakage of neuron potassium channels is observed in HNPP. Firdapse is a potassium channel blocker and may mitigate the pathological effects of the potassium channel leakage in HNPP patients.
proof-of-concept clinical
®
as a HNPP is an autosomal-dominantly inherited peripheral nerve disease caused by a heterozygous deletion of PMP22 gene, leading to a reduction of PMP22 proteins bywith SMA Type 3. The study is designed are also afflicted by fatigue. We believe that HNPP affects about 6,000 patients in the Unites States. There can be no assurance of the results of this trial.
35-50%
of normal level, which results in disruption of the myelin sheaths of motor neuron axons. Patients with HNPP often present with focal sensory and motor deficits. The events may be triggered by mild mechanical compressions innocuous to healthy humans. In addition, HNPP patients Kennedy’s disease
We had previously reported that we planned to evaluate Firdapserandomized (1:1),double-blind, 2-period, 2-treatment, crossover,outpatient proof-of-concept studytreatment of Kennedy’s disease (spinal bulbar muscular atrophy). Previously, key opinion leaders had suggested to evaluate the safety, tolerability and potential efficacy of amifampridine in ambulatory patients diagnosed with SMA Type 3. The study is planned to include approximately 12 patients, and we currently expect toreport top-line results from this study in the first half of 2020. Details of this trial are available onwww.clinicaltrials.gov (NCT03781479).
®
as a Other potential indications
We are continuing to identify additional neuromuscular diseases for whichus that Firdapse®might be an effective treatment for the symptoms of Kennedy’s disease. However, given the results of the SMA Type 3 maystudy and the lack of a targeted mechanism of action for Firdapseproof-of-concept®in Kennedy’s disease, we have determined not to pursue this indication further.
Long-acting version of amifampridine phosphate
We have been developing a long-acting formulation of amifampridine phosphate, and our development remains on track. A large number of candidate formulations were prepared, and three of the most promising formulations were evaluated in a pharmacokinetic (PK) study completed during the fourth quarter of 2020. The results from this first PK study will be used to inform the design and refinement of future product formulations in 2021, and additional PK work is also expected to be conducted during 2021. Catalyst has also completed a number of advisory board meetings with both patients and doctors in order to establish the optimum target characteristics of a long-acting formulation of amifampridine phosphate that are desired by the LEMS patient community and treating physicians.
There can be no assurance that we will be able to successfully develop a long-acting formulation of amifampridine phosphate, that any such formulation will be approved by the FDA for marketing, or that any such formulation will be commercially viable.
Intellectual property and regulatory exclusivity protections for Firdapse
®
All of our patent rights for Firdapsehopeintend to commence additional clinical studiestake all appropriate actions to protect our intellectual property.
®
are derived from our license agreement. In August 2020, the United States Patent and Trademark Office (USPTO) allowed a patent (the ’893 patent) to our licensor and thereby to us, and the patent issued on October 6, 2020. The patent is directed to the use of suitable doses of amifampridine to treat patients, regardless of the therapeutic indication, that are slow metabolizers of amifampridine. Any drug product containing amifampridine with a label that states the patented dosing regimens and doses in the Dosing and Administration section prior to April 7, 2034, the expiration date of the patent, could possibly infringe this patent. Generic drug product labels would necessarily have to do this, and we In that regard, in October 2020, we filed a lawsuit in the U.S. District Court for New Jersey against Jacobus and trials to evaluate Firdapse®a lawsuit in the U.S. District Court for the treatmentWestern District of those diseases.Pennsylvania against the specialty pharmacy marketing Ruzurgi
®
, PantherRx Rare LLC (PantherRx), for infringement of the ‘893 Patent. The suits have since been combined in the U.S. District Court for New Jersey. The lawsuit arises from Jacobus’ and PantherRx’s sales and marketing of Ruzurgi®
(amifampridine, 10 mg). The lawsuit alleges that the Ruzurgi®
product infringes the ‘893 patent when administered in accordance with its product labeling. The lawsuit seeks damages and injunctive relief to prevent further marketing of Ruzurgi®
in violation of our patent rights.14
We are also pursuing additional patent applications for Firdapseof these studies or trialsadditional patents will be successful.
®
in an effort to further protect our drug product. There can be no assurance that any Intellectualissued which provide additional intellectual property and regulatory exclusivity protectionsprotection for Firdapse®
Under the BioMarin License Agreement, we licensed two pending patents and certain trademarks for Firdapse®. One of the licensed patents is a pending composition of matter patent that, if issued, will protect Firdapse® until February 2027, which includes five years of patent term extension that is expected under the Patent Term Restoration Act. This application was initially rejected following an appeal to the Patent Trial and Appeal Board. The application was refiled with new claims. The new claims were the subject of an office action in which the claims were rejected. A response to the rejection was filed and a final rejection was issued. The application was refiled and we are awaiting an office action. Thereour drug product.
Further, there can be no assurance that thiswe do not or will not infringe on patents held by third parties or that third parties in the future will not claim that we have infringed on their patents. In the event that our products or technologies infringe or violate the patent willor other proprietary rights of third parties, we may be issued. The secondprevented from pursuing product development, manufacturing or commercialization of our products that utilize such technologies. For example, there may be patents or patent applications held by others that contain claims that our products or operations might be determined to infringe or that may be broader than we believe them to be. Given the complexities and uncertainties of patent laws, there can be no assurance as to the impact that future patent claims methodsagainst us may have on our business, financial condition, results of administering Firdapse®. Substantive examination has begun on this patent application and a final rejection was issued and the application was refiled. We are awaiting the next office action. We may also pursue other patents in order to seek to protect the exclusivity of the drug, dosage forms and methods of administration.
operations, or prospects.
Until FirdapseFDA. Therefore, our version of amifampridine hasFDA such that we received five-year new“new chemical entity” exclusivity from the FDA. New chemical entity exclusivity which provides a five-year period of marketing exclusivity for all indications.
®
was approved in November 2018, no drug product containing amifampridine for any indication had been approved by the We believeindications and in the absence of an Orange Book listed patent, precludes a generic from submitting an abbreviated new drug application (ANDA) until that five year period has expired. Further, when Firdapse®was approved for commercialization, Jacobus Pharmaceutical may have had a pending NDA filed with the FDA seeking approval of their version of3,4-DAP for the treatment of CMS. We do not controlLEMS patients, we received seven-year orphan drug exclusivity for our product for the treatment of LEMS.
In light of the FDA’s decision on any NDA previously filedto approve RuzurgiJacobus, but ifthe exclusivities that we received upon the approval of our product remain unclear, and our suit against the FDA wereseeking to approve it, there can be no assurance asundo the approval of Ruzurgiimpact that any such approval would have on our business and on our commercialization of Firdapse®.
®
, the scope and protections afforded by ®
is our attempt to undo what we believe was a violation of our statutory right to exclude others from the We are in the early stages of developing a sustained release formulation of Firdapse®. If we are successful, we will seek to add additional patent protections for that sustained release product, to the extent available.market. There can be no assurance that we will be successful in those efforts.
We have licensed the Firdapse from BioMarin, and the trademark was registered in the United States in March 2015.
®
trademark,Protection of our intellectual property and regulatory exclusivities is a strategic priority for our business. We rely on a combination of patent, trademark, copyright and trade secret laws, along with regulatory exclusivity and institutionalknow-how and continuing technological advancement, to develop and maintain our competitive position. Our ability to protect and use our intellectual property rights and regulatory exclusivity in the future development and commercialization of our products, operate without infringing the proprietary rights of others, and prevent others from infringing our proprietary rights, is crucial to our future success. See Item 1A. “Risk Factors –- Risks Related to Our Intellectual Property.”
Generic Sabril
®
In September 2015, we announced the launch of a program to develop our version of vigabatrin
(CPP-109)
as a generic version of Sabril®
, which is marketed in the United States by Lundbeck. Lundbeck’s exclusivity for Sabril®
expired on April 26, 2018.On December 18, 2018, we announced that we had signed a definitive agreement with Endo International plc’s subsidiary, Endo Ventures Limited, for the further development and commercialization of generic Sabril® tablets through Endo’s United States Generic Pharmaceuticals segment, Par Pharmaceutical. Pursuant to the agreement, we have received anup-front payment, and we will receive milestone payments based on achievement of regulatory approvals, and a sharing of defined net profits upon commercialization and certain expenses for development.
Vigabatrin comes in two dosage forms – a powder sachet and a tablet. Par Pharmaceutical brought the first generic version of the powder sachet to market, and since then several additional generic versions of this product have been approved. However, there is only one approved generic version of the tablets at this time.
On December 18, 2018, we entered into a definitive agreement with Endo International plc’s subsidiary, Endo Ventures Limited (“Endo”), for the further development and commercialization of generic Sabril
®
tablets through Endo’s United States Generic Pharmaceuticals segment, Par Pharmaceutical. Pursuant to the agreement, in December 2018, we received anup-front
payment of $500,000. We will be entitled to receive a milestone payment of $2.0 million on the commercial launch of the product. Further, we will receive a sharing of defined net profits upon commercialization and certain expenses for development.There can be no assurance that our collaboration with Endo/ParEndo for the development of generic Sabrilsuccessful.
®
(vigabatrin) tablets will be CPP-115
For the last few years, we had been developingCPP-115, a GABA aminotransferase inhibitor. We licensed this product from Northwestern University (Northwestern) in 2009, under which we acquired worldwide rights to commercialize new GABA aminotransferase inhibitors and derivatives of vigabatrin which had been discovered and patented by Northwestern. Under the terms of the license agreement, Northwestern granted us an exclusive worldwide license to United States composition of matter patents related to the new class of inhibitors and a patent application relating to derivatives of vigabatrin. This included United States patent number 6,794,413 covering the composition of matter forCPP-115.
During 2018, we became aware that certain patents granted to Northwestern in 2018 (which patents have been licensed by Northwestern to an unaffiliated pharmaceutical company for a new GABA aminotransferase inhibitor) were derived fromCPP-115. As a result, it is our position that Northwestern has violated the license agreement based on its failure to transfer these new patent rights to us as part of the existing license agreement. It is also our position that Northwestern’s publication of information about the new patents in violation of the license agreement has damaged us. On October 26, 2018, we notified Northwestern that we were terminating the license agreement and seeking damages for Northwestern’s breach of the license agreement. Further, on the same date, we filed a claim for damages in arbitration against Northwestern for Northwestern’s breaches of the license agreement.
On November 5, 2018, Northwestern advised us that in its view, Northwestern has a right to terminate the license agreement with us because we allegedly breached the license agreement by failing to pay certain milestones and by allegedly failing to use commercially reasonable efforts to develop and commercialize any products. Northwestern has also advised us that, in its view, we have engaged in wrongful conduct and communications with the unrelated pharmaceutical company that licensed the new patents from Northwestern,successful and that such communications have damaged Northwestern’s relationship with that party. We dispute Northwestern’s allegations and intend to vigorously defend ourselves against claims that Northwestern has brought against usif an abbreviated new drug application (ANDA) is approved for vigabatrin tablets in the arbitration proceeding.
The arbitration is currently pending and there canfuture, that it will be no assurance asprofitable to the outcome of this matter. See Item 3.Legal Proceedings.
us.
Manufacturing and Supply
We are licensed in Florida as a virtual drug manufacturer, which means that we have no
in-house
manufacturing capacity and we are obligated to rely on contract manufacturers and packagers. We have no plans to build or acquire the manufacturing capability needed to manufacture any of our research materials or commercial products, and we expect that our drug products and drug substances will be prepared by contractors with suitable capabilities for these tasks and that we will enter into appropriate supply agreements with these contractors at appropriate times in the development and commercialization of our products. Because we will use contractors to manufacture and supply our products, we will be reliant on such contractors. Further, the contractors selected would have to be inspected by the FDA and found to be in substantial compliance with federal regulations in order for a drug application for one of our drug candidates to be approved, and there can be no assurance that the contractors we select would pass such an inspection.15
We have entered into agreements with a supplier of the active pharmaceutical ingredient (API) contained in Firdapse
®
for future requirements and we have contracted with third-party contract manufacturers who are manufacturing Firdapse®
tablets for us.Any significant change that we make for FirdapseNDAnew drug application (sNDA). If the manufacturing plan and data are insufficient, any sNDA we submit will not be approved. Before an sNDA can be approved, our manufacturers must also demonstrate compliance with FDA’s current Good Manufacturing Practices (cGMPs) regulations and policies. Further, even if we receive approval of any sNDAs for Firdapse
®
must be approved by the FDA in a supplemental ®
, if our manufacturers do not follow cGMPs in the manufacture of our products, it may delay product launches or shipments and adversely affect our business.Since we contract with third parties to manufacture our products, our contract manufacturers are required to comply with all applicable environmental laws and regulations that affect the manufacturing process. As a result, we do not believe that we will have any significant direct exposure to environmental issues.
Competition
The pharmaceutical industry is intensely competitive, and any product candidate developed or licensed by us would likely compete with currently marketed and potentially new drugs and therapies even though they are not indicated for these conditions. There are many pharmaceutical companies, biotechnology companies, public and private universities, government agencies and research organizations that compete with us in developing various approaches to the treatment of orphan diseases. Many of these organizations have substantially greater financial, technical, marketing and manufacturing resources than we have.
Before the approval of Firdapseis currentlywas generally treated with unapproved drugs and therapies including steroids, azathioprine, other immunosuppressants and intravenous immunoglobulin, which work by suppressing the immune system, and pyridostigmine. Plasma exchange has also been used in an attempt to remove antibodies from the body. Further, one other product, guanidine HCl tablets, was approved many years ago (during a period when drugs were not required to be reviewed by the FDA for both safety and effectiveness) for use in the treatment of LEMS. However, this drug has significant side effects and is not currently viewed as an effective treatment for LEMS. Notwithstanding, drugs may be prescribed by physicians for the treatment of LEMS whether or not they are considered effective.
®
, LEMS Further,
In May 2019, we arebecame aware that the FDA had approved an NDA for Jacobus Pharmaceutical has been making its3,4-DAP product available toPharmaceuticals for Ruzurgicompassionate use Investigational New Drug applications (INDs) for a number17). While we have filed suit against the FDA to vacate their approval of years and, based Ruzurgicurrent information, we believe that approximately 200 adult LEMS patients in the United States were receiving the drug under their program at the time our NDA for Firdapse® was approved. Even though we were the first to obtain an FDA approval for this product and its associated exclusivity protections, we may not be able to stop Jacobus Pharmaceutical from continuing to supply its existing patients under compassionate use INDs.
®
, their version of amifampridine(3,4-DAP)
for the treatment of pediatric LEMS patients (ages 6 to under ®
, there can be no assurance as to the outcome of this lawsuit or as to the impact of the approval of Ruzurgi®
on business, financial condition or results of operations.
Finally, we are aware that amifampridine has been available from compounding pharmacies for many years and may remain available, even though we have obtained FDA approval of Firdapseact:FDCA: (1) the adulteration provision of section 501(a)(2)(B) (concerning FDA’s cGMP regulations); (2) the misbranding provision of section 502(f)(1) (concerning the labeling of drugs with adequate directions for use); and (3) the new drug provision of section 505 (concerning the approval of drugs under new drug or abbreviated new drug applications).
®
. Compounded amifampridine is likely to be substantially less expensive than Firdapse®
. The Food and Drug Administration Modernization Act of 1997 included a new section, which clarified the status of pharmacy compounding under Federal law. Under Section 503A, drug products that are lawfully compounded by a pharmacist or physician for an individual patient may be entitled to exemptions from three key provisions of the To qualify for these statutory exemptions, a compounded drug product must satisfy several legal requirements. One of these requirements restrictedrestricts the universe of bulk drug substances that a compounder may use; i.e., thatuse. Specifically, every bulk drug substance used in compounding: (1) must comply with an applicable and current USP or NF drug monograph, if one exists, as well as the current USP chapters on pharmacy compounding; (2) if such a monograph does not exist, the bulk drug substance must be a component of anlist)list 1”). While the advertising provisions in Section 503A were ruled unconstitutional in part in the United States by the Supreme Court in 2002, the FDA, since 2013, has in the last five years aggressively regulated and exercised oversight over the practice of pharmacy compounding since afollowing the compounding incident at the New England Compounding Center in Massachusetts that sickened hundreds and killed over 60 individuals.
FDA-approved
drug; or (3) if a monograph does not exist and the bulk drug substance is not a component of anFDA-approved
drug, it must appear on a list of bulk drug substances that may be used in compounding (i.e., the “Section 503A bulk substances In 2013, Congress removed the unconstitutional advertising provisions in Section 503A when it passed the Drug Quality and Security Act of 2013 (DQSA), Title I (The Compounding Quality Act). The DQSA also created “outsourcing facilities” under Section 503B of the Federal Food, Drug, and Cosmetic Act, which are drug compounders that voluntarily register with FDA and may produce compounded formulations for office use (at least one of which must be sterile), but must comply with FDA’s cGMP regulations and other requirements set forth in Section 503B. Section 503B outsourcing facilities may also only compound from bulk substances if the product is on FDA’s drug shortage list, or the substance is on FDA’s Section 503B list of bulk substances that may be used in compounding (Bulk Substances List 1)(i.e., the Section 503B bulk substances list 1”).
16
While the FDA has been aggressively enforcing Section 503A since itsnear copies“near copies” (but not “essentially copies”) of approved drug products, under Section 503A, so long as the prescriber makes a change to the compounded formulation that produces for that patient a significant difference between the commercially available drug and the compounded version. Compounders may also copy commercially available products if they do not do so in “regular or inordinate amounts.” In January 2018, FDA published a Final Guidance document titled, “Compounded Drug Products That Are Essentially Copies of a Commercially Available Drug Product Under Section 503A of the Federal Food, Drug, and Cosmetic Act.” This Final Guidance sets forth FDA’s enforcement policy concerning those compounders that make essentially copies of commercially available drug products. FDA has defined the term “regular or inordinate” in the Final Guidance to mean: “a drug product that is essentially a copy of a commercially available drug product is compounded regularly or in inordinate amounts if it is compounded more frequently than needed to address unanticipated, emergency circumstances, or in more than the small quantities needed to address unanticipated, emergency circumstances.” FDA has further stated it will not take enforcement action, considering all the facts and circumstances, against a compounder that compounds less than four “essentially copies” of a commercially available drug product in a calendar month.
re-enactment,
compounders may still compound Recently, Senator Bernie Sanders issued a public statement asking FDA Commissioner Scott Gottlieb to allow pharmacies and manufacturers who were previously making3,4-DAP to be permitted to resume providing it. We cannot assess the impact of this statement on our business.
We are taking all available steps to try to enforce our exclusivity rights. However, we cannot determine with certainty what impact these factors will have on the market for our product. While there can be no assurance, we expect that, despite these factors, we will be able to successfully market our product.
Generic Sabril
®
Sabril$229$195 million in 20172018 and $204$123 million in 2018.2019. One generic version of Sabril
®
is marketed by Lundbeck in the United States for infantile spasms and for refractory complex partial seizures. Lundbeck’s sales of Sabril® (tablets
(tablets and sachets) were approximately ®
tablets has been approved to date in the United States, as have numerous generic version of the powder form. We have entered into a definitive agreement with Endo/Par for the further development and commercialization of generic Sabril®
tablets.Factors affecting competition generally
In general, our ability to compete will dependdepends in large part upon:
our ability to complete clinical development and obtain regulatory approvals for our drug candidates;
the demonstrated efficacy, safety and reliability of our drug candidates;
the timing and scope of regulatory approvals;
product acceptance by physicians and other health care providers;
the willingness of payors to reimburse for our product;
protection of our proprietary rights and the level of generic competition;
the speed at which we develop drug candidates;
our ability to supply commercial quantities of a product to the market;
our ability to obtain reimbursement from private and/or public insurance entities for product use in approved indications;
our ability to recruit and retain skilled employees; and
the availability of capital resources to fund our development and commercialization activities, including the availability of funding from the federal government.
Regulatory Matters
Government regulation and product approval
Government authorities in the United States, at the federal, state and local level, and in other countries extensively regulate, among other things, the research, development, testing, manufacture, labeling, record-keeping, promotion, storage, advertising, distribution, marketing and export and import of products such as those we are developing. Our drugs must be approved by the FDA through the NDA process before they may be legally marketed in the United States.
In the United States, drugs are subject to rigorous regulation by the FDA under the Federal Food, Drug, and Cosmetic Act, or FDCA, and implementing regulations, as well as other federal and state statutes. The process of obtaining regulatory approvals and the subsequent compliance with appropriate federal, state, local, and foreign statutes and regulations require the expenditure of substantial time and financial resources. Failure to comply with the applicable United States requirements at any time during the product development process, approval process, or after approval, may subject an applicant to administrative or judicial sanctions. These sanctions could include the FDA’s refusal to approve pending applications, license suspension or revocation, withdrawal of an approval, a clinical hold, warning letters, product recalls, product seizures, total or partial suspension of production or distribution, injunctions, fines, civil penalties or criminal prosecution. Any agency or judicial enforcement action could have a material adverse effect on us. The process required by the FDA before a drug may be marketed in the United States generally involves the following:
completion of
pre-clinical
laboratory tests, animal studies and formulation studies according to the FDA’s good laboratory practice, or GLP, regulations;17
submission of an investigational new drug application, or IND, which must become effective before human clinical trials may begin and which must include approval by an institutional review board, or IRB, at each clinical site before the trials are initiated;
performance of adequate and well-controlled human clinical trials to establish the safety and efficacy of the proposed drug for its intended use conducted in compliance with federal regulations and good clinical practice, or GCP, an international standard meant to protect the rights and health of patients and to define the roles of clinical trial sponsors, administrators, and monitors;
submission to, and acceptance by, the FDA of an NDA;
satisfactory completion of an FDA inspection of the manufacturing facility or facilities at which the drug is produced to assess compliance with current good manufacturing practice, or cGMP, regulations to assure that the facilities, methods and controls are adequate to preserve the drug’s identity, strength, quality and purity;
potential FDA audit of the
non-clinical
and clinical trial sites that generated the data in support of the NDA; andFDA review and approval of the NDA.
The testing and approval process requires substantial time, effort and financial resources, and the receipt and timing of any approval is uncertain.
United States drug development process
Once a pharmaceutical candidate is identified for development it enters the
pre-clinical
testing stage.Pre-clinical
tests include laboratory evaluations of product chemistry, toxicity and formulation, as well as animal studies. Prior to beginning human clinical trials, an IND sponsor must submit an IND to the FDA. The IND sponsor must submit the results of thepre-clinical
tests, together with manufacturing information and analytical data, to the FDA as part of the IND. Somepre-clinical
ornon-clinical
testing may continue even after the IND is submitted. In addition to including the results of thepre-clinical
studies, the IND will also include a protocol detailing, among other things, the objectives of the clinical trial, the parameters to be used in monitoring safety and the effectiveness criteria to be evaluated, if the trial lends itself to an efficacy evaluation. The IND automatically becomes effective 30 days after receipt by the FDA, unless the FDA, within the 30–day time period, raises concerns or questions about the conduct of the trial. In such a case, the IND sponsor and the FDA must resolve any outstanding concerns before the clinical trial can begin. The FDA may, at any time, impose a clinical hold on ongoing clinical trials. If the FDA imposes a clinical hold, clinical trials cannot commence or recommence without FDA authorization and then only under terms authorized by the FDA.Clinical trials involve the administration of the investigational new drug to healthy volunteers or patients under the supervision of one or more qualified investigators in accordance with federal regulations and GCP.
Clinical trials must be conducted under protocols detailing the objectives of the trial and the safety and effectiveness criteria to be evaluated. Each protocol must be submitted to the FDA as part of the IND. Further, an Institutional Review Board (IRB) at each institution participating in the clinical trial must review and approve each protocol before any clinical trial commences at that institution. All research subjects must provide informed consent, and informed consent information must be submitted to the IRB for approval prior to initiation of the trial. Progress reports detailing the results of the clinical trials must be submitted at least annually to the FDA and more frequently if adverse events or other certain types of other changes occur.
Human clinical trials are typically conducted in three phases. A fourth, or post-approval, phase may include additional clinical studies. These phases generally include the following, and may be sequential, or may overlap or be combined:
Phase 1 clinical trials involve the initial introduction of the drug into human subjects. These studies are designed to determine the safety of usually single doses of the compound and determine any dose limiting intolerance, as well as evidence of the metabolism and pharmacokinetics of the drug in humans.
Phase 2 clinical trials usually involve studies in a limited patient population to evaluate the safety and efficacy of the drug for specific, targeted indications, to determine dosage tolerance and optimal dosage, and to identify possible adverse effects and safety risks.
In Phase 3, if a compound is found to be potentially effective and to have an acceptable safety profile in Phase 2 (or occasionally Phase 1) studies, the Phase 3 studies will be conducted to further confirm clinical efficacy, optimal dosage and safety within an expanded population which may involve geographically diverse clinical trial sites. Generally, but not always, two adequate and well-controlled Phase 3 clinical trials are required by the FDA for approval of an NDA.
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Phase 4 clinical trials are studies required of or agreed to by a sponsor that are conducted after the FDA has approved a product for marketing. These studies are used to gain additional experience from the treatment of patients in the intended therapeutic indication and to document a clinical benefit in the case of drugs approved under accelerated approval regulations. If the FDA approves a product while a company has ongoing clinical trials that were not necessary for approval, a company may be able to use the data from these clinical trials to meet all or part of any Phase 4 clinical trial requirement. Failure to promptly conduct Phase 4 clinical trials where necessary could result in withdrawal of approval for products approved under accelerated approval regulations.
While Phase 1, Phase 2, and Phase 3 tests are generally required for approval of an NDA, certain drugs may not require one or more steps in the process depending on other testing and the situation involved. Additionally, the FDA, an IRB, or the sponsor may stop testing at any time if results show patients being exposed to unnecessary health risks or overly dangerous side effects.
In addition, the manufacturer of an investigational drug in a Phase 2 or Phase 3 clinical trial for a serious or life-threatening disease is required to make available, such as by posting on its website, its policy on evaluating and responding to requests for expanded access to such investigational drug.
Concurrent with clinical trials, companies usually complete additional animal studies and must also develop additional information about the chemistry and physical characteristics of the drug and finalize a process for manufacturing the product in accordance with cGMP requirements. The manufacturing process must be capable of consistently producing quality batches of the drug candidate and, among other requirements, the manufacturer must develop methods for testing the identity, strength, quality and purity of the final drug. Additionally, appropriate packaging must be selected and tested and stability studies must be conducted to demonstrate that the drug candidate does not undergo unacceptable deterioration over its shelf life.
United States review and approval process
FDA approval of an NDA is required before marketing of the product may begin in the United States. The NDA must include the results of product development,accepting it for filing.filing it. The FDA may request additional information rather than acceptfile an NDA for filing.NDA. In this event, the NDA must be resubmitted with the additional information. The resubmitted application also is subject to review before the FDA accepts it for filing.files it. Once the submission is accepted for filing,filed, the FDA begins an20192021 this fee is $2,588,478)$2,875,842), although a waiver of such fee may be obtained under certain limited circumstances, including when the drug that is subject of the application has received Orphan Drug Designation for the indication sought. Further, the sponsor of an approved NDA is subject to an annual program fee, which for FDA fiscal year 20192021 is $309,915$336,432 per prescription drug product. Beginning in fiscal year 2019, this annual program fee replaces the annual product and establishment fees. User fees typically increase annually. The approval process is lengthy and difficult, and the FDA may refuse to approve an NDA if the applicable regulatory criteria are not satisfied or may require additional clinical or other data and information. Even if such data and information is submitted, the FDA may ultimately decide that the NDA does not satisfy the criteria for approval. The FDA may also refer applications for novel drug products or drug products which present difficult questions of safety or efficacy to an advisory committee, typically a panel that includes clinicians and other experts, for review, evaluation and a recommendation as to whether the application should be approved. The FDA is not bound by the recommendation of an advisory committee. The FDA reviews an NDA to determine, among other things, whether a product is safe and effective for its intended use. Before approving an NDA, the FDA will inspect the facility or facilities where the product is manufactured to determine whether its manufacturing is cGMP–compliant to assure and preserve the product’s identity, strength, quality, purity and stability.
pre-clinical
studies and clinical studies, together with other detailed information, including information on the chemistry, manufacture and composition of the product. The FDA has 60 days from its receipt of the NDA to review the application to ensure that it is sufficiently complete for substantive review before in-depth
substantive review. The submission of an NDA is also subject to the payment of a substantial application fee (for FDA fiscal year If the FDA’s evaluation of the NDA submission or manufacturing facilities is not favorable, the FDA will issue a complete response letter. The complete response letter outlines the deficiencies in the submission and often requires additional testing or information in order for the FDA to reconsider the application. Even after submitting this additional information, the FDA ultimately may decide that the application does not satisfy the regulatory criteria for approval. With limited exceptions, the FDA may withhold approval of a NDA regardless of prior advice it may have provided or commitments it may have made to the sponsor.
Once an NDA is approved, changes to the conditions of approval, including additional indications, are made by the submission of a supplement to the NDA. The supplemental NDA, or sNDA, must contain all of the information necessary to support the change. In the case of a new indication, that information usually consists of at least one clinical trial, and often more. Like an NDA, FDA determines whether the sNDA is sufficiently complete to permit review before it files the sNDA. FDA then reviews the sNDA. Like an NDA, FDA can either approve the sNDA or issue a complete response letter outlining the deficiencies in the sNDA.
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Special Protocol Assessments
An
A SPA is a process in which sponsors may request to meet with the FDA to reach agreement on the design and size of certain clinical trials, clinical studies, or animal trials to determine if they adequately address scientific and regulatory requirements. As part of this process, sponsors submit specific questions about protocol design and scientific and regulatory requirements. After the FDA completes the review of ana SPA request, the FDA may issue a SPA Letter, including an assessment of the protocol, agreement or
non-agreement
with the proposed protocol, and answers to the sponsor’s relevant questions.An
A SPA agreement indicates concurrence by the FDA with the adequacy and acceptability of specific critical elements of overall protocol design (e.g., entry criteria, dose selection, endpoints, and planned analyses). These elements are critical to ensuring that the trial conducted under the protocol has the potential to support a future submitted application’s ability to meet regulatory requirements for approval. Feedback on these issues provides the greatest benefit to sponsors in planning late-phase development strategy. However, ana SPA agreement does not indicate FDA concurrence on every protocol detail. Further, the FDA may rescind ana SPA if the director of the FDA reviewing division determines that a substantial scientific issue essential to determining the safety or efficacy of the drug was identified after the trial began. Thus, ana SPA is not binding on the FDA if, for example, the Agency identifies a safety concern related to the product or its pharmacological class, if the FDA or the scientific community recognizes a paradigm shift in disease diagnosis or management, if the relevant data or assumptions provided by the sponsor in the SPA submission are found to be false or misstated, or if the sponsor fails to follow the protocol that was agreed upon with the FDA. The FDA retains significant latitude and discretion in interpreting the terms of ana SPA agreement and the data and results from the applicable clinical trial.
Because an SPA provides for the evaluation of protocols for trials that have not been initiated, the conduct and results of the subsequent trial are not part of the evaluation. Therefore, the existence of an SPA agreement does not guarantee that the FDA will accept an NDA, or that the trial results will be adequate to support approval. Those issues are addressed during the review of a submitted application; however, it is hoped that trial quality will be improved by the SPA process.
Post-approval requirements and consideration
Once an NDA is approved, a product will be subject to certain post-approval requirements. For instance, the FDA closely regulates the post-approval marketing and promotion of drugs, including standards and regulations foradvertising,
direct-to-consumer
off-label
promotion, industry-sponsored scientific and educational activities and promotional activities involving the internet. As a condition of NDA approval, the FDA may also require a risk evaluation and mitigation strategy, or REMS, to help ensure that the benefits of the drug outweigh the potential risks. REMS can include medication guides, communication plans for the healthcare professionals, and other Elements To Assure Safe Use, or ETASU. ETASU can include, but are not limited to, special training or certification for prescribing or dispensing, dispensing only under certain circumstances, special monitoring, and the use of patient registries. The requirement for a REMS can materially affect the potential market and profitability of the drug.Drugs may be marketed only for the approved indications and in accordance with the provisions of the approved labeling. Changes to some of the conditions established in an approved application, including changes in indications, labeling, or manufacturing processes or facilities, require submission and FDA approval of a new NDA or NDA supplement before the change can be implemented. An NDA supplement for a new indication typically requires clinical data similar to that in the original application, and the FDA uses the same procedures and actions in reviewing NDA supplements as it does in reviewing NDAs.
Adverse event reporting and submission of periodic reports is required following FDA approval of an NDA. The FDA also may require post-marketing testing, known as Phase 4 testing, and surveillance to monitor the effects of an approved product or place conditions on an approval that could restrict the distribution or use of the product. In addition, quality control as well as drug manufacture, packaging, and labeling procedures must continue to conform to cGMPs after approval. Drug manufacturers and certain of their subcontractors are required to register their establishments with the FDA and certain state agencies and are subject to periodic unannounced inspections by the FDA during which the agency inspects manufacturing facilities to assess compliance with cGMPs. Accordingly, manufacturers must continue to expend time, money and effort in the areas of production and quality control to maintain compliance with cGMPs. Regulatory authorities may withdraw product approvals or request product recalls if a company fails to comply with regulatory standards, if it encounters problems following initial marketing, or if previously unrecognized problems are subsequently discovered.
The Hatch-Waxman Amendments
Orange Book Listing
In seeking approval for a drug through an NDA, applicants are required to list with the FDA each patent with claims covering the applicant’s product or approved methods of using the product. Upon approval of a drug, each of the patents listed in the application for the drug are then published in the FDA’s Approved Drug Products with Therapeutic Equivalence Evaluations, commonly known as the Orange Book. Drugs listed in the Orange Book can, in turn, be cited by potential generic competitors in support of approval of an abbreviated new drug application, or ANDA. An ANDA provides for marketing of a drug product that has the same active ingredients in the same strengths and dosage form as the listed drug and has been shown to be bioequivalent to the listed drug. Other than the requirement for bioequivalence testing, ANDA applicants are not required to conduct, or submit results of,
pre-clinical
or clinical tests to prove the safety or effectiveness of their drug product. Drugs approved in this way are commonly referred to as “generic equivalents” to the listed drug and can often be substituted by pharmacists under prescriptions written for the original listed drug.20
The ANDA applicant is required to certify to the FDA concerning any patents listed for the approved product in the FDA’s Orange Book. Specifically, the applicant must certify that: (i) the required patent information has not been filed; (ii) the listed patent has expired; (iii) the listed patent has not expired but will expire on a particular date and approval is sought after patent expiration; or (iv) the listed patent is invalid or will not be infringed by the new product. The ANDA applicant may also elect to submit a section viii statement certifying that its proposed ANDA label does not contain (or carves out) any language regarding the patentedrather than certify to a listedpatent. If the applicant does not challenge the listed patents, the ANDA application will not be approved until all the listed patents claiming the referenced product have expired.
method-of-use
method-of-use
A certification that the new product will not infringe the already approved product’s listed patents, or that such patents are invalid, is called a Paragraph IV certification. If the ANDA applicant has provided a Paragraph IV certification to the FDA, the applicant must also send notice of the Paragraph IV certification to the NDA and patent holders once the ANDA has been accepted for filing by the FDA. The NDA and patent holders may then initiate a patent infringement lawsuit in response to the notice of the Paragraph IV certification. The filing of a patent infringement lawsuit within 45 days of the receipt of a Paragraph IV certification automatically prevents the FDA from approving the ANDA until the earlier of 30 months, expiration of the patent, settlement of the lawsuit, or a decision in the infringement case that is favorable to the ANDA applicant.
The ANDA application also will not be approved until any applicable
non-patent
exclusivity listed in the Orange Book for the referenced product has expired.Exclusivity
Upon NDA approval of a new chemical entity (NCE), which is a drug that contains no active moiety that has been approved by FDA in any other NDA, that drug receives five years of marketing exclusivity during which FDA cannot receive any ANDA seeking approval of a generic version of that drug. A drug may obtain a three-year period of exclusivity for a particular condition of approval, or change to a marketed product, such as a new formulation for the previously approved product, if one or more new clinical studies (other than bioavailability or bioequivalence studies) was essential to the approval of the application and was conducted/sponsored by the applicant. During this period of exclusivity, FDA cannot approve an ANDA for a generic drug that includes the change.
An ANDA may be submitted one year before NCE exclusivity expires if a Paragraph IV certification is filed. If there is no listed patent in the Orange Book, there may not be a Paragraph IV certification, and, thus, no ANDA may be filed before the expiration of the exclusivity period.
Section 505(b)(2) New Drug Applications
Most drug products obtain FDA marketing approval pursuant to an NDA or an ANDA. A third alternative is a special type of NDA, commonly referred to as a Section 505(b)(2), or 505(b)(2), NDA, which enables the applicant to rely, in part, on FDA’s previous approval of a similar product, or published literature, in support of its application.
505(b)(2) NDAs often provide an alternate path to FDA approval for new or improved formulations or new uses of previously approved products. Section 505(b)(2) permits the filing of an NDA where at least some of the information required for approval comes from studies not conducted by, or for, the applicant and for which the applicant has not obtained a right of reference. If the Section 505(b)(2) applicant can establish that reliance on FDA’s prior findings of safety and effectiveness or published literature is scientifically appropriate, it may eliminate the need to conduct certain
pre-clinical
or clinical studies of the new product.The FDA may also require companies to perform additional studies or measurements to support the change from the approved product. The FDA may then approve the new product candidate for all, or some, of the label indications for which the referenced product has been approved, as well as for any new indication sought by the Section 505(b)(2) applicant.
To the extent that the Section 505(b)(2) applicant is relying on studies conducted for an already approved product, the applicant is required to certify to the FDA concerning any patents listed for the approved product in the Orange Book to the same extent that an ANDA applicant would. A Section 505(b)(2) NDA may be eligible for three years of marketing exclusivity to the same extent that a Section 505(b)(1) NDA is.
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Abbreviated new drug applications
Generic drugs may enter the market after the approval of an ANDA. The ANDA development process typically does not require new
pre-clinical
or clinical studies, but it does typically require one or more bioequivalence studies to show that the ANDA drug is bioequivalent to the previously approved brand name reference listed drug. Bioequivalence studies compare the bioavailability of the proposed drug product with that of the approved listed product containing the same active ingredient. Bioavailability is a measure of the rate and extent to which the active ingredient or active moiety is absorbed from a drug product and becomes available at the site of action. A demonstration of bioequivalence means that the rate and extent of absorption of the ANDA drug is not significantly different from the rate and extent of absorption of the brand name reference listed drug when administered at the same molar dose under similar experimental conditions.As noted above, generic drug products are generally introduced to the marketplace at the expiration of patent protection and
non-patent
market exclusivity for the reference listed drug. However, if an ANDA applicant is the first ANDA applicant to submit an ANDA containing a Paragraph IV certification, that ANDA may be eligible for a period of generic marketing exclusivity on approval. This exclusivity, which under certain circumstances must be shared with other ANDA applicants with Paragraph IV certifications, lasts for 180 days, during which the FDA cannot grant final approval to other ANDA sponsors of an application for a generic equivalent to the same reference drug. Under certain circumstances, eligibility for180-day
exclusivity may be forfeited.Various types of changes to an approved ANDA must be requested in a prior approval supplement. In addition, some changes may only be approved only after new bioequivalence studies are conducted or other requirements are satisfied. In addition, the ANDA applicant must demonstrate that manufacturing procedures and operations conform to FDA cGMP requirements. Facilities, procedures, operations, and/or testing of products are subject to periodic inspection by the FDA and other authorities. In addition, the FDA conducts
pre-approval
and post-approval reviews and inspections to determine whether the systems and processes are in compliance with cGMP and other FDA regulations.There are also user fees for ANDA applicants, sponsors, and manufacturers. For fiscal year 2019,2021, the application fees are $178,799$196,868 per ANDA application and the facility fees are $211,305$184,022 per domestic finished dosage form facility, $226,305$199,022 per foreign finished dosage form facility, $44,226$41,671 per domestic active pharmaceutical ingredient facility, and $59,226$56,671 per foreign active pharmaceutical ingredient facility. In addition, there is a new annual program fee based on the size of the generic drug applicant.
These user fees typically increase each fiscal year.year (though they decreased slightly for the 2020 fiscal year).
Other regulatory requirements
In addition to regulation by the FDA and certain state regulatory agencies, we are also subject to a variety of foreign regulations governing clinical trials and the marketing of other products. Outside of the United States, our ability to market a product depends upon receiving a marketing authorization from the appropriate regulatory agencies. The requirements governing the conduct of clinical trials, marketing authorization, pricing and reimbursement vary widely from country to country. In any country, however, we will only be permitted to commercialize our products if the appropriate regulatory agency is satisfied that we have presented adequate evidence of safety, quality and efficacy. Whether or not FDA approval has been obtained, approval of a product by the comparable regulatory authorities of foreign countries must be obtained prior to the commencement of marketing of the product in those countries. The regulatory approval and oversight process in other countries includes all of the risks associated with regulation by the FDA and certain state regulatory agencies as described above.
Under the European Union regulatory system, applications for drug approval may be submitted either in a centralized or decentralized manner. Under the centralized procedure, a single application to the European Medicines Agency leads to an approval granted by the European Commission which permits marketing of the product throughout the European Union. The decentralized procedure provides for mutual recognition of nationally approved decisions and is used for products that do not comply with requirements for the centralized procedure. Under the decentralized procedure, the holders of national marketing authorization in one of the countries within the European Union may submit further applications to other countries within the European Union, who will be requested to recognize the original authorization based on an assessment report provided by the country in which marketing authorization is held.
Pharmaceutical pricing and reimbursement
In both United States and foreign markets, our ability to commercialize our products successfully, and to attract commercialization partners for our products, depends in significant part on the availability of adequate financial coverage and reimbursement from third-party payors, including, in the United States, governmental payors such as Medicare and Medicaid, managed care organizations, private commercial health insurers and PBMs. Third party payors are increasingly challenging the prices charged for medicines and examining their cost effectiveness, in addition to their safety and efficacy. We may need to conduct expensive pharmacoeconomic or other studies in order to further demonstrate the value of our products. Even with the availability of such studies, our products may be considered less safe, less effective or less cost-effective than alternative products, and third-party payors may not provide coverage and reimbursement for our drug candidates, in whole or in part.
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Political, economic and regulatory influences are subjecting the health care industry in the United States to fundamental changes. There have been, and we expect there will continue to be, legislative and regulatory proposals to change the healthcare system in ways that could significantly affect our business, including the Patient Protection and Affordable Care Act of 2010 (the “Affordable Care Act”). In fact, there continue to be efforts in Congress to repealrevise the Affordable Care Act and replace it with another law, and President Trump has stated that he supports repeal of all or portions of the Affordable Care Act.law. As a result, there is great uncertainty as to what changes will be made to United States healthcare laws and there can be no assurance how changes to those laws may affect our business.
We anticipate that in the United States, Congress, state legislatures, and private sector entities will continue to consider and may adopt healthcare policies intended to curb rising healthcare costs. These cost containment measures could include:
controls on government-funded reimbursement for drugs;
mandatory rebates or additional charges to manufacturers for their products to be covered on Medicare Part D formularies;
controls on healthcare providers;
controls on pricing of pharmaceutical products, including the possible reference of the pricing of United States drugs to
non-United
States drug pricing for the same product;challenges to the pricing of drugs or limits or prohibitions on reimbursement for specific products through other means;
reform of drug importation laws;
entering into contractual agreements with payors; and
expansion of use of managed-care systems in which healthcare providers contract to provide comprehensive healthcare for a fixed cost per person.
We are unable to predict what additional legislation, regulations or policies, if any, relating to the healthcare industry or third-party coverage and reimbursement may be enacted in the future or what effect such legislation, regulations or policies would have on our business. Any cost containment measures, including those listed above, or other healthcare system reforms that are adopted may have a material adverse effect on our business prospects.
Further, the pricing of pharmaceutical products generally, and particularly the pricing of orphan drugs, has recently received scrutiny from the press, and from members of Congress in both parties, and from President Trump.parties. Some members of the medical community and one U.S. Senator Bernie Sanders have also made statements in the press on the potential pricing of orphan drugs generally and on the pricing of our product specifically. The impact of this scrutiny on us and on the pricing of orphan drugs and other pharmaceutical products generally cannot be determined with any certainty at this time.
Orphan Drug Exclusivity and Pediatric Exclusivity Designation
Some jurisdictions, including the United States and Europe, may designate drugs for relatively small patient populations as orphan drugs. Under the Orphan Drug Act of 1983 (ODA), the FDA may grant Orphan Drug Designation to drugs intended to treat a rare disease or condition that affects fewer than 200,000 individuals in the United States, or more than 200,000 individuals in the United States and for which there is no reasonable expectation that the cost of developing and making available in the United States a drug for this type of disease or condition will be recovered from sales in the United States for that drug. In the United States, Orphan Drug Designation must be requested before submitting an application for marketing approval. An Orphan Drug Designation does not shorten the duration of the regulatory review and approval process. The grant of an Orphan Drug Designation request does not alter the standard regulatory requirements and process for obtaining marketing approval. Safety and efficacy of a compound must be established through adequate and well-controlled studies. If a product which has been granted Orphan Drug Designation subsequently receives the first FDA approval for the indication for which it has such designation, the product is entitled to an orphan drug exclusivity period, which means the FDA may not approve any other application to market the same drug for the same indicationdisease or condition for a period of seven years, except in limited circumstances, such as where an alternative product demonstrates clinical superiority to the product with orphan exclusivity. In addition, holders of exclusivity for orphan drugs are expected to assure the availability of sufficient quantities of their orphan drugs to meet the needs of patients. Failure to do so could result in the withdrawal of marketing exclusivity for the drug.
The orphan drug exclusivity contained in the ODA has been the subject of recent scrutiny from the press, from some members of Congress and from some in the medical community.community, and a recent proposed change to the ODA would limit the availability of the benefits of the act for drugs that treat more than 200,000 individuals in the United States. There can be no assurance that the exclusivity granted in ODA to orphan drugs approved by the FDA will not be modified in the future, and as to how any such change might affect our products, if approved.
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Pediatric exclusivity is another type of
non-patent
exclusivity in the United States and, if granted, provides for the attachment of an additional six months of marketing protection to the term of any existing regulatory exclusivity, including the five-year and three-yearnon-patent
and seven-year orphan exclusivities. Thissix-month
exclusivity may be granted if an NDA sponsor submits pediatric data that fairly responds to a written request from the FDA for such data. The data do not need to show the product to be effective in the pediatric population studied. If the FDA determines that information relating to the use of the new drug in the pediatric population may produce health benefits in the population, the clinical study is deemed to fairly respond to the FDA’s request and the reports ofFDA-requested
pediatric studies are submitted to and accepted by the FDA within the statutory time limits, whatever statutory or regulatory periods of exclusivity or patent protection covering the product are extended by six months. This is not a patent term extension, but it effectively extends the regulatory period during which the FDA cannot approve another application relying on the NDA sponsor’s data.The European Orphan Drug Regulation is considered for drugs intended to diagnose, prevent or treat a life-threatening or very serious condition afflicting five or fewer per 10,000 people in the EU, including compounds that for serious and chronic conditions would likely not be marketed without incentives due to low market return on the sponsor’s development investment. The medicinal product considered should be of significant benefit to those affected by the condition. Benefits of being granted Orphan Medicinal Product Designation are significant, including eight years of data exclusivity, two years of marketing exclusivity and a potential ten year
one-year
extension of both. The EU Community and Member States may not accept or grant for ten years a new marketing authorization or application for another drug for the same therapeutic indication as the orphan drug, although theten-year
period can be reduced to six years if, after the end of the fifth year, available evidence establishes that the product is sufficiently profitable not to justify maintenance of the marketing exclusivity. A supplementary protection certificate may extend the protection six months beyond patent expiration if that is later than the orphan drug exclusivity period. To apply for the supplementary protection, a pediatric investigation plan, or PIP, must be included in the market application. In Europe all drugs now seeking marketing authorization need to have a PIP agreed with the European Medicines Agency (EMA) before it can be approved, even if it is a drug being developed specifically for a pediatric indication. If a product is developed solely for use in the pediatric population, then a Pediatric Use Marketing Authorization, or PUMA, may provide eight years of data exclusivity and ten years of marketing exclusivity.Breakthrough Therapy Designation
Breakthrough therapy designation is intended to expedite the development and review of drugs for serious or life-threatening conditions. The criteria for breakthrough therapy designation require preliminary clinical evidence that demonstrates the drug may have substantial improvement on at least one clinically significant endpoint over available therapy. A breakthrough therapy designation conveys all of the fast track program features (see below for more details on fast track designation), as well as more intensive FDA guidance on an efficient drug development program. The FDA also has an organizational commitment to involve senior management in such guidance. Actions taken to expedite development may include the following actions, as appropriate:
holding meetings with the sponsor and review team throughout the development of the drug;
providing timely advice to, and interactive communication with, the sponsor regarding the development of the drug to ensure that the development program to gather the
non-clinical
and clinical data necessary for approval is as efficient as possible;taking steps to ensure that the design of the clinical trials is as efficient as practicable, when scientifically appropriate, such as by minimizing the number of patients exposed to a potentially less efficacious treatment;
assigning a cross-disciplinary project lead for the FDA review team to facilitate an efficient review of the development program and to serve as a scientific liaison between the cross-discipline members of the review team (i.e., clinical, pharmacology-toxicology, chemistry, manufacturing and control (CMC), compliance) for coordinated internal interactions and communications with the sponsor through the review division’s Regulatory Health Project Manager; and
involving senior managers and experienced review staff, as appropriate, in a collaborative, cross-disciplinary review.
Fast Track Designation and Accelerated Approval
FDA is required to facilitate the development, and expedite the review, of drugs that are intended for the treatment of a serious or life-threatening disease or condition for which there is no effective treatment and which demonstrate the potential to address unmet medical needs for the condition. Under the fast track program, the sponsor of a new drug candidate may request that FDA designate the drug candidate for a specific indication as a fast track drug concurrent with, or after, the filing of the IND for the drug candidate. FDA must determine if the drug candidate qualifies for fast track designation within 60 days of receipt of the sponsor’s request.
Under the fast track program and FDA’s accelerated approval regulations, FDA may approve a drug for a serious or life-threatening illness that provides meaningful therapeutic benefit to patients over existing treatments based upon a surrogate endpoint that is reasonably likely to predict clinical benefit, or on a clinical endpoint that can be measured earlier than irreversible morbidity or mortality, that is reasonably likely to predict an effect on irreversible morbidity or mortality or other clinical benefit, taking into account the severity, rarity, or prevalence of the condition and the availability or lack of alternative treatments.
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In clinical trials, a surrogate endpoint is a measurement of laboratory or clinical signs of a disease or condition that substitutes for a direct measurement of how a patient feels, functions, or survives. Surrogate endpoints can often be measured more easily or more rapidly than clinical endpoints. A drug candidate approved on this basis is subject to rigorous post-marketing compliance requirements, including the completion of Phase 4 or post-approval clinical trials to confirm the effect on the clinical endpoint. Failure to conduct required post-approval studies, or confirm a clinical benefit during post-marketing studies, will allow FDA to withdraw the drug from the market on an expedited basis. All promotional materials for drug candidates approved under accelerated regulations are subject to prior review by FDA.
In addition to other benefits such as the ability to use surrogate endpoints and engage in more frequent interactions with FDA, FDA may initiate review of sections of a fast track drug’s NDA before the application is complete. This rolling review is available if the applicant provides, and FDA approves, a schedule for the submission of the remaining information and the applicant pays applicable user fees. However, FDA’s time period goal for reviewing an application does not begin until the last section of the NDA is submitted. Additionally, the fast track designation may be withdrawn by the FDA if the FDA believes that the designation is no longer supported by data emerging in the clinical trial process.
Priority Review
Under FDA policies, a drug candidate is eligible for priority review, or review within a six to eight-month time frame from the time a complete NDA is submitted, if the drug candidate is intended for the treatment, diagnosis, or prevention of a serious or life-threatening condition, demonstrates the potential to address an unmet medical need, or provides a significant improvement compared to marketed drugs.
Disclosure of clinical trial information
Sponsors of clinical trials of
FDA-regulated
products, including drugs, are required to register and disclose certain clinical trial information. Information related to the product, patient population, phase of investigation, study sites and investigators, and other aspects of the clinical trial is then made public as part of the registration. Sponsors are also obligated to disclose the results of their clinical trials after completion. Disclosure of results of these trials can be delayed in certain circumstances for up to two years after the date of completion of the clinical trial. Competitors may use this publicly-available information to gain knowledge regarding the progress of development programs.Anti-Kickback, False Claims Laws & the Prescription Drug Marketing Act
In addition to FDA restrictions on marketing of pharmaceutical products, other state and federal laws have been applied to restrict certain marketing practices in the pharmaceutical industry in recent years. These laws include anti-kickback statutes and false claims statutes. The federal healthcare program anti-kickback statute prohibits, among other things, knowingly and willfully offering, paying, soliciting or receiving remuneration to induce or in return for purchasing, leasing, ordering or arranging for the purchase, lease or order of any healthcare item or service reimbursable under Medicare, Medicaid or other federally financed healthcare programs. This statute has been interpreted to apply to arrangements between pharmaceutical manufacturers on the one hand and patients, prescribers, purchasers and formulary managers on the other. Violations of the anti-kickback statute are punishable by imprisonment, criminal fines, civil monetary penalties, and exclusion from participation in federal healthcare programs. Although there are a number of statutory exemptions and regulatory safe harbors protecting certain common activities from prosecution or other regulatory sanctions, the exemptions and safe harbors are drawn narrowly, and practices that involve remuneration intended to induce prescribing, purchases or recommendations may be subject to scrutiny if they do not qualify for an exemption or safe harbor.
Federal false claims laws prohibit any person from knowingly presenting, or causing to be presented, a false claim for payment to the federal government, or knowingly making, or causing to be made, a false statement to have a false claim paid. Recently, several pharmaceutical and other healthcare companies have been prosecuted under these laws for allegedly inflating drug prices they report to pricing services, which in turn were used by the government to set Medicare and Medicaid reimbursement rates, and for allegedly providing free product to customers with the expectation that the customers would bill federal programs for the product. In addition, certain marketing practices, including
off-label
promotion, may also violate false claims laws. The majority of states also have statutes or regulations similar to the federal anti-kickback law and false claims laws, which apply to items and services reimbursed under Medicaid and other state programs, or, in several states, apply regardless of the payer.The Centers for Medicare & Medicaid Services (CMS) has issued a final rule that requires manufacturers of approved prescription drugs to collect and report information on payments or transfers of value to physicians and teaching hospitals, as well as investment interests held by physicians and their immediate family members. The information reported each year is made publicly available on a searchable website. Failure to submit required information may result in civil monetary penalties.
Beginning in 2022, applicable manufacturers also will be required to report such information regarding their relationships with physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, anesthesiologist assistants and certified nurse midwives during the previous year.
25
In addition, several states now require prescription drug companies to report expenses relating to the marketing and promotion of drug products, and to report gifts and payments to individual physicians in these states.states and to report certain pricing information, including price increases. Other states prohibit various other marketing-related activities. Still other states require the posting of information relating to clinical studies and their outcomes. In addition, California, Connecticut, Nevada, and Massachusetts require pharmaceutical companies to implement compliance programs and/or marketing codes. Several additional states are considering similar proposals. Compliance with these laws is difficult and time consuming, and companies that do not comply with these state laws face civil penalties.
Prescription drug advertising is subject to federal, state and foreign regulations. In the United States, the FDA regulates prescription drug promotion, includingadvertising. Prescription drug promotional materials must be submitted to the FDA in conjunction with their first use. Any distribution of prescription drug products and pharmaceutical samples must comply with the United States Prescription Drug Marketing Act (PDMA), a part of the FDCA. In addition, Title II of the Federal Drug Quality and Security Act of 2013, known as the Drug Supply Chain Security Act (DSCSA), has imposed new “track and trace” requirements on the distribution of prescription drug products by manufacturers, distributors, and other entities in the drug supply chain. direct-to-consumerThese requirements are being phased in over aten-year period. The DSCSA ultimately will requirerequires product identifiers (i.e., serialization) on prescription drug products in order to eventually establish an electronic interoperable prescription product to system to identify and trace certain prescription drugs distributed in the United States. The DSCSA replaced the prior drug “pedigree” requirements under the PDMA,States and preempts existing state drug pedigree laws and regulations.regulations on this topic. The DSCSA also establishes new requirements for the licensing of wholesale distributors and third-party logistic providers, although FDA regulations addressing wholesale distributors and third party logistic providers. These licensing requirements preempt states from imposing licensing requirementslogistics providers have not yet been promulgated. We serialize our product at both the package and homogeneous case level, pass serialization and required transaction information to our customers, and believe that are inconsistentwe comply with less stringent than, directly related to, or otherwise encompassed by standards established by FDA pursuant to the DSCSA. Until FDA promulgates regulations to address the DSCSA’s new national licensing standard, current state licensing requirements typically remain in effect.
all such requirements.
Our Employees
As of March 14, 201911, 2021, we had 51 employees.74 employees, approximately 35 of whom are in our commercial organization, approximately 25 of whom are in our R&D organization, and the rest of whom are in our G&A organization. We also utilize the services of several consultants. None of our employees are covered by a collective bargaining agreement. We believe our relationship with our employees and consultants is good.
We previously had
Our goal in selecting employees is to retain high quality personnel with substantial prior experience who understand and support our mission as a scientific advisory board. However, we disbanded our scientific advisory board during 2018.
company to develop and commercialize innovative therapies for people with rare, debilitating, chronic neuromuscular and neurological diseases and who are willing to work hard and in a collaborative manner to further that mission.
Available Information
We make available free of charge on or through our Internet website our Annual Report on Form
10-K,
Quarterly Reports on Form10-Q,
Current Reports on Form8-K
and all amendments to those reports as soon as reasonably practicable after such material is electronically filed with or furnished to the Securities and Exchange Commission (SEC). Our Internet address iswww.catalystpharma.com
. The content on our website is not, nor should it be deemed to be, incorporated by reference into this FormItem 1A. | Risk Factors |
Risk Factors
Summary
We are providing the following summary of the risk factors contained in our Form
10-K
to enhance the readability and accessibility of our risk factor disclosures. We encourage our stockholders to carefully review the full risk factors contained in this Form10-K
in their entirety for additional information regarding the risks and uncertainties that could cause our actual results to vary materially from our recent results or from our anticipated future results.Risks related to the commercialization of Firdapse
®
We depend substantially on the commercial success of Firdapse
®
.Our business may in the future require additional capital.
Our success depends on our ability to continue to successfully commercialize Firdapse
®
. We are primarily a single product company with limited commercial experience, which makes it difficult to evaluate our current business, predict our future prospects and forecast our financial performance and growth.26
We have limited experience as a company in marketing or distributing pharmaceutical products. If we are unable to expand our marketing capabilities and effectively commercialize Firdapse
®
, our business, results of operations and financial condition may be materially adversely affected.Our business is subject to substantial competition.
Our recently adopted strategy of seeking to acquire or
in-license
innovative technical platforms or earlier stage drug development programs outside of the neuromuscular disease space may not be successful.The obligations incident to being a public company place significant demands on our management.
We are highly dependent on our small number of key personnel and advisors.
The ongoing
COVID-19
pandemic and the worldwide attempts to contain it could harm our business and results of operations and financial condition and could be adversely impacted by it.We face a risk of product liability claims and may not be able to obtain adequate insurance.
Business or economic disruptions or global health concerns could seriously harm our development efforts and increase our costs and expenses.
Risks Related to the Development of Additional Indications for Firdapse
®
Our efforts may fail.
Failure can occur at any stage of our drug development efforts.
We rely on third parties to conduct our
pre-clinical
studies and clinical studies and trials, and if they do not perform their obligations to us we may not be able to obtain approval for additional indications.We will need to continue to develop and maintain distribution and production capabilities or relationships to be successful.
If we rely on a sole source of supply to manufacture our products we could be impacted by the viability of our supplier.
We may not be able to sufficiently
scale-up
manufacturing of our drug candidates.We may encounter difficulties in managing our growth, which would adversely affect our results of operations.
Pressure on drug product third-party payor coverage, reimbursement and pricing may impair our ability to be reimbursed at prices or on terms sufficient to provide a viable financial outcome.
We cannot assess the impact on our business of the public concerns expressed by a U.S. Senator and a vocal group of neuromuscular physicians and patients with LEMS about our pricing of our drug product.
Because the target patient populations for Firdapse
®
and our other drug candidates are small, we must achieve significant market share and obtain relatively highper-patient
prices for our products to achieve meaningful gross margins.Our internal computer systems, or those of our contract research organizations and other key vendors or consultants, may fail or suffer security breaches, which could result in a material disruption of our product development programs.
Our employees, sales agents and consultants may engage in misconduct or other improper activities, including noncompliance with regulatory standards and requirements.
Risks Related to Government Regulation
The regulatory approval process is lengthy, and we may not be able to obtain all of the regulatory approvals required to manufacture and commercialize Firdapse
®
for additional indications.If our
pre-clinical
studies or our clinical studies and trials are unsuccessful or significantly delayed, our ability to commercialize our products will be impaired.27
We may face significant delays in our clinical studies and trials due to an inability to recruit patients for our clinical studies and trials or to retain patients in the clinical studies and trials we may perform.
If our third-party suppliers or contract manufacturers do not maintain appropriate standards of manufacturing in accordance with cGMP and other manufacturing regulations, our development and commercialization activities could suffer significant interruptions or delays.
Enacted and future legislation or judicial action may increase the difficulty and cost for us to commercialize Firdapse
®
on any other drug candidates we develop, and affect the prices we may obtain.Firdapse
®
is subject to ongoing regulatory review. If we fail to comply with continuing United States and applicable foreign regulations, we could lose those approvals, and our business would be severely harmed.If we fail to obtain or subsequently maintain orphan drug exclusivity or regulatory exclusivity for Firdapse
®
and our other orphan drug candidates, our competitors may sell products to treat the same conditions at greatly reduced prices, and our revenues would be significantly adversely affected.We cannot guarantee that the design of, or data collected from, that trial or any of our clinical trials conducted under a Special Protocol Assessment (SPA) will be sufficient to support filing or approval of an NDA.
Our operations and relationships with healthcare providers, healthcare organizations, customers and third-party payors are subject to applicable anti-bribery, anti-kickback, fraud and abuse, transparency and other healthcare laws and regulations, which could expose us to, among other things, enforcement actions, criminal sanctions, civil penalties, contractual damages, reputational harm, administrative burdens and diminished profits and future earnings.
Risks Related to our Intellectual Property
We are dependent on our relationships and license agreements, and we rely upon the patent rights granted to us pursuant to the license agreements.
Our success will depend significantly on our ability to operate without infringing the patents and other proprietary rights of third parties.
We may incur substantial costs as a result of litigation or other proceedings relating to patent and other intellectual property rights.
There are also general risk factors relating to us that you should consider that relate to our business and to our common stock.
Risk Factors
Our business involves a high degree of risk. You should carefully consider the risks and uncertainties described below, and all of the other information contained in this Form
10-K
in assessing the risks relating to ownership of our common stock. The risks described below could cause our business, results of operations, financial condition and prospects to materially suffer and the market price of our stock to decline.Risks related to the commercialization of Firdapse
®
We depend substantially on the commercial success of Firdapse
®, and
.Until we may not be able to successfully commercialize it. have focused all of our efforts on obtaining regulatory approval for FirdapseWeWhile we reported net income of $75.0 million for fiscal 2020 and $31.9 million for fiscal 2019, we have a prior history of operating losses with net lossesin all prior fiscal years of $34.0 million in fiscal 2018 and $18.4 million in fiscal 2017. Althoughour existence. There can be no assurance that we have received FDA approval and commenced commercialization of Firdapse® for the treatment of adults with LEMS in the United States, we may never becomewill remain profitable.
Until recently,launched Firdapse
®
for the treatment of LEMS in January 2019, we®
for the treatment of LEMS, on evaluating Firdapse®
for the treatment of other neuromuscular diseases including CMS,MuSK-MG
and SMA Type 3, on raising capital, and on recruiting personnel. On November 28, 2018, the FDA approved our first product, Firdapse®,
for the treatment of adults with LEMS, which became commercially available in January 2019. Our business may in the future require additional capital.
We may need to raise additional capital in the future in order to fund our business and generate significant revenue in order to achieve and maintain profitability. If necessary, we would likely raise additional funds in the future through public or private equity offerings, debt financings, corporate collaborations, or other means. We may also seek governmental grants to support our clinical andpre-clinical trials. However, there is no assurance that any such funding will be available, and, even if it is available, whether it will be available on terms that are favorable to us. We may also seek to raise additional capital to fund additional product development efforts, even if we have sufficient funds for our planned operations.
28
Any sale by us of additional equity or debt securities convertible into additional equity could result in dilution to our stockholders. Further, to the extent that we raise funds through collaborative arrangements, it may be necessary to relinquish some rights to our technologies or grant sublicenses on terms that are not favorable to us. If we are not able to secure funding when needed, we may have to delay, reduce the scope of or eliminate one or more research and development programs, which could have an adverse effect on our business.
Our success depends on our ability to continue to successfully commercialize Firdapselittle or noonly limited commercial sales experience, which makes it difficult to evaluate our current business, predict our future prospects and forecast our financial performance and growth.
®
. We are primarily a single product company with We have invested a significant portion of our efforts and financial resources into the development and commercialization of our lead product, FirdapseWe haveUntil we launched Firdapsedo so successfully withcontinue to be profitable based on our sales of Firdapse
®
, which was approved by the FDA as a treatment for adults with LEMS on November 28, 2018. Our success depends on our ability to effectively commercialize Firdapse®
, and we expect that the vast majority of our product revenues in the foreseeable future will be from sales of Firdapse®
. Successful commercialization of Firdapse®
is subject to many risks. ®
, we had never launched or commercialized a product, and there is no guarantee that we will be able to ®
. There are numerous examples of unsuccessful product launches and failures to meet high expectations of market growth potential, including by pharmaceutical companies with more resources and experience than we have. The commercial success of Firdapse®
depends on the extent to which patients and physicians accept and adopt Firdapse®
. For example, if the expected patient population is smaller than we estimate or if physicians are unwilling to prescribe or patients are unwilling to take Firdapse®
, or if patients discontinue from use of the medication at rates that are higher than we expect, or if payers decide not to reimburse for our product, the commercial potential of Firdapse®
will be limited. Thus, significant uncertainty remains regarding the ultimate commercial potential of Firdapse®
.Moreover, our ability to effectively generate product revenue from Firdapse
®
will depend on our ability to, among other things:compete successfully with Ruzurgi
®
, Jacobus Pharmaceuticals’ version of amifampridine;be successful in our suit against the FDA seeking to maintain our exclusivity under the Orphan Drug Act for treating LEMS patients;
educate patients and physicians successfully about efficacy expectations, side effects expectations, and how to successfully dose and titrate the medication to optimal patient benefit in order to minimize discontinuation due to perceived lack of efficacy or side effects;
achieve and maintain compliance with regulatory requirements, including those related to our required post-approval studies, promotion and advertising requirements;
|
increase awareness for and achieve market acceptance of Firdapse
®
through our sales and marketing activities and other arrangements established for the promotion of Firdapse®
;train, deploy, support, and supportretain a qualified field sales and marketing force;
|
|
secure continued formulary approvals for Firdapse
®
with a substantial number of targeted payors;ensure that our third-party manufacturers manufacture Firdapse
®
in sufficient quantities, in compliance with requirements of the FDA and at acceptable quality and pricing levels, in order to meet commercial demand;ensure that our third-party manufacturers develop, validate and maintain commercially viable manufacturing processes that are compliant with current Good Manufacturing Practice or cGMP,(cGMP) regulations;
implement and maintain agreements with wholesalers, distributors and group purchasing organizations on commercially reasonable terms;
|
ensure that our entire supply chain efficiently and consistently delivers Firdapse ® to our customers;29 provide co-pay assistance to help qualified patients without-of-pocket ® prescription, and/or other programs to ensure patient access to our products, educate physicians and patients about |
|
|
the qualitybenefits, administration and use of Firdapse
®
, and obtain acceptance of Firdapse®
as safe and effective by patients and the medical community;receive adequate levels of coverage and reimbursement for Firdapse
®
from commercial health plans and governmental health programs;generate positive experience with our Catalyst Pathwayscost;
™
program in helping patients obtain access to Firdapse®
at an acceptable patientout-of-pocket
maintain quality relationships with patient advocacy groups;
influence the nature of publicity related to our product relative to the publicity related to our competitors’ products; and
|
|
obtain regulatory approvals for additional indications for the use of Firdapse
®
in treating other rare neuromuscular diseases.Any disruption in our ability to generate product revenue from the sale of Firdapse
®
will have a material and adverse impact on our results of operations.We have limited experience as a company in marketing or distributing pharmaceutical products. If we are unable to expand our marketing capabilities and effectivelycontinue to successfully commercialize Firdapse
®
, our business, results of operations and financial condition may be materially adversely affected.Our strategy is to build our sales, marketing and distribution capabilitiescontinue to successfully commercialize Firdapseestablishcontinue to have adequate sales, marketing, and distribution capabilities, whether independently or with third parties, we may not be able to appropriately commercialize Firdapse
®
in the United States. While we have established our commercial team and launched our product, we have limited experience commercializing pharmaceutical products as an organization. In order to successfully market Firdapse®
, we must continue to build our sales, marketing, managerial, compliance, and related capabilities or make arrangements with third parties to perform these services. If we are unable to ®
and may not become profitable.Included in our strategy in the United States is a direct sales force to commercialize Firdapse®. These efforts will continue to be expensive and time-consuming, and we cannot be certain that we will be able to successfully develop this capability. Firdapse® is a newly marketed drug and, therefore, while many of our sales force members have promoted other orphan and/or neuromuscular drugs, none of the members of our sales force has ever promoted Firdapse® prior to its commercial launch. In addition, we must train our sales force to ensure that a consistent and appropriate message about Firdapse® is being delivered to our potential customers. If we are unable to effectively train our sales force and equip them with effective materials, including medical and sales literature to help them inform and educate potential customers about the benefits of Firdapse® and its proper administration, all while maintaining compliance with regulatory requirements, our efforts to successfully commercialize Firdapse® could be harmed, which would negatively impact our ability to generate product revenue. Additionally, we will need to maintain and further develop our sales force to achieve commercial success, and we will be competing with other pharmaceutical and biotechnology companies to recruit, hire, train and retain marketing and sales personnel. In the event we are unable to continue to develop and effectively maintain our commercial team, our ability to successfully commercialize Firdapse® would be limited, and we would not be able to generate product revenue successfully.
There are risks involved both with establishingmaintaining our own sales and marketing capabilities, and with entering into arrangements with third parties to perform these services. For example, any efforts to developmaintain a direct sales and marketing organization are subject to numerous risks, including:
the expense and time required to recruit, retain, and motivate members of the sales force;
our inability to recruit, retain or motivate adequate numbers of effective marketing personnel and partner marketing agencies;
the inability to provide adequate training to sales and marketing personnel;
the expense and time required to monitor regulatory compliance;
the inability of sales personnel to obtain access to physicians or convince adequate numbers of physicians to prescribe any product; and
unforeseen costs and expenses associated with creating an independent sales and marketing organization.
Similarly, ifas we enter into arrangements with third parties to perform sales, marketing and distribution services, our product revenue or the profitability associated with any product revenue may be lower than if we were to market and sell any products that we develop ourselves. In addition, we may not be successful in entering into arrangements with third parties to sell and market our products or may be unable to do so on terms that are favorable to us. We may have little control over such third parties, and any of them may fail to devote the necessary resources and attention to sell and market our products effectively. Moreover, we may be negatively impacted by other factors outside of our control relating to such third parties, including, but not limited to, their inability to comply with regulatory requirements. If we do not establish sales, marketing and distribution capabilities successfully, either on our own or in collaboration with third parties, we will not be successful in commercializing our products.
30
Finally, because we are using a very small group of exclusive specialityspecialty pharmacies to distribute our product, if the organizations that we work with to deliver our drug do not perform in a lawful manner or have issues unrelated to our business, our business could be adversely affected.
Our business is subject to substantial competition.
The biotechnology and pharmaceutical industries are highly competitive. Many of our competitors have substantially greater financial and other resources, larger research and development staffs and more experience developing products, obtaining FDA and other regulatory approvals of products and manufacturing and marketing products than we have. We compete against pharmaceutical companies that are developing or currently marketing therapies that will compete with us. In addition, we compete against biotechnology companies, universities, government agencies, and other research institutions in the development of pharmaceutical products. Our business could be negatively impacted if our competitors’ present or future offerings are more effective, safer or less expensive than ours, or more readily accepted by regulators, healthcare providers or third-party payors. Further, we may also compete with respect to manufacturing efficiency and marketing capabilities.
For example, amifampridine, the active ingredient in Firdapse®, despite not being previously FDA approved, has been available from compounding pharmacies, and from Jacobus Pharmaceutical under compassionate use INDs, for many years. Amifampridine from these sources can be expected to be substantially less expensive than Firdapse®.
Even with the FDA approval of Firdapseingredientsbulk active pharmaceutical ingredient in the drug (i.e., amifampridine) may be used by compounding pharmacies pursuant to Section 503A of the Federal Food, Drug, and Cosmetic Act because the ingredient is a component of anthatmay lawfully compound for individually identified patients under Section 503A may compound using components of approved drug products. In addition, drugs that are not approved by FDA for the treatment of LEMS, such as a related aminopyridine drug, dalfampridine (Ampyra
®
, the FDA-approved
drug product, and pharmacies ®
), may nonetheless be prescribed by physicians for the treatment of LEMS.For all of these reasons, we may not be able to compete successfully.
Our recently adopted strategy of seeking to acquire or
in-license
innovative technical platforms or earlier stage drug development programs outside of the neuromuscular disease space may not be successful.On January 6, 2021, we announced an expansion in our strategic focus to include acquiring or
in-licensing
innovative technology platforms and earlier stage programs in other therapeutic categories outside of neuromuscular diseases. We are evaluating opportunities toin-license
or acquire products, product candidates and technologies on a selective and targeted basis. Our business development efforts may fail to result in our acquiring rights to additional products, product candidates or technologies, or may result in our consummating transactions with which you do not agree.The process of proposing, negotiating and implementing a license or acquisition of a product candidate is lengthy and complex, and we may be unable to
in-license
or acquire the rights to any such products, product candidates or technologies from third parties for several reasons. The success of this strategy depends partly upon our ability to identify, select and acquire orin-license
promising product candidates and technologies.The
in-licensing
and acquisition of pharmaceutical products is an area characterized by intense competition, and a number of companies (both more established and early stage biotechnology companies) are also pursuing strategies toin-license
or acquire product candidates or technologies that we may consider attractive. We believe that other companies may be particularly active in pursuing opportunities toin-license
or acquire the same or similar products which we may seek to acquire. More established companies may have a competitive advantage over us due to their size, cash resources and greater research, preclinical or clinical development or commercialization capabilities, while earlier stage companies may be more aggressive or have a higher risk tolerance. In addition, companies that perceive us to be a competitor may be unwilling to assign or license rights to us. We also may be unable toin-license
or acquire the rights to the relevant product candidate or technology on terms that would allow us to make an appropriate return on our investment. Moreover, we may devote resources to potential acquisitions orin-licensing
opportunities that are never completed, or we may fail to realize the anticipated benefits of such efforts or we may incorrectly judge the value of an acquired orin-licensed
product candidate or technology.If we are unable to successfully obtain rights to suitable product candidates or technologies, our business, financial condition and prospects for growth could suffer. In addition, acquisitions and
in-licensing
arrangements for product candidates and technologies are inherently risky, and ultimately, if we do not complete an announced acquisition or license transaction or integrate an acquired or licensed product candidate or technology successfully and in a timely manner, we may not realize the benefits of the acquisition or license to the extent anticipated and the perception of the effectiveness of our management team and our company may suffer in the marketplace. In addition, even if we are able to successfully identify, negotiate and execute one or more transactions to acquire orin-license
new product candidates or technologies, our expenses and short-term costs may increase materially and adversely affect our liquidity.31
In addition, acquisitions and
in-licenses
may entail numerous operational, financial and legal risks, including:exposure to known and unknown liabilities, including possible intellectual property infringement claims, violations of laws, tax liabilities and commercial disputes;
incurrence of substantial debt, dilutive issuances of securities or depletion of cash to pay for acquisitions;
higher than expected acquisition and integration costs;
difficulty in combining the operations and personnel of any acquired businesses with our operations and personnel;
inability to maintain uniform standards, controls, procedures and policies;
restructuring charges related to eliminating redundancies or disposing of assets as part of any such combination;
large write-offs and difficulties in assessing the relative percentages of
in-process
research and development expense that can be immediately written off as compared to the amount that must be amortized over the appropriate life of the asset;increased amortization expenses or, in the event that we write down the value of acquired assets, impairment losses;
potential failure of the due diligence process to identify significant problems, liabilities or other shortcomings or challenges of an acquired or licensed product candidate or technology, including problems, liabilities or other shortcomings or challenges with respect to intellectual property, product quality, revenue recognition or other accounting practices, partner disputes or issues and other legal and financial contingencies and known and unknown liabilities; and
entry into therapeutic modalities, indications or markets in which we have no or limited direct prior development or commercial experience and where competitors in such markets have stronger market positions.
The obligations incident to being a public company place significant demands on our management.
As a public reporting company, we are required to comply with the Sarbanes-Oxley Act of 2002 and the related rules and regulations of the SEC, including periodic reports, disclosures and more complex accounting rules. As directed by Section 404 of Sarbanes-Oxley, the SEC adopted rules requiring public companies to include a report of management on a company’s internal control over financial reporting in their Annual Report on Form
10-K.
Based on current rules, we are required to annually report under Section 404(a) of Sarbanes-Oxley regarding our management’s assessment as to the effectiveness of our internal control over financial reporting. Further, under Section 404(b) of Sarbanes-Oxley, our auditors are required to report on their assessment as to the effectiveness of our internal control over financial reporting. If we or our auditors are unable to conclude that we have effective internal control over our financial reporting, investors could lose confidence in the reliability of our consolidated financial statements, which could result in a decrease in the value of our common stock.We are highly dependent on our small number of key personnel and advisors.
We are highly dependent on our officers and key employees and on our Board of Directors. The loss of the services of any of these individuals could significantly impede the achievement of our scientific and business objectives. Other than an employment agreement with Patrick J. McEnany, our Chairman, President and Chief Executive Officer with respect to his services, we have no employment or retention agreements with any of our other officers or key employees. If we lose the services of any of our existing officers or key employees, or if we were unable to recruit qualified replacements on a timely basis for persons who leave our employ, our efforts to develop our drug candidates might be significantly delayed. We do not carry
key-man
insurance on any of our personnel.The ongoing
COVID-19
pandemic and the worldwide attempts to contain it could harm our business and results of operations and financial condition and could be adversely impacted by it.The ongoing global outbreak of the coronavirus
COVID-19,
and the various attempts throughout the world to contain it, have created significant volatility, uncertainty and disruption. TheCOVID-19
pandemic has had, and may continue to have, significant effects on our operations. There can be no assurance as to whether and how long these effects will last and whether following the pandemic whatever trends have occurred will not remain in place and continue to affect our business.We face a risk of product liability claims and may not be able to obtain adequate insurance.
Our business exposes us to potential liability risks that may arise from the clinical testing, manufacture, and/or sale of our pharmaceutical products. Patients have received substantial damage awards in some jurisdictions against pharmaceutical companies based on claims for injuries allegedly caused by the use of pharmaceutical products used in clinical trials or after FDA approval.
32
Liability claims may be expensive to defend and may result in large judgments against us. We currently carry liability insurance that we believe to be adequate. Our insurance may not reimburse us for certain claims or the coverage may not be sufficient to cover claims made against us. We cannot predict all of the possible harms or side effects that may result from the use of our current drug candidates, or any potential future products we may acquire and use in clinical trials or after FDA approval and, therefore, the amount of insurance coverage we currently hold may not be adequate to cover all liabilities we might incur. If we are sued for any injury allegedly caused by our products, our liability could exceed our ability to pay the liability. Whether or not we are ultimately successful in any adverse litigation, such litigation could consume substantial amounts of our financial and managerial resources, all of which could have a material adverse effect on our business, financial condition, results of operations, prospects and stock price.
The obligations incident to being a public company place significant demands on
Business or economic disruptions or global health concerns could seriously harm our management.
As a public reporting company,development efforts and increase our costs and expenses.
Broad-based business or economic disruptions could adversely affect our ongoing or planned research and development activities. Global health concerns, such as theare required to complyor the third parties with whom we engage operate. We cannot presently predict the Sarbanes-Oxley Actscope and severity of 2002 and the related rules and regulationsany potential business shutdowns or disruptions, but if we or any of the SEC,third parties with whom we engage, including periodic reports, disclosuresthe suppliers, clinical trial sites, regulators and more complex accounting rules. As directed by Section 404 of Sarbanes-Oxley, the SEC adopted rules requiring public companiesother third parties with whom we conduct business, were to include a report of management on a company’s internal control over financial reporting in their Annual Report on Form10-K. Based on current rules, we are requiredexperience shutdowns or other business disruptions, our ability to annually report under Section 404(a) of Sarbanes-Oxley regardingconduct our management’s assessment as to the effectiveness of our internal control over financial reporting. Further, under Section 404(b) of Sarbanes-Oxley, our auditors are required to report on their assessment as to the effectiveness of our internal control over financial reporting. If we or our auditors are unable to conclude that we have effective internal control over our financial reporting, investors could lose confidencebusiness in the reliability of our consolidated financial statements, which could result in a decrease in the value of our common stock.
COVID-19
pandemic, could also result in social, economic, and labor instability in the countries in which we We are highly dependent on our small number of key personnel and advisors.
We are highly dependent on our officers and key employeesmanner and on our Board of Directors. The loss of the services of any of these individualstimelines presently planned could significantly impedebe materially and negatively impacted. It is also possible that global health concerns such as the achievement of our scientific
COVID-19
pandemic could disproportionately impact the hospitals and We have relationships with collaborators at academicoperation and other institutions. Such individuals are employed by entities other than us and may have commitments to, or consulting advisory contracts with, such entities that may limit their availability to us. As a result, conflicts may arise from the work in which our collaborators are involved.
financial condition.
Risks Related to the Development of Additional Indications for Firdapse
®
Our efforts may fail.
Development of additional indications for Firdapse
®
is subject to risks of failure. For example:
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Firdapse
®
may be found to be ineffective or unsafe for one or more additional indications, or fail to receive necessary regulatory approvals;Firdapse
®
may not be economical to market or take substantially longer to obtain necessary approvals for additional indications than anticipated; orcompetitors may develop and market equivalent or superior products, including next generation products that act with the same mechanism of action as Firdapse
®
.As a result, our drug development activities may not result in any safe, effective and commercially viable additional indications, and we may not be able to commercialize our products successfully. For example, for several years, we evaluatedCPP-109 (our formulation of vigabatrin) Firdapsecocaine addiction.CMS,CPP-109 Firdapseand two key secondary endpoints in a Phase 2b3 trial for cocaine addiction,CMS and we are no longer pursuingpursing this indication. Further, and even though we achieved statistical significance in the evaluationprimary endpoint in ourtrial for SMA Type 3 the lack ofCPP-109 robust results in this trial has caused us to decide to no longer pursue this indication. Finally, our Phase 3 clinical trialaddiction.trial. We plan to redesign a Phase 3 study that may better demonstrate the efficacy of our drug for the treatment of
®
for the treatment of MuSK-MG
and SMA Type 3. However,®
failed to meet the primary proof-of-concept
(MSK-002)
evaluating Firdapse®
for the treatment of adults with
MuSK-MG
did not achieve statistical significance on its primary endpoint or its secondary endpoint even though clinical improvement was observed by patients and investigators during the initial dose-titration period of the trial and in the company’s previousproof-of-concept
MuSK-MG
and discuss it with FDA during the first half of 2021. However, there can be no assurance that the FDA will either grant a meeting, agree with our protocol design or, even if the study is successful, accept the results of a single study of a different trial design as sufficient evidence for approval of theMuSK-MG
indication.Our failure to develop safe, effective, and/or commercially viable products would have a material adverse effect on our business, prospects, results of operations and financial condition.
33
Failure can occur at any stage of our drug development efforts.
We will only obtain regulatory approval to commercialize Firdapse
®
for additional indications if we can demonstrate to the satisfaction of the FDA (or the equivalent foreign regulatory authorities) in adequate and well-controlled clinical studies and trials that the drug is safe and effective for its intended use, that the clinical and other benefits outweigh the safety risks and that it otherwise meets approval requirements. As we have experienced in the past, a failure of one or morepre-clinical
or clinical trials or studies can occur at any stage of drug development. We may experience numerous unforeseen events during, or as a result of, testing that could delay or prevent us from obtaining regulatory approval for, or commercializing our drug candidates, including but not limited to:regulators or Institutional Review Boards (IRBs) may not authorize us to commence a clinical trial or conduct a clinical trial at a prospective trial site;
conditions may be imposed upon us by the FDA regarding the scope or design of our clinical trials, or we may be required to resubmit our clinical trial protocols to IRBs for review due to changes in the regulatory environment;
the number of subjects required for our clinical trials may be larger, patient enrollment may take longer, or patients may drop out of our clinical trials at a higher rate than we anticipate;
we may have to suspend or terminate one or more of our clinical trials if we, regulators, or IRBs determine that the participants are being subjected to unreasonable health risks;
our third-party contractors, clinical investigators or contractual collaborators may fail to comply with regulatory requirements or fail to meet their contractual obligations to us in a timely manner;
the FDA may not accept clinical data from trials that are conducted at clinical sites in countries where the standard of care is potentially different from the United States;
our tests may produce negative or inconclusive results, and we may decide, or regulators may require us, to conduct additional testing; and
the costs of our
pre-clinical
and/or clinical trials may be greater than we anticipate.We rely on third parties to conduct our
pre-clinical
studies and clinical studies and trials, and if they do not perform their obligations to us we may not be able to obtain approval for additional indications.We do not currently have the ability to independently conduct
pre-clinical
studies or clinical studies and trials, and we typically rely on third parties, such as third-party contract research and governmental organizations, medical institutions and clinical investigators (including academic clinical investigators), to conduct studies and trials for us. Our reliance on third parties for development activities reduces our control over these activities. These third parties may not complete activities on schedule or may not conduct ourpre-clinical
studies and our clinical studies and trials in accordance with regulatory requirements or our study design. If these third parties do not successfully carry out their contractual duties or meet expected deadlines, we may be adversely affected, and our efforts to obtain regulatory approvals for and commercialize Firdapse®
for additional indications may be delayed.If we conduct studies with other parties, we may not have control over all decisions associated with that trial. To the extent that we disagree with the other party on such issues as study design, study timing and the like, it could adversely affect our drug development plans.
Although we also rely on third parties to manage the data from our studies and trials, we are responsible for confirming that each of our studies and trials is conducted in accordance with its general investigational plan and protocol. Moreover, the FDA and foreign regulatory agencies will require us to comply with applicable regulations and standards, including Good Laboratory Practice (GLP) and Good Clinical Practice (GCP), for conducting, recording and reporting the results of such studies and trials to assure that the data and the results are credible and accurate and that the human study and trial participants are adequately protected. Our reliance on third-parties does not relieve us of these obligations and requirements, and we may fail to obtain regulatory approval for any additional indications if these requirements are not met.
We will need to continue to develop and maintain distribution and production capabilities or relationships to be successful.
We are licensed in Florida as a virtual drug manufacturer, which means we have no
in-house
manufacturing capacity and we will be obligated to rely on contract manufacturers and packagers. We cannot be sure that we will successfully manufacture any product, either independently or under manufacturing arrangements, if any, with third party manufacturers. Moreover, if any manufacturer should cease doing business with us or experience delays, shortages of supply or excessive demands on their capacity, we may not be able to obtain adequate quantities of product in a timely manner, or at all. Manufacturers, and in certain situations their suppliers, are required to comply with current NDA commitments and current good manufacturing practices (cGMP) requirements enforced by the FDA, and similar requirements of other countries. The failure by a manufacturer to comply with these requirements could affect its ability to provide us with product. Although we intend to rely on third-party contract manufacturers, we are ultimately responsible for ensuring that our products are manufactured in accordance with cGMP. In addition, if, during a preapproval inspection or other inspection of our third-party manufacturers’ facility or facilities, the FDA determines that the facility is not in compliance with cGMP, any of our marketing applications that lists such facility as a manufacturer may not be approved or approval may be delayed until the facility comes into compliance with cGMP and completes a successfulre-inspection
by the FDA.34
Any manufacturing problem, natural disaster, or epidemic, affecting manufacturing facilities, or the loss of a contract manufacturer could be disruptive to our operations and result in lost sales. Additionally, we will be reliant on third parties to supply the raw materials needed to manufacture our products. Any reliance on suppliers may involve several risks, including a potential inability to obtain critical materials and reduced control over production costs, delivery schedules, reliability and quality. Any unanticipated disruption to future contract manufacture caused by problems at suppliers could delay shipment of products, increase our cost of goods sold and result in lost sales. If our suppliers were to be unable to supply us with adequate supply of our drugs, it could have a material adverse effect on our ability to successfully commercialize our drug candidates.
If we rely on a sole source of supply to manufacture our products we could be impacted by the viability of our supplier.
We intend to attempt to source our products from more than one supplier. We also intend to enter into contracts with any supplier of our products to contractually obligate them to meet our requirements. However, if we are reliant on a single supplier and that supplier cannot or will not meet our requirements (for whatever reason), our business could be adversely impacted.
We may not be able to sufficiently
scale-up
manufacturing of our drug candidates.We may not be able to successfully increase in a sufficient manner the manufacturing capacity for our drug candidates, whether in collaboration with third-party manufacturers or on our own, in a timely or cost-effective manner or at all. If a contract manufacturer makes improvements in the manufacturing process for our drug candidates, we may not own, or may have to share, the intellectual property rights to those improvements.
Significant
scale-up
of manufacturing may require additional validation studies, which are costly and which the FDA must review and approve. In addition, quality issues may arise during thosescale-up
activities because of the inherent properties of a drug candidate itself or of a drug candidate in combination with other components added during the manufacturing and packaging process, or during shipping and storage of the finished product or active pharmaceutical ingredients. If we are unable to successfullyscale-up
manufacture of any of our drug candidates in sufficient quality and quantity, the development of that drug candidate and regulatory approval or commercial launch for any resulting drug products may be delayed or there may be a shortage in supply, which could significantly harm our business.We may encounter difficulties in managing our growth, which would adversely affect our results of operations.
We have recently hired employees for the commercialization of Firdapse®.
To manage future growth, we will need to hire, train, and manage additional employees. Concurrent with expanding our operational and marketing capabilities, we will also need to increase our product development activities. We may not be able to support, financially or otherwise, future growth, or hire, train, motivate, and manage the required personnel. Our failure to manage growth effectively could limit our ability to achieve our goals.
Our success in managing our growth will depend in part on the ability of our executive officers to continue to implement and improve our operational, management, information and financial control systems, and to expand, train and manage our employee base, and particularly to expand, train and manage a specially-trained sales force to market our products. We may not be able to attract and retain personnel on acceptable terms given the intense competition for such personnel among biotechnology, pharmaceutical and healthcare companies, universities and
non-profit
research institutions. Our inability to manage growth effectively could cause our operating costs to grow at a faster pace than we currently anticipate and could have a material adverse effect on our business, financial condition, results of operations and prospects.Pressure on drug product third-party payor coverage, reimbursement and pricing may impair our ability to be reimbursed at prices or on terms sufficient to provide a viable financial outcome.
The commercial success of Firdapse
®
will continue to depend substantially on the extent to which the cost of Firdapse®
will be paid by health maintenance, managed care, pharmacy benefit and similar healthcare management organizations, or reimbursed by government health administration authorities (such as Medicare and Medicaid), private health coverage insurers and other third-party payors. If reimbursement is not available, or is available only to limited levels, we may not be able to continue to successfully commercialize Firdapse®
. Even if coverage is provided, the approved reimbursement amount may not be high enough to establish and maintain pricing sufficient to realize a meaningful return on our investment.35
Our ability to commercialize Firdapse
®
or any other product candidate will depend in large part on the extent to which coverage and reimbursement for these products and related treatments will be available from government health administration authorities, private health insurers and other organizations. Government authorities and third-party payors, such as private health insurers and health maintenance organizations, decide which medications they will cover and establish reimbursement levels. The healthcare industry is acutely focused on cost containment, both in the United States and elsewhere. Government authorities and third-party payors have attempted to control costs by limiting coverage and the amount of reimbursement for particular medications, which could affect our ability to sell our product candidates profitably. These payors may not view our products as cost-effective, and coverage and reimbursement may not be available to our customers, or may not be sufficient to allow our products, if any, to be marketed on a competitive basis. Cost-control initiatives could cause us to decrease the price we might establish for products, which could result in lower than anticipated product revenues. If the prices for our products decrease or if governmental and other third-party payors do not provide adequate coverage or reimbursement, our prospects for revenue and profitability will suffer.There may also be delays in obtaining coverage and reimbursement for newly approved drugs, and coverage may be more limited than the indications for which the drug is approved by the FDA. Moreover, eligibility for reimbursement does not imply that any drug will be paid for in all cases or at a rate that covers our costs, including research, development, manufacture, sale and distribution. Reimbursement rates may vary, by way of example, according to the use of the drug and the clinical setting in which it is used. Reimbursement rates may also be based on reimbursement levels already set for lower cost drugs or may be incorporated into existing payments for other services.
In addition, increasingly, third-party payors are requiring higher levels of evidence of the benefits and clinical outcomes of new technologies and are challenging the prices charged. We cannot be sure that coverage will be available for any product candidate that we commercialize and, if available, that the reimbursement rates will be adequate. Further, the net reimbursement for drug products may be subject to additional reductions if there are changes to laws that presently restrict imports of drugs from countries where they may be sold at lower prices than in the United States. An inability to promptly obtain coverage and adequate payment rates from both government fundedgovernment-funded and private payors for any of our product candidates for which we obtain marketing approval could have a material adverse effect on our operating results, our ability to raise capital needed to commercialize products and our overall financial condition.
The pricing of pharmaceutical products, in general, and of specialty drugs, in particular, has been a topic of concern in the United States Congress, where hearings have been held on the topic, and several bills have been introduced proposing a variety of actions to restrain the prices of drugs. TheFormer President of the United States hasTrump frequently discussed his intention to reduce drug prices.prices, as has President Biden. The former Administration has solicited public comment on a variety of regulatory proposals to reduce drug prices, and has also issued several proposed regulations withthe Department of Health and Human Services (HHS) published an interim final rule that objective, such asestablishes a proposal to conduct a pilot test that involves tying reimbursement of separately paid drugs underMost Favored Nation (MFN) Model for Medicare Part B to an indexdrug payment. This regulation would substantially change the drug reimbursement landscape as it bases Medicare Part B payment for 50 selected drugs on prices in foreign countries instead of average sales price, or ASP. The MFN drug payment amount is expected to be lower than the currentdrug in certain foreign countries, and a proposal to require drug companies to disclose the list priceMFN Model rule. The likelihood of a drug indirect-to-consumer television advertisements. It is possible that at least someimplementation of these legislative proposals will be enacted and someany of the proposed regulations will be finalized.former Administration reform initiatives is uncertain, particularly in light of the recent change in administration on January 20, 2021 and the new administration’s silence to date on these issues. We cannot predict how any such laws or regulations, or new laws or regulations that have yet to be proposed, will affect the pricing of our product, of orphan drugs generally, or of pharmaceutical products generally.
ASP-based
payment limit because U.S. drug prices are generally the highest in the world. Although the MFN Model payment methodology was scheduled to begin on January 1, 2021, it faces uncertain prospects for implementation. By the end of December 2020, three federal courts had granted orders preventing implementation of the We cannot assess the impact on our business of the public concerns expressed by a U.S. Senator and a vocal group of neuromuscular physicians and patients with LEMS about our pricing of our drug product.
In early February 2019, we received a letter from Senator Bernie Sanders asking us to justify our pricing decision for Firdapse have responded to Senator Sanders, who has issued a public statement in response asking FDA it, regardless of the fact that such a decision would violate the exclusivity provisions in the Orphan Drug Act of 1983, since we were the first pharmaceutical company who received an approval for an amifampridine product.
®
. In the letter, Senator Sanders accuses us of “fleecing” Americans and “immoral exploitation” because of our decision regarding the pricing of Firdapse®
. Wethen-FDA
Commissioner Scott Gottlieb to allow pharmacies and manufacturers who were previously making this drug to be permitted to resume providing it.
There can be no assurance as to how these matters will affect our business or results of operations.
We are also aware that the vocal group of neuromuscular physicians and somea number of LEMS patients who have raised these issues in the past are continuing to raise concerns with the pricing of our product and with the appropriateness of the provisions in the Orphan Drug Act that grant us exclusivity for Firdapse
®
. A few of these patients continue to say negative things about us to the media, to other patients, to the FDA, and to politicians. We cannot assess the impact of these activities on our business.36
Because the target patient populations for Firdapse
®
and our other drug candidates are small, we must achieve significant market share and obtain relatively highper-patient
prices for our products to achieve meaningful gross margins.Firdapsenever achievenot be able to maintain profitability despite obtaining such significant market share. Additionally, patients who discontinue therapy or do not fill prescriptions are not easily replaced by new patients, given the limited patient population.
®
targets diseases with small patient populations. A key component of the successful commercialization of a drug product for these indications includes identification of patients and a targeted prescriber base for the drug product. Due to small patient populations, we believe that we would need to have significant market penetration to achieve meaningful revenues and identifying patients and targeting the prescriber base are key to achieving significant market penetration. Typically, drugs for conditions with small prevalence have higher prices in order to generate a return on investment, and as a result, theper-patient
prices at which we anticipate we may sell Firdapse®
will need to be relatively high in order for us to generate an appropriate return for the investment in these product development programs and achieve meaningful gross margins, and high per patient prices could drive physicians to seek out compounding pharmacies to provide compounded amifampridine to fill their prescriptions rather than Firdapse®
, thereby lowering the Firdapse®
market share or penetration in the market. There can be no assurance that we will be successful in achieving a sufficient degree of market penetration and/or obtaining or maintaining highper-patient
prices for Firdapse®
for diseases with small patient populations. Further, even if we obtain significant market share for Firdapse®
, because the potential target populations are very small, we may Our internal computer systems, or those of our contract research organizations and other key vendors or consultants, may fail or suffer security breaches, which could result in a material disruption of our product development programs.
Our internal computer systems and those of our contract research organizations and other key vendors and consultants are vulnerable to damage from computer viruses, unauthorized access, natural disasters, terrorism, war and telecommunication and electrical failures. If such an event were to occur and cause interruptions in our operations, it could result in a material disruption of our programs. For example, the loss of clinical trial data from completed or ongoing clinical trials could result in delays in our regulatory approval efforts and significantly increase our costs to recover or reproduce the data. To the extent that any disruption or security breach results in a loss of or damage to our data or applications, or inappropriate disclosure of confidential or proprietary information, we could incur liability and the further development of our drug candidates could be delayed.
Our employees, sales agents and consultants may engage in misconduct or other improper activities, including noncompliance with regulatory standards and requirements.
We are exposed to the risk of employee or consultant fraud or other misconduct. Misconductmisconduct by our employees, sales agents or consultantsconsultants. Misconduct could include intentional failures to comply with FDA regulations, provide accurate information to the FDA, comply with manufacturing standards, comply with federal and state healthcare fraud and abuse laws and regulations, report financial information or data accurately or disclose unauthorized activities to us. In particular, sales, marketing and business arrangements in the healthcare industry are subject to extensive laws and regulations intended to prevent fraud, kickbacks, self-dealing, and other abusive practices. These laws and regulations may restrict or prohibit a wide range of pricing, discounting, marketing and promotion, sales commission, customer incentive programs, and other business arrangements. Employee and consultant misconductMisconduct could also involve the improper use of information obtained in the course of clinical trials, which could result in regulatory sanctions and serious harm to our reputation. It is not always possible to identify and deter such misconduct, and the precautions we take to detect and prevent this activity may not be effective in controlling unknown or unmanaged risks or losses or in protecting us from governmental investigations or other actions or lawsuits stemming from a failure to be in compliance with such laws or regulations. If any such actions are instituted against us, and we are not successful in defending ourselves or asserting our rights, those actions could have a significant impact on our business, including the imposition of significant fines or other sanctions.
Risks Related to Government Regulation
The regulatory approval process is lengthy, and we may not be able to obtain all of the regulatory approvals required to manufacture and commercialize Firdapse
®
for additional indications.We will not be able to commercialize our products in other countries or for additional indications until we have obtained the requisite regulatory approvals from applicable governmental authorities. To obtain regulatory approval of a drug candidate for an indication, we must demonstrate to the satisfaction of the applicable regulatory agency that such drug candidate is safe and effective for that indication. The type and magnitude of the testing required for regulatory approval varies depending on the drug candidate and the disease or condition for which it is being developed. In addition, in the United States we must show that the facilities used to manufacture our drug candidatecandidates are in compliance with cGMP requirements. We will also have to meet similar regulations in any foreign country where we may seek to commercialize our drug candidates. In general, these requirements mandate that manufacturers follow elaborate design, testing, control, documentation, and other quality assurance procedures throughout the entire manufacturing process. The process of obtaining regulatory approvals typically takes several years and requires the expenditure of substantial capital and other resources. Despite the time, expense and resources invested by us in the approval process, we may not be able to demonstrate that our drug candidate is safe and effective in specificfor such indications, in which event we would not receive the regulatory approval required to market it.
37
The FDA and other regulatory authorities generally approve products for particular indications. Our drug candidates Firdapserequestsor other regulatory authorities request additional information.
®
may not be approved for any or all of the indications that we request, which would limit the indications for which we can promote it and adversely impact our ability to generate revenues. We may also be required to conduct costly, post-marketingfollow-up
studies if FDA If ourpre-clinicalstudies or our clinical studies and trials are unsuccessful or significantly delayed, our ability to commercialize our products will be impaired.
Before we can obtain future regulatory approval for the sale of our drug candidatecandidates for an indication, we may have to conduct, at our own expense,
pre-clinical
tests in animals in order to support the safety of our drug candidates.Pre-clinical
testing is expensive, difficult to design and implement, can take several years to complete, and is uncertain as to outcome. Ourpre-clinical
tests may produce negative or inconclusive results, and on the basis of such results, we may decide, or regulators may require us, to halt ongoing clinical trials or conduct additionalpre-clinical
testing.Additionally, future clinical trials for our drug candidates may not be successfully completed or may take longer than anticipated because of any number of factors, including potential delays in the start of the trial, an inability to recruit clinical trial participants at the expected rate, failure to demonstrate safety and efficacy, unforeseen safety issues, or unforeseen governmental or regulatory delays. Further, our drug candidate may not be found to be safe and effective in particular indications and may not be approved by regulatory authorities for the proposed indication. Further, regulatory authorities and IRBs that must approve and monitor the safety of each clinical study may suspend a clinical study at any time if the patients participating in such study are deemed to be exposed to any unacceptable health risk. We may also choose to suspend human clinical studies and trials if we become aware of any such risks. We might encounter problems in our clinical trials, including our expanded access program, such as seizures, weakness or other side effects that will cause us, regulatory authorities, or IRBs to delay or suspend such trial or study. Moreover, FDA will consider the data, including safety data, from patients enrolled in our expanded access program in the evaluation of any NDA or sNDA we may submit for Firdapse
®
.In other countries where Firdapse
®
, or any other product we develop or license may be marketed, we will also be subject to regulatory requirements governing human clinical studies, trials and marketing approval for drugs. The requirements governing the conduct of clinical studies, trials, product licensing, pricing and reimbursement varies widely from country to country.We may face significant delays in our clinical studies and trials due to an inability to recruit patients for our clinical studies and trials or to retain patients in the clinical studies and trials we may perform.
We may encounter difficulties in our current and future clinical studies and trials recruiting patients, particularly since the conditions we are studying are rare, orphan conditions. The availability of approved therapies can also make enrollment difficult. We compete for study and trial subjects with others conducting clinical trials testing other treatments for the indications we are studying for our drug candidates. Further, unrelated third parties and investigators in the academic community have in the past and we expect will continue in the future to test our drug candidates, including Firdapse
®
.
If these third-party tests are unsuccessful, or if they show significant health risk to the test subjects, our development efforts may also be adversely affected.Clinical trials in orphan diseases are often difficult to enroll given the small number of patients with these diseases. Completion of orphan clinical trials may take considerableconsiderably more time than other trials, sometimes years, depending on factors such as type, complexity, novelty and intended use of a product candidate. As a result of the uncertainties described above, there can be no assurance that we will meet timelines that we establish for any of our clinical trials.
If our third-party suppliers or contract manufacturers do not maintain appropriate standards of manufacturing in accordance with cGMP and other manufacturing regulations, our development and commercialization activities could suffer significant interruptions or delays.
We rely, and intend to continue to rely, on third-party suppliers and contract manufacturers to provide us with materials for our clinical trials and commercial-scale production of our products. These suppliers and manufacturers must continuously adhere to cGMP as well as any applicable corresponding manufacturing regulations outside of the United States. In complying with these regulations, we and our third-party suppliers and contract manufacturers must expend significant time, money and effort in the areas of design and development, testing, production, record-keeping, and quality control to assure that our products meet applicable specifications and other regulatory requirements. Failure to comply with these requirements could result in an enforcement action against us, including warning letters, the seizure of products, suspension or withdrawal of approvals, shutting down of production, and criminal prosecution. Any of these third-party suppliers or contract manufacturers will also be subject to inspections by the FDA and other regulatory agencies. If any of our third-party suppliers or contract manufacturers fail to comply with cGMP or other applicable manufacturing regulations, our ability to develop and commercialize our products could suffer significant interruptions and delays.
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Reliance on third-party manufacturers entails risks to which we would not be subject if we manufactured the product ourselves, including:
reliance on the third party for regulatory compliance and quality assurance;
reliance on the continued financial viability of the third parties;
limitations on supply availability resulting from capacity and scheduling constraints of the third parties;
impact on our reputation in the marketplace if manufacturers of our products fail to meet the demands of our customers;
the possible breach of the manufacturing agreement by the third party because of factors beyond our control; and
the possible termination or nonrenewal of the agreement by the third party, based on its own business priorities, at a time that is costly or inconvenient for us.
If any of our contract manufacturers fail to achieve and maintain appropriate manufacturing standards, patients using our products could be injured or die, resulting in product liability claims. Even absent patient injury, we may be subject to product recalls, product seizures or withdrawals, delays or failures in testing or delivery, cost overruns, or other problems that could seriously harm our business or profitability.
Firdapse
®
is subject to ongoing regulatory review. If we fail to comply with continuing United States and applicable foreign regulations, we could lose those approvals, and our business would be severely harmed.We are and will continue to be subject to continuing regulatory review for our approved products, including the review of our required nonclinical and clinical post-marketing studies, and other clinical results which are reported after our drug candidates become commercially available approved drugs. As greater numbers of patients use a drug following its approval, side effects and other problems may be observed after approval that were not seen or anticipated during preapproval clinical studies and trials. In addition, the manufacturer, and the manufacturing facilities we use to make any approved drugs, will also be subject to periodic review and inspection by the FDA. The subsequent discovery of previously unknown problems with the drug, manufacturer or facility may result in restrictions on the drug, manufacturer or facility, including withdrawal of the drug from the market. If we fail to comply with applicable continuing regulatory requirements, we may be subject to fines, suspension, or withdrawal of regulatory approval, product recalls and seizures, operating restrictions, and criminal prosecutions.
Our product promotion and advertising isare also subject to regulatory requirements and continuing regulatory review. In particular, the marketing claims we will be permitted to make in labeling or advertising regarding our marketed products will be limited by the terms and conditions of the
FDA-approved
labeling and available scientific data. We must submit copies of our advertisements and promotional labeling to the FDA at the time of initial publication or dissemination. If the FDA believes these materials or statements promote our products for unapproved indications, or with unsubstantiated claims, or if we fail to provide appropriate safety related information, the FDA could allege that our promotional activities misbrand our products. Specifically, the FDA could issue an untitled letter or warning letter, which may demand, among other things, that we cease such promotional activities and issue corrective advertisements and labeling to all recipients of the misbranded materials. The FDA also could take enforcement action including seizure of allegedly misbranded product, injunction, or criminal prosecution against us and our officers or employees. If we repeatedly or deliberately fail to submit such advertisements and labeling to the agency, the FDA could withdraw our approvals. Moreover, the Department of Justice can bring civil or criminal actions against companies and executives that promote drugs or biologics for unapproved uses, based on the Federal Food, Drug, and Cosmetic Act, the False Claims Act, and other federal laws governing the marketing and reimbursement for such products under federally supported healthcare programs such as Medicare and Medicaid. Monetary penalties in such cases have often been substantial, and civil penalties can include costly mandatory compliance programs and potential exclusion of a company’s products from federal healthcare programs.Enacted and future legislation or judicial action may increase the difficulty and cost for us to commercialize Firdapsecandidatecandidates we develop, and affect the prices we may obtain.
®
or any other drug In the United States, there have been a number of court cases, legislative and regulatory changes, and other potential changes relating to the healthcare system that restrict or regulate post-approval activities, which may affect our ability to profitably sell Firdapsecandidatecandidates for which we obtain marketing approval.
®
or any other drug The Medicare Prescription Drug Improvement and Modernization Act of 2003, or MMA, changed the way Medicare covers and pays for pharmaceutical products. The legislation expanded Medicare coverage for outpatient drug purchases by those covered by Medicare under a new Part D and introduced a reimbursement methodology based on average sales prices for Medicare Part B physician-administered drugs. In addition, this legislation authorized Medicare Part D prescription drug plans to use formularies whereby they can limit the number of drugs that will be covered in any therapeutic class. As a result of this legislation and the expansion of federal coverage of drug products, there is additional pressure to contain and reduce costs. While the MMA applies only to drug benefits for Medicare beneficiaries, private payors often follow Medicare coverage policy and payment limitations in setting their own reimbursement rates, and any reduction in reimbursement that results from the MMA may result in a similar reduction in payments from private payors. These cost reduction initiatives and other provisions of the MMA could decrease the coverage and reimbursement that we receive for any approved products, and could seriously harm our business. Manufacturers’ contributions to this area, including donut hole coverage (as described below) or potential excise taxes, are increasing and are subject to additional changes in the future.
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In 2010, former President Obama signed into law the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (together, the “Health Care Reform Law”), a sweeping law intended to broaden access to health insurance, reduce or constrain the growth of healthcare spending, enhance remedies against fraud and abuse, add new transparency requirements for healthcare and health insurance industries, impose new taxes and fees on the health industry, and impose additional health policy reforms. The Health Care Reform Law, among other things, revised the definition of Average Manufacturer Price used by the Medicaid Drug Rebate Program for reporting purposes, which could increase the amount of Medicaid drug rebates to states and extended the rebate program to beneficiaries enrolled in Medicaid managed care organizations. The Health Care Reform Law also imposed a significant annual fee on companies that manufacture or import branded prescription drug products and established an annual50% discount (now 70%, on brand name drugs for Medicare Part D participants in the coverage gap, or “donut hole.” The Health Care Reform Law increased the Medicaid rebates for line extensions or reformulated drugs, which could substantially increase our Medicaid rebate rate (in effect limiting reimbursement for these patients).
non-deductible
fee on entities that sell branded prescription drugs or biologics to specified government programs in the United States. The Health Care Reform Law also expanded the 340B drug discount program (excluding orphan drugs), including the creation of new penalties fornon-compliance
and included a Both
Beginning in January 2017, former President Trump signed two Executive Orders and other directives designed to delay the Republican leadership in Congress have expressed their intention to eliminateimplementation of certain provisions of the Health Care Reform Law and replace it with a still unknown new law. While proposals have been introduced in Congress, and efforts madeor otherwise circumvent some of the requirements for health insurance mandated by the Health Care Reform Law. These actions include directing applicable federal agencies to repealwaive, defer, grant exemptions from, or delay the implementation of any provision of the Health Care Reform Law it is still unknown what form any such modificationsthat would impose a fiscal or any law passedregulatory burden on states, individuals, healthcare providers, health insurers, or manufacturers of pharmaceuticals or medical devices. On October 13, 2017, an Executive Order was signed terminating the cost sharing subsidies that reimburse insurers under the Health Care Reform Law. Several state Attorneys Generals filed suit to replacestop the administration from terminating the subsidies, but their request for a restraining order was denied by a federal judge in California on October 25, 2017. Further, on June 14, 2018 the United States Court of Appeals for the Federal Circuit ruled that the federal government was not required to pay more than $12.0 billion in Health Care Reform Law risk corridor payments to third-party payors. The effects of this gap in reimbursement on third-party payors, the viability of the Health Care Reform Law would take,marketplace, providers, and how or any such new law may affect our business, are not yet known. On December 18, 2019, the United States Court of Appeals for the Fifth Circuit ruled that the Health Care Reform Law’s individual mandate is unconstitutional but sent the matter back down to a district court to determine whether that provision can be removed from the rest of the Health Care Reform Law. On March 2, 2020, the U.S. Supreme Court agreed to review the Fifth Circuit’s ruling, and oral argument was heard on November 10, 2020, and a decision may not be made until June 2021. President Biden has made statements regarding changes to the Health Care Reform Law, including possibly revoking some or all of former President Trump’s executive orders. The likelihood of implementation of any of former President Trump’s reform initiatives is uncertain, particularly in light of the future.
recent change in administration.
Additionally, in response to controversies regarding pricing of pharmaceutical products, there has been a recent push to propose legislation, both on state and federal levels, that would require greater disclosure as to the reasoning behind drug prices and, in some cases, could give state or federal-level commissions the right to impose cost controls on certain drugs. These and other new provisions are likely to continue the pressure on pharmaceutical pricing, may require us to modify our business practices with healthcare practitioners, and may also increase our regulatory burdens and operating costs. In that regard, President TrumpBiden and members of Congress in both parties have expressed concerns about high drug prices. However, whether and to what extent any such positions will result in changes of the law, and how any such changes could impact our business, cannot be determined at this time.
Legislative and regulatory proposals also have been made to expand post-approval requirements and restrict sales and promotional activities for pharmaceutical products. In addition, increased scrutiny by the United States Congress of the FDA’s approval process may subject us to more stringent product labeling and post-marketing testing and other requirements. Delays in feedback from the FDA may affect our ability to quickly update or adjust our label in the interest of patient adherence and tolerability. We cannot predict whether other legislative changes will be adopted or how such changes would affect the pharmaceutical industry generally and specifically the commercialization of Firdapse
®
.If we fail to obtain or subsequently maintain orphan drug exclusivity or regulatory exclusivity for Firdapse
®
and our other orphan drug candidates, our competitors may sell products to treat the same conditions at greatly reduced prices, and our revenues would be significantly adversely affected.In the United States, orphan drug designation entitles a party to financial incentives such as opportunities for grant funding towards clinical trial costs, tax advantages, and
user-fee
waivers. The company that first obtains FDA approval for a designated orphan drug for a given rare disease receives marketing exclusivity for use of that drug for the stated disease or condition for a period of seven years, with an additional six months of exclusivity if the product also qualifies for pediatric exclusivity. Orphan drug exclusive marketing rights may be lost if the FDA later determines that the request for designation was materially defective, a subsequent product is deemed clinically superior, or if the manufacturer is unable to deliver sufficient quantity of the drug.40
Because the extent and scope of patent protection for some of our drug products may be particularly limited, orphan drug designation is especially important for our products that are eligible for orphan drug designation. For eligible drugs, we plan to rely on the orphan exclusivity period to maintain a competitive position. However, if we do not obtain orphan drug exclusivity for our drug candidates or we cannot maintain orphan exclusivity for our drug candidates, our competitors may then sell the same drug to treat the same condition and our revenues will be reduced. Also, without strong patent protection, competitors may sell a generic version upon the expiration of orphan exclusivity if our patent position is not upheld.
Even if we obtain orphan drug designation for our future drug candidates, we may not fulfill the criteria for exclusivity or we may not be the first to obtain marketing approval for any orphan indication. Further, even if we obtain orphan drug exclusivity for a particular product, that exclusivity may not effectively protect the product from competition because different drugs can be approved for the same condition.condition, and FDA can approve the same drug for a different patient population. Even after an orphan drug is approved, the FDA can subsequently approve a drug for the same condition if the FDA concludes that the later drug is safer, more effective or makes a major contribution to patient care. The FDA can discontinue orphan drug exclusivity after it has been granted if the orphan drug cannot be manufactured in sufficient quantities to meet demand.
Finally, there can be no assurance that the exclusivity provisions currently in the law may not be changed in the future and the impact of any such changes (if made) on us. The orphan drug exclusivity contained in the Orphan Drug Act has been the subject of recent scrutiny from the press, from some members of Congress and from some in the medical community. There can be no assurance that the exclusivity granted in the Orphan Drug Act to orphan drugs approved by the FDA will not be modified in the future, and as to how any such change might affect our products, if approved.
Even though ourMuSK-MG trial is being conducted under a Special Protocol Assessment (SPA) agreed to with the FDA, we
We cannot guarantee that the design of, or data collected from, that trial or any of our clinical trials conducted under a Special Protocol Assessment (SPA) will be sufficient to support filing or approval of an NDA.
In the context of a Phase 3 clinical trial, the purpose of a SPA is to reach agreement with the FDA on the protocol design and analysis that will form the primary basis of an efficacy claim: in other words, if the agreed-upon clinical trial protocol is followed, the clinical trial endpoints are achieved, and there is a favorable risk-benefit profile, the data may serve as the primary basis for an efficacy claim in support of an NDA. However, FDA may rescind a SPA if the director of the FDA reviewing division determines that a substantial scientific issue essential to determining the safety or efficacy of the drug was identified after the trial began. Thus, a SPA is not binding on the FDA if, for example, the Agency identifies a safety concern related to the product or its pharmacological class, if FDA or the scientific community recognizes a paradigm shift in disease diagnosis or management, if the relevant data or assumptions provided by the sponsor in the SPA submission are found to be false or misstated, or if the sponsor fails to follow the protocol that was agreed upon with FDA. In addition, a SPA may be modified with the written agreement of the FDA and the trial sponsor. The FDA retains significant latitude and discretion in interpreting the terms of a SPA agreement and the data and results from the applicable clinical trial. Moreover, even if a clinical trial is conducted pursuant to a SPA, that does not mean that the study will be successful or, even if the study is successful, that the NDA will meet the standard for approval.
Further, there can be no assurance that the FDA will not require an additional adequate and well controlled clinical trial to approve Firdapse® for CMS orMuSK-MG, even if the clinical trials we are currently undertaking are successful.
Our operations and relationships with healthcare providers, healthcare organizations, customers and third-party payors are subject to applicable anti-bribery, anti-kickback, fraud and abuse, transparency and other healthcare laws and regulations, which could expose us to, among other things, enforcement actions, criminal sanctions, civil penalties, contractual damages, reputational harm, administrative burdens and diminished profits and future earnings.
Our current and future arrangements with healthcare providers, healthcare organizations, third-party payors, customers, , and patients expose us to broadly applicable anti-bribery, fraud and abuse and other healthcare laws and regulations that may constrain the business or financial arrangements and relationships through which we research, market, sell and distribute our productdrug candidates. In addition, we may be subject to patient data privacy and security regulation by the U.S. federal government and the states and the foreign governments in which we conduct our business. Restrictions under applicable federal and state anti-bribery and healthcare laws and regulations include the following:
the Federal health care program Anti-Kickback Statute, which prohibits individuals and entities from, among other things, knowingly and willfully soliciting, offering, receiving or providing remuneration, directly or indirectly, in cash or in kind, to induce or reward, or in return for, either the referral of an individual for, or the purchase, order or recommendation of, any good or service, for which payment may be made under a federal and state healthcare program such as Medicare and Medicaid. A person or entity does not need to have actual knowledge of the statute or specific intent to violate it in order to have committed a violation;
41
the federal criminal and civil false claims and civil monetary penalties laws, including the federal False Claims Act, which can be imposed through civil whistleblower or qui tam actions against individuals or entities, prohibits, among other things, knowingly presenting, or causing to be presented, to the federal government, claims for payment that are false or fraudulent, knowingly making, using or causing to be made or used, a false record or statement material to a false or fraudulent claim, or from knowingly making a false statement to avoid, decrease or conceal an obligation to pay money to the federal government. In addition, certain marketing practices, including
off-label
promotion, may also violate false claims laws. Moreover, the government may assert that a claim including items and services resulting from a violation of the federal Anti-Kickback Statute constitutes a false or fraudulent claim for purposes of the federal False Claims Act;HIPAA, which imposes criminal and civil liability, prohibits, among other things, knowingly and willfully executing, or attempting to execute a scheme to defraud any healthcare benefit program, or knowingly and willfully falsifying, concealing or covering up a material fact or making any materially false statement in connection with the delivery of or payment for healthcare benefits, items or services; similar to the federal Anti-Kickback Statute, a person or entity does not need to have actual knowledge of the statute or specific intent to violate it in order to have committed a violation;
HIPAA, as amended by HITECH, which impose obligations on certain healthcare providers, health plans, and healthcare clearinghouses, known as covered entities, as well as their business associates that perform certain services involving the storage, use or disclosure of individually identifiable health information, including mandatory contractual terms, with respect to safeguarding the privacy, security, and transmission of individually identifiable health information, and require notification to affected individuals and regulatory authorities of certain breaches of security of individually identifiable health information;
the federal legislation commonly referred to as the Physician Payments Sunshine Act, enacted as part of the ACA, and its implementing regulations, which requires certain manufacturers of covered drugs, devices, biologics and medical supplies that are reimbursable under Medicare, Medicaid, or the Children’s Health Insurance Program, with certain exceptions, to report annually to CMS information related to certain payments and other transfers of value to physicians (defined to include doctors, dentists, optometrists, podiatrists and chiropractors) and teaching hospitals, as well as ownership and investment interests held by the physicians described above and their immediate family members, with the information made publicly available on a searchable website; effective January 1, 2022, transfers of value to physician assistants, nurse practitioners or clinical nurse specialists, certified registered nurse anesthetists, and certified nurse-midwives must also be reported;reported based on information collected during the prior year;
the U.S. Foreign Corrupt Practices Act of 1977, as amended, which prohibits, among other things, U.S. companies and their employees and agents from authorizing, promising, offering, or providing, directly or indirectly, corrupt or improper payments or anything else of value to foreign government officials, employees of public international organizations and foreign government owned or affiliated entities, candidates for foreign political office, and foreign political parties or officials thereof;
analogous state and foreign laws and regulations, such as state anti-kickback and false claims laws, that may apply to sales or marketing arrangements and claims involving healthcare items or services reimbursed by
non-governmental
third-party payors, including private insurers; andcertain state laws that require pharmaceutical companies to comply with the pharmaceutical industry’s voluntary compliance guidelines and the relevant compliance guidance promulgated by the federal government in addition to requiring drug and therapeutic biologics manufacturers to report information related to payments to physicians and other healthcare providers or marketing expenditures and pricing information, state and local laws that require the registration of pharmaceutical sales representatives, and state laws governing the privacy and security of health information in certain circumstances, many of which differ from each other in significant ways and often are not preempted by HIPAA, thus complicating compliance efforts.
If we or our collaborators, manufacturers or service providers fail to comply with applicable federal, state or foreign laws or regulations, we could be subject to enforcement actions, which could affect our ability to develop, market and sell our products successfully and could harm our reputation and lead to reduced acceptance of our products by the market. These enforcement actions include, not only civil and criminal penalties, but also exclusion from participation in government-funded healthcare programs, and exclusion from eligibility for the award of government contracts for our products.
42
Efforts to ensure that our current and future business arrangements with third parties comply with applicable healthcare laws and regulations could involve substantial costs. It is possible that governmental authorities will conclude that our business practices do not comply with current or future statutes, regulations, agency guidance or case law involving applicable fraud and abuse or other healthcare laws and regulations. If our operations are found to be in violation of any such requirements, we may be subject to significant penalties, including civil, criminal and administrative penalties, damages, fines, disgorgement, imprisonment, the curtailment or restructuring of our operations, loss of eligibility to obtain approvals from the FDA, exclusion from participation in government contracting, healthcare reimbursement or other government programs, including Medicare and Medicaid, integrity oversight and reporting obligations, or reputational harm, any of which could adversely affect our financial results. Although effective compliance programs can mitigate the risk of investigation and prosecution for violations of these laws, these risks cannot be entirely eliminated. Any action against us for an alleged or suspected violation could cause us to incur significant legal expenses and could divert our management’s attention from the operation of our business, even if our defense is successful. In addition, achieving and sustaining compliance with applicable laws and regulations may be costly to us in terms of money, time and resources.
Risks Related to Our Intellectual Property
We are dependent on our relationships and license agreements, and we rely upon the patent rights granted to us pursuant to the license agreements.
All of our patent rights for Firdapseagreement with BioMarin. Underagreement. In August 2020, the BioMarin License Agreement, we licensed two pending patentsUnited States Patent and certain trademarks for Firdapse®. OneTrademark Office (USPTO) allowed U.S. Patent No. 10,793,893 (the ’893 patent) to our licensor and thereby to us, and the patent issued on October 6, 2020. The patent is directed to the use of suitable doses of amifampridine to treat patients, regardless of the licensed patents istherapeutic indication, that are slow metabolizers of amifampridine. Any drug product containing amifampridine with a pending compositionlabel that states the patented dosing regimens and doses in the Dosing and Administration section prior to April 7, 2034, the expiration date of matterthe patent, that, if issued, will protect Firdapse® until February 2027, which includes five years of patent term extension that is expected under the Patent Term Restoration Act. This application was initially rejected following an appealcould possibly infringe this patent. Generic drug product labels would necessarily have to the Patent Trial and Appeal Board. The application was refiled with new claims. The new claims were the subject of an office action in which the claims were rejected. A response to the rejection was filed and a final rejection was issued. The application was refileddo this, and we are awaiting an office action. There can be no assurance that this patent will be issued. The second patent claims methods of administering Firdapse®. Substantive examination has begun on this patent application and a final rejection was issued and the application was refiled. We are awaiting the next office action. We may also pursue other patents in orderintend to seektake all appropriate actions to protect the exclusivity of the drug, dosage forms and methods of administration.
®
are derived from our license our intellectual property.
We may lose our rights to these patents and patent applications if we breach our obligations under the license agreement,License Agreement, including, without limitation, our financial obligations to BioMarin.the licensor. If we violate or fail to perform any term or covenant of the license agreement, BioMarinLicense Agreement, the licensor may terminate the license agreementLicense Agreement upon satisfaction of any applicable notice requirements and expiration of any applicable cure periods. Additionally, any termination of the license agreement,License Agreement, whether by us or by BioMarin,the licensor, will not relieve us of our obligation to pay any license fees owing at the time of such termination. If we fail to retain our rights under the license agreement,License Agreement, we would not be able to commercialize Firdapse
®
, and our business, results of operations, financial condition and prospects would be materially adversely affected.Our commercial success will depend in large part on our ability to use patents and regulatory exclusivity to exclude others from competing with our products. The patent position of emerging pharmaceutical companies like us can be highly uncertain and involve complex legal and technical issues. Until our licensed patents arethe ’893 patent is interpreted by a court, either because we have sought to enforce them against a competitor or because a competitor has preemptively challenged them,and unless and until our other pending applications are granted, we will not know the breadth of protection that they will afford us. Our patentspending applications, if granted, may not contain claims sufficiently broad to prevent others from practicing our technologies or marketing competing products. Third parties may intentionally attempt to design around our any Firdapseor design around our patentsthat ultimately grant so as to compete with us without infringing our patents. Moreover,Although granted patents enjoy a presumption of validity, there is a risk that the issuance of a’893 patent is not conclusive as to its validity or enforceability, and soany patents resulting from our patentsongoing prosecution efforts may be invalidated or rendered unenforceable if challenged by others.
®
patents As a result of the foregoing factors, we cannot be certain how much protection from competition patent rights will provide us.
Our success will depend significantly on our ability to operate without infringing the patents and other proprietary rights of third parties.
While we are not currently aware of any third-party patents which we may infringe,
Further, there can be no assurance that we do not or will not infringe on patents held by third parties or that third parties in the future will not claim that we have infringed on their patents. In the event that our products or technologies infringe one or more patents or violate the patent or other proprietary rights of any third parties, we may be prevented from pursuing product development, manufacturing or commercializationcommercializing any of our products that utilizeusing such technologies. ThereFor example, there may be patents or patent applications held by others of which we are unaware that contain claims that our products or operations infringe. In addition, givenmight be determined to infringe or that may be broader than we believe them to be. Given the complexities and uncertainties of patent laws, there maycan be patents of which we are awareno assurance as to the impact that we may ultimately be held to infringe, particularly if thefuture claims of the patent are determined to be broader than we believe them to be. Adding to this uncertainty, in the United States, patent applications filed in recent years are confidential for 18 months, while older applications are not publicly available until the patent issues. As a result, avoiding patent infringement against us may be difficult.have on our business, financial condition, results of operations, or prospects.
If a third-partythird party claims that we infringe its patents, any of the following may occur:
we may be preliminarily enjoined from making, using, selling, or offering to sell our allegedly infringing product by a court of competent jurisdiction in advance of any formal infringement determination;
we may be required to pay substantial financial damages if a court formally decides that our technologies infringe a competitor’s patent, whichthe third party’s patent(s). Damages can be tripled if the infringement is deemed willful, orwillful;
43
we may be required to discontinue or significantly delay development,developing, marketing, selling and licensing of the affected products and intellectual property rights;
a court may prohibit us from selling or licensing our product withoutallegedly infringing product(s) absent a license from the patent holder, which may not be available on commercially acceptable terms or at all, or which may require us to pay substantial royalties or grant cross-licenses to our patents; and
we may haveneed to redesign our product so that it does not infringe others’the third party’s patent rights, which may not be possible or could require substantial funds or time and require additional studies.
In addition, our employees, consultants, contractors and others may knowingly or unknowingly use the proprietary information of others in their work for us or disclose our proprietary information to others. If our employees, consultants, contractors or others disclose our data to others or use data belonging to others in connection with our business, it could lead to disputes over the ownership of inventions derived from that information or expose us to potential damages or other penalties.
The occurrence of any of these events could have a material adverse effect on our business, financial condition, results of operations or prospects.
We may incur substantial costs as a result of litigation or other proceedings relating to patent and other intellectual property rights.
There is substantial history of litigation and other proceedings regarding patent and intellectual property rights in the pharmaceutical industry. We may be forced to defend claims of infringement brought by our competitors and others, and we may institute litigation against othersthird parties who we believe are infringing our intellectual property rights. The outcome of intellectual property litigation is subject to substantial uncertainties and may, for example, turn on the interpretation of claim language by the court, which may not be to our advantage, or on the testimony of experts as to technical facts upon which experts may reasonably disagree.
Under our license agreements,License Agreements, we have the right to bring legal action against any alleged infringers of the patents we license. However,In that regard, on October 19, 2020, we announced that we have filed a lawsuit in the U.S. District Court for New Jersey against Jacobus and a lawsuit in the U.S. District Court for the Western District of Pennsylvania against the specialty pharmacy marketing Ruzurgilitigation. Welitigation and we have the right to any proceeds received as a result of such litigation, but,litigation. However, even if we are successful in suchthis or any other litigation we may file, there is no assurance we would be awarded any monetary damages.
®
, PantherRx Rare LLC (PantherRx), for infringement of the ‘893 Patent. The suits have since been combined in the U.S. District Court for New Jersey. The lawsuit arises from Jacobus’ and PantherRx’s sales and marketing of Ruzurgi®
(amifampridine, 10 mg). The lawsuit alleges that the Ruzurgi®
product infringes the ‘893 patent when administered in accordance with its product labeling. The lawsuit seeks damages and injunctive relief to prevent further marketing of Ruzurgi®
in violation of our patent rights. Under our License Agreements, we are responsible for all costs relating to such potential Our involvement in intellectual property litigation could result in significant expense to us. Some of our competitors have considerable resources available to them and a strong economic incentive to undertake substantial efforts to stop or delay us from commercializing products. Moreover, regardless of the outcome, intellectual property litigation against or by us could significantly disrupt our development and commercialization efforts, divert our management’s attention and quickly consume our financial resources.
In addition, if third parties filehave filed patent applications or issuehave issued patents claiming technology that is also claimed by us in any of our pending applications, we may be required to participate in interference or derivation proceedings with the third party at the United States Patent Office orOffice. We may also need to participate in other proceedings outside the United States, including oppositions,such as an opposition at the European Patent Office, to determine priority of inventionwhether or patentability.not a patent issued by the EPO was properly granted. Even if we are successful in these proceedings, we may incur substantial costs, and the time and attention of our management and scientific personnel will be diverted from product development or other more productive matters.
Risks Related
General Risk Factors Relating to Ourour Common Stock
The trading price of the shares of our common stock has been and could in the future be highly volatile.
The market price of our common stock has fluctuated in the past and is likely to fluctuate in the future. Market prices for biopharmaceutical companies have historically been particularly volatile. Some of the factors that may cause the market price of our common stock to fluctuate include:
developments concerning our clinical studies and trials and our
pre-clinical
studies;status of regulatory requirements for approval of our drug candidates;
|
adverse publicity regarding the pricing of Firdapse
®
;announcements of product development successes and failures by us or our competitors;
new products introduced or announced by us or our competitors;
44
adverse changes in the abilities of our third-party manufacturers to provide drug or product in a timely manner or to meet FDA requirements;
changes in reimbursement levels;
changes in financial estimates by securities analysts;
actual or unanticipated variations in operating results;
expiration or termination of licenses (particularly our license from BioMarin)License Agreement for Firdapse
®
), research contracts, or other collaboration agreements;conditions or trends in the regulatory climate and the biotechnology and pharmaceutical industries;
intellectual property, product liability or other litigation against us;
changes in the market valuations of similar companies;
changes in pharmaceutical company regulations or reimbursements for pharmaceutical products as a result of healthcare reform or other legislation;
changes in economic conditions; and
sales of shares of our common stock, particularly sales by our officers, directors and significant stockholders, or the perception that such sales may occur.
In addition, equity markets in general, and the market for emerging pharmaceutical and life sciences companies in particular, have experienced substantial price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of companies traded in those markets. Further, changes in economic conditions in the United States, Europe, or globally could impact our ability to grow profitably. Adverse economic changes are outside our control and may result in material adverse impacts on our business or financial results. These broad market and industry factors may materially affect the market price of our shares, regardless of our own development and operating performance. In the past, following periods of volatility in the market price of a company’s securities, securities class-action litigation has often been instituted against that company. Any such litigation that we become involved in could cause us to incur substantial costs and divert our management’s attention and resources, which could have a material adverse effect on our business, financial condition, and results of operations.
Delaware law and our certificate of incorporation and
by-laws
contain provisions that could delay and discourage takeover attempts that stockholders may consider favorable.Certain provisions of our certificate of incorporation and
by-laws,
and applicable provisions of Delaware corporate law, may make it more difficult for or prevent a third party from acquiring control of us or changing our Board of Directors and management. These provisions include:the ability of our Board of Directors to issue preferred stock with voting or other rights or preferences;
limitations on the ability of stockholders to amend our charter documents, including stockholder supermajority voting requirements;
the inability of stockholders to act by written consent or to call special meetings;
requirements that special meetings of our stockholders may only be called by the Board of Directors; and
advance notice procedures our stockholders must comply with in order to nominate candidates for election to our Board of Directors or to place stockholders’ proposals on the agenda for consideration at meetings of stockholders.
On September 20, 2011, the board of directors approved the adoption of a stockholder rights plan (“Rights Plan”), which was amended on September 19, 2016. Further, at2016 and further amended on August 28, 2019. The rights will expire on September 20, 2022, unless the 2018 annual meeting of stockholders, the stockholders approved the Rights Plan.
rights are earlier redeemed or exchanged.
The Rights Plan was implemented through our entry into a rights agreement with Continental Stock Transfer & Trust Company, as rights agent, and the declaration of a The rights will expire on September 20, 2019, unless the rights are earlier redeemed or exchanged.
non-taxable
dividend distribution of one preferred stock purchase right (each, a Right) for each outstanding share of our common stock. The dividend was paid on October 7, 2011 to holders of record as of that date. Each right is attached to and trades with the associated share of common stock. The rights will become exercisable only if a person acquires beneficial ownership of 17.5% or more of our common stock (or, in the case of a person who beneficially owned 17.5% or more of our common stock on the date the rights plan was adopted, such person acquires beneficial ownership of any additional shares of our common stock) or after the date of the Rights Agreement, commences a tender offer that, if consummated, would result in beneficial ownership by a person of 17.5% or more of our common stock.45
The intent of the Rights Plan is to protect our stockholders’ interests by encouraging anyone seeking control of our company to negotiate with our Board of Directors. However, our Rights Plan could make it more difficult for a third party to acquire us without the consent of our Board of Directors, even if doing so may be beneficial to our stockholders. This plan may discourage, delay or prevent a tender offer or takeover attempt, including offers or attempts that could result in a premium over the market price of our common stock. This plan could reduce the price that stockholders might be willing to pay for shares of our common stock in the future. Furthermore, the anti-takeover provisions of our Rights Plan may entrench management and make it more difficult to replace management even if the stockholders consider it beneficial to do so.
In addition, Section 203 of the Delaware General Corporation Law generally prohibits us from engaging in a business combination with any person who owns 15% or more of our common stock for a period of three years from the date such person acquired such common stock, unless Board or stockholder approval is obtained. These provisions could make it difficult for a third party to acquire us, or for members of our Board of Directors to be replaced, even if doing so would be beneficial to our stockholders.
Any delay or prevention of a change of control transaction or changes in our Board of Directors or management could deter potential acquirers or prevent the completion of a transaction in which our stockholders could receive a substantial premium over the then current market price for their shares.
Future sales of our common stock may cause our stock price to decline.
As of March 14, 2019,11, 2021, we had 102,739,257103,824,973 shares of our common stock outstanding, of which 7,084,1647,234,820 shares were held by our officers and directors. We also had outstanding: (i) stock options to purchase an aggregate of 10,649,50013,888,670 shares at exercise prices ranging from $0.79 to $4.64$6.63 per share (5,334,163(8,625,621 of which are currently exercisable); and (ii) restricted stock units for 235,671 shares of common stock (none of which are currently vested). Sales of restricted shares, or shares underlying stock options, or the perception in the market that the holders of a large number of shares intend to sell shares, could reduce the market price of our common stock.
We do not intend to pay cash dividends on our common stock in the foreseeable future.
We have never declared or paid any cash dividends on our common stock or other securities, and we currently do not anticipate paying any cash dividends in the foreseeable future. Accordingly, investors should not invest in our common stock if they require dividend income. Our stockholders will not realize a return on their investment unless the trading price of our common stock appreciates, which is uncertain and unpredictable.
Item 1B. | Unresolved Staff Comments |
Item 2. | Properties |
We currently operate our business in leased office space in Coral Gables, Florida. We currently leaseDuring 2020 we leased approximately 7,800 square feet of space for which we paypaid annual rent of approximately $330,000.
In 2018, During May 2020 we amended our office lease to increase our leased space to approximately 10,700 square feet. The amended lease commenced in early 2021 when construction of the asset was completed and the space became awareavailable for use. Consequently, we will record the effects of the amended lease in Q1 2021.
Item 3. | Legal Proceedings |
Ruzurgi
®
We believe that certain patents grantedthe FDA’s approval of RuzurgiNorthwestern in 2018 (which patents have been licensed by Northwestern to a third-party) for a new GABA aminotransferase inhibitor were derived fromCPP-115.law. As a result, it is our positionin June 2019 we filed suit against the FDA and several related parties challenging this approval and related drug labeling. Our complaint, which was filed in the federal district court for the Southern District of Florida, alleged that Northwestern has the FDA’s approval of Ruzurgithe license agreement based on its failure to transfer these new patent rights to us as partmultiple provisions of the existing license agreement. It is also our position that Northwestern’s publication of information about the new patentsFDA regulations regarding labeling, resulting in misbranding in violation of the license agreement has damaged us. On October 26, 2018, we notified Northwestern that we were terminatingFederal Food, Drug, and Cosmetic Act (FDCA); violated our statutory rights to Orphan Drug Exclusivity and New Chemical Entity Exclusivity under the license agreement forCPP-115FDCA; and seeking damages for Northwestern’s breachwas in multiple other respects arbitrary, capricious, and contrary to law, in violation of the license agreement. Further,Administrative Procedure Act. Among other remedies, the suit sought an order setting aside the FDA’s approval of Ruzurgi
®
violated our statutory rights and was in multiple other respects arbitrary, capricious and contrary to ®
violated ®
.46
On July 30, 2020, the Magistrate Judge considering our lawsuit against the FDA filed a Report and Recommendation in which she recommended to the District Judge handling the case that she grant the FDA’s and Jacobus’ motions for summary judgment and deny our motion for summary judgment. On September 29, 2020, the District Judge adopted the Report and Recommendation of the Magistrate Judge, granted the FDA’s and Jacobus’ motions for summary judgment, and dismissed our case.
We believe that the District Judge’s decision is incorrect as a matter of law and contrary to the plain language of the Orphan Drug Act. We believe that if the District Judge’s decision to grant summary judgment is correct on the same date,law, it means that the FDA has the authority to effectively eliminate the benefits of exclusivity under the Orphan Drug Act, which we filed a claimbelieve will chill the incentive for damages in arbitration against Northwestern for Northwestern’s breachesdrug companies to spend the millions of the license agreement.
On November 5, 2018, Northwestern advised us that in its view, Northwestern has a right to terminate the license agreement with us because we allegedly breached the license agreement by failing to pay certain milestones and by allegedly failing to use commercially reasonable effortsdollars necessary to develop and commercialize any products. Northwestern has also advised us that, in its view,an orphan drug. As a result, we have engaged in wrongful conduct and communications withappealed the unrelated pharmaceutical company that licenseddecision to the new patents from Northwestern, and that such communications have damaged Northwestern’s relationship with that party. We dispute Northwestern’s allegations and intend to vigorously defend ourselves against claims that Northwestern has brought against us in the arbitration proceedings.
The arbitration is currently pending and thereEleventh Circuit Court of Appeals. There can be no assurance of the result of such proceeding.
On August 10, 2020, Health Canada issued a Notice of Compliance (NOC) to Medunik for Ruzurgi
®
for the treatment of LEMS. We have since initiated a legal proceeding in Canada seeking judicial review of Health Canada’s decision to issue the NOC for Ruzurgi®
as incorrect and unreasonable under Canadian law. Data protection, per Health Canada regulations, is supposed to prevent Health Canada from issuing a NOC to a drug that directly or indirectly references an innovative drug’s data, for eight years from the date of the innovative drug’s approval. The Ruzurgi®
Product Monograph clearly references pivotal nonclinical carcinogenicity and reproductive toxicity data for amifampridine phosphate developed by us. As such, we believe that our data was relied upon to establish the nonclinical safety profile of Ruzurgi®
needed to meet the standards of the Canadian Food and Drugs Act. There can be no assurance of the results of this proceeding.Patent Litigation
All of our patent rights for Firdapseoutcomeuse of suitable doses of amifampridine to treat patients, regardless of the therapeutic indication, that are slow metabolizers of amifampridine. Any drug product containing amifampridine with a label that states the patented dosing regimens and doses in the Dosing and Administration section prior to April 7, 2034, the expiration date of the patent, could possibly infringe this matter.
®
are derived from our license agreement. In August 2020, the United States Patent and Trademark Office (USPTO) allowed U.S. Patent No. 10,793,893 (the ’893 patent) to our licensor and thereby to us, and the patent issued on October 6, 2020. The patent is directed to the Additionally,patent. Generic drug product labels would necessarily have to do this, and we intend to take all appropriate actions to protect our intellectual property.
In that regard, on October 19, 2020, we announced that we have filed a lawsuit in the U.S. District Court for New Jersey against Jacobus and a lawsuit in the U.S. District Court for the Western District of Pennsylvania against the specialty pharmacy marketing Ruzurgi
®
, PantherRx Rare LLC (PantherRx), for infringement of the ‘893 Patent. The suits have since been combined in the U.S. District Court for New Jersey. The lawsuit arises from Jacobus’ and PantherRx’s sales and marketing of Ruzurgi®
(amifampridine, 10 mg). The lawsuit alleges that the Ruzurgi®
product infringes the ‘893 patent when administered in accordance with its product labeling. The lawsuit seeks damages and injunctive relief to prevent further marketing of Ruzurgi®
in violation of our patent rights.Other Litigation
From time to time we may become involved in legal proceedings arising in the ordinary course of business. WeOther than as set forth above, we believe that there is no litigation pending at this time that could have, individually or in the aggregate, a material adverse effect on our results of operations, financial condition or cash flows.
Item 4. | Mine Safety Disclosure |
Not applicable.
47
Item 5. | Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities |
Performance Graph
The graph below matches Catalyst Pharmaceuticals, Inc.’s cumulativeIssuer Purchasesthe NASDAQ Biotechnology index. The graph tracks the performance of Equity Securities
5-Year
total shareholder return on common stock with the cumulative total returns of the NASDAQ Composite index, the Russell MicroCap index, and a $100 investment in our common stock and in each index (with the reinvestment of all dividends) from 12/31/2015 to 12/31/2020.
*$100 invested on 12/31/15 in stock or index, including reinvestment of dividends.
Fiscal year ending December 31.
Copyright
©
2021 Russell Investment Group. All rights reserved.12/15 | 12/16 | 12/17 | 12/18 | 12/19 | 12/20 | |||||||||||||||||||
Catalyst Pharmaceuticals, Inc. | 100.00 | 42.86 | 159.59 | 78.37 | 153.06 | 136.33 | ||||||||||||||||||
NASDAQ Composite | 100.00 | 108.87 | 141.13 | 137.12 | 187.44 | 271.64 | ||||||||||||||||||
Russell MicroCap | 100.00 | 120.37 | 136.22 | 118.40 | 144.96 | 175.34 | ||||||||||||||||||
NASDAQ Biotechnology | 100.00 | 78.65 | 95.67 | 87.19 | 109.08 | 137.90 | ||||||||||||||||||
The stock price performance included in this graph is not necessarily indicative of future stock price performance.
48
Market Information
Our common stock trades on the Nasdaq Capital Market under the symbol “CPRX.”
The closing sale price for the common stock on March 14, 201911, 2021 was $2.99.$3.77. As of March 14, 2019,11, 2021, there were 3931 holders of record of our common stock, which includes custodians who hold our securities for the benefit of others. We estimate that there are approximately 11,500 beneficial holders of our common stock.
Dividend Policy
We have never declared or paid any cash dividends on our capital stock. We currently intend to retain all available funds and any future earnings to support operations and finance the growth and development of our business and do not intend to pay cash dividends on our common stock for the foreseeable future. Any future determination related to our dividend policy will be made at the discretion of our Board of Directors.
Performance Graph
Not applicable.
The selected statement of operations data for the years ended December 31, 2018 and 2017, and the balance sheet datafollowing table presents information as of December 31, 2018 and 2017, have been derived from2020 with respect to compensation plans under which shares of our audited consolidated financial statements included elsewhere in this Form10-K. The selected statementcommon stock may be issued.
Equity Compensation Plan Information | ||||||||||||
Plan Category | Number of securities to be issued upon exercise of outstanding options, warrants, and rights | Weighted-average exercise price of outstanding options, warrants, and rights | Number of securities remaining available for equity compensation plans | |||||||||
Equity compensation plans approved by security holders (1) | 13,393,669 | $ | 3.10 | 1,856,008 | (2) | |||||||
Equity compensation plans not approved by security holders | — | — | — | |||||||||
Total | 13,393,669 | $ | 3.10 | 1,856,008 | ||||||||
| (1) | Includes our 2014 Stock Incentive Plan and our 2018 Stock Incentive Plan |
| (2) | Remaining shares are only under our 2018 Stock Incentive Plan |
Sales of operations data for the years ended December 31, 2016, 2015 and 2014 and the selected balance sheet data at December 31, 2016, 2015 and 2014 have been derived from financial statements that are not included in this Form10-K. Historical results are not necessarily indicativeUnregistered Securities
None.
Issuer Purchases of future results. This selected financial data should be read in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our consolidated financial statements and related notes included elsewhere in this Form10-K.
| Year Ended December 31, | ||||||||||||||||||||
Statement of Operations Data: | 2018 | 2017 | 2016 | 2015 | 2014 | |||||||||||||||
Revenues from collaborative arrangement | $ | 500,000 | $ | — | $ | — | $ | — | $ | — | ||||||||||
Operating costs and expenses: | ||||||||||||||||||||
Research and development | 19,919,204 | 11,375,237 | 11,369,941 | 11,801,342 | 10,117,774 | |||||||||||||||
General and administrative | 15,875,961 | 7,304,399 | 7,910,260 | 8,597,010 | 4,473,654 | |||||||||||||||
|
|
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| |||||||||||
Total operating cost and expenses | 35,795,165 | 18,679,636 | 19,280,201 | 20,398,352 | 14,591,428 | |||||||||||||||
|
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|
|
|
|
|
| |||||||||||
Loss from operations | (35,295,165 | ) | (18,679,636 | ) | (19,280,201 | ) | (20,398,352 | ) | (14,591,428 | ) | ||||||||||
Other income, net | 1,291,651 | 454,163 | 321,612 | 100,389 | 76,233 | |||||||||||||||
Change in fair value of warrants liability | — | (186,904 | ) | 886,137 | 65,005 | (993,866 | ) | |||||||||||||
|
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|
|
| |||||||||||
Loss before income taxes | (34,003,514 | ) | (18,412,377 | ) | (18,072,452 | ) | (20,232,958 | ) | (15,509,061 | ) | ||||||||||
Provision for income taxes | — | — | — | — | — | |||||||||||||||
|
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|
|
|
|
|
|
| |||||||||||
Net loss | $ | (34,003,514 | ) | $ | (18,412,377 | ) | $ | (18,072,452 | ) | $ | (20,232,958 | ) | $ | (15,509,061 | ) | |||||
|
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|
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| |||||||||||
Net loss per share – basic and diluted | $ | (0.33 | ) | $ | (0.21 | ) | $ | (0.22 | ) | $ | (0.25 | ) | $ | (0.24 | ) | |||||
|
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| |||||||||||
Weighted average shares outstanding – basic and diluted | 102,633,884 | 85,802,487 | 82,875,281 | 80,858,393 | 64,142,534 | |||||||||||||||
|
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| |||||||||||
| As of December 31, | ||||||||||||||||||||
Balance Sheet Data: | 2018 | 2017 | 2016 | 2015 | 2014 | |||||||||||||||
Cash and cash equivalents, certificates of deposit and investments | $ | 58,489,856 | $ | 84,013,413 | $ | 40,405,817 | $ | 58,396,395 | $ | 39,275,123 | ||||||||||
Working capital | 45,676,052 | 80,920,995 | 39,359,226 | 56,460,530 | 37,972,795 | |||||||||||||||
Total assets | 60,449,962 | 85,387,430 | 41,706,853 | 60,101,570 | 43,908,086 | |||||||||||||||
Warrants liability, at fair value | — | — | 122,226 | 1,008,363 | 2,794,891 | |||||||||||||||
Total liabilities | 9,666,153 | 4,423,618 | 2,397,923 | 4,625,259 | 8,665,756 | |||||||||||||||
Stockholders’ equity | 50,783,809 | 80,963,812 | 39,308,930 | 55,476,311 | 35,242,330 | |||||||||||||||
Item 6. | Selected Financial Data |
Not applicable.
Item 7. | Management’s Discussion and Analysis of Financial Condition and Results of Operations |
The following discussion and analysis of our financial condition and results of operations should be read in conjunction with “Selected Financial Data” and our consolidated financial statements and related notes appearing elsewhere in this Form10-K.report. In addition to historical information, this discussion and analysis contains forward-looking statements that involve risks, uncertainties, and assumptions. Our actual results may differ materially from those anticipated in these forward-looking statements as a result of certain factors, including but not limited to those set forth under the caption “Risk Factors” in Item 1A of this Form10-K.
report.
49
Introduction
Management’s Discussion and Analysis of Financial Condition and Results of Operations (MD&A) is intended to provide an understanding of our financial condition, changes in financial condition and results of operations. The discussion and analysis is organized as follows:
|
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|
Overview
Basis of Presentation
Critical Accounting Policies and Estimates
Results of Operations
Liquidity and Capital Resources
off-balance
sheet arrangements and our outstanding commitments, if any.Caution Concerning Forward-Looking Statements
Overview
We are a biopharmaceutical company focused on developing and commercializing innovative therapies for people with rare, debilitating, chronic diseases. We are currently focusing our efforts on products that treat diseases in the neuromuscular and neurological diseases.space, but we recently decided to expand our strategic focus to include acquiring or
in-licensing
innovative technology platforms and earlier stage programs in other rare disease therapeutic categories outside of these spaces. We are dedicated to making a meaningful impact on the lives of those suffering from rare diseases, and we believe in putting patients first in everything we do.Impact of the
COVID-19
pandemic on our businessThe
COVID-19
pandemic has resulted, and is expected to continue to result, in significant economic disruption, and has adversely affected and will likely continue to adversely affect our business. We are actively monitoring the situation and are taking those actions that may be required by federal, state or local authorities or that we determine are in the best interests of our patients, investigators, employees and stockholders.In March 2020, in light of worsening conditions as a result of the pandemic, we implemented a number of safety related initiatives among our employees, including a travel ban and a work from home policy for all employees. This included our customer-facing employees, who began working remotely and utilizing telephone and
web-based
technologies to provide support to patients and their healthcare providers. We believe that because many healthcare providers have delayed seeing new patients because of the pandemic, there has been a delay in the diagnosis of new LEMS patients and their initiating therapy, which has slowed our efforts to locate new patients who could benefit from our therapy. However, we believe that as more healthcare providers resume seeing new patients on a regular basis, that this aspect of theCOVID-19
pandemic on our business will lessen.Our Firdapse
®
supply chain remains robust and thus far we have observed no disruptions in the production of Firdapse®
. We reiterate that we are committed to providing patients with the ability to obtain an uninterrupted supply of Firdapse®
, and we believe that we have an adequate supply of Firdapse®
to address patients’ needs for the foreseeable future. Further, we are advised by our U.S. manufacturing partners that they have implemented contingency plans to remain in operation. We are committed to meeting our patients’ needs for Firdapse®
and believe that our supply chain will continue to remain solid and uninterrupted through theCOVID-19
outbreak and beyond.Until such time as the
COVID-19
pandemic is over, it will likely adversely impact the timetable of our ongoing and contemplated clinical trials and studies, and increase the costs of such trials and studies, consistent with the impact that theCOVID-19
pandemic has had on many biopharmaceutical companies.Strategic Plan for 2021 and Beyond
Our Board of Directors recently approved an expansion in our company’s strategic focus to include acquiring or
in-licensing
innovative technology platforms and earlier stage programs in other therapeutic categories outside of neuromuscular diseases. To accomplish these new priorities, we are prepared to invest more heavily in research and development, including acquiring earlier stage opportunities and innovative technology. We believe that this strategic expansion will better position our company to build out a broader more diversified portfolio of drug candidates that we believe will add greater value to our company over the near and long-term. However, there can be no assurance that whatever product candidates or technology platforms we acquire, if any, will be successfully developed.50
To spearhead this investment, we have commenced a national search for a key executive to manage this more progressive strategy. This person will likely be an M.D. or Ph.D. with at least
15-20
years of relevant pharmaceutical experience and experience in developing innovative drug technology. This person will be responsible for portfolio expansion planning and developing medicines from discovery through marketing authorizations, as well as strategic leadership across all R&D activities including, direct oversight of science and clinical research.Firdapse
®
In October 2012, we licensed the North American rights to FirdapseFDAFood and Drug Administration (FDA) for the treatment of patients with Lambert-Eaton Myasthenic Syndrome (LEMS),LEMS, a rare and sometimes fatal autoimmune disease characterized by muscle weakness. Further,Additionally, in August 2013, we were granted “breakthrough therapy designation” by the United States Food & Drug Administration (FDA),FDA for FirdapseFinally,Further, the FDA has granted Orphan Drug Designation for Firdapsepatients with Congenital Myasthenic Syndromes (CMS) and Myasthenia Gravis (MG).
®
, a proprietary form of amifampridine phosphate, or chemically known as3,4-diaminopyridine phosphate, from BioMarin Pharmaceutical Inc. (BioMarin).
phosphate. When we acquired the rights to the product, it had already been granted orphan drug designation by the ®
for the treatment of LEMS. ®
for the treatment of On November 28, 2018, we received approval from the FDA for Firdapseadults with LEMS. Prior to that approval, the chemical entity, amifampridine(3,4-diaminopyridine, or3,4-DAP), had never been approved by the FDA for any indication. Because amifampridine phosphate (Firdapse®) had previously been granted Orphan Drug designation for the treatment ofadult LEMS we have received seven years of marketing exclusivity for this indication. Further, since we were the first pharmaceutical company to obtain approval for a product containing amifampridine, we have also received five years of marketing exclusivity with respect to the use of this product for all indications, running concurrently with the seven years of orphan marketing exclusivity described above.
®
10 mg tablets for the treatment of patients (ages 17 and above). In January 2019, we launched Firdapse®in the United States, selling through a field force experienced in neurologic, central nervous system or rare disease products consisting at the time of approximately 20 field personnel, including sales (Regional Account Managers), patient assistance and insurance navigation support (Patient Access Liaisons), and payerpayor reimbursement (National Account Managers) personnel.. We also have a field-based force of six medical science liaisons who are helping educate the medical communities and patients about LEMS and about our ongoing clinical trial activities evaluating Firdapse®for other ultra-orphan, neuromuscular diseases. Finally, we are working with several rare disease advocacy organizations (including Global Genes, the National Organization for Rare Disorders (NORD), and the Myasthenia Gravis Foundation of America) to help increase awareness and level of support for patients living with LEMS, CMS and MuSKAnti-MuSK antibody positive myasthenia gravis, orMuSK-MG,and other neurological diseases, and to provide education for the physicians who treat these rare diseases and the patients they treat.
In early 2020, we expanded our field sales group by almost one hundred percent and contracted with an experienced inside sales agency generating leads through telemarketing to targeted physicians. We made these changes to expand our sales efforts beyond the neuromuscular specialists who regularly treat LEMS patients to reach the roughly 9,000 neurology and neuromuscular healthcare providers that may be treating an adult LEMS patient who can benefit from Firdapse
®
. We also continue to make available atno-cost
a LEMS voltage gated calcium channel (VGCC) antibody testing program for use by physicians who suspect that one of their patients may have LEMS and wish to reach a definitive diagnosis. Further, we are continuing to expand our digital and social media activities in order to introduce our product and services to potential patients and their healthcare providers.We are supporting the distribution of FirdapsePathways™Pathways”” our personalized treatment support program. “Catalyst Pathways”
®
through “Catalyst ™
,™
is a single source for personalized treatment support, education and guidance through the challenging dosing and titration regimen to an effective therapeutic dose. It also includes distributing the drug through a very small group of exclusive specialty pharmacies (primarily AnovoRx), which is consistent with the way that most pharmaceutical products for ultra-orphan diseases are distributed and dispensed to patients. We believe that by using specialty pharmacies in this way, the difficult task of navigating the health care system is far better for the patient needing treatment for their rare disease and the health care community in general.In order to help adult LEMS patients afford their medication, we, like other pharmaceutical companies which are marketing drugs for ultra-orphan conditions, have developed an array of financial assistance programs that are available to reduce patientcosts to $10 or lessnot more than $10.00 per month is available for all LEMS patients prescribed FirdapseOurSubject to compliance with regulatory requirements, our goal is to ensure that no LEMS patient is ever denied access to Firdapse®their medication for financial reasons.
co-pays
and deductibles to a nominal affordable amount. For eligible patients with commercial coverage, aco-pay
assistance program designed to keepout-of-pocket
®
. We are also donating, and committing to continue to donate, money to qualified, independent charitable foundations dedicated to providing assistance to any U.S. LEMS patients in financial need. In May 2019, the FDA approved a New Drug Application (NDA) for Ruzurgi
®
, another version of amifampridine(3,4-DAP),
for the treatment of pediatric LEMS patients (ages 6 to under 17). While the NDA for Ruzurgi®
only covers pediatric patients, we believe that Ruzurgi®
is regularly being prescribed off label to adult LEMS patients. We believe that under applicable law, Jacobus is not permitted to market its amifampridine product to adult LEMS patients in the United States, and we are continuing to aggressively take all steps available to us to protect Firdapse’s®
exclusivity under the Orphan Drug Act. There can be no assurance, however, that we will be able to stop theoff-label
prescribing of Ruzurgi®
to adult LEMS patients. If Jacobus is able to successfully sell Ruzurgi®
off-label
to additional adult LEMS patients, it could have a material adverse effect on our business, financial condition and results of operations.51
We also believe that the FDA’s approval of Ruzurgi
®
violated our statutory rights and was in multiple other respects arbitrary, capricious and contrary to law. As a result, in June 2019 we filed suit against the FDA and several related parties challenging this approval and related drug labeling. Our complaint, which was filed in the federal district court for the Southern District of Florida, alleged that the FDA’s approval of Ruzurgi®
violated multiple provisions of FDA regulations regarding labeling, resulting in misbranding in violation of the Federal Food, Drug, and Cosmetic Act (FDCA); violated our statutory rights to Orphan Drug Exclusivity and New Chemical Entity Exclusivity under the FDCA; and was in multiple other respects arbitrary, capricious, and contrary to law, in violation of the Administrative Procedure Act. Among other remedies, the suit sought an order setting aside the FDA’s approval of Ruzurgi®
.On July 30, 2020, the Magistrate Judge considering our lawsuit against the FDA filed a Report and Recommendation in which she recommended to the District Judge handling the case that she grant the FDA’s and Jacobus’ motions for summary judgment and deny our motion for summary judgment. On September 29, 2020, the District Judge adopted the Report and Recommendation of the Magistrate Judge, granted the FDA’s and Jacobus’ motions for summary judgment, and dismissed our case.
We believe that the District Judge’s decision is incorrect as a matter of law and contrary to the plain language of the Orphan Drug Act. We believe that if the District Judge’s decision to grant summary judgment is correct on the law, it means that the FDA has the authority to effectively eliminate the benefits of exclusivity under the Orphan Drug Act, which we believe will chill the incentive for drug companies to spend the millions of dollars necessary to develop an orphan drug. As a result, we have appealed the decision to the Eleventh Circuit Court of Appeals. There can be no assurance of the result of such proceeding.
We are currently conductingdeveloping a long-acting formulation of amifampridine phosphate. A number of candidate formulations have been prepared, and three of the most promising formulations were evaluated in a pharmacokinetic (PK) study completed during the fourth quarter of 2020. The results of this first PK study will be used to inform the design and refinement of future product formulations and additional PK work to be conducted in 2021. We have also completed a number of advisory board meetings with both patients and doctors in order to establish the optimum target characteristics of the long-acting formulation of amifampridine phosphate that are desired by the LEMS patient community and treating physicians. There can be no assurance that we will be able to successfully develop a long-acting formulation of amifampridine phosphate, that any such formulation will be approved by the FDA for marketing, or that any such formulation will be commercially viable.
On August 10, 2020, we announced thecertain types of CMS. Thisadults withwhich will include approximately 23 adultwas a multi-site, international (United States, Italy and pediatric subjects, is being conducted at trial sites around the United States and Canada. Details of this trial are available on www.clinicaltrials.gov (NCT02562066). Based on currently available information, we expect to reporttop-line results from this trial in the second half of 2019.is a multi-site, international (United States and Italy), double-blind, placebo-controlled, clinical trial that is targeted to enroll approximately 60 subjects diagnosedwith MuSK-MG. The trial will also enroll up to 10 generalized myasthenia gravis patients who will be assessed with the same clinical endpoints but achievingdid not achieve statistical significance in this subgroupon its primary endpoint or its secondary endpoint. However, we have recently concluded a detailed analysis of patients is not required and only summary statistics will be provided. We initiated this trial in January 2018 and are currently enrolling subjects. We currently expect toreport top-line resultsthe data from this trial in an effort to understand why thesecond halfinitial dose-titration period of 2019. Detailsthe trial and in our previoustrial. We found in our analysis that there was a large degree of this trial are available on www.clinicaltrials.gov (NCT03304054).
top-line
results from our Phase 3 clinical trial(MSK-002)
evaluating Firdapse®
for the treatment of MuSK-MG.
Our trial We are currently conducting a Phase 3Serbia), double-blind, placebo-controlled, clinical trial evaluating Firdapse® for the treatment ofMuSK-MGbeing conducted under a Special Protocol Assessment (SPA) with the FDA. The Unfortunately, the
MSK-002
trial MuSK-MG
Phase 3 trial did not meet statistical significance on its endpoints, even though clinical improvement was observed by patients and investigators during the proof-of-concept
Becausesymptom variability during the FDA has granted Orphan Drug Designation for Firdapse®double-blind withdrawal period. We believe that sources of such variability can be addressed in a redesigned study that may better demonstrate the efficacy of our drug for the treatment of patients
MuSK-MG.
We plan to present our hypotheses and a revised protocol to the FDA with CMS and MG, if we arerespect to theto receive approvals in the future for Firdapse® for the treatmenthalf of CMS orMuSK-MG, we would be eligible to receive seven years of marketing exclusivity for those indications added to our Firdapse® label, of which2021. However, there can be no assurance.
MuSK-MG
indication for discussion during the first We are conductingassurance that the FDA will either grant aproof-of-concept meeting, agree with our protocol design or, even if the study is successful, accept the results of a single study of a different trial design as sufficient evidence for approval of theMuSK-MGindication. While we prepare for the meeting with FDA, we also plan to evaluate new clinical trial sites and discuss the new trial design with investigators. After meeting with the FDA, we will determine whether or not to proceed with a new trial that incorporates the new trial design.
Our exploratory study, evaluating Firdapse® as a symptomatic treatment for patientsambulatory. The we have decided not to pursue the SMA Type 3 indication further.
SMA-001
(A Randomized Placebo Controlled Crossover Study to Evaluate the Safety and Efficacy of Amifampridine Phosphate in Ambulatory Patients with Spinal Muscular Atrophy (SMA) Type 3), met the primary endpoint of a statistically significant difference for the Hammersmith Functional Motor Scale Expanded (HFMSE). Clinically, however, the effect was modest. The secondary endpoints were not statistically significant, although several individual quality of life measures demonstrated a nominally positive statistically significant change. Key opinion leaders with whom we have spoken believed that Firdapse®
needed to show a large clinically significant change if there was the possibility to affect disease progression through retrograde signaling from enhanced neuromuscular junction function. After considering all of these factors, we have concluded that the modest results exhibited in this study are unlikely to result in a sufficient modification of disease progression, and, particularly in light of the fact that there are now three approved disease modifying medications for SMA Type 3, 52
We intend to conduct astudy is designed evaluating Firdapserandomized (1:1),double-blind, 2-period, 2-treatment, crossover,outpatient proof-of-concept studytreatment for Hereditary Neuropathy with Liability to evaluatePressure Palsies (HNPP). The scientific basis for considering this indication is that leakage of neuron potassium channels is observed in HNPP. Since Firdapsesafety, tolerability and potential efficacypathological effects of amifampridinethe potassium channel leakage in ambulatory patients diagnosed with SMA Type 3. The study is planned to include approximately 12 patients, and we currently expect toreport top-line results from this study in the first half of 2020. Details of this trial are available on www.clinicaltrials.gov (NCT03781479).study will be successful.
proof-of-concept
®
as a ®
is a potassium channel blocker, it may mitigate the HNPP patients. There can be no assurance that our currently ongoingthis
proof-of-concept
There can be no assurance that clinical trials evaluatingof Firdapse may undertake in the future to evaluate Firdapse® for the treatment of other rare neuromuscular diseases, will be successful. Further, there can be no assurance that we will ever be granted the right to commercialize Firdapseof theseadditional indications.
® for the treatment ofCMS, MuSK-MG or SMA Type 3, or any trials
that we®
for any Finally, we intend to take steps to seek approvalOur NDS filing for Firdapse®for the symptomatic treatment of LEMS was approved by Health Canada on July 31, 2020. In August 2020, we entered into a license agreement with KYE Pharmaceuticals (KYE), pursuant to which we licensed the Canadian rights for Firdapse®for the treatment of LEMS to KYE. Pursuant to the license agreement, KYE is obligated to pay us anup-frontpayment based on approval and product supply, data protection milestones based on achievements of sales and regulatory milestones, and a sharing of defined net sales upon commercialization.
On August 10, 2020, Health Canada issued a Notice of Compliance (NOC) to Medunik for RuzurgiCanada. Canada seeking judicial review of Health Canada’s decision to issue the NOC for Ruzurgi
®
for the treatment of LEMS. We have since initiated a legal proceeding in ®
as incorrect and unreasonable under Canadian law. Data protection, per Health Canada regulations, is supposed to prevent Health Canada from issuing a NOC to a drug that directly or indirectly references an innovative drug’s data, for eight years from the date of the innovative drug’s approval. The Ruzurgi®
Product Monograph clearly references pivotal nonclinical carcinogenicity and reproductive toxicity data for amifampridine phosphate developed by us. As such, we believe that our data was relied upon to establish the nonclinical safety profile of Ruzurgi®
needed to meet the standards of the Canadian Food and Drugs Act. There can be no assurance of the results of this proceeding.In May 2019, we entered into an amendment to our license agreement for Firdapse
®
. Under the amendment, we have expanded our commercial territory for Firdapse®
, which originally was comprised of North America, to include Japan. Additionally, we have an option to further expand our territory under the license agreement to include most of Asia, as well as Central and South America, upon the achievement of certain milestones in Japan. Under the amendment, we will pay royalties on net sales in Japan of a similar percentage to the royalties that we are currently paying under our original license agreement for North America.We also intendhave met with Japanese regulatory authorities and believe that we have reached an agreement with them as a longer term strategyto the scope of the clinical trial that we will be required to undertake in Japan before we will be permitted to submit an application to the Japanese regulatory authorities to seek to develop a sustained release formulation commercialize FirdapseFirdapse®.the treatment of LEMS in Japan. We also have applied for orphan drug designation in Japan for the symptomatic treatment of LEMS. There can be no assurance that we will be successful successfully obtain the right to commercialize Firdapsethese efforts.
®
for ®
in Generic SabrilJapan or obtain orphan drug designation.
All of our patent rights for FirdapseSeptember 2015, we announced the initiation of a project to develop generic versions of Sabril®(vigabatrin). Sabril®is marketed by Lundbeck Inc. inAugust 2020, the United States Patent and Trademark Office (USPTO) allowed Patent No. 10,798,893 (the ’893 patent) to our licensor and thereby to us, and the patent issued on October 6, 2020. The patent is directed to the use of suitable doses of amifampridine to treat patients, regardless of the therapeutic indication, that are slow metabolizers of amifampridine. Any drug product containing amifampridine with a label that states the patented dosing regimens and doses in two dosage forms (powder sachetsthe Dosing and tablets)Administration section prior to April 7, 2034, the expiration date of the patent, could possibly infringe this patent. Generic drug product labels would necessarily have to do this, and we intend to take all appropriate actions to protect our intellectual property.
®
are derived from our license agreement. In In that regard, in October 2020, we filed a lawsuit in the U.S. District Court for New Jersey against Jacobus and a lawsuit in the U.S. District Court for the treatmentWestern District of infantile spasms and refractory complex partial seizures. Par Pharmaceutical broughtPennsylvania against the first generic versionspecialty pharmacy marketing Ruzurgipowder sachet‘893 Patent. The suits have since been combined in the U.S. District Court for New Jersey. The lawsuit arises from Jacobus’ and PantherRx’s sales and marketing of Ruzurgimarket, and,prevent further marketing of Ruzurgi
®
, PantherRx Rare LLC (PantherRx), for infringement of the ®
(amifampridine, 10 mg). The lawsuit alleges that the Ruzurgi®
product infringes the ‘893 patent when administered in accordance with its product labeling. The lawsuit seeks damages and injunctive relief to ®
in violation of our patent rights.We are also pursuing additional patent applications for Firdapsedate, several generic versionsfurther protect our drug product. There can be no assurance that any additional patents will be issued which provide additional intellectual property protection for our drug product.
®
in an effort to There can be no assurance that we do not or will not infringe on patents held by third parties or that third parties in the future will not claim that we have infringed on their patents. In the event that our products or technologies infringe or violate the patent or other proprietary rights of the powder sachets have been approved. However, at this time,third parties, there is only one approved generic versiona possibility we may be prevented from pursuing product development, manufacturing or commercialization of our products that utilize such technologies until the tablets.
Onunderlying patent dispute is resolved. For example, there may be patents or patent applications held by others that contain claims that our products or operations might be determined to infringe or that may be broader than we believe them to be. Given the complexities and uncertainties of patent laws, there can be no assurance as to the impact that future patent claims against us may have on our business, financial condition, results of operations, or prospects.
53
Generic Sabril
®
In December 18, 2018, we announced that we had signedentered into a definitive agreement with Endo International PLC’splc’s subsidiary, Endo Ventures Limited (“Endo”), for the further development and commercialization of generic Sabril have received anandof $500,000. We will be entitled to receive a milestone payment of $2.0 million on the commercial launch of the product. Further, we will receive milestone payments based on achievement of regulatory approvals, and a sharing of defined net profits upon commercialization and we are obligated to share the costs of certain expenses for development.
®
tablets through Endo’s United States Generic Pharmaceuticals segment, Par Pharmaceutical. Pursuant to the agreement, in December 2018, weup-front
payment development expenses.
There can be no assurance that our collaboration with Endo for the development of generic SabrilAbbreviated New Drug Applicationabbreviated new drug application (ANDA) is approved for vigabatrin tablets in the future, that it will be profitable to us.
®
(vigabatrin) tablets will be successful and that if an Capital Resources
At December 31, 2020, we had cash and investments of approximately $140.3 million. Based on our current financial condition and forecasts of available cash, we believe that we have sufficient funds to support our operations for at least the next 12 months. There can be no assurance that we will continue to be successful in commercializing Firdapse
®
or will continue to be profitable. Further, there can be no assurance that if we need additional funding in the future, whether such funding will be available to us. See “Liquidity and Capital Resources” below for further information on our liquidity and cash flow.Basis of Presentation
Revenues
In 2018
Revenues.
At December 31, 2020 we were a development stage company, as we had nocontinued to generate revenues from product sales. We expect to have product sales of Firdapse2019 as we commercialize Firdapse®. In 2018, we generated revenues of $500,000 fromup-front license fees received under a collaborative agreement with Endo.the U.S. We expect these revenues to fluctuate in future periods based on our collaborators’ abilitiessales of Firdapseagreements.
®
in ®
. We received approval from Health Canada on July 31, 2020, for Firdapse®
for the symptomatic treatment of LEMS and as of December 31, 2020, the Company has launched Firdapse®
in Canada. At December 31, 2020 and 2019, we did not generate revenues under our collaborative agreement with Endo. We expect our revenues from the Endo collaborative agreement to fluctuate in future periods based on our collaborator’s ability to meet various regulatory milestones set forth in such agreement. At December 31, 2020, we generated revenues of $332,186 from our collaborative agreement with KYE Pharmaceuticals. We expect our revenue from the KYE collaborative agreement to fluctuate in future periods based on our collaborator’s ability to market and sell Firdapse®in Canada.
Cost of Sales.
Cost of sales consists of third-party manufacturing costs, freight, royalties, and indirect overhead costs associated with sales of Firdapse
®
. Cost of sales may also include period costs related to certain inventory manufacturing services, inventory adjustments charges, unabsorbed manufacturing and overhead costs, and manufacturing variances. Prior to FDA approval in November 2018, the cost of manufacturing Firdapse®
was expensed, including ourbuild-up
of anticipated launch product. This will cause the cost of sales to appear artificially low as we consumed product manufactured and in process prior to approval, and will continue to do so until we deplete such product.Research and Development Expenses
Expenses.
Our research and development expenses consist of costs incurred for company-sponsored research and development activities, as well as support for selected investigator-sponsored research. The major components of research and development costs include preclinical study costs, clinical manufacturing costs, clinical study and trial expenses, insurance coverage for clinical trials, consulting, scientific advisors, and other third-party costs, salaries and employee benefits, stock-based compensation expense, supplies and materials, and allocations of various overhead costs related to our product development efforts. To date, all of our research and development resources have been devoted to the development of Firdapse
®
,CPP-109 (our
(our version of vigabatrin), and formerlyCPP-115,
and we currently expect that our future development costs will be attributable principally to the continued development of Firdapse®
.Our cost accruals for clinical studies and trials are based on estimates of the services received and efforts expended pursuant to contracts with numerous clinical study and trial sites and clinical research organizations (CROs). In the normal course of our business we contract with third parties to perform various clinical study and trial activities inthesuch begins,they begin and incurring additional expenditures as the study or trial progresses and reaches certain milestones.
on-going
development of potential products. The financial terms of these agreements are subject to negotiation and vary from contract to contract and may result in uneven payment flows. Payments under the contracts depend on factors such as the achievement of certain events or milestones, the successful enrollment of patients, the allocation of responsibilities among the parties to the agreement, and the completion of portions of the clinical study or trial or similar conditions. The objective of our accrual policy is to match the recording of expenses in our consolidated financial statements to the actual services received and efforts expended. As such, expense accruals related to preclinical and clinical studies or trials are recognized based on our estimate of the degree of completion of the event or events specified in the specific study or trial contract. We monitor service provider activities to the extent possible; however, if we underestimate activity levels associated with various studies or trials at a given point in time, we could be required to record significant additional research and development expenses in future periods. Preclinical and clinical study and trial activities requiresignificantup-front
expenditures. We anticipate paying significant portions of a study or trial’s cost before 54
Selling, General and Marketing Expenses
We had no selling expenses in 2018. Administrative Expenses.
During the fourth quarter of 2018, as Firdapse® was approved by the FDA as a treatment for adults with LEMS,2019, we actively committed funds to developing our commercialization program for Firdapsewould be in a positionhave continued to launch the product in early2019. Pre-commercialization costs are included in generalincur substantial commercialization expenses, including sales, marketing, patient services, patient advocacy and administrative expenses.other commercialization related expenses as we have continued our sales program for Firdapse.
® so that
and we ®
General and Administrative Expenses
Our general and administrative expenses consist primarily of salaries and personnel expenses for accounting, corporate, compliance, and administrative functions. Other costs include administrative facility costs, regulatory fees, insurance,pre-commercialization costs, and professional fees for legal including litigation cost, information technology, accounting, and consulting services.
Stock-Based Compensation
Compensation.
We recognize expense for the fair value of all stock-based awards to employees, directors, and consultants in accordance with accounting principles generally accepted in the U.S. GAAP.(U.S. GAAP). For stock options, we use the Black-Scholes option valuation model in calculating the fair value of the awards.
Warrants Liability
We issued warrants to purchase shares
Income Taxes.
Our effective income tax rate is the ratio of income tax expense (benefit) over our common stock as part of an equity financing that we completed in October 2011. In accordance with U.S. GAAP, we recorded the fair value of those warrants as a liability in the consolidated balance sheet using a Black-Scholes option-pricing model. Were-measured the fair value of this warrants liability at each reporting date until the warrants were exercised or until the unexercised warrants expired on May 2, 2017. Changes in the fair value of the warrants liability were reported in the consolidated statements of operations as income or expense. The fair value of the warrants liability was subject to significant fluctuation based on changes in the inputs to the Black-Scholes option-pricing model, including our common stock price, expected volatility, expected term, the risk-free interest rate and dividend yield.
Income Taxes
(loss) before income taxes.
We have incurred operating losses since inception.from inception through the three-month period ended March 31, 2019. As of December 31, 20182020, and 2017,2019, we had net operating loss carryforwards of approximately $78,956,000$3 million and $62,584,000,$45 million, respectively. Our net deferred tax asset has a 100% valuation allowance as of December 31, 2018 and 2017, as we believe it is more likely than not that the deferred tax asset will not be realized. The net operating loss carry-forwards at December 31, 2020 will expire at various dates beginning 20232035 through 2037. If an ownership change, as defined under Internal Revenue Code 382, occurs, the use of these carry-forwards may be subject to limitations.
As required by ASC 740, Income Taxes,
In the third quarter of 2020, we recognize the financial statement benefit of a tax position only after determiningdetermined that the relevant tax authority wouldthere was sufficient positive evidence to conclude that it is more likely than not sustainthat our additional deferred taxes of approximately $33.0 million are realizable. As a result, we reduced the position following an audit. For tax positions meeting themore-likely-than-not threshold, the amount recognized in the financial statements is the largest benefit that has a greater than 50 percent likelihood of being realized upon ultimate settlement with the relevant tax authority.
valuation allowance accordingly.
Recently Issued Accounting Standards
Standards.
For discussion of recently issued accounting standards, please see Note 2, “Basis of Presentation and Significant Accounting Policies,” in the consolidated financial statements included in this report.
Non-GAAP
Financial Measures.
We prepare our consolidated financial statements and notes thereto which accompany this report in accordance with U.S. GAAP. To supplement our financial results presented on a U.S. GAAP basis, we may use
non-GAAP
financial measures in our reports filed with the Commission and/or our communications with investors.Non-GAAP
measures are provided as additional information and not as an alternative to our consolidated financial statements presented in accordance with GAAP. Ournon-GAAP
financial measures are intended to enhance an overall understanding of our current financial performance. We believe that thenon-GAAP
financial measures we present provide investors and prospective investors with an alternative method for assessing our operating results in a manner that we believe is focused on the performance of ongoing operations and provide a more consistent basis for comparison between periods.Themeasuresmeasure that we typically present exclude from the calculation of net lossincome the expense (or the income) associated with the change in fair value of the liability-classified warrants.stock-based compensation. Further, we often reportlossincome (loss) per share, which is calculated by dividinglossincome (loss) by the weighted average common shares outstanding.
non-GAAP
financial non-GAAP
net non-GAAP
net Anylossincome (loss) we may use may be different from, and not directly comparable to, similarly titled measures used by other companies.
non-GAAP
financial measures that we report should not be considered in isolation or as a substitute for comparable U.S. GAAP accounting, and investors should read them in conjunction with our financial statements and notes thereto prepared in accordance with U.S. GAAP. Finally, thenon-GAAP
measures of net 55
Critical Accounting Policies and Estimates
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 U.S. GAAP. The preparation of these consolidated financial statements requires us to make judgments, estimates, and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the consolidated financial statements, as well as the reported revenue and expenses during the reporting periods. We continually evaluate our judgments, estimates and assumptions. We base our estimates on the terms of underlying agreements, our expected course of development, historical experience and other factors we believe are reasonable based on the circumstances, the results of which form our management’s basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates.
The amounts of assets and liabilities reported in our consolidated balance sheets and the amounts reported in our consolidated statements of comprehensive income (loss) are affected by estimates and assumptions, which are used for, but not limited to, the accounting for revenue recognition, leases, preclinical study and clinical trial expenses, stock-based compensation and valuation allowance for deferred tax assets. The accounting policies described below are not intended to be a comprehensive list of all of our accounting policies.policies but represent the accounting estimates which involve a significant level of estimation uncertainty and have had or are reasonably likely to have a material impact on our financial condition or results of operations. In many cases, the accounting treatment of a particular transaction is specifically dictated by U.S. GAAP. There are also areas in which our management’s judgment in selecting any available alternative would not produce a materially different result. Our consolidated financial statements and the notes thereto included elsewhere in this report contain accounting policies and other disclosures as required by U.S. GAAP.
Preclinical Study
Revenue Recognition.
Revenue from product sales are recorded at the net sales price (transaction price), which includes estimates of variable consideration for which reserves are established. Components of variable consideration include trade discounts and Clinical Trial Expenses
Researchallowances, product returns, provider chargebacks and development expendituresdiscounts, government rebates, and other incentives, such as voluntary patient assistance, and other allowances that are chargedoffered within contracts with our Customer, payors, and other indirect customers relating to operations as incurred. Our expenses related to preclinical and clinical trialsthe sale of our products. These reserves are based on actual and estimated costs of the services received and efforts expended pursuant to contracts with multiple research institutions and any CRO that conducts and manages our clinical trials. The financial terms of these agreements are subject to negotiation and will vary from contract to contract and may result in uneven payment flows. Generally, these agreements will set forth the scope of the workamounts earned, or to be performed atclaimed on the related sales, and are classified as reductions of accounts receivable (if the amount is payable to the Customer) or a fixed fee or unit price. Payments under these contracts will depend oncurrent liability (if the amount is payable to a party other than a customer). These estimates take into consideration a range of possible outcomes which are probability-weighted in accordance with the expected value method in Topic 606 for relevant factors such as current contractual and statutory requirements, specific known market events and trends, industry data, and forecasted customer buying and payment patterns. Overall, these reserves reflect our best estimates of the successful enrollmentamount of patients or the completion of clinical trial milestones. Expenses relatedconsideration to clinical trials generallywhich we are accruedentitled based on contracted amounts appliedthe terms of the respective underlying contracts.
The amount of variable consideration which is included in the transaction price may be constrained, and is included in the net sales price only to the level of patient enrollment and activity according to the protocol. If timelines or contracts are modified based upon changesextent that it is probable that a significant reversal in the clinical trial protocol or scopeamount of workthe cumulative revenue recognized under the contract will not occur in a future period. Our analyses also contemplated application of the constraint in accordance with the guidance, under which it determined a material reversal of revenue would not occur in a future period for the estimates as of December 31, 2020 and 2019 and, therefore, the transaction price was not reduced further during the years ended December 31, 2020 and 2019. Actual amounts of consideration ultimately received may differ from our estimates. If actual results in the future vary from our estimates, we will adjust these estimates, which would affect net product revenue and earnings in the period such variances become known. Refer to be performed, we would be required to modify estimates accordinglyNote 2, “Basis of Presentation and Significant Accounting Policies,” in the consolidated financial statements included in this report for further details on a prospective basis.
revenue recognition.
56
Stock-Based Compensation
Compensation.
We recognize stock-based compensation for the fair value of all share-based payments, including grants of stock options and restricted stock units. For stock options, we use the Black-Scholes option valuation model to determine the fair value of stock options on the date of grant. This model derives the fair value of stock options based on certain assumptions related to expected stock price volatility, expected option life, risk-free interest rate and dividend yield. Expected volatility is based on reviews of historical volatility of our common stock. The estimated expected option life is based upon the simplified method. Under this method, the expected option life is presumed to be the20182020 and 2017,2019, the assumptions used were an estimated annual volatility of 82%81.4% and 104%75.5%, expected holding periods of zero to seven yearsfour and four to sevena half years, and risk-free interest rates of 2.09%0.24% to 2.88%1.64% and 1.66%1.51% to 2.25%2.53%, respectively.
mid-point
between the vesting date and the end of the contractual term. We will continue to use the simplified method until we have sufficient historical exercise data to estimate the expected life of the options. The risk-free interest rate assumption is based upon the U.S. Treasury yield curve appropriate for the expected life of our stock options awards. For the years ended December 31, Valuation Allowance for Deferred Tax Assets.
We assess the need for a valuation allowance against our deferred tax asset each quarter through the review of all available positive and negative evidence. Deferred tax assets are reduced by a tax valuation allowance when, in the opinion of management, it is more likely than not that some portion of the deferred tax assets will not be realized. Management’s analysis depends on historical and projected taxable income. Projected taxable income includes significant assumptions related to revenue, commercial expenses and research and development activities. In the third quarter of 2020, we determined that there was sufficient positive evidence to conclude that it is more likely than not that our additional deferred taxes are realizable. As a result, we reduced the valuation allowance accordingly.
Results of Operations
Years Ended December 31, 20182020 and 2017
Revenues
2019
Revenues.
For the year ended December 31, 2020, we recognized $118.7 million in net revenue from product sales of Firdapse
®
in the U.S. compared to $102.3 million for the year ended December 31, 2019. The increase of approximately $16.4 million was due to net price increases and increases in sales volumes of approximately 9.6%. For the year ended December 31, 2020, we also recognized $332,186 in revenues from collaborative arrangements. We had no revenues from our collaborative arrangements for the year ended December 31, 2019.Cost of Sales.
Cost of sales was approximately $17.0 million for the year ended December 31, 2020 compared to $14.8 million for the year ended December 31, 2019. Cost of sales consisted principally of royalty payments, which are based on net revenue as defined in the applicable license agreement. Further, cost of sales may be artificially low until we fully utilize product salesmanufactured that was recorded as expense prior to FDA approval of Firdapse
®
.Research and Development Expenses.
Research and development expenses for the years ended December 31, 2018 or 2017. We had revenues in 2018 in the amount2020 and 2019 were approximately $16.5 million and $18.8 million, respectively, and represented approximately 21% and 27% of $500,000 relating to theup-front payment from Endo in connection with the collaboration for vigabatrin tablets.
total operating costs and expenses, respectively. Research and Development Expenses
Year | Amount | Change from Prior Year | Percentage of Total Operating Costs and Expenses | |||||||||||
| 2018 | $ | 19,919,204 | 75.1 | % | 55.6 | % | ||||||||
| 2017 | $ | 11,375,237 | 0.0 | % | 61.0 | % | ||||||||
Ourdevelopment expenses including stock-based compensation, for researchthe years ended December 31, 2020 and development for2019 were as follows:
For the year ended December 31, | Change | |||||||||||||||
2020 | 2019 | $ | % | |||||||||||||
Research and development expenses | $ | 14,911,513 | $ | 17,705,156 | (2,793,643 | ) | (15.8 | ) | ||||||||
Employee stock-based compensation | 1,585,202 | 1,137,596 | 447,606 | 39.3 | ||||||||||||
Total research and development expenses | $ | 16,496,715 | $ | 18,842,752 | (2,346,037 | ) | (12.5 | ) | ||||||||
57
For the year ended December 31, 2018 increased compared to amounts expended during the 2017 fiscal year. Research2020, research and development expenses decreased approximately $2.3 million compared to the same period in 2019, primarily attributable to the decreases in medical and regulatory affairs and quality assurance expenses and expenses from our ongoing clinical trials evaluating Firdapseaggregate,latter part of 2020; partly offset by increases in employee stock-based compensation, which is
®
for the treatment ofMuSK-MG
and SMA Type 3, as we closed out these trials in the non-cash
and relates to the expense of stock compensation awards to certain employees and stock option awards due to headcount increases.We expect that research and development expenses will continue to be substantial in 2021 as we begin atrial for HNPP, continue our Expanded Access Program, take steps to continue the development of a long-acting formulation of Firdapse
proof-of-concept
®
, continue our regulatory path to seek approval of Firdapse®
in Japan and evaluate Firdapse®
as a treatment for other neuromuscular diseases.Selling, General and Administrative Expenses.
Selling, general and administrative expenses for the years ended December 31, 2020 and 2019 were approximately $44.2 million and $36.9 million, respectively, and represented approximately 55.6%57% and 52% of total operating costs and expenses for the 2018 fiscalyears ended December 31, 2020, and 2019, respectively. Selling, general and administrative expenses for the years ended December 31, 2020 and 2019 were as follows:
For the year ended December 31, | Change | |||||||||||||||
2020 | 2019 | $ | % | |||||||||||||
Selling | $ | 23,567,221 | $ | 19,947,916 | 3,619,305 | 18.1 | ||||||||||
General and administrative | 15,990,812 | 14,246,052 | 1,744,760 | 12.2 | ||||||||||||
Employee stock-based compensation | 4,675,721 | 2,687,219 | 1,988,502 | 74.0 | ||||||||||||
Total selling, general and administrative expenses | $ | 44,233,754 | $ | 36,881,187 | 7,352,567 | 19.9 | ||||||||||
For the year ended December 31, 2020, selling, general and administrative expenses increased approximately $7.4 million, compared to 61.0% for the 2017 fiscal year, respectively. Thesame period in 2019, primarily attributable to the following:
increases in selling (commercialization) expenses, which consist primarily of the costs of the expansion of our sales force and the cost of contracting with a rare-disease experienced inside sales agency;
increases in general and administrative expenses are primarily due to increases in legal cost, including litigation, investor relations costs and the expansion of our operations and headcount to support our ongoing efforts to increase our net revenues from sales of Firdapse
®
partly offset by decrease in 2020 contributions to 501(c)(3) organizations supporting LEMS patients, due to the accrual in the fourth quarter of 2019 of approximately $1.5 million in pledge contributions attributable to 2020 activities; andincreases in employee stock-based compensation which isoptionsoption awards to certain employees.
non-cash
and relates to the expense of stock Researchemployees and development expenses in the 2018 fiscal year primarily included consulting expenses as we prepareddirectors and stock option awards due to submit our NDA for Firdapse® during the first quarter of 2018, milestone expenses relating to the acceptance and approval of our NDA submission, expenses from our medical affairs program, compensation and related personnel costs as we expanded our headcount to support our ongoing trials evaluating Firdapse® for the treatment of CMS,MuSK-MG and SMA Type 3, costs of operating our Expanded Access Program, and costs incurred to build up inventory to launch Firdapse® in early 2019. Research and development expenses in the 2017 fiscal year primarily included, among other items, costs associated with our ongoing second Phase 3 trial evaluating Firdapse® for the treatment of LEMS, our ongoing clinical trial evaluating Firdapse® for the treatment of CMS, and our Expanded Access Program for Firdapse®.
increases.
We expect that researchselling, general and development costsadministrative expenses will continue to be substantial in 2019future periods as we continue our clinical trials evaluatingefforts to increase our revenues from FirdapseMuSK-MG, continue our Expanded Access Programs, conduct ourproof-of-concept trial evaluating Firdapse® for the treatment of SMA Type 3, take steps to develop a sustained release formulation of Firdapse®, and potentially prepare an NDA for Firdapse® for the treatment of CMS and/orMuSK-MG.
® for the treatment of CMS
andOur research and development expenses for 2018 and 2017, include stock-based compensation relating to the value of stock options granted to certain employees and consultants. The amount of stock-based compensation recorded in 2018 and 2017 relating to our research and development activities was $1,079,230 and $785,899, respectively. The weighted-average grant-date fair value of the stock options granted in 2018 and 2017 was $1.99 and $0.84, respectively.
Selling and Marketing Expenses
We had no selling expenses during 2018 and 2017. As we moved closer to the approval of Firdapse® for the treatment of LEMS, we actively committed funds to building a commercial team and developing our commercialization program for Firdapse® so that we would be in a position to launch the product in early 2019, including our marketingefforts. Pre-commercialization costs are included in general and administrative expenses.
General and Administrative Expenses
Year | Amount | Change from Prior Year | Percentage of Total Operating Costs and Expenses | |||||||||||
| 2018 | $ | 15,875,961 | 117.3 | % | 44.4 | % | ||||||||
| 2017 | $ | 7,304,399 | (7.7 | )% | 39.0 | % | ||||||||
General and administrative expenses include, among other expenses, corporate and office expenses, legal, accounting and consulting fees,pre-commercialization costs, and travel expenses for our administrative employees, consultants and members of our Board of Directors. Included in general and administrative expenses in the years 2018 and 2017 was (i) stock-based compensation of $2,471,414 and $1,622,062, respectively, and(ii) pre-commercialization costs of $6,897,483 and $809,584, respectively.
The 117.3% increase in general and administrative expenses for the year ended December 31, 2018 when compared to the same period in 2017 was primarily due to our efforts to expand our operations and headcount in order to prepare for the commercialization of Firdapse®. We expect that general and administrative costs, excludingpre-commercialization costs (which, going forward, will be included in sales and marketing expenses), will increase in 2019 compared with the general and administrative costs incurred in 2018, as we expand our operations and headcount to support the commercialization of Firdapse®.
business.
Stock-Based Compensation
We issued stock options and other share-based payments to several of our employees, directors, and consultants in 2018 and 2017. Compensation.
Total stock-based compensation expense for the years ended December 31, 20182020 and 20172019 was $3,550,644$6.3 million and $2,407,961,$3.8 million, respectively. We regularly grantnon-cash stock-based compensationIn 2020, grants were principally of stock options relating to employees2020 directors as part of their compensation packages. The 2018 increase in expense from the prior year is primarily due to the expense of options granted to employees and directors during the first quarter of 2018 in connection with 2017year-end grants and the effect of grants to new employees. In 2019, option grants were principally foras we increase our headcount to build up our infrastructure and commercial programs to support the launch of Firdapse® in 2019.
year-end
bonus awards andyear-end
bonus awards and to new employees Change in Fair Value of Warrants Liability
In connection with the October 2011 equity offering, we issued warrants to purchase an aggregate of 1,523,370 shares of common stock. As of May 2, 2017, all of the 2011 warrants were either exercised or had expired. During the period that the 2011 warrants were outstanding, the fair value of the warrants liability was determined at the end of each reporting period with the resulting gains or losses recorded as the change in fair value of warrants liability in the consolidated statements of operations.
No gain or loss was recognized for the year ended December 31, 2018, as all 2011 warrants that were not exercised expired on May 2, 2017. For the year ended December 31, 2017, we recognized a loss of $186,904hired in connection with the change in the fair valuelaunch of the warrants liability. The loss during 2017 was principally a result of fluctuations in our common stock price and the warrants liability expiration date on May 2, 2017.
Firdapse®.
Other Income, Net
Net.
We reported other income, net in all periods, primarily relating to our investment of funds received from offeringsour cash and cash equivalents and investments. The decrease in other income, net for the year ended December 31, 2020 of our securities.approximately $1.0 million when compared to the same period in 2019 is primarily due to lower yields on investments, despite higher invested balances. Other income, net, consists of interest income, dividend income, and unrealized and realized gain (loss) on trading securities.
58
Income Taxes.
We incurred net operating losses from inception through the three-month period ended March 31, 2019. As of December 31, 2020, and 2019, we had net operating loss carryforwards of approximately $3 million and $45 million, respectively, available to reduce future taxable income. Remaining net operating loss carry-forwards will expire at various dates beginning 2035 and ending in 2037. If an ownership change, as defined under Internal Revenue Code 382, occurs, the use of these carry-forwards may be subject to limitations.
We had no uncertain tax positions as of December 31, 2020 and December 31, 2019.
As of December 31, 2019, our deferred tax assets were primarily the result of US net operating loss and tax credit carryforwards and a full valuation was recorded against our gross deferred tax asset balance. For the year ending December 31, 2020 we recorded a net valuation release of $41.6 million ($0.40 per basic share and $0.39 per diluted share) on the basis of management’s determination that it is more likely than not that the amount of its deferred tax assets will be realized.
Net Income (Loss).
Our net income was approximately $75.0 million in the year ended December 31, 2020 ($0.72 per basic and $0.71 per diluted share) as compared to net income of approximately $31.9 million in the year ended December 31, 2019 ($0.31 per basic and $0.30 per diluted share).
Non-GAAP
Net Income.Our
non-GAAP
net income for 2020, which excludes an approximately $6.3 million expense associated withnon-cash
stock-based compensation, was approximately $81.2 million ($0.78 per basic and $0.76 per diluted share). Ournon-GAAP
income for 2019, which excludes an approximately $3.8 million expense associated withnon-cash
stock-based compensation, was approximately $35.7 million ($0.35 per basic and $0.34 per diluted share).Years Ended December 31, 2019 and 2018
Revenues.
For the year ended December 31, 2019, we recognized $102.3 million in net revenue from product sales of Firdapse
®
. We had no revenues from product sales for the year ended December 31, 2018. We had no revenues from our collaborative arrangement in 2019. We had revenues in 2018 in the amount of $500,000 relating to theup-front
payment from Endo in connection with the collaboration for vigabatrin tablets.Cost of Sales.
Cost of sales was $14.8 million for the year ended December 31, 2019, compared to $0 for the year ended December 31, 2018. The increase in cost of sales was entirely attributable to the commercial launch of Firdapse
®
in January 2019. Cost of sales includes royalty payments which are based on net revenue as defined in the applicable license agreement.Research and Development Expenses.
Research and development expenses for the years ended December 31, 2019 and 2018 were approximately $18.8 million and $19.9 million, respectively, and represented approximately 27% and 56% of total operating costs and expenses for the years ended December 31, 2019, and 2018 respectively. Research and development expenses for the years ended December 31, 2019 and 2018 were as follows:
For the year ended December 31, | Change | |||||||||||||||
2019 | 2018 | $ | % | |||||||||||||
Research and development expenses | $ | 17,705,156 | $ | 18,839,974 | (1,134,818 | ) | (6.0 | ) | ||||||||
Employee stock-based compensation | 1,137,596 | 1,079,230 | 58,366 | 5.4 | ||||||||||||
Total research and development expenses | $ | 18,842,752 | $ | 19,919,204 | (1,076,452 | ) | (5.4 | ) | ||||||||
For the year ended December 31, 2019, research and development expenses decreased approximately $1.1 million compared to same period in 2018, primarily attributable to a decrease in milestone payments made as part of the settlement agreement with the former stockholders of Huxley Pharmaceuticals during the third quarter of 2018.
59
Selling, General and Administrative Expenses.
Selling, general and administrative expenses for the years ended December 31, 2019 and 2018 were approximately $36.9 million and $15.9 million, respectively, and represented approximately 52% and 44% of total operating costs and expenses for the years ended December 31, 2019, and 2018 respectively. Selling, general and administrative expenses for the years ended December 31, 2019 and 2018 were as follows:
For the year ended December 31, | Change | |||||||||||||||
2019 | 2018 | $ | % | |||||||||||||
Selling | $ | 19,947,916 | $ | — | 19,947,916 | 100.0 | ||||||||||
General and administrative | 14,246,052 | 13,404,547 | 841,505 | 6.3 | ||||||||||||
Employee stock-based compensation | 2,687,219 | 2,471,414 | 215,805 | 8.7 | ||||||||||||
Total selling, general and administrative expenses | $ | 36,881,187 | $ | 15,875,961 | 21,005,226 | 132.3 | ||||||||||
For the year ended December 31, 2019, selling, general and administrative expenses increased approximately $21.0 million, compared to the same period in 2018, primarily attributable to the following:
increases in selling (commercialization) expenses, which consist primarily of commercial systems implementation costs, hiring of the sales force and supporting personnel, product launch costs, and costs of our market access and market research efforts
(pre-commercial
expenses incurred in 2018 in the amount of $6,897,483 before our launch of commercial Firdapse®
were included in general and administrative expenses);increases in general and administrative costs attributable to the growth of our organization as we have grown from an R&D company to a commercial stage pharmaceutical company;
contributions to 501(c)(3) organizations supporting LEMS patients, including the accrual in the fourth quarter of 2019 of approximately $1.5 million in pledge contributions attributable to 2020 activities; and
increases in employee stock-based compensation which is non cash and relates to the expense of stock options awarded to certain employees, officers and directors.
Stock-Based Compensation.
Total stock-based compensation expense for the years ended December 31, 2019 and 2018 was $3,824,815 and $3,550,644, respectively. The increase in stock-based compensation for the year ended December 31, 2019, when compared to the same period in 2018, is primarily due to the expense of grants to new employees hired in connection with the launch of Firdapse
®
.Other Income, Net.
We reported other income, net in all periods primarily relating to our investment of funds received from offerings of our securities and realized gain (loss) onavailable-for-sale securities, if any.product sales. The $837,488 increase in other income, net for the year ended December 31, 2018 as2019 when compared to the same period in 2018 is primarily due to higher invested balances and higher yields on investments. Other income, net, consists of interest income, dividend income, and realized gain (loss) on trading securities. For the year ended December 31, 2017 was principally due2019, other income, net also includes $100,000 received as part of a settlement agreement between us and Northwestern University relating to higher yields on investment balances from the proceeds of our offerings. to fund our drug development activities and our operations. Substantially all such funds were invested
CPP-115.
These proceeds were usedIncome Taxes.
Our effective income tax rate was 4.6% and 0% for the year ended December 31, 2019 and 2018, respectively. Differences in short-term interest-bearing obligations, a short-term bond fundthe effective tax and U.S. Treasuries.
Income Taxes
the statutory federal income tax rate of 21% is driven by state income taxes and anticipated annual permanent differences, including orphan drug credit expense limitations and other items.
We had no uncertain tax positions as of December 31, 2019 and December 31, 2018. We have incurred net operating losses since inception. Consequently, we have applied a 100%full valuation allowance againstfor our deferred tax asset as we believe that it is more likely than not that the deferred tax asset will not be realized.
assets at December 31, 2019 and December 31, 2018.
60
Net Loss
Income (Loss).
Our net income was $31,875,337 in the year ended December 31, 2019 ($0.31 per basic and $0.30 per diluted share) as compared to a net loss was $34,003,514of ($34,003,514) in the year ended December 31, 2018 ($0.33 per basic and diluted share) as compared to $18,412,377 in the year ended December 31, 2017.
Non-GAAP
Net Income.Our0.210.35 and $0.34, respectively, per basic and diluted share).
non-GAAP
net income, which excludes for 2019 a $3,824,815 expense associated with stock-based compensation was $35,700,152 ($Non-GAAP Net Loss
Ournon-GAAPnet loss for the year ended December 31, 2018 was the same as our GAAP net loss, as there were nonon-GAAP adjustments. Ournon-GAAP net loss, which excludes for 2017 a $186,904 loss associated with the change in the fair value of liability classified warrants was $18,225,473$30,452,870 ($0.210.30 per basic and diluted share).
, which excludes
non-cash
stock compensation of $3,550,664.Liquidity and Capital Resources
Since our inception, we have financed our operations primarily with the net proceeds ofthrough multiple public and private offerings of our securities.securities and, since January 2019, from revenues from product sales of Firdapse2018,2020, we had cash and cash equivalents and investments aggregating $58.5$140.3 million and working capital of $45.7 million as compared to$136.5 million. At December 31, 2019, we had cash and cash equivalents and investments of $84.0aggregating $94.5 million and working capital of $80.9 million at December 31, 2017.$87.3 million. At December 31, 2018,2020, substantially all of our cash and cash equivalents were deposited with one financial institution, and such balances were in excess of federally insured limits.
®
. At December 31, Further, as of such date, substantially all such funds were invested in money market accounts, short-term interest bearing obligations and U.S. Treasuries.
We have to date incurred operating losses through the quarter ended March 31, 2019 and we may never become profitable. Further, wereported operating income for the first time during the three and six month periods ended June 30, 2019. We expect to continue to spend substantial dollars on our current and future drug development programs.
Based on forecasts of available cash, we believe that we have sufficient resources to support our currently anticipated operations for at least the next 12 months.months from the date of this report. There can be no assurance that we will ever becomeremain profitable or that we will be able to obtain any additional funding that we may require in the future.
We
In the future, we may also require additional working capital to support our operations beyond that time, depending on our future success in launchingwith Firdapsetheour results arecontinue to be profitable and cash flow positive. There can be no assurance as to the amount of any such funding that will be required for these purposes or whether any such funding will be available to us when it is required.
®
sales and whether In that regard, our future funding requirements will depend on many factors, including:
the scope, rate of progress and cost of our clinical trials and other product development activities;
future clinical trial results;
the terms and timing of any collaborative, licensing and other arrangements that we may establish;
the cost and timing of regulatory approvals;
the cost and delays in product development as a result of any changes in regulatory oversight applicable to our products;
the cost and timinglevel of establishingrevenues that we report from sales marketing and distribution capabilities;of Firdapse
;
®
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the effect of competition and market developments;
the cost of filing and potentially prosecuting, defending and enforcing any patent claims and other intellectual property rights; and
the extent to which we acquire or invest in other products.
We plan tomay raise additional funds that we may requireif required in the future through public or private equity offerings, debt financings, corporate collaborations or other means. We also may seek governmental grants for a portion of the required funding for our clinical trials and preclinical trials. We may alsofurther seek to raise capital to fund additional product development efforts or product acquisitions, even if we have sufficient funds for our planned operations. Any sale by us of additional equity or convertible debt securities could result in dilution to our stockholders. There can be no assurance that any such required additional funding will be available to us at all or available on terms acceptable to us. Further, to the extent that we raise additional funds through collaborative arrangements, it may be necessary to relinquish some rights to our technologies or grant sublicenses on terms that are not favorable to us. If we are not able to secure additional funding when needed, we may have to delay, reduce the scope of or eliminate one or more research and development programs, which could have an adverse effect on our business.
61
On July 12, 2017,23, 2020, we filed a shelf registration statement with the SEC to sell up to $150$200 million of common stock, preferred stock, warrants to purchase common stock, debt securities and units consisting of one or more of such securities (the “2017“2020 Shelf Registration Statement”). The 20172020 Shelf Registration Statement (file no.333-219259)26, 2017. We have completed one offering under the 2017 Shelf Registration Statement, raising net proceeds of approximately $53.8 million from the sale of 16,428,572 shares of our common stock on November 28, 2017.
333-240052)
was declared effective by the SEC on July On December 23, 2016, we filed a shelf registration statement with the SEC to sell up to $33.8 million of common stock (the “2016 Shelf Registration Statement”). This shelf registration statement was declared effective by the SEC on January 9, 2017. We have made no sales under the 2016 Shelf Registration Statement.
31, 2020. As of the date of this Form10-K,report, no offerings have been completed under the full amount of our 20162020 Shelf Registration StatementStatement.
Cash Flows.
Net cash provided by operating activities was $45,034,864 and $92.5 million$34,611,473, respectively, for the years ended December 31, 2020 and 2019. During the year ended December 31, 2020, net cash provided by operating activities was primarily attributable to our net income of $74,983,000, a decrease of $4,549,571 in accounts receivable, net, an increase of $138,573 in accounts payable, and $7,134,049 net of2017 Shelf Registration Statement remains availablenet income of $31,875,337, increases of $1,780,080 in accounts payable, $12,540,197 in accrued expenses and other liabilities, and of $3,831,736 of
non-cash
expenses. This was partially offset by increases of $3,976,697 in prepaid expenses and other current andnon-current
assets and $2,693,808 in inventory and decreases of $1,209,280 in accrued expenses and other liabilities, $919,280 in operating lease liability and $32,971,264 innon-cash
deferred taxes. During the year ended December 31, 2019, net cash provided by operating activities was primarily attributable to our non-cash
expenses. This was partially offset by increases of $10,536,997 in accounts receivable, net, $1,900,780 in inventory, and $2,701,293 in prepaid expenses and other current andnon-current
assets and a decrease of $276,807 in operating lease liability.Net cash used in investing activities was $5,011,398 for future sales.
the year ended December 31, 2020, consisting primarily of purchases of investments of $10,000,000 and partially offset by proceeds from sales/maturities of investments of $5,000,000. Net cash provided by investing activities was $37,224,595 for the year ended December 31, 2019, consisting primarily of proceeds from sales/maturities of investments of $71,969,365, partially offset by purchases of investments of $34,725,401.
Net cash provided by financing activities during the years ended December 31, 2020 and 2019 was $701,933 and $1,116,242, respectively, consisting primarily of proceeds from the exercise of options to purchase shares of common stock.
Contractual Obligations and Arrangements
Arrangements.
We have entered into the following contractual arrangements:
Payments under our license agreement
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| o | Royalties to the third-party licensor of the rights sublicensed to us ® equal to 7% of net sales (as defined in the |
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For the year ended December 31, 2020, we recognized an aggregate of approximately $16.3 million of royalties, which is included in cost of sales in the accompanying consolidated statement of operations and comprehensive income (loss).
Employment agreements
Purchase commitment.
Lease for office space
62
Off-Balance
Sheet Arrangements.
We currently have no debt or capitalfinance leases. We have an operating leaseslease for our office facilities. We do not have any
off-balance
sheet arrangements as such term is defined in rules promulgated by the SEC.Cash Flows
Net cash used in operating activities was $25,704,406 and $13,742,572, respectively, for the years ended December 31, 2018 and 2017.
During the year ended December 31, 2018, net cash used in operating activities was primarily attributable to our net loss of $34,003,514 and increases of $476,037 in prepaid expenses and other current assets and deposits and $56,012 in inventory, which was partially offset by increases of $391,792 in accounts payable and $4,850,743 in accrued expenses. The loss included an additional $3,588,622 ofnon-cash expenses, consisting of stock-based compensation expense and depreciation.
During the year ended December 31, 2017, net cash used in operating activities was primarily attributable to our net loss of $18,412,377 and an increase of $125,800 in prepaid expenses and other current assets and deposits, which was partially offset by increases of $1,012,399 in accounts payable and $1,142,652 in accrued expenses, and a loss of $186,904 ofnon-cash change in fair value of warrants liability. The loss included an additional $2,453,650 ofnon-cash expenses, consisting of stock-based compensation expense and depreciation.
Net cash used in investing activities was $15,526,011 and $3,958, respectively, for 2018 and 2017. During 2018, net cash used in investing activities was primarily attributable to purchases of investments of $36,802,418. This was partially offset by $21,368,425 proceeds from maturities of investments. During 2017, net cash used in investing activities consisted of purchases of investments.
Net cash provided by financing activities was $293,115 and $57,350,168, respectively, for 2018 and 2017. During 2018, net cash from financing activities consisted primarily of proceeds from the exercise of stock options. During 2017, net cash from financing activities consisted of the net proceeds from the sale of shares of common stock in an underwritten direct public offering under the 2017 Shelf Registration Statement, as well as proceeds from exercise of stock options and warrants. Such funds are being used to fund our research and development costs, our general and administrative costs, and our commercialization costs associated with the launch of Firdapse®.
Caution Concerning Forward-Looking Statements
Some of the statements in this Form10-K are
This report contains “forward-looking statements”, as that term is defined in the Private Securities Litigation Reform Act of 1995. These include statements regarding our expectations, beliefs, plans or objectives for future operations and anticipated results of operations. For this purpose, any statements contained herein that are not statements of historical fact may be deemed to be forward-looking statements. Without limiting the foregoing, “believes”, “anticipates”, “proposes”, “plans”, “expects”, “intends”, “may”, and other similar expressions are intended to identify forward-looking statements. Such statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or other achievements to be materially different from any future results, performanceperformances or achievements expressed or implied by such forward-looking statements. Factors that might cause such differences include, but are not limited to, those discussed in the section entitled “Item 1A – Risk Factors.”
The forward-looking statements made in this Form10-K are based on current expectations that involve numerous risks continued successful commercialization of Firdapseuncertainties.
®
and The successfulthe development of our product candidates additional indications for Firdapse
®
is highly uncertain. The impact of theestimates regarding anticipated capital requirementsbusiness or on the economy generally;
COVID-19
pandemic on our Whether we will be able to continue to successfully market Firdapseour future needs for additional financing;state laws, rules and regulations;
®
while maintaining full compliance with applicable federal and
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whether
Whether our estimates of the size of the market for our drug candidatesFirdapse
®
for the treatment of Lambert-Eaton Myasthenic Syndrome (“LEMS”) will turn out to be accurate;whether
Whether we will be able to locate LEMS patients who are undiagnosed or are misdiagnosed with other diseases;
|
whether
Whether patients will discontinue from the use of our drug at rates that are higher than historically experienced or are higher than we project;
Whether the daily dose taken by patients changes over time and affects our results of operations;
Whether Firdapse
®
patients can be successfully titrated to stable therapy;Whether we can continue to market Firdapse
®
on a profitable and cash flow positive basis;Whether any revenue guidance that we provide to the public market will turn out to be accurate;
Whether payors will reimburse for our product;
changes inproduct at the healthcare industry andprice that we charge for the effect of political pressure from President Trump, Congress and/or medical professionals seeking to reduce prescription drug costs;
changes to the healthcare industry occasioned by any future repeal and replacement of the Affordable Care Act, in laws relating to the pricing of drug products, or changes in the healthcare industry generally;
the scope, rate of progress and expense of our clinical trials and studies,pre-clinical studies,proof-of-concept studies, and our other drug development activities, and whether our trials and studies will be successful;
our ability to complete our trials and studies on a timely basis and within the budgets we establish for such trials and studies;
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the result of our currently ongoing arbitration action with Northwestern University regarding our license forCPP-115;
whether our version of generic vigabatrin tablets will ever be approved by the United States Food and Drug Administration (FDA);
even if vigabatrin tablets are approved for commercialization, whether Endo Ventures/Par Pharmaceutical will be successful in marketing the product;
whether Catalyst will earn milestone payments on approval of an Abbreviated New Drug Application (ANDA) for generic vigabatrin tablets and royalties on sales of generic vigabatrin tablets; and
the
The ability of our third-party suppliers and contract manufacturers to maintain compliance with current Good Manufacturing Practices (cGMP).;
The ability of our distributor and the specialty pharmacies that distribute our product to maintain compliance with applicable law;
Our ability to maintain compliance with applicable rules relating to our patient assistance programs and our contributions to 501(c)(3) organizations that support LEMS patients;
The scope of our intellectual property and the outcome of any future challenges or opposition to our intellectual property, and, conversely, whether any third-party intellectual property presents unanticipated obstacles for Firdapse
®
;Whether our lawsuits against Jacobus and the specialty pharmacy distributing its product for patent infringement will be successful;
The effect on our business and future results of operations arising from the approval by the FDA of Ruzurgi
®
for the treatment of pediatric LEMS patients (ages 6 to under 17);63
Whether our appeal of the District Court’s decision in our suit against the United States FDA seeking to vacate the FDA’s approval of Ruzurgi
®
will be successful;Whether we can continue to compete successfully if the approval of Ruzurgi
®
is not overturned and Ruzurgi®
continues to be prescribed foroff-label
use by adult LEMS patients;Whether, because of the lower price of Ruzurgi
®
, payors will require that patients tryoff-label
Ruzurgi®
first before they approve Firdapse®
as a treatment for adult LEMS patients;The impact on Firdapse
®
of adverse changes in potential reimbursement and coverage policies from government and private payors such as Medicare, Medicaid, insurance companies, health maintenance organizations and other plan administrators, or the impact of pricing pressures enacted by industry organization, the federal government or the government of any state, including as a result of increased scrutiny over pharmaceutical pricing or otherwise;The impact on our business and results of operations of public statements by politicians and a vocal group of LEMS patients and doctors who object to our pricing of Firdapse
®
;Changes in the healthcare industry and the effect of political pressure from and actions by President Biden, Congress and/or medical professionals seeking to reduce prescription drug costs;
The state of the economy generally and its impact on our business;
Changes to the healthcare industry occasioned by any changes in laws relating to the pricing of drug products, or changes in the healthcare industry generally;
The scope, rate of progress and expense of our clinical trials and studies,studies, and our other drug development activities, and whether our trials and studies will be successful;
pre-clinical
studies,proof-of-concept
Our ability to complete any clinical trials and studies that we may undertake on a timely basis and within the budgets we establish for such trials and studies;
Whether
COVID-19
will further affect the timing and costs of our currently ongoing and contemplated clinical trials;Whether Firdapse
®
will ever be approved for the treatment of any neuromuscular disease other than LEMS;Whether we can successfully commercialize Firdapse
®
in Canada on a profitable basis;Whether our suit to overturn the approval of Ruzurgi
®
in Canada will be successful;The impact on sales of Firdapse
®
in the United States if an amifampridine product is purchased in Canada for use in the United States;Whether we will be able to successfully complete the clinical trial in Japan that will be required to seek approval to commercialize Firdapse
®
in Japan;Whether we will be able to obtain approval to commercialize Firdapse
®
in Japan;Whether we can successfully develop, obtain approval of and successfully market a long-acting version of amifapridine;
Whether our efforts to grow our business beyond Firdapse
®
through acquisitions of companies orin-licensing
of product opportunities will be successful;Whether we will have sufficient capital to finance any such acquisitions;
Whether our version of generic vigabatrin tablets will ever be approved by the FDA;
Even if our version of vigabatrin tablets is approved for commercialization, whether Endo Ventures/Par Pharmaceutical (our collaborator in this venture) will be successful in marketing the product; and
Whether we will earn milestone payments on the first commercial sale of vigabatrin tablets and royalties on sales of generic vigabatrin tablets.
64
Our current plans and objectives are based on assumptions relating to the developmentcontinued commercialization of our current drug candidates, Firdapse particularly the development of additional indications for Firdapse
®
and®
. Although we believe that our assumptions are reasonable, any of our assumptions could prove inaccurate. In light of the significant uncertainties inherent in the forward-looking statements we have made herein, which reflect our views only as of the date of this report, you should not place undue reliance upon such statements. We undertake no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise.Item 7A. | Quantitative and Qualitative Disclosures About Market Risk |
Market risk represents the risk of changes in the value of market risk-sensitive instruments caused by fluctuations in interest rates, foreign exchange rates and Qualitative Disclosures About Market Risk
Not applicable.
Item 8. Financial Statementscommodity prices. Changes in these factors could cause fluctuations in our results of operations and Supplementary Data
cash flows.
Our exposure to interest rate risk is currently confined to our cash and short-term investments that are from time to time invested in highly liquid money market funds, U.S. Treasuries and short-term bond funds. The primary objective of our investment activities is to preserve our capital to fund operations. We also seek to maximize income from our investments without assuming significant risk. We do not use derivative financial instruments in our investment portfolio. Our cash and investments policy emphasizes liquidity and preservation of principal over other portfolio considerations.
Item 8. | Financial Statements and Supplementary Data |
Item 9. | Changes in and Disagreements with Accountants on Accounting and Financial Disclosure |
Item 9A. | Controls and Procedures |
Disclosure Controls and Procedures
We have carried out an evaluation, under the supervision and with the participation of our management, including our principal executive officer and principal financial officer, of the effectiveness of the design and operation of our disclosure controls and procedures. The term “disclosure controls and procedures”, as defined in Rules
13a-15(e)
and15(d)-15(e)
under the Securities Exchange Act of 1934 (the “Exchange Act”), means controls and other procedures of a company that are designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is processed, summarized and reported, within the time periods specified in the Securities and Exchange Commission’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the company’s management, including its principal executive and principal financial officers, as appropriate to allow timely decisions regarding required disclosure.Based on such evaluation, our principal executive officer and principal financial officer have concluded that as of December 31, 2018,2020, our disclosure controls and procedures were effective to ensure that the information required to be disclosed by us in the reports filed or submitted by us under the Securities Exchange Act of 1934, as amended, was recorded, processed, summarized or reported within the time periods specified in the rules and regulations of the SEC, and include controls and procedures designed to ensure that information required to be disclosed by us in such reports was accumulated and communicated to management, including our principal executive officer and principal financial officer, as appropriate to allow timely decisions regarding required disclosures.
Management’s Annual Assessment of Internal Control Over Financial Reporting
Management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rule
13a-15(f).
Our internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of our assets; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that our receipts and expenditures are being made only in accordance with authorizations of our management and directors; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of our assets that could have a material effect on our consolidated financial statements.65
Internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements prepared for external purposes in accordance with generally accepted accounting principles. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Under the supervision and with the participation of our principal executive officer and our principal financial officer, management conducted an evaluation of the effectiveness of our internal control over financial reporting as of December 31, 20182020 based on the 2013 framework in Internal Control –- Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and in accordance with the interpretive guidance issued by the SEC in Release2018.
No. 34-55929.
Based on that evaluation, management concluded that our internal control over financial reporting was effective as of December 31, 2020.
During the fourth quarter of 2018,2020, there were no changes in our internal control over financial reporting, as defined in Rule
13a-15(f)
under the Securities and Exchange Act of 1934 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.Our independent registered public accounting firm, Grant Thornton LLP, has issued a report on our internal control over financial reporting, which is included in Item 15 of this Annual Report on Form
Item 9B. | Other Information |
Not applicable.
66
Item 10. | Directors and Executive Officers of the Registrant |
The information required by this item will be contained in our definitive proxy statement, or Proxy Statement, to be filed with the SEC in connection with our 20192021 Annual Meeting of Stockholders. Our Proxy Statement for the 20192021 Annual Meeting of Stockholders is expected to be filed not later than 120 days after the end of our fiscal year ended December 31, 20182020 and is incorporated into this report by this reference.
We have adopted a code of ethics that applies to our chief executive officer, chief financial officer, and to all of our other officers, directors, employees and agents. The code of ethics is available on our website at
www.catalystpharma.com
. We intend to disclose future amendments to, or waivers from, certain provisions of our code of ethics on the above website within five business days following the date of such amendment or waiver.Item 11. | Executive Compensation |
Item 12. | Security Ownership of Certain Beneficial Owners and Management |
Item 13. | Certain Relationships and Related Transactions |
Item 14. | Principal Accounting Fees and Services |
The information required by this item will be set forth in the Proxy Statement and is incorporated into this report by this reference.
67
Item 15. |
Exhibits and Financial Statement Schedules |
1.
Documents filed as part of this report.
The following financial statements of Catalyst Pharmaceuticals, Inc. and Reports of Grant Thornton LLP, independent registered public accounting firm, are included in this report:
Reports of Grant Thornton LLP, Independent Registered Public Accounting Firm
Consolidated Balance Sheets as of December 31, 20182020 and 20172019
Consolidated Statements of Operations and Comprehensive Income (Loss) for the years ended December 31, 20182020, 2019 and 20172018
Consolidated Statements of Changes in Stockholders’ Equity for the years ended December 31, 20182020, 2019 and 20172018
Consolidated Statements of Cash Flows for the years ended December 31, 20182020, 2019 and 20172018
Notes to Consolidated Financial Statements
2.
List of financial statement schedules. All schedules are omitted because they are not applicable or the required information is shown in the financial statements or notes thereto.
3.
List of exhibits required by Item 601 of Regulation
S-K.
See part (b) below.
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Exhibits.
Incorporated by Reference | ||||||||||||||||||||||
Exhibit Number | Description of Exhibit | Form | File Number | Date of Filing | Exhibit Number | Filed Herewith | ||||||||||||||||
| 2.1 | Agreement and Plan of Merger, dated August 14, 2006, between the Company and Catalyst Pharmaceutical Partners, Inc., a Florida corporation | S-1 | 333-136039 | 9/1/2006 | 10.9 | |||||||||||||||||
| 3.1 | Certificate of Incorporation | S-1 | 333-136039 | 7/25/2006 | 3.1 | |||||||||||||||||
| 3.2 | Amendment to Certificate of Incorporation | S-1 | 333-136039 | 7/25/2006 | 3.2 | |||||||||||||||||
| 3.3 | Amendment to Certificate of Incorporation | DEF 14A | 001-33057 | 3/30/2015 | Annex A | |||||||||||||||||
| 3.4 | Amendment to Certificate of Incorporation | 8-K | 001-33057 | 8/21/2020 | 3.1 | |||||||||||||||||
| 3.5 | By-Laws | S-1 | 333-136039 | 9/1/2006 | 3.3 | |||||||||||||||||
| 3.6 | Amendment to By-Laws | 8-K | 001-33057 | 11/27/2019 | 3.1 | |||||||||||||||||
| 4.1 | Specimen Stock Certificate for Common Stock | S-1 | 333-136039 | 9/1/2006 | 4.1 | |||||||||||||||||
| 4.2 | Rights Agreement between the Company and Continental Stock Transfer and Trust Company | 8-K | 001-33057 | 9/23/2011 | 4.1 | |||||||||||||||||
68
69
70
Incorporated by Reference | ||||||||||||||||||||||
Exhibit Number | Description of Exhibit | Form | File Number | Date of Filing | Exhibit Number | Filed Herewith | ||||||||||||||||
| 21.1 | Subsidiaries of the registrant | 10-K | 001-33057 | 3/16/2020 | 21.1 | |||||||||||||||||
| 23.1 | Consent of Independent Registered Public Accounting Firm | X | ||||||||||||||||||||
| 31.1 | Section 302 CEO Certification | X | ||||||||||||||||||||
| 31.2 | Section 302 CFO Certification | X | ||||||||||||||||||||
| 32.1 | Section 906 CEO Certification | X | ||||||||||||||||||||
| 32.2 | Section 906 CFO Certification | X | ||||||||||||||||||||
| 101.INS | XBRL Instance Document | |||||||||||||||||||||
| 101.SCH | XBRL Taxonomy Extension Schema | |||||||||||||||||||||
| 101.CAL | XBRL Taxonomy Extension Calculation Linkbase | |||||||||||||||||||||
| 101.DEF | XBRL Taxonomy Extension Definition Linkbase | |||||||||||||||||||||
| 101.LAB | XBRL Taxonomy Extension Label Linkbase | |||||||||||||||||||||
| 101.PRE | XBRL Taxonomy Extension Presentation Linkbase | |||||||||||||||||||||
| 104 | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) | |||||||||||||||||||||
71
SIGNATURES
Pursuant to the requirements of Section 13 and 15(d) of the Securities Exchange Act of 1934, the Registrant has caused this Annual Report on Form18th15th day of March, 2019.2021.
10-K
to be signed by the undersigned, thereunto duly authorized, this CATALYST PHARMACEUTICALS, INC. | ||
| By: | /s/ Patrick J. McEnany | |
Patrick J. McEnany, Chairman, | ||
| President and CEO | ||
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the following persons, in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ Patrick J. McEnany Patrick J. McEnany | Chairman of the Board of Directors, President and Chief Executive Officer
| March | ||
/s/ Alicia Grande Alicia Grande | Vice President, Treasurer, Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | March | ||
/s/ Charles B. O’Keeffe Charles B. O’Keeffe | Director | March | ||
/s/ Philip H. Coelho Philip H. Coelho | Director | March | ||
/s/ David S. Tierney, M.D. David S. Tierney, M.D. | Director | March | ||
/s/ Donald A. Denkhaus Donald A. Denkhaus | Director | March | ||
/s/ Richard Daly Richard Daly | Director | March | ||
72
INDEX TO FINANCIAL STATEMENTS
Years ended December 31, 20182020, 2019 and 20172018
| F-2 | ||||
| F-3 | ||||
| F-4 | ||||
| F-5 | ||||
| F-6 | ||||
| F-7 | ||||
| F-8 | ||||
F-1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Board of Directors and Shareholders
Stockholders
Catalyst Pharmaceuticals, Inc.
Opinion on internal control over financial reporting
We have audited the internal control over financial reporting of Catalyst Pharmaceuticals, Inc. (a Delaware corporation) and subsidiary (the “Company”) as of December 31, 2018,2020, based on criteria established in the 2013issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”). In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2018,2020, based on criteria established in the 2013issued by COSO.
Internal Control – Control—Integrated Framework
Internal Control – Control—Integrated Framework
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the consolidated financial statements of the Company as of and for the year ended December 31, 2018,2020, and our report dated March 18, 201915, 2021 expressed an unqualified opinion on those financial statements.
Basis for opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management’s Annual Assessment of Internal Control over Financial Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and limitations of internal control over financial reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
/s/ GRANT THORNTON LLP
Miami, Florida
March 18, 201915, 2021
F-2
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Board of Directors and Shareholders
Stockholders
Catalyst Pharmaceuticals, Inc.
Opinion on the financial statements
We have audited the accompanying consolidated balance sheets of Catalyst Pharmaceuticals, Inc. (a Delaware corporation) and subsidiary (the “Company”) as of December 31, 20182020 and 2017,2019, the related consolidated statements of operations and comprehensive loss,income (loss), changes in stockholders’ equity, and cash flows for each of the twothree years in the period ended December 31, 2018,2020, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 20182020 and 2017,2019, and the results of its operations and its cash flows for each of the twothree years in the period ended December 31, 2018,2020, in conformity with accounting principles generally accepted in the United States of America.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the Company’s internal control over financial reporting as of December 31, 2018,2020, based on criteria established in the 2013issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”), and our report dated March 18, 201915, 2021, expressed an unqualified opinion.
Internal Control – Control—Integrated Framework
Basis for opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical audit matter
The critical audit matter communicated below is a matter arising from the current period audit of the financial statements that was communicated or required to be communicated to the audit committee and that: (1) relates to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
As described further in Note 10 to the financial statements, deferred tax assets are reduced by a valuation allowance if, based on the evaluation of positive and negative evidence, in management’s judgment it is more likely than not that some portion, or all, of the deferred tax assets will not be realized. Once established, the valuation allowance is released when, based on the evaluation of positive and negative evidence, management concludes that related deferred tax assets are more likely than not to be realized. During the year ended December 31, 2020, management concluded that sufficient positive evidence existed to release its valuation allowance related to its deferred tax assets, resulting in an income tax benefit of $33.1 million for the year ended December 31, 2020. We identified the evaluation of the realizability of deferred tax assets as a critical audit matter.
The principal considerations for our determination that the evaluation of the realizability of deferred tax assets is a critical audit matter are the significant judgment by management in determining whether the net deferred tax assets are more likely than not to be realized in the future, which in turn led to a high degree of auditor judgment and effort in performing procedures and evaluating audit evidence relating to management’s assessment of the realization of net deferred tax assets.
Our audit procedures related to the evaluation of the realizability of deferred tax assets included the following, among others.
We evaluated the design and tested the operating effectiveness of the key controls over the Company’s assessment of all positive and negative evidence and evaluation of the realizability of deferred tax assets.
We tested the scheduling and reversal of certain deferred tax assets including start-up costs and tax credits.
We reviewed management’s assessment of potential net operating loss carryforward limitations.
We involved our income tax specialists to evaluate the application of tax laws and regulations used in the Company’s assumptions and calculations.
/s/ GRANT THORNTON LLP
We have served as the Company’s auditor since 2006.
Miami, Florida
March 18, 201915, 2021
F-3
CONSOLIDATED BALANCE SHEETS
| December 31, 2018 | December 31, 2017 | |||||||
ASSETS | ||||||||
Current Assets: | ||||||||
Cash and cash equivalents | $ | 16,559,400 | $ | 57,496,702 | ||||
Short-term investments | 36,922,213 | 26,516,711 | ||||||
Inventory | 56,012 | — | ||||||
Prepaid expenses and other current assets | 1,649,781 | 1,173,744 | ||||||
|
|
|
| |||||
Total current assets | 55,187,406 | 85,187,157 | ||||||
Investments | 5,008,243 | — | ||||||
Property and equipment, net | 245,425 | 191,385 | ||||||
Deposits | 8,888 | 8,888 | ||||||
|
|
|
| |||||
Total assets | $ | 60,449,962 | $ | 85,387,430 | ||||
|
|
|
| |||||
LIABILITIES AND STOCKHOLDERS’ EQUITY | ||||||||
Current Liabilities: | ||||||||
Accounts payable | $ | 2,337,367 | $ | 1,945,575 | ||||
Accrued expenses and other liabilities | 7,173,987 | 2,320,587 | ||||||
|
|
|
| |||||
Total current liabilities | 9,511,354 | 4,266,162 | ||||||
Accrued expenses and other liabilities,non-current | 154,799 | 157,456 | ||||||
|
|
|
| |||||
Total liabilities | 9,666,153 | 4,423,618 | ||||||
Commitments and contingencies | ||||||||
Stockholders’ equity: | ||||||||
Preferred stock, $0.001 par value, 5,000,000 shares authorized: none issued and outstanding at December 31, 2018 and 2017 | — | — | ||||||
Common stock, $0.001 par value, 150,000,000 shares authorized; 102,739,257 shares and 102,549,498 shares issued and outstanding at December 31, 2018 and 2017, respectively | 102,739 | 102,549 | ||||||
Additionalpaid-in capital | 211,265,279 | 207,421,710 | ||||||
Accumulated deficit | (160,563,961 | ) | (126,560,447 | ) | ||||
Accumulated other comprehensive loss | (20,248 | ) | — | |||||
|
|
|
| |||||
Total stockholders’ equity | 50,783,809 | 80,963,812 | ||||||
|
|
|
| |||||
Total liabilities and stockholders’ equity | $ | 60,449,962 | $ | 85,387,430 | ||||
|
|
|
| |||||
December 31, 2020 | December 31, 2019 | |||||||
ASSETS | ||||||||
Current Assets: | ||||||||
Cash and cash equivalents | $ | 130,237,109 | $ | 89,511,710 | ||||
Short-term investments | 10,041,068 | 5,007,050 | ||||||
Accounts receivable, net | 5,987,426 | 10,536,997 | ||||||
Inventory | 4,650,600 | 1,956,792 | ||||||
Prepaid expenses and other current assets | 8,327,771 | 4,351,074 | ||||||
Total current assets | 159,243,974 | 111,363,623 | ||||||
Operating lease right-of-use | — | 793,252 | ||||||
Property and equipment, net | 129,800 | 210,467 | ||||||
Deferred tax assets | 32,971,264 | — | ||||||
Deposits | 8,888 | 8,888 | ||||||
Total assets | $ | 192,353,926 | $ | 112,376,230 | ||||
LIABILITIES AND STOCKHOLDERS’ EQUITY | ||||||||
Current Liabilities: | ||||||||
Accounts payable | $ | 4,256,020 | $ | 4,117,447 | ||||
Accrued expenses and other liabilities | 18,500,267 | 19,981,295 | ||||||
Total current liabilities | 22,756,287 | 24,098,742 | ||||||
Operating lease liability, net of current portion | — | 647,532 | ||||||
Total liabilities | 22,756,287 | 24,746,274 | ||||||
Commitments and contingencies (Note 8) | 0 | 0 | ||||||
Stockholders’ equity: | ||||||||
Preferred stock, $0.001 par value, 5,000,000 shares authorized: NaN issued and outstanding at December 31, 2020 and 2019 | 0 | — | ||||||
Common stock, $0.001 par value, 200,000,000 and 150,000,000 shares authorized; 103,781,641 shares and 103,397,033 shares issued and outstanding at December 31, 2020 and 2019, respectively | 103,782 | 103,397 | ||||||
Additional paid-in capital | 223,168,149 | 216,205,678 | ||||||
Accumulated deficit | (53,705,624 | ) | (128,688,624 | ) | ||||
Accumulated other comprehensive income (loss) | 31,332 | 9,505 | ||||||
Total stockholders’ equity | 169,597,639 | 87,629,956 | ||||||
Total liabilities and stockholders’ equity | $ | 192,353,926 | $ | 112,376,230 | ||||
The accompanying notes are an integral part of these consolidated financial statements.
F-4
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
| Year Ended December 31, | ||||||||
| 2018 | 2017 | |||||||
Revenues from collaborative arrangement | $ | 500,000 | $ | — | ||||
|
|
|
| |||||
Operating costs and expenses: | ||||||||
Research and development | 19,919,204 | 11,375,237 | ||||||
General and administrative | 15,875,961 | 7,304,399 | ||||||
|
|
|
| |||||
Total operating costs and expenses | 35,795,165 | 18,679,636 | ||||||
|
|
|
| |||||
Loss from operations | (35,295,165 | ) | (18,679,636 | ) | ||||
Other income, net | 1,291,651 | 454,163 | ||||||
Change in fair value of warrants liability | — | (186,904 | ) | |||||
|
|
|
| |||||
Loss before income taxes | (34,003,514 | ) | (18,412,377 | ) | ||||
Provision for income taxes | — | — | ||||||
|
|
|
| |||||
Net loss | $ | (34,003,514 | ) | $ | (18,412,377 | ) | ||
|
|
|
| |||||
Net loss per share – basic and diluted | $ | (0.33 | ) | $ | (0.21 | ) | ||
|
|
|
| |||||
Weighted average shares outstanding – basic and diluted | 102,633,884 | 85,802,487 | ||||||
|
|
|
| |||||
Net loss | $ | (34,003,514 | ) | $ | (18,412,377 | ) | ||
Other comprehensive loss: | ||||||||
Unrealized gain (loss) onavailable-for-sale securities | (20,248 | ) | — | |||||
|
|
|
| |||||
Comprehensive loss | $ | (34,023,762 | ) | $ | (18,412,377 | ) | ||
|
|
|
| |||||
INCOME (LOSS)
Year Ended December 31, | ||||||||||||
2020 | 2019 | 2018 | ||||||||||
Revenues: | ||||||||||||
Product revenue, net | $ | 118,740,617 | $ | 102,306,337 | $ | — | ||||||
Revenues from collaborative arrangements | 332,186 | — | 500,000 | |||||||||
Total revenues | 119,072,803 | 102,306,337 | 500,000 | |||||||||
Operating costs and expenses: | ||||||||||||
Cost of sales | 17,039,157 | 14,759,139 | — | |||||||||
Research and development | 16,496,715 | 18,842,752 | 19,919,204 | |||||||||
Selling, general and administrative | 44,233,754 | 36,881,187 | 15,875,961 | |||||||||
Total operating costs and expenses | 77,769,626 | 70,483,078 | 35,795,165 | |||||||||
Operating income (loss) | 41,303,177 | 31,823,259 | (35,295,165 | ) | ||||||||
Other income, net | 586,897 | 1,585,774 | 1,291,651 | |||||||||
Net income (loss) before income taxes | 41,890,074 | 33,409,033 | (34,003,514 | ) | ||||||||
Income tax provision (benefit) | (33,092,926 | ) | 1,533,696 | — | ||||||||
Net income (loss) | $ | 74,983,000 | $ | 31,875,337 | $ | (34,003,514 | ) | |||||
Net income (loss) per share: | ||||||||||||
Basic | $ | 0.72 | $ | 0.31 | $ | (0.33 | ) | |||||
Diluted | $ | 0.71 | $ | 0.30 | $ | (0.33 | ) | |||||
Weighted average shares outstanding: | ||||||||||||
Basic | 103,512,913 | 102,944,316 | 102,633,884 | |||||||||
Diluted | 106,242,273 | 106,020,936 | 102,633,884 | |||||||||
Net income (loss) | $ | 74,983,000 | $ | 31,875,337 | $ | (34,003,514 | ) | |||||
Other comprehensive income (loss): | ||||||||||||
Unrealized gain (loss) on available-for-sale | 21,827 | 29,753 | (20,248 | ) | ||||||||
Comprehensive income (loss) | $ | 75,004,827 | $ | 31,905,090 | $ | (34,023,762 | ) | |||||
The accompanying notes are an integral part of these consolidated financial statements.
F-5
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY
For the years ended December 31, 20182020, 2019 and 2017
| Preferred Stock | Common Stock | Additional Paid-in Capital | Accumulated Deficit | Accumulated Other Comprehensive Loss | Total | |||||||||||||||||||
Balance at December 31, 2016 | $ | — | $ | 82,972 | $ | 147,374,028 | $ | (108,148,070 | ) | $ | — | $ | 39,308,930 | |||||||||||
Issuance of common stock, net | — | 16,455 | 53,756,105 | — | — | 53,772,560 | ||||||||||||||||||
Issuance of stock options for services | — | — | 2,342,625 | — | — | 2,342,625 | ||||||||||||||||||
Amortization of restricted stock for services | — | — | 65,336 | — | — | 65,336 | ||||||||||||||||||
Exercise of warrants for common stock | — | 2,258 | 3,516,295 | — | — | 3,518,553 | ||||||||||||||||||
Exercise of stock options for common stock | — | 864 | 367,321 | — | — | 368,185 | ||||||||||||||||||
Net loss | — | — | — | (18,412,377 | ) | — | (18,412,377 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
| |||||||||||||
Balance at December 31, 2017 | — | 102,549 | 207,421,710 | (126,560,447 | ) | — | 80,963,812 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
| |||||||||||||
Issuance of common stock, net | — | 3 | 10,546 | — | — | 10,549 | ||||||||||||||||||
Issuance of stock options for services | — | — | 3,535,647 | — | — | 3,535,647 | ||||||||||||||||||
Exercise of stock options for common stock | — | 187 | 297,376 | — | — | 297,563 | ||||||||||||||||||
Other comprehensive loss | — | — | — | — | (20,248 | ) | (20,248 | ) | ||||||||||||||||
Net loss | — | — | — | (34,003,514 | ) | — | (34,003,514 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
| |||||||||||||
Balance at December 31, 2018 | $ | — | $ | 102,739 | $ | 211,265,279 | $ | (160,563,961 | ) | $ | (20,248 | ) | $ | 50,783,809 | ||||||||||
|
|
|
|
|
|
|
|
|
|
|
| |||||||||||||
2018
Preferred | Common Stock | Additional Paid-in | Accumulated | Accumulated Other Comprehensive | ||||||||||||||||||||||||
Stock | Shares | Amount | Capital | Deficit | Gain (Loss) | Total | ||||||||||||||||||||||
Balance at December 31, 2017 | $ | — | 102,549,498 | $ | 102,549 | $ | 207,421,710 | $ | (126,560,447 | ) | $ | — | $ | 80,963,812 | ||||||||||||||
Issuance of common stock, net | — | 3,094 | 3 | 10,546 | — | — | 10,549 | |||||||||||||||||||||
Issuance of stock options for services | — | — | — | 3,535,647 | — | — | 3,535,647 | |||||||||||||||||||||
Exercise of stock options for common stock | — | 186,665 | 187 | 297,376 | — | — | 297,563 | |||||||||||||||||||||
Other comprehensive gain (loss) | — | — | — | — | — | (20,248 | ) | (20,248 | ) | |||||||||||||||||||
Net income (loss) | — | — | — | — | (34,003,514 | ) | — | (34,003,514 | ) | |||||||||||||||||||
Balance at December 31, 2018 | — | 102,739,257 | 102,739 | 211,265,279 | (160,563,961 | ) | (20,248 | ) | 50,783,809 | |||||||||||||||||||
Issuance of stock options for services | — | — | — | 3,780,086 | — | — | 3,780,086 | |||||||||||||||||||||
Exercise of stock options for common stock | — | 657,776 | 658 | 1,115,584 | — | — | 1,116,242 | |||||||||||||||||||||
Amortization of restricted stock for services | — | — | — | 44,729 | — | — | 44,729 | |||||||||||||||||||||
Other comprehensive gain (loss) | — | — | — | — | — | 29,753 | 29,753 | |||||||||||||||||||||
Net income (loss) | — | — | — | — | 31,875,337 | — | 31,875,337 | |||||||||||||||||||||
Balance at December 31, 2019 | — | 103,397,033 | 103,397 | 216,205,678 | (128,688,624 | ) | 9,505 | 87,629,956 | ||||||||||||||||||||
Issuance of stock options for services | — | — | — | 5,694,120 | — | — | 5,694,120 | |||||||||||||||||||||
Exercise of stock options for common stock | — | 281,762 | 282 | 757,848 | — | — | 758,130 | |||||||||||||||||||||
Amortization of restricted stock for services | — | — | — | 566,803 | — | — | 566,803 | |||||||||||||||||||||
Issuance of common stock upon vesting of restricted stock units, net | — | 102,846 | 103 | (56,300 | ) | — | — | (56,197 | ) | |||||||||||||||||||
Other comprehensive gain (loss) | — | — | — | — | — | 21,827 | 21,827 | |||||||||||||||||||||
Net income (loss) | — | — | — | — | 74,983,000 | — | 74,983,000 | |||||||||||||||||||||
Balance at December 31, 2020 | $ | — | 103,781,641 | $ | 103,782 | $ | 223,168,149 | $ | (53,705,624 | ) | $ | 31,332 | $ | 169,597,639 | ||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
F-6
CONSOLIDATED STATEMENTS OF CASH FLOWS
| Year Ended December 31, | ||||||||
| 2018 | 2017 | |||||||
Operating Activities: | ||||||||
Net loss | $ | (34,003,514 | ) | $ | (18,412,377 | ) | ||
Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||
Depreciation | 37,978 | 45,689 | ||||||
Stock-based compensation | 3,550,644 | 2,407,961 | ||||||
Change in fair value of warrants liability | — | 186,904 | ||||||
(Increase) decrease in: | ||||||||
Inventory | (56,012 | ) | — | |||||
Prepaid expenses and other current assets and deposits | (476,037 | ) | (125,800 | ) | ||||
Increase (decrease) in: | ||||||||
Accounts payable | 391,792 | 1,012,399 | ||||||
Accrued expenses and other liabilities | 4,850,743 | 1,142,652 | ||||||
|
|
|
| |||||
Net cash used in operating activities | (25,704,406 | ) | (13,742,572 | ) | ||||
|
|
|
| |||||
Investing Activities: | ||||||||
Purchases of property and equipment | (92,018 | ) | — | |||||
Purchases of investments | (36,802,418 | ) | (3,958 | ) | ||||
Proceeds from maturities of investments | 21,368,425 | — | ||||||
|
|
|
| |||||
Net cash provided by (used in) investing activities | (15,526,011 | ) | (3,958 | ) | ||||
|
|
|
| |||||
Financing Activities: | ||||||||
Proceeds from issuance of common stock, net | — | 53,772,560 | ||||||
Payment of employee withholding tax related to stock-based compensation | (4,448 | ) | — | |||||
Proceeds from exercise of warrants | — | 3,209,423 | ||||||
Proceeds from exercise of stock options | 297,563 | 368,185 | ||||||
|
|
|
| |||||
Net cash provided by (used in) financing activities | 293,115 | 57,350,168 | ||||||
|
|
|
| |||||
Net increase (decrease) in cash and cash equivalents | (40,937,302 | ) | 43,603,638 | |||||
Cash and cash equivalents – beginning of period | 57,496,702 | 13,893,064 | ||||||
|
|
|
| |||||
Cash and cash equivalents – end of period | $ | 16,559,400 | $ | 57,496,702 | ||||
|
|
|
| |||||
Non-cash investing and financing activities: | ||||||||
Unrealized gain (loss) onavailable-for-sale securities | $ | (20,248 | ) | $ | — | |||
Exercise of liability classified warrants for common stock | $ | — | $ | 309,130 | ||||
Year Ended December 31, | ||||||||||||
2020 | 2019 | 2018 | ||||||||||
Operating Activities: | ||||||||||||
Net income (loss) | $ | 74,983,000 | $ | 31,875,337 | $ | (34,003,514 | ) | |||||
Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities: | ||||||||||||
Depreciation | 92,065 | 54,327 | 37,978 | |||||||||
Amortization of right-of-use | 793,252 | 243,399 | — | |||||||||
Stock-based compensation | 6,260,923 | 3,824,815 | 3,550,644 | |||||||||
Deferred taxes | (32,971,264 | ) | — | — | ||||||||
Change in accrued interest and accretion of discount on investments | (12,191 | ) | (290,805 | ) | (443,139 | ) | ||||||
(Increase) decrease in: | ||||||||||||
Accounts receivable, net | 4,549,571 | (10,536,997 | ) | — | ||||||||
Inventory | (2,693,808 | ) | (1,900,780 | ) | (56,012 | ) | ||||||
Prepaid expenses and other current assets and deposits | (3,976,697 | ) | (2,701,293 | ) | (476,037 | ) | ||||||
Increase (decrease) in: | ||||||||||||
Accounts payable | 138,573 | 1,780,080 | 391,792 | |||||||||
Accrued expenses and other liabilities | (1,209,280 | ) | 12,540,197 | 4,850,743 | ||||||||
Operating lease liability | (919,280 | ) | (276,807 | ) | — | |||||||
Net cash provided by (used in) operating activities | 45,034,864 | 34,611,473 | (26,147,545 | ) | ||||||||
Investing Activities: | ||||||||||||
Purchases of property and equipment | (11,398 | ) | (19,369 | ) | (92,018 | ) | ||||||
Purchases of investments | (10,000,000 | ) | (34,725,401 | ) | (36,790,854 | ) | ||||||
Proceeds from maturities and sales of investments | 5,000,000 | 71,969,365 | 21,800,000 | |||||||||
Net cash provided by (used in) investing activities | (5,011,398 | ) | 37,224,595 | (15,082,872 | ) | |||||||
Financing Activities: | ||||||||||||
Payment of employee withholding tax related to stock-based compensation | (56,197 | ) | — | (4,448 | ) | |||||||
Proceeds from exercise of stock options | 758,130 | 1,116,242 | 297,563 | |||||||||
Net cash provided by (used in) financing activities | 701,933 | 1,116,242 | 293,115 | |||||||||
Net increase (decrease) in cash and cash equivalents | 40,725,399 | 72,952,310 | (40,937,302 | ) | ||||||||
Cash and cash equivalents – beginning of period | 89,511,710 | 16,559,400 | 57,496,702 | |||||||||
Cash and cash equivalents – end of period | $ | 130,237,109 | $ | 89,511,710 | $ | 16,559,400 | ||||||
Supplemental disclosures of cash flow information: | ||||||||||||
Cash paid for income taxes | $ | 2,785,497 | $ | — | $ | — | ||||||
Non-cash investing and financing activities: | ||||||||||||
Unrealized gain (loss) on available-for-sale | $ | 21,827 | $ | 29,753 | $ | (20,248 | ) | |||||
The accompanying notes are an integral part of these consolidated financial statements.
F-7
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. | Organization and i on of Business. |
Catalyst Pharmaceuticals, Inc. and subsidiary (collectively, the “Company”), is a development-stagecommercial-stage biopharmaceutical company focused on developing and commercializing innovatinginnovative therapies for people with rare debilitating, chronic neuromuscular and neurological diseases, including Lambert-Eaton Myasthenic Syndrome (LEMS), Congenital Myasthenic Syndromes (CMS), and MuSKAnti-MuSK antibody positive myasthenia gravis(MuSK-MG). The Company (f/k/a Catalyst Pharmaceutical Partners, Inc.) was incorporated in Delaware in July 2006. It is the successor by merger to Catalyst Pharmaceutical Partners, Inc., a Florida corporation, which commenced operations in January 2002.
On November 28, 2018, the U.S. Food and Drug Administration, or FDA, granted approval of Firdapse
®
for the treatment of adults with LEMS (ages 17 and above). On January 15, 2019, the Company launched its first product, Firdapse®
, in the United States for the treatment of adults with LEMS.On August 6, 2020, the Company announced that Canada’s national healthcare regulatory agency, Health Canada, has approved Firdapse
®
for the treatment of patients in Canada with LEMS. On October 28, 2020, the Company launched Firdapse®
in Canada for the treatment of patients with LEMS through a license agreement with KYE Pharmaceuticals.Since inception, the Company has devoted substantially all of its efforts to business planning, research and development, recruiting management and technical staff, acquiring operating assets, raising capital, and raising capital. The Company’s primary focus is on the development and commercialization ofselling its drug candidates.product. The Company has incurred operating losses in each period from inception throughand started reporting operating income during the year ended December 31, 2018.2019. The Company has been able to fund its cash needs to date primarily through several public and private offerings of its securities.securities and from revenues from its product sales. See Note 11.
11 (Stockholders’ Equity).
Capital Resources
While there can be no assurance, based on currently available information, the Company estimates that it currently has sufficient resources to support its operations for at least the next 12 months from the issuance date of this Form
10-K.
The Company may raise required funds in the future through public or private equity offerings, debt financings, corporate collaborations, governmental research grants or other means. The Company may also seek to raise new capital to fund additional productdrug development efforts, even if it has sufficient funds for its planned operations. Any sale by the Company of additional equity or convertible debt securities could result in dilution to the Company’s current stockholders. There can be no assurance that any such required additional funding will be available to the Company at all or available on terms acceptable to the Company. Further, to the extent that the Company raises additional funds through collaborative arrangements, it may be necessary to relinquish some rights to the Company’s drug candidates or grant sublicenses on terms that are not favorable to the Company. If the Company is not able to secure additional funding when needed, the Company may have to delay, reduce the scope of, or eliminate one or more research and development programs, which could have an adverse effect on the Company’s business.
Risks and Uncertainties
There are many uncertainties regarding the novel coronavirus
(COVID-19)
pandemic, and the Company is closely monitoring the impact of the pandemic on all aspects of its business, including how the pandemic is impacting its patients, employees, suppliers, vendors, business partners, clinical trials, and distribution channels. The Company is unable to predict the impact thatCOVID-19
will have on its financial position and operating results in future periods due to numerous uncertainties. The Company will continue to assess the evolving impact of theCOVID-19
pandemic and make adjustments to its operations as necessary.2. | Basis of Presentation and Significant Accounting Policies. |
a. |
|
F-8
2. | Basis of Presentation and Significant Accounting Policies (continued). |
b. |
|
c. |
|
d. |
|
|
Short-term bond fund
The short-term bond fund is classified as trading securities. Trading securities are recordedfunds and U.S. Treasuries held at fair value based on the closing market price of the security. For trading securities, the Company recognizes realized gains and losses and unrealized gains and losses to earnings. At December 31, 2018 and 2017, the only investment classified as trading securities was the short-term bond fund. Unrealized gain (loss) on trading securities was ($29,430) and $29,430, respectively, for the years ended December 31, 2018, and 2017 and is included in other income, net in the accompanying consolidated statements of operations.
U.S. Treasuries
U.S. Treasuries3
1
, 2020 are classified asavailable-for-sale
non-current
investments in The Company recordssecurities at fair value with unrealized gains and losses reported in accumulated other comprehensive income (loss) in stockholders’ equity. Realized gains and losses are included in other income, net in the consolidated statements of operations and are derived using the specific identification method for determining the cost of securities sold. Interest income is recognized when earned and is included in other income, net in the consolidated statements of operations.operations and comprehensive income (loss). The Company recognizes a charge when the declines in the fair value below the amortized cost basis of itssecurities are judged to be other-than-temporary. The Company considers various factors in determining whether to recognize an other-than-temporary charge, including whether the Company intends to sell the security or whether it is more likely than not that the Company would be required to sell the security before recovery of the amortized cost basis. The Company has not recorded any other-than-temporary impairment charges on itssecurities. See Note 3.3 (Investments).
available-for-sale
available-for-sale
available-for-sale
The Company previously owned a short-term bond fund that was classified as trading securities. Trading securities are recorded at fair value based on the closing market price of the security. For trading securities, the Company recognized realized gains and losses and unrealized gains and losses to earnings. At December 31, 2020 and 2019, there were 0
investments classified as trading securities, as the Company sold its interest in the short-term bond fund classified as trading securities in 2019
There was 0 realized or unrealized gain (loss) on trading securities for the year ended December 31, 2020. Realized losses on trading securities during the years ended December 31, 2019 and 2018 were $80,045 and $0, respectively. Unrealized gain (loss) on trading securities was $0 and ($29,430) for the years ended December 31, 2019 and 2018, respectively, and is included in other income, net in the accompanying consolidated statements of operations..
e. |
ACCOUNTS RECEIVABLE, NET. Accounts receivable are recorded net of customer allowance for distribution fees, trade discounts, prompt payment discounts, chargebacks and expected credit losses. Allowances for distribution fees, trade discounts, prompt payment discounts and chargebacks are based on contractual terms. The Company estimates the allowance for expected credit losses based on existing contractual payment terms, actual payment patterns of its customer and customer circumstances. At December 31, 2020 and 2019, the Company determined that an allowance for expected credit losses was not required. No accounts were written off during the periods presented. |
f. | INVENTORY . Inventories consist of raw materials,work-in-process Cost is determined using a standard cost method, which approximates actual cost, and assumes a first-in, first out (FIFO) flow of goods. The Company began capitalizing inventories post FDA approval of Firdapse ® on November 28, 2018 as the related costs were expected to be recoverable through the commercialization of the product. Costs incurred prior to the FDA approval of Firdapse ® were recorded as research and development expenses in work-in-process and finished goods. |
F-9
2. | Basis of Presentation and Significant Accounting Policies (continued). |
Products that have been approved by the FDA or other regulatory authorities, such as Firdapse and purchased drug product associated with clinical development programs are included in inventory and charged to research and development expense when the product enters the research and development process and no longer can be used for commercial purposes and, therefore, does not have an “alternative future use”.
®
, are also used in clinical programs to assess the safety and efficacy of the products for usage in treating diseases that have not been approved by the FDA or other regulatory authorities. The form of Firdapse®
utilized for both commercial and clinical programs is identical and, as a result, the inventory has an “alternative future use” as defined in authoritative guidance. Raw materialsThe Company evaluates for potential excess inventory by analyzing current and future product demand relative to the remaining product shelf life. The Company builds demand forecasts by considering factors such as, but not limited to, overall market potential, market share, market acceptance, and patient usage.
g. |
|
|
h. |
|
i. |
|
|
j. |
|
Level 1 inputs utilize quoted prices (unadjusted) in active markets for identical assets or liabilities that the Company has the ability to access at the measurement date. Level 2 inputs are inputs other than quoted prices included in Level 1 that are observable for the asset or liability, either directly or indirectly. Level 2 inputs may include quoted prices for similar assets and liabilities in active markets, as well as inputs that are observable for the asset or liability (other than quoted prices), such as interest rates, foreign exchange rates, and yield curves that are observable at commonly quoted intervals. Level 3 inputs are unobservable inputs for the asset or liability, which are typically based on an entity’s own assumptions, as there is little, if any, related market activity. In instances where the determination of the fair value measurement is based on inputs from different levels of the fair value hierarchy, the level in the fair value hierarchy within which the entire fair value measurement falls is based on the lowest level input that is significant to the fair value measurement in its entirety. The Company’s assessment of the significance of a particular input to the fair value measurement in its entirety requires judgment, and considers factors specific to the asset or liability.
F-10
2. | Basis of Presentation and Significant Accounting Policies(continued). |
Fair Value Measurements at Reporting Date Using | ||||||||||||||||
Balances as of December 31, 2020 | Quoted Prices in Active Markets for Identical Assets/Liabilities (Level 1) | Significant Other Observable Inputs (Level 2) | Significant Unobservable Inputs (Level 3) | |||||||||||||
Cash and cash equivalents: | ||||||||||||||||
Money market funds | $ | 15,673,626 | $ | 15,673,626 | $ | — | $ | — | ||||||||
U.S. Treasuries | $ | 104,994,400 | $ | — | $ | 104,994,400 | $ | — | ||||||||
Short-term investments: | ||||||||||||||||
Short-term bond funds | $ | 10,041,068 | $ | 10,041,068 | $ | — | $ | — | ||||||||
Balances as of December 31, 2019 | Quoted Prices in Active Markets for Identical Assets/Liabilities (Level 1) | Significant Other Observable Inputs (Level 2) | Significant Unobservable Inputs (Level 3) | |||||||||||||
Cash and cash equivalents: | ||||||||||||||||
Money market funds | $ | 23,963,617 | $ | 23,963,617 | $ | — | $ | — | ||||||||
U.S. Treasuries | $ | 59,932,200 | $ | — | $ | 59,932,200 | $ | — | ||||||||
Short-term investments: | ||||||||||||||||
U.S. Treasuries | $ | 5,007,050 | $ | — | $ | 5,007,050 | $ | — | ||||||||
k. | OPERATING LEASES. right-of-use non-lease components, which are generally accounted for separately. |
l. | REVENUE RECOGNITION. ® in November 2018. Subsequent to receiving FDA approval, the Company entered into an arrangement with one distributor (the “Customer”), which is the exclusive distributor of Firdapse® in the United States. The Customer subsequently resells Firdapse® to a small group of exclusive specialty pharmacies (“SPs”) whose dispensing activities for patients with specific payors may result in government-mandated or privately negotiated rebate obligations for the Company with respect to the purchase of Firdapse® . |
F-11
2. | Basis of Presentation and Significant Accounting Policies (continued). |
| Fair Value Measurements at Reporting Date Using | ||||||||||||||||
| Balances as of December 31, 2018 | Quoted Prices in Active Markets for Identical Assets/Liabilities (Level 1) | Significant Other Observable Inputs (Level 2) | Significant Unobservable Inputs (Level 3) | |||||||||||||
Cash and cash equivalents: | ||||||||||||||||
Money market funds | $ | 14,462,087 | $ | 14,462,087 | $ | — | $ | — | ||||||||
|
|
|
|
|
|
|
| |||||||||
Short-term investments: | ||||||||||||||||
Short-term bond fund | $ | 26,541,349 | $ | 26,541,349 | $ | — | $ | — | ||||||||
|
|
|
|
|
|
|
| |||||||||
U.S. Treasuries | $ | 10,380,864 | $ | — | $ | 10,380,864 | $ | — | ||||||||
|
|
|
|
|
|
|
| |||||||||
Investments: | ||||||||||||||||
U.S. Treasuries | $ | 5,008,243 | $ | — | $ | 5,008,243 | $ | — | ||||||||
|
|
|
|
|
|
|
| |||||||||
| Balances as of December 31, 2017 | Quoted Prices in Active Markets for Identical Assets/Liabilities (Level 1) | Significant Other Observable Inputs (Level 2) | Significant Unobservable Inputs (Level 3) | |||||||||||||
Cash and cash equivalents: | ||||||||||||||||
Money market funds | $ | 56,820,688 | $ | 56,820,688 | $ | — | $ | — | ||||||||
|
|
|
|
|
|
|
| |||||||||
Short-term investments: | ||||||||||||||||
Short-term bond fund | $ | 26,516,711 | $ | 26,516,711 | $ | — | $ | — | ||||||||
|
|
|
|
|
|
|
| |||||||||
To determine revenue recognition for arrangements that are within the scope of Accounting Standards Codification (“ASC”) Topic 606 – Revenue from Contracts with Customers (“Topic 606”), the Company performs the following five steps: (i) identify the contract(s) with a customer, (ii) identify the performance obligations in the contract, (iii) determine the transaction price, (iv) allocate the transaction price to the performance obligations in the contract, and (v) recognize revenue when (or as) the entity satisfies a performance obligation. The Company only applies the five-step model to arrangements that meet the definition of a contract under Topic 606, including when it is probable that the Company will collect the consideration it is entitled to in exchange for the goods or services it transfers to the customer. At contract inception, once the contract is determined to be within the scope of Topic 606, the Company assesses the goods or services promised within each contract and determines those that are performance obligations and assesses whether each promised good or service is distinct. The Company then recognizes as revenue the amount of the transaction price that is allocated to the respective performance obligation when (or as) the performance obligation is satisfied. For a complete discussion of accounting for product revenue, see Product Revenue, Net below. The Company also may generate revenues from payments received under a collaborative agreement. Collaborative agreement payments may include nonrefundable fees at the inception of the agreements, contingent payments for specific achievements designated in the collaborative agreements, and/or net profit-sharing payments on sales of products resulting from a collaborative arrangement. For a complete discussion of accounting for collaborative arrangements, see Revenues from Collaborative Arrangements below. Product Revenue, Net: ® to the Customer (its exclusive distributor) who subsequently resells Firdapse® to both a small group of SPs who have exclusive contracts with the Company to distribute the Company’s products to patients and potentially to medical centers or hospitals on an emergency basis. In addition to the distribution agreement with its Customer, the Company enters into arrangements with health care providers and payors that provide for government-mandated and/or privately negotiated rebates, chargebacks, and discounts with respect to the |
The following table rolls forward the fair value of the Company’s warrants liability activityproducts.
The Company recognizes revenue on product sales when the Customer obtains control of the Company’s product, which occurs at a point in time (upon delivery or upon dispense to patient). Product revenue is recorded net of applicable reserves for variable consideration, including discounts and allowances. The Company’s payment terms range between 15 and 30 days.
Shipping and handling costs for product shipments occur prior to the customer obtaining control of the goods and are recorded in cost of sales.
If taxes should be collected from the Customer relating to product sales and remitted to governmental authorities, they will be excluded from revenue. The Company expenses incremental costs of obtaining a contract when incurred, if the expected amortization period of the asset that the Company would have recognized is one year or less. However, no such costs were incurred during the years ended December 31, 2017. On May 2, 2017, all outstanding2020 and unexercised 2011 warrants expired.
| 2017 | ||||
Fair value, beginning of period | $ | 122,226 | ||
Issuance of warrants | — | |||
Exercise of warrants | (309,130 | ) | ||
Change in fair value | 186,904 | |||
|
| |||
Fair value, end of period | $ | — | ||
|
| |||
2019.
During the yearyears ended December 31, 2017, 613,9132020 and 2019, all of the 2011 warrantsCompany’s sales of Firdapseexercised, with proceedsto its Customer.
®
in the United States were Reserves for Variable Consideration:
These estimates take into consideration a range of possible outcomes which are probability-weighted in accordance with the expected value method in Topic 606 for relevant factors such as current contractual and statutory requirements, specific known market events and trends, industry data, and forecasted customer buying and payment patterns. Overall, these reserves reflect the Company’s best estimates of the amount of consideration to which it is entitled based on the terms of the respective underlying contracts.
F-12
2. | Basis of Presentation and Significant Accounting Policies (continued). |
The amount of variable consideration which is included in the transaction price may be constrained, and is included in the net sales price only to the extent that it is probable that a significant reversal in the amount of the cumulative revenue recognized under the contract will not occur in a future period. The Company’s analyses also contemplates application of the constraint in accordance with the guidance, under which it determined a material reversal of revenue would not occur in a future period for the estimates detailed below as of December 31, 2020 and, therefore, the transaction price was not reduced further during the years ended December 31, 2020 and 2019. Actual amounts of consideration ultimately received may differ from the Company’s estimates. If actual results in the future vary from the Company’s estimates, the Company will adjust these estimates, which would affect net product revenue and earnings in the period such variances become known.
Trade Discounts and Allowances:
®
to the Customer, these payments are classified in selling, general and administrative expenses in the Company’s consolidated statement of operations and comprehensive income (loss). However, if the Company has determined such services received to date are not distinct from the Company’s sale of products to the Customer, these payments have been recorded as a reduction of revenue within the consolidated statement of operations and comprehensive income (loss) through December 31, 2020 and 2019, as well as a reduction to accounts receivable, net on the consolidated balance sheets.Prompt Payment Discounts:
Funded
Co-pay
Assistance Program:co-pay
assistance program intended to provide financial assistance to qualified commercially-insured patients. The calculation of the accrual forco-pay
assistance is based on an estimate of claims and the cost per claim that the Company expects to receive associated with Firdapse®
that has been recognized as revenue, but remains in the distribution channel at the end of each reporting period. These payments are considered payable to the third-party vendor and the related reserve is recorded in the same period the related revenue is recognized, resulting in a reduction of product revenue and the establishment of a current liability which is included in accrued expenses and other current liabilities in the consolidated balance sheets.Product Returns:
Provider Chargebacks and Discounts:
Government Rebates:
F-13
2. |
Basis of Presentation and |
Bridge and Patient Assistance Programs:
®
to uninsured patients who satisfypre-established
criteria for either the Bridge Program or the Patient Assistance Program. Patients who meet the Bridge Program eligibility criteria and are transitioning from investigational product while they are waiting for a coverage determination, or later, for patients whose access is threatened by the complications arising from a change of insurer may receive a temporary supply of free Firdapse®
while the Company is determining the patient’s third-party insurance, prescription drug benefit or other third-party coverage for Firdapse®
. The Patient Assistance Program provides free Firdapse®
for longer periods of time for those who are uninsured or functionally uninsured with respect to Firdapse®
because they are unable to obtain coverage from their payor despite having health insurance, to the extent allowed by applicable law. The Company does not recognize any revenue related to these free products and the associated costs are classified in selling, general and administrative expenses in the Company’s consolidated statements of operations and comprehensive income (loss).Revenues from Collaborative Arrangements:
®
(vigabatrin) tablets as well as the commercialization of Firdapse®
in Canada. Pursuant to the terms of these agreements, collaborators could be required to make various payments to the Company, including upfront license fees, milestone payments based on achievement of regulatory approvals, and royalties ornet-profit
sharing payments on sales of products resulting from the collaborative agreement.Nonrefundable upfront license fees are recognized upon receipt as persuasive evidenceor over time based on a determination of an arrangement exists, the pricewhether access to the Company’s intellectual property is throughout the license period, or whether the right is provided as the intellectual property exists as the point in time in which the license is granted. In the third quarter of 2020, an upfront fee was earned under the collaboration agreement for the commercialization of Firdapse
®
in Canada.The collaborative agreements provide for milestone payments upon achievement of development and regulatory events. The Company accounts for milestone payments as variable consideration in accordance with Topic 606. The Company recognizes
sales-based
royalties or net profit-sharing when the later of (a) the subsequent sale occurs, or (b) the performance obligation to which thesales-based
royalty or net profit-sharing has been satisfied.In arrangements where the Company does not deem the collaborator is fixed or determinableto be a customer, payments to and collectability is reasonably assured. An upfront license feefrom the collaborator are presented in the statement of $500,000 wasoperations based on the nature of the Company’s business operations, the nature of the arrangement, including the contractual terms, and the nature of the payments.
Under the arrangements, the Company will receive profit-sharing reports 60 days after quarter end from one collaborator, and within nine days after quarter end from the other collaborator. Since the Company will receive these reports 60 days after quarter end, profit-sharing revenue from sales of collaboration products by the Company’s collaborator will be recognized in the quarter following the quarter in which the corresponding sales occurred. In instances where profit-sharing reports are received within nine days after quarter end, revenue from sales of collaboration products by the Company’s collaborator will be recognized in the quarter in which the sales occurred. For the year ended December 31, 2018 when it2020, there was paid following executionprofit-sharing revenue of approximately
$
33,000from sales of the collaborative arrangement for vigabatrin tablets.
31product in Canada. For the years ended December
,
2019and
2018, there was
0profit-sharing revenue from sales of the collaborative product.
Refer to Note 7 Collaborative Arrangement,(Collaborative Arrangements), for further discussion on the Company’s collaborative arrangement.arrangements.
F-14
2. | Basis of Presentation and Significant Accounting Policies (continued). |
m. |
|
n. |
|
o. |
|
|
The Company sells its product in the United States through an exclusive distributor (its Customer) to specialty pharmacies. Therefore, its distributor and specialty pharmacies account for all of its trade receivables and net product revenues. The creditworthiness of its Customer is continuously monitored, and the Company has internal policies regarding customer credit limits. The Company estimates an allowance for expected credit loss primarily based on the credit worthiness of its Customer, historical payment patterns, aging of receivable balances and general economic conditions.
The Company currently has a single product with limited commercial sales experience, which makes it difficult to evaluate its current business, predict its future prospects and forecast financial performance and growth. The Company has invested a significant portion of its efforts and financial resources in the development and commercialization of the lead product, Firdapse
®
, and expects Firdapse®
to constitute virtually all of product revenue for the foreseeable future. The Company’s success depends on its ability to continue to effectively commercialize Firdapse®
.The Company relies exclusively on third parties to formulate and manufacture Firdapse
®
and its drug candidates. The commercialization of Firdapse®
and any other drug candidates, if approved, could be stopped, delayed or made less profitable if those third parties fail to provide sufficient quantities of product or fail to do so at acceptable quality levels or prices. The Company does not intend to establish its own manufacturing facilities. The Company is using the same third-party contractors to manufacture, supply, store and distribute drug supplies for clinical trials and for the commercialization of Firdapse®
. If the Company is unable to continue its relationships with one or more of these third-party contractors, it could experience delays in the development or commercialization efforts as it locates and qualifies new manufacturers. The Company intends to rely on one or more third-party contractors to manufacture the commercial supply of its drugs.p. |
|
q. | INCOME |
The Company recognizes the financial statement benefit of a tax position only after determining that the relevant tax authority would more likely than not sustain the position following an audit. For tax positions meeting the2015.2017. If the Company were to subsequently record an unrecognized tax benefit, associated penalties and tax related interest expense would be reported as a component of income tax expense.
more-likely-than-not
threshold, the amount recognized in the financial statements is the largest benefit that has a greater than 50 percent likelihood of being realized upon ultimate settlement with the relevant tax authority. The Company is subject to income taxes in the U.S. federal jurisdiction and various state jurisdictions. Tax regulations within each jurisdiction are subject to the interpretation of the related tax laws and regulations and require significant judgment to apply. The Company is not subject to U.S. federal, state and local tax examinations by tax authorities for years before F-15
2. | Basis of Presentation and Significant Accounting Policies (continued). |
On December 22, 2017,March 27, 2020, the U.S. government enacted comprehensive tax legislation commonly referred to as the Tax CutsCoronavirus Aid, Relief, and JobsEconomic Security (CARES) Act (the “Tax Act”). The Tax Act makes broad and complexwas signed into law making several changes to the U.S. tax code, including,Internal Revenue Code. The changes include, but are not limited to, (1) reducingto: increasing the U.S. federal corporate tax rate from 35 to 21 percent; (2) requiring companies to pay aone-time transition taxlimitation on certain repatriated earningsthe amount of foreign subsidiaries; (3) generally eliminating U.S. federal income taxes on dividends from foreign subsidiaries; (4) requiring a current inclusion in U.S. federal taxable income earnings of controlled foreign corporations; (5) eliminating the corporate alternative minimum tax (AMT) and changing how existing AMT credits can be realized; (6) creating the base erosion anti-abuse tax (BEAT), a new minimum tax; (7) creating a new limitation on deductible interest expense, allowing companies to carryback certain net operating losses, and (8) changing rules related to uses and limitationsincreasing the amount of net operating loss carryforwards createdthat corporations can use to offset taxable income.
The tax law changes in the CARES Act did not have a material impact on the Company’s income tax years beginning after December 31, 2017.provision.
r. |
|
s. |
|
| 2018 | 2017 | |||||||
Options to purchase common stock | 10,532,500 | 5,191,666 | ||||||
|
|
|
| |||||
Potential equivalent common stock excluded | 10,532,500 | 5,191,666 | ||||||
|
|
|
| |||||
Diluted net income (loss) per common share is computed by dividing net income (loss) by the weighted average number of common shares outstanding, increased by the assumed conversion of other potentially dilutive securities during the period.
The following table reconciles basic and diluted weighted average common shares:
For the Years Ended December 31, | ||||||||||||
2020 | 2019 | 2018 | ||||||||||
Basic weighted average common shares outstanding | 103,512,913 | 102,944,316 | 102,633,884 | |||||||||
Effect of dilutive securities | 2,729,360 | 3,076,620 | — | |||||||||
Diluted weighted average common shares outstanding | 106,242,273 | 106,020,936 | 102,633,884 | |||||||||
Outstanding common stock equivalents totaling approximately 7.1 million and 4.6 million, were excluded from the calculation of diluted net income (loss) per common share for the years ended December 31, 2020 and 2019, respectively, as their effect would be anti-dilutive. For the year ended December 31, 2018, approximately 10.5 million shares of outstanding stock options were excluded from the calculation of diluted net loss per common share because a net loss was reported in this period and therefore their effect was anti-dilutive. Potentially dilutive stock options to purchase common stock as of December 31, 2020, 2019 and 2018 had exercise prices ranging from $0.79 to $4.64. Potentially dilutive stock options$3.95, $0.79 to purchase common stock as of December 31, 2017 had exercise prices ranging from $0.47$4.20 and $0.79 to $4.64.$4.64, respectively.
t. |
|
u. |
|
F-16
2. | Basis of Presentation and Significant Accounting Policies (continued). |
v. |
|
In May 2017,November 2018, the FASB issued ASUNo. 2017-09,Compensation – Stock Compensation, which amends ASC 808 to clarify when transactions between participants in a collaborative arrangement under ASC 808 are within the scope of ASUchangeunit of account within the collaborative arrangement is distinct and is with a customer, an entity shall apply the guidance in Topic 606 to that unit of account. In a transaction between collaborative participants, an entity is precluded by ASUterms or conditionsunit of a share-based payment award as a modification. Under this newaccount is within the scope of ASC 606 and the entity applies the guidance modification accounting is required if the fair value, vesting conditions, or classificationin ASC 606 to such unit of the award changes as a result of the change in terms or conditions. ASU2017-09 is effective for all entities for annual reporting periods beginning after December 15, 2017, including interim reporting periods within each annual reporting period, applied prospectively on or after the effective date.account. The Company adopted thisthe new standard in the first quarter of 2018.on January 1, 2020. The adoption of this standardCompany has a collaboration agreement with Endo Ventures Limited (Endo). See Note 7 (Collaborative Arrangement). However, these amendments did not have a materialan impact on the Company’s consolidated financial statements.
2018-18,
Collaborative Arrangements (Topic 718): Scope of Modification Accounting808)
2014-09
(codified in ASC 606). The amendments require the application of ASC 606 existing guidance to determine the units of account that are distinct in a collaborative arrangement for purposes of identifying transactions with customers. If a 2018-18
from presenting a transaction together with “revenue from contracts with customers” unless the In June 2018,statements, as Endo does not meet the FASB issued ASUNo. 2018-07,Compensation – Stock Compensation (Topic 718): Improvements to Nonemployee Share-Based Payment Accounting that largely aligns the accounting for share-based payment awards issued to employees and nonemployees. Under this ASU, mostdefinition of the guidance on such payments to nonemployees would be aligned with the requirements for share-based payments granted to employees. ASU2018-07 is effective for all entities for annual reporting periods beginning after December 15, 2018, including interim reporting periods within each annual reporting period, with early adoption permitted. The Company has adopted this standard in the first quarter of 2019. The adoption of this standard will not have a material impact on the Company’s consolidated financial statements.
customer.
In June 2016, the FASB issued ASU. The standard amends the impairment model by requiring entities to use a forward-looking approach based on expected losses to estimate credit losses for most financial assets and certain other instruments that aren’t measured at fair value through net income. Fordebt securities, entities will be required to recognize an allowance for credit losses rather than a reduction in carrying value of the asset. Entities will no longer be permitted to consider the length of time that fair value has been less than amortized cost when evaluating when credit losses should be recognized. The Company plans to adoptadopted the new guidancestandard on January 1, 2020. The Company doesadoption of this standard did not anticipate the adoption will have a material impact on itsthe Company’s consolidated financial positionstatements.
No. 2016-13,
Financial Instruments — Credit Losses (Topic 326), Measurement of Credit Losses on Financial Instruments
available-for-sale
In August 2018, the FASB issued ASU. The amendments in this update align the requirements for capitalizing implementation costs incurred in a hosting arrangement that is a services contract with the requirements for capitalizing implementation costs incurred to develop or obtain
2018-15,
Intangibles – Goodwill and Other –
Internal-Use
Software (Subtopic350-40),
Customer’s Accounting for Implementation Costs Incurred in a Cloud Computing Arrangement That Is a Service Contractinternal-use
software (and hosting arrangements that include aninternal-use
software license). Accordingly, the amendments in this update require an entity in a hosting arrangement that is a service contract to follow the guidance in Subtopic350-40
to determine which implementation costs to capitalize as an asset related to the service contract and which costs to expense. The Company adopted the new standard on January 1, 2020 and applied prospectively to all implementation costs incurred after the date of adoption. The adoption of this standard did not have a material impact on the Company’s consolidated financial statements.The Securities and Exchange Commission, or SEC, issued a final rule on November 19, 2020, adopting amendments to Regulation
S-K
to modernize, simplify and enhance certain disclosure requirements. The amendments reflect a principles-based, registrant-specific approach to disclosure intended to enhance the focus of financial disclosures on material information for the benefit of investors, while simplifying compliance efforts for registrants. Registrants are required to comply with the rule beginning with the first fiscal year ending on or after August 9, 2021, or the mandatory compliance date. Although registrants are not required to apply the amended rules until the mandatory compliance date, they may comply with the final amendments any time after the effective date, so long as disclosure responsive to an amended item is provided in its entirety. The Company early adopted these amendments, effective for this report.In December 2019, the FASB issued ASU 2019-12,, a new standard intended to simplify the accounting for income taxes by eliminating certain exceptions related to the approach for intraperiod tax allocation, the methodology for calculating income taxes in an interim period and the recognition of deferred tax liabilities for outside basis differences. The new standard also simplifies aspects of the accounting for franchise taxes and enacted changes in tax laws or rates and clarifies the accounting for transactions that result in a
Income Taxes: Simplifying the Accounting for Income Taxes
step-up
in the tax basis of goodwill. The standard is effective for annual periods beginning after December 15, 2020 and interim periods within, with early adoption permitted. Adoption of the standard requires certain changes to be made prospectively, with some changes to be made retrospectively. The Company is evaluating the impact of the standard on its financial condition and results of operations.F-17
3. | Investments. |
At December 31, 2018: U.S. Treasuries – ST U.S. Treasuries – LT Total investments by security type were as follows:Available-for-sale Amortized
cost Gross
Unrealized
Gains Gross
Unrealized
Losses Estimated
Fair Value $ 10,382,699 $ — $ (1,835 ) $ 10,380,864 5,026,656 — (18,413 ) 5,008,243 $ 15,409,355 $ — $ (20,248 ) $ 15,389,107 At December 31, 2017, the Company did not have anyavailable-for-sale securities.
|
In accordance with FASB ASCTopic 320, “Investments – Debt and Equity Securities”, or ASC 320, the Company has classified its U.S. Treasuries asavailable-for-sale securities with secondary or resale markets, and, as such, they are reported at fair value with unrealized gains and losses included in comprehensive loss in stockholders’ equity and realized gain and losses, included in other income, net.
Estimated Fair Value | Gross Unrealized Gains | Gross Unrealized Losses | Amortized Cost | |||||||||||||
At December 31, 2020: | ||||||||||||||||
U.S. Treasuries - Cash equivalents | $ | 104,994,400 | $ | 2,709 | $ | — | $ | 104,991,691 | ||||||||
Bond Funds - ST | 10,041,068 | 28,623 | — | 10,012,445 | ||||||||||||
Total | $ | 115,035,468 | $ | 31,332 | $ | 0— | $ | 115,004,136 | ||||||||
At December 31, 2019: | ||||||||||||||||
U.S. Treasuries - Cash equivalents | $ | 59,932,200 | $ | 2,042 | $ | — | $ | 59,930,158 | ||||||||
U.S. Treasuries - ST | 5,007,050 | 7,463 | — | 4,999,587 | ||||||||||||
Total | $ | 64,939,250 | $ | 9,505 | $ | — | $ | 64,929,745 | ||||||||
There were no0 realized gains or losses from sales ofsecurities for the years ended December 31, 20182020, 2019 or 2017.
available-for-sale
Certain U.S. Treasuries at December 31, 2018 had fair values less2018.
The Company did not hold any securities in an unrealized loss position for more than their amortized costs and, therefore, contained unrealized losses. Given that the Company has no intent to sell the U.S. Treasuries until a recovery of the fair value, which may be at maturity, and there are no current requirements to sell any of these securities,12 months as of December 31, 2018, the Company did not consider these investments to be other-than-temporarily impaired. The Company anticipates full recovery of amortized costs with respect to these investments at maturity. The duration of time the U.S. Treasuries have been in a continuous unrealized loss position as of December 31, 2018 was less than 12 months.
2020.
The estimated fair values ofsecurities at December 31, 2018,2020, by contractual maturity, are summarized as follows:
available-for-sale
| 2018 | ||||
Due in one year or less | $ | 10,380,864 | ||
Due after one year but within two years | 5,008,243 | |||
|
| |||
| $ | 15,389,107 | |||
|
| |||
2020 | ||||
Due in one year or less | $ | 115,035,468 | ||
4. | Prepaid Expenses and Other Current Assets. |
Prepaid expenses and other current assets consist of the following as of December 31:
| 2018 | 2017 | |||||||
Prepaid research fees | $ | 358,209 | $ | 388,977 | ||||
Prepaid insurance | 800,261 | 638,139 | ||||||
Prepaidpre-commercialization fees | 17,030 | 65,000 | ||||||
Prepaid subscriptions fees | 170,552 | 23,347 | ||||||
Prepaid rent | 31,561 | — | ||||||
Other | 272,168 | 58,281 | ||||||
|
|
|
| |||||
Total prepaid expenses and other current assets | $ | 1,649,781 | $ | 1,173,744 | ||||
|
|
|
| |||||
2020 | 2019 | |||||||
Prepaid manufacturing costs | $ | 3,327,610 | $ | 1,526,013 | ||||
Prepaid tax | 1,368,464 | — | ||||||
Prepaid insurance | 1,285,104 | 1,263,129 | ||||||
Prepaid subscriptions fees | 729,065 | 501,251 | ||||||
Prepaid research fees | 453,034 | 481,057 | ||||||
Prepaid commercialization expenses | 199,095 | 62,959 | ||||||
| Due from collaborative arrangements | 436,784 | 0 | ||||||
Other | 528,615 | 516,665 | ||||||
Total prepaid expenses and other current assets | $ | 8,327,771 | $ | 4,351,074 | ||||
F-18
5. |
Operating Leases. |
Property
The Company has operating lease agreements for its corporate office. The leases include options to extend the leases for up to 1 year and equipment, net consistsoptions to terminate the lease within 1 year. There are 0 obligations under finance leases.
The Company entered into an agreement in May 2020 that amended its lease for its office facilities. Under the amended lease, the Company’s leased space will increase from approximately 7,800 square feet of space to approximately 10,700
square feet of space. The amended lease commenced in early 2021 when construction of the followingasset was completed and space became available for use. Consequently, the Company will record the effects of the amended lease during Q1 2021
The components of lease expense for the old leased space were as follows:which will be material to the Company’s consolidated financial statements. The lease disclosures for the year ended December 31, 2020 in these financial statements have been adjusted for the modification of the current lease.
For the Year Ended December 31, 2020 | ||||
Operating lease cost | $ | 261,736 | ||
Supplemental cash flow information related to leases was as follows:
December 31, 2020 | ||||
Cash paid for amounts included in the measurement of lease liabilities: | ||||
Operating cash flows | $ | 339,605 | ||
Right-of-use | ||||
Operating leases | $ | 55,801 | ||
Supplemental balance sheet information related to leases was as follows:
December 31, 2020 | ||||
Operating lease right-of-use | $ | 0— | ||
Other current liabilities | $ | 28,772 | ||
Operating lease liabilities, net of current portion | 0— | |||
Total operating lease liabilities | $ | 28,772 | ||
Weighted average remaining lease term | 0.1 years | |||
Weighted average discount rate | 3.68 | % |
Remaining payments of lease liabilities as o31:
f
December | 2018 | 2017 | |||||||
Computer equipment | $ | 52,704 | $ | 27,915 | ||||
Furniture and equipment | 212,451 | 169,931 | ||||||
Leasehold improvements | 177,417 | 152,708 | ||||||
|
|
|
| |||||
| 442,572 | 350,554 | |||||||
Less: Accumulated depreciation | (197,147 | ) | (159,169 | ) | ||||
|
|
|
| |||||
Total property and equipment, net | $ | 245,425 | $ | 191,385 | ||||
|
|
|
| |||||
Depreciation31, 2020 were as follows:
2021 | $ | 28,860 | ||
2022 | 0— | |||
Total lease payments | 28,860 | |||
Less imputed interest | (88 | ) | ||
Total | $ | 28,772 | ||
Rent expense was $37,978$278,753, $318,346 and $45,689, respectively,$242,155 for the years ended December 31, 20182020, 2019 and 2017.2018.
F-19
6. | Accrued Expenses and Other Liabilities. |
Accrued expenses and other liabilities consist of the following as of December 31:
| 2018 | 2017 | |||||||
Accrued preclinical and clinical trial expenses | $ | 821,633 | $ | 970,649 | ||||
Accrued professional fees | 1,311,061 | 227,457 | ||||||
Accrued compensation and benefits | 1,941,449 | 821,935 | ||||||
Accrued license fees | 3,000,000 | 252,500 | ||||||
Deferred rent and lease incentive | 33,408 | 24,011 | ||||||
Other | 66,436 | 24,035 | ||||||
|
|
|
| |||||
Current accrued expenses and other liabilities | 7,173,987 | 2,320,587 | ||||||
Deferred rent and lease incentive –non-current | 154,799 | 157,456 | ||||||
|
|
|
| |||||
Non-current accrued expenses and other liabilities | 154,799 | 157,456 | ||||||
|
|
|
| |||||
Total accrued expenses and other liabilities | $ | 7,328,786 | $ | 2,478,043 | ||||
|
|
|
| |||||
2020 | 2019 | |||||||
Accrued preclinical and clinical trial expenses | $ | 584,502 | $ | 1,183,513 | ||||
Accrued professional fees | 1,883,880 | 1,241,526 | ||||||
Accrued compensation and benefits | 3,991,056 | 3,064,645 | ||||||
Accrued license fees | 10,372,642 | 8,751,991 | ||||||
Accrued purchases | 258,067 | 1,313,310 | ||||||
Accrued contributions | 310,000 | 1,535,000 | ||||||
Operating lease liability | 28,772 | 300,518 | ||||||
Accrued variable consideration | 964,316 | 884,764 | ||||||
Accrued income tax | — | 1,533,696 | ||||||
Other | 107,032 | 172,332 | ||||||
Current accrued expenses and other liabilities | 18,500,267 | 19,981,295 | ||||||
Lease liability – non-current | — | 647,532 | ||||||
Non-current accrued expenses and other liabilities | — | 647,532 | ||||||
Total accrued expenses and other liabilities | $ | 18,500,267 | $ | 20,628,827 | ||||
7. | Collaborative Arrangements . |
In December 2018, the Company entered into a collaboration and license agreement (Collaboration) with Endo, International plsc’s subsidiary, Endo Ventures Limited (EVL), for the further development and commercialization of generic Sabril
®
(vigabatrin) tablets through Endo’s U.S. Generic Pharmaceuticals segment, doing business as Par Pharmaceutical.EVL
Under the Collaboration, Endo assumes all development, manufacturing, clinical, regulatory, sales and marketing costs under the collaboration, while the Company is responsible for exercising commercially reasonable efforts to develop, or cause the development of, a final finished, stable dosage form of generic Sabril
®
tablets.Under the terms of the Collaboration, the Company has received anpayments based on achievement of regulatory approvals,payment, and a sharing of defined net profits upon commercialization from EVLEndo consisting of amid-double digit launch.launch of the product.
up-front
payment, and will receive a milestone mid-double-digit
percent of net sales of generic Sabril®
. The Company has also agreed to a sharing of certain development expenses. Unless terminated earlier in accordance with its terms, the collaboration continues in effect until the date that isten
years following the commercial The collaborative agreement provides for a $2.0 million milestone payment on the commercial launch of the product by Par. As of December 31, 2020, 2019, and 2018, a0 milestone payments have been earned.
Revenues from collaborative arrangement with Endo for years ended December 31, 2020, 2019, and 2018 were $0, $0 and $500,000 (for upfront license fee was recognized.
$4,254, $65,061 and $0,
|
The Company has contractedfees). Total expenses incurred, net, in connection with drug manufacturersthe collaborative agreement with Endo for years ended December 31, 2020, 2019, and other vendors, including clinical2018 were approximately
respectively. These expenses have been included in research organizations (CRO) overseeing one or more of the clinical trials of the Company’s drug candidates, to assistand development expenses in the executionaccompanying consolidated statements of the Company’s preclinicaloperations and clinical trials, analysis, and the preparationcomprehensive income (loss).
F-20
7. | Collaborative Arrangements (continued). |
In August 2018,2020, the Company entered into a fourth amendment tocollaboration and license agreement with KYE Pharmaceuticals Inc (KYE), for the lease to its corporate offices to obtain additional spacecommercialization of Firdapse
®
in Canada.Under the agreement, KYE assumes all selling and marketing costs under the collaboration, while the Company is responsible for its operations.supply of Firdapse
®
based on the collaboration partner’s purchase orders.Under the terms of the agreement, the Company will receive an up-front payment, received payment upon transfer of Marketing Authorization and delivery of commercial product, received payment for supply of Firdapse®, will receive milestone payments, and a sharing of defined net profits upon commercialization from KYE consisting of a mid-double-digit percent of net sales of Firdapse®. The Company now leaseshas also agreed to a sharing of certain development expenses. Unless terminated earlier in accordance with its terms, the collaboration continues in effect until the date that is
ten
years following the commercial launch of the product in Canada.Revenues from arrangement with KYE for the year ended December 31, 2020 were approximately 7,800 square feet and the lease term expires
$332,000
.
$257,500.Total expenses incurred, net, in November 2022. In connection with the expansion,agreement with KYE for the year ended December 31, 2020 were approximately $13,000 of tenantbuild-out costs were funded
These expenses have been included in selling, general and paid by the landlord through lease incentives. The lease incentives are being amortized over the term of the lease as a reduction of rent expense. The lease provides for fixed increases in minimum annual rent payments, as well as rent free periods. The total amount of rental payments due over the lease term is being charged to rent expense on the straight-line method over the term of the lease. The differences between rent expense recorded and the amount paid is credited or charged to accruedadministrative expenses and other liabilities in the accompanying consolidated balance sheets. Rent expense was $242,155statements of operations and $204,170 respectively,comprehensive income (loss).
The agreement provides for the years ended December 31, 2018event-based payments subject to achievement of specified development, regulatory and 2017.sales-based milestones.
8. | Commitments and |
There are no obligations under capital leases.
On August 27, 2009, the Company entered into a license agreement with Northwestern University (Northwestern), under which it acquired worldwide rights toCPP-115. As of December 31, 2018, the Company had paid $424,885 in connection with the license and had accrued license fees of $0 in the accompanying December 31, 2018 consolidated balance sheet for expenses, maintenance fees and milestones.
In 2018, the Company became aware that certain patents granted to Northwestern in 2018University (which patents have been licensed by Northwestern to a third-party)third party) for a new GABA aminotransferase inhibitor were deriveddeveloped fromCPP-115.basedfor
CPP-115,
which had previously been licensed to the Company by Northwestern. As a result, on October 26, 2018, the Company terminated the license agreement CPP-115
and commenced an arbitration proceeding against Northwestern seeking damages for alleged breaches of the license agreement. Shortly thereafter, Northwestern filed counterclaims against the Company in the arbitration action seeking damages for alleged breaches by the Company of the license agreement. On May 21, 2019, the Company entered into a settlement agreement with Northwestern that resolved all pending disputes between the parties with no admission of liability by either party, released all claims of liability or wrongdoing between the Company and Northwestern, and dismissed the pending arbitration. Under the settlement agreement, the Company received a $100,000payment on May 21, 2019, which is reported as income in other income, net in the consolidated statement of operations and comprehensive income (loss). The Company is also entitled to receive certain contingent compensation that will be reported when and if received.
In May 2019, the FDA approved a New Drug Application (NDA) for Jacobus Pharmaceuticals for Ruzurgipositionbusiness, financial condition and results of operations.
®
, their version of amifampridine (3,4-DAP), for the treatment of pediatric LEMS patients (ages 6 to under 17). The Company believes that Jacobus is offering Ruzurgi®
at a lower price than the Company is offering Firdapse®
. While the NDA for Ruzurgi®
only covers pediatric patients, the Company believes that Ruzurgi®
is being prescribed off label to adult LEMS patients. If Jacobus is able to successfully sell Ruzurgi®
off-label to adult LEMS patients, it could have a material adverse effect on the Company’s The Company believes that Northwestern has the FDA’s approval of Ruzurgithe license agreement because of its failurestatutory rights and was in multiple other respects arbitrary, capricious and contrary to transfer these new patent rights tolaw. As a result, in June 2019 the Company as partfiled suit against the FDA and several related parties challenging this approval and related drug labeling. The Company’s complaint, which was filed in the federal district court for the Southern District of Florida,existing license agreement. It is also the Company’s position that Northwestern’s publicationFDA’s approval of information about the new patentsRuzurgilicense agreementFederal Food, Drug, and Cosmetic Act (FDCA); violated its statutory rights to Orphan Drug Exclusivity and New Chemical Entity Exclusivity under the FDCA; and was in multiple other respects arbitrary, capricious, and contrary to law, in violation of the Administrative Procedure Act. Among other remedies, the suitdamagedintervened in the Company. case.
®
violated alleged
that the ®
violated multiple provisions of FDA regulations regarding labeling, resulting in misbranding in violation of the sought
an order vacating the FDA’s approval of Ruzurgi®
. Jacobus has F-21
8. | Commitments and Contingencies (continued). |
On October 26, 2018,July 30, 2020, the CompanyMagistrate Judge considering the Company’s lawsuit against the FDA filed a claimReport and Recommendation in which she recommended to the District Judge handling the case that she grant the FDA’s and Jacobus’ motions for damages in arbitration against Northwesternsummary judgment and deny the Company’s motion for Northwestern’s breachessummary judgment. On September 29, 2020, the District Judge adopted the Report and Recommendation of the license agreement.
On November 5, 2018, Northwestern advisedMagistrate Judge, granted the Company that in its view, Northwestern has a right to terminateFDA’s and Jacobus’s motions for summary judgment, and dismissed the license agreement with the Company because theCompany’s case. The Company has allegedly breachedappealed the license agreement by failingdecision to pay certain milestones and by allegedly failing to use commercially reasonable efforts to develop and commercialize any products. Northwestern has also advised the Company that, in its view, the Company has engaged in wrongful conduct and communications with the third party that licensed the new patents from Northwestern, and that such communications have damaged Northwestern’s relationship with that third party. The Company disputes Northwestern’s allegations and is vigorously defending itself against claims that Northwestern has brought against it in the arbitration proceeding.
Eleventh Circuit Court of Appeals. There can be no assurance as to the outcome of this matter.
lawsuit.
On August 10, 2020, Health Canada issued a Notice of Compliance (NOC) to Medunik for Ruzurgiemployment agreement withinnovative drug’s data, for eight years from the date of the innovative drug’s approval. The Ruzurgi
®
for the treatment of LEMS. The Company has since initiated a legal proceeding in Canada seeking judicial review of Health Canada’s decision to issue the NOC for Ruzurgi®
as incorrect and unreasonable under Canadian law. Data protection, per Health Canada regulations, is supposed to prevent Health Canada from issuing a NOC to a drug that directly or indirectly references an ®
ProductMonograph clearly references pivotal nonclinical carcinogenicity and reproductive toxicity data for amifampridine phosphate developed by the Company. As such, the Company believes that its Chief Executive Officer. Underdata was relied upon to establish the nonclinical safety profile of Ruzurgiagreement,proceeding.
®
needed to meet the standards of the Canadian Food and Drugs Act. There can be no assurance of the result of this Additionally, from time to time the CEO received an annual base salaryCompany may become involved in legal proceedings arising in the ordinary course of approximately $525,000business. Except as set forth above, the Company believes that there is no other litigation pending at this time that could have, individually or in 2018. This agreement expires in November 2020.the aggregate, a material adverse effect on its results of operations, financial condition or cash flows.
9. | Agreements. |
a. |
|
On May 29, 2019, the Company entered into an amendment to its license agreement for FirdapseLicense Agreement,amendment, the Company has agreedexpanded its commercial territory for Firdapsepay: (i) royaltiesinclude Japan. Additionally, the Company has an option to BioMarin for seven years from the first commercial sale of Firdapse® equal to 7% of net sales (as defined infurther expand its territory under the license agreement)agreement to include most of Asia, as well as Central and South America, upon the achievement of certain milestones in North America for any calendar year for sales up to $100 million, and 10% ofJapan. Under the amendment, the Company will pay royalties on net sales in North America in any calendar year in excessJapan of $100 million; and (ii) royaltiesa similar percentage to the third-party licensor of the rights sublicensed toroyalties that the Company is currently paying under its original license agreement for seven years fromNorth America.
®
. Under the ®
, which originally was comprised of North America, to In January 2020, the first commercial sale of Firdapse® equal to 7% of net sales (as defined inCompany was advised that BioMarin has transferred certain rights under the license agreement between BioMarin and the third-party licensor) in any calendar year.
Under the Company’s license agreement with BioMarin, the Company agreed to pay certain milestone payments that BioMarin was obligated to pay to both a third-party licensor of the rights that have been sublicensed to us and to the former stockholders of Huxley Pharmaceuticals (“Huxley”) under an earlier stock purchase agreement between BioMarin and the former Huxley stockholders.
In full satisfaction of the milestone obligations, the Company has paid (i) $3,150,000 in milestone payments to the third party licensor of the rights that have been sublicensed to the Company ($3.0 million of which was paid in February 2019 and the balance of which was paid in 2018) and (ii) $2.0 million in milestone payments to the former Huxley Stockholders (all of which was paid in 2018).
In the BioMarin License Agreement, the Company agreed to share in the cost of certain post-marketing studies of Firdapse® that were being conducted by BioMarin, and the Company fulfilled its commitment to BioMarin regarding all such payments several years ago.
|
b. |
|
F-22
10. | Income Taxes. |
Due
The Company is subject to income taxes in the U.S. federal jurisdiction and various states jurisdictions.
For the year ended December 31, 2018, due to the ongoingCompany’s historical operating losses and the inability to recognize any income tax benefit, there iswas no provision for income taxes in any period presented in these financial statements. Since inception,statements for that respective period. Commencing in 2019, the Company has only generatedrecorded income taxes on their pretax losses.
income using an effective tax rate.
The income tax expense (benefit) for the years ended December 31, 2020, 2019, and 2018 consists of:
2020 | 2019 | 2018 | ||||||||||
Current | $ | (121,662 | ) | $ | 1,533,696 | $ | 0 | |||||
Deferred | (32,971,264 | ) | 0 | 0 | ||||||||
| $ | (33,092,926 | ) | $ | 1,533,696 | $ | 0 | ||||||
The reconciliation of income
i
ncome tax expense (benefit) computed at the statutory federal income tax rate of 21% to amounts included in the statements of operations is as follows:| 2018 | 2017 | |||||||
Statutory rate | 21.0 | % | 34.0 | % | ||||
State tax | 4.2 | % | 3.5 | % | ||||
Valuation allowance | (25.9 | )% | 26.5 | % | ||||
Federal rate change | 0.0 | % | (73.2 | )% | ||||
Tax credit | 1.4 | % | 6.8 | % | ||||
Other | (0.7 | )% | 2.4 | % | ||||
|
|
|
| |||||
| 0.0 | % | 0.0 | % | |||||
|
|
|
| |||||
2020 | 2019 | 2018 | ||||||||||
Statutory rate | 21.0 | % | 21.0 | % | 21.0 | % | ||||||
State tax | 2.2 | % | 6.5 | % | 4.2 | % | ||||||
Valuation allowanc e | (99.4 | )% | (20.9 | )% | (25.9 | )% | ||||||
Tax credit | (2.4 | )% | (2.5 | )% | 1.4 | % | ||||||
Othe r | (0.4 | )% | 0.5 | % | (0.7 | )% | ||||||
| (79.0 | )% | 4.6 | % | 0.0 | % | |||||||
Deferred tax assets and liabilities reflect the net tax effects of net operating loss and tax credit carryovers and the temporary differences between the carrying amounts of assets and liabilities for financial reporting and the amounts used for income tax purposes. Significant components of the Company’s deferred tax assets as of December 31, 20182020 and 20172019 are as follows:
| 2018 | 2017 | |||||||
Net operating loss | $ | 19,867,591 | $ | 15,718,570 | ||||
Start-up cost | 13,861,147 | 10,508,487 | ||||||
Tax credits | 12,625,275 | 11,582,134 | ||||||
Deferred compensation | 1,919,434 | 1,326,189 | ||||||
Other | 109,779 | 72,395 | ||||||
|
|
|
| |||||
Gross deferred tax asset | 48,383,226 | 39,207,775 | ||||||
|
|
|
| |||||
Valuation allowance | (48,383,226 | ) | (39,207,775 | ) | ||||
|
|
|
| |||||
Net deferred tax assets | $ | — | $ | — | ||||
|
|
|
| |||||
2020 | 2019 | |||||||
Net operating loss | $ | 2,319,848 | $ | 10,645,128 | ||||
Start-up costs | 11,203,034 | 12,894,926 | ||||||
Tax credits | 15,615,681 | 14,320,860 | ||||||
Deferred compensation | 3,889,133 | 3,183,767 | ||||||
Inventory | 212,045 | 229,050 | ||||||
Prepaid expenses | (398,979 | ) | 0 | |||||
Other | 130,502 | 355,023 | ||||||
Gross deferred tax asset | 32,971,264 | 41,628,754 | ||||||
Valuation allowance | 0 | (41,628,754 | ) | |||||
Net deferred tax assets | $ | 32,971,264 | $ | 0 | ||||
F-23
10. | Income Taxes (continued). |
The Company’sCompany has evaluated the positive and negative evidence bearing upon the realizability of its deferred tax assets have been fully offset by a valuation allowance atassets. As of December 31, 2018 and 2017 because2020, the Company believesdetermined that there is sufficient positive evidence to conclude that it is more likely than not that the above deferred tax asset will not be realized. The increase and decrease intaxes of approximately $33.0 million are realizable. Accordingly, the Company has released the full valuation allowance on thefor deferred tax assets was $9,175,451 including$3,388,951 fortax credit carryover as of
net operating loss
and December 31, 2020. The valuation allowance released over the yearscourse of the year ended December 31, 2018 and 2017, respectively.
$41.6 million.2020 was
At December 31, 20182020 and 2017,2019, respectively, the Company had federal net operating loss carryforwards of approximately $79.0
$3 million and The federal net operating loss carryforwards are expected to be utilized within the next year. Additionally, at December 31, 2020 and 2019, respectively, the Company had state net operating loss carryforwards of approximately $42 million and $52 million available to reduce future Florida taxable income. The state
net operating loss carryforwards will expire at various dates beginning in During 2020, the amountCompany completed an analysis to determine whether, as a result of prior ownership changes, the utilization of certain net operating loss generated in 2018 will have an infinite life, but willand orphan drug tax credit carryforwards would be limitedsubject to utilization per yearannual limitations under Sections 382 and 383 of 80% of taxable income. If an ownership change, as defined underthe Internal Revenue Code Section 382, occurs, the use of these carry-forwards may be subject to limitation. The effective tax rate of 0% in all periods presented differs from the statutory rate of 21% due to the valuation allowance and becausesimilar state provisions. In this analysis, the Company had no taxable income.
determined that the total net operating loss and orphan drug tax credit carryforwards are fully utilizable. Thus, the deferred tax assets were adjusted accordingly.
Beginning in 2010, the Company has received several orphan drug designations by the FDA for products currently under development. The orphan drug designations allow the Company to claim increased federal tax credits for certain research and development activities. The orphan drug credit carryforwards will expire at various dates beginning in 2031.
|
No
NaN
interest or penalties were accrued through December 31, 2018.2020. The Company’s policy is to recognize any related interest or penalties in income tax expense. The Company is not subject to U.S. federal, state and local tax examinations by tax authorities for any years before 2015. The Company is not currently under income tax examinations by any tax authorities.
11. | Stockholders’ Equity. |
2019.Preferred StockThe Company has 5,000,000 shares of authorized preferred stock, $0.001 par value per share, at December 31, 20182020 and 2017. No2019. NaN shares of preferred stock were outstanding at December 31, 20182020 and 2017.Common StockThe Company has 150,000,000 shares ofOn August 20, 2020, the Company’s stockholders approved an increase in the Company’s authorized common stock par value $0.001 per share.share, from 150,000,000 shares to 200,000,000 shares. At December 31, 20182020 and 2017, 102,739,2572019, 103,781,641 and 102,549,498103,397,033 shares, respectively, of common stock were issued and outstanding. Each holder of common stock is entitled to one1 vote of each share of common stock held of record on all matters on which stockholders generally are entitled to vote.2016
2020 Shelf Registration Statement
On DecemberJuly 23, 2016,2020, the Company filed a shelf Registration Statement on FormS-3 (the 2016 Shelf Registration Statement)registration statement with the SEC to sell up to approximately $33.8 million of common stock. The 2016 Shelf Registration Statement (fileNo. 333-215315) was declared effective by the SEC on January 9, 2017. No sales have been conducted to date under the 2016 Shelf Registration Statement.26, 2017.
2017 Shelf Registration Statement
On July 12, 2017, the Company filed a universal shelf Registration Statement on FormS-3 (the 2017 Shelf Registration Statement) with the SEC to sell up to $150$200 million of common stock, preferred stock, warrants to purchase common stock, or debt securities (including debtand units consisting of one or more of such securities that may be convertible or exchangeable for common stock or other securities), which securities may be offered separately or together in units or multiple series.(the “2020 Shelf Registration Statement”). The 20172020 Shelf Registration Statement (fileNo. 333-219259) no.
333-240052)
was declared effective by the SEC on July On November 28, 2017,31, 2020. As of the Company filed a prospectus supplement and offered for sale 16,428,572 sharesdate of its common stock at a price of $3.50 per share in an underwritten public offeringthis report, no offerings have been completed under the 2017 Shelf Registration. The Company received gross proceeds in the public offering of approximately $57.5 million before underwriting commission and incurred expenses of approximately $3.7 million.
At December 31, 2018, there is approximately $92.5 million available for future sale under the 2017Company’s 2020 Shelf Registration Statement.
Warrant Exercises
All unexercised warrants expired in 2017. For the year ended December 31, 2017, the Company issued 2,257,663 shares of its authorized but unissued common stock upon the exercise of previously issued common stock purchase warrants, with net proceeds to the Company of $3,209,423.
Stockholder Rights Plan
On September 20, 2011, the Board of Directors approved the Company’s adoption of a Stockholder Rights Plan. Under the Stockholders’ Rights Plan, a dividend of one preferred share purchase right (a Right) was declared for each share of common stock of the Company that was outstanding on October 7, 2011. Each Right entitles the holder to purchase from the Company one
one-hundredth
of a share of Series A Junior Preferred Stock at a purchase price of $7.80, subject to adjustment.F-24
11. | Stockholders’ Equity (continued). |
The Rights trade automatically with the common stock and will not be exercisable until a person or group has become an “acquiring person” by acquiring 17.5% or more of the Company’s outstanding common stock, or a person or group commences, or publicly announces a tender offer that will result in such a person or group owning 17.5% or more of the Company’s outstanding common stock. Upon announcement that any person or group has become an acquiring person, each Right will entitle all rightholders (other than the acquiring person) to purchase, for the exercise price of $7.80, a number of shares of the Company’s common stock having a market value equal to twice the exercise price. Rightholders would also be entitled to purchase common stock of the acquiring person having a value of twice the exercise price if, after a person had become an acquiring person, the Company were to enter into certain mergers or other transactions. If any person becomes an acquiring person, the Board of Directors may, at its option and subject to certain limitations, exchange one share of common stock for each Right.
The Rights have certain anti-takeover effects, in that they would cause substantial dilution to a person or group that attempts to acquire a significant interest in the Company on terms not approved by the Board of Directors. In the event that the Board of Directors determines a transaction to be in the best interests of the Company and its stockholders, the Board of Directors may redeem the Rights for $0.001 per share at any time prior to a person or group becoming an acquiring person.
On September 19, 2016, the Board of Directors unanimously approved, and on the same date the Company entered into Amendment No. 1 to the Stockholders Rights Plan (the “Amendment”). Under the terms of the Amendment, the outside expiration date of the rights plan has been from September 20, 2016 to September 20, 2019. Additionally, as part of the Amendment, the Board adopted a Certificate of Designation, Preferences and Rights of Series A Junior Participating Preferred Stock of the Company to increase the number of shares of Series A Junior Participating Preferred Stock of the Company available for issuance under the Rights Plan from 500,000 shares to 1.5 million shares.
was
extendedOn August 28, 2019, the Board of Directors unanimously adopted Amendment No. 2 to the Stockholders’ Rights Plan further extending the outside expiration date of the rights plan to September 20, 2022.
12. | Stock |
For the years ended December 31, 20182020, 2019 and 2017,2018, the Company recorded stock-based compensation expense as follows:
| 2018 | 2017 | |||||||
Research and development | $ | 1,079,230 | $ | 785,899 | ||||
General and administrative | 2,471,414 | 1,622,062 | ||||||
|
|
|
| |||||
Total stock-based compensation | $ | 3,550,644 | $ | 2,407,961 | ||||
|
|
|
| |||||
2020 | 2019 | 2018 | ||||||||||
Research and development | $ | 1,585,202 | $ | 1,137,596 | $ | 1,079,230 | ||||||
Selling, general and administrative | 4,675,721 | 2,687,219 | 2,471,414 | |||||||||
Total stock-based compensation | $ | 6,260,923 | $ | 3,824,815 | $ | 3,550,644 | ||||||
The Company may issue stock options, restricted stock, stock appreciation rights and restricted stock units (collectively, the “Awards”) to employees, directors, and consultants of the Company under the 2014 and 2018 Stock Incentive Plans (the 2014 Plan and the 2018 Plan or collectively, the Plans). At December 31, 2018,2020, no shares remain available for future issuance under the 2014 Plan. Under the 2018 Plan, 7,500,00010,000,000 shares were reserved for issuance and as of December 31, 2018, 3,620,6032020, 1,856,008 shares remain available for future issuance.
Stock Options
The Company has granted stock options to employees, officers, directors, and consultants generally at exercise prices equal to the market price of the common stock at grant date. Option awards generally vest over a period of 1 to 53 years of continuous service and have contractual terms from 5 toof 7 years. Certain awards provide for accelerated vesting if there is a change in control. The Company issues new shares as shares are required to be delivered upon exercise of outstanding stock options.
F-25
12. | Stock Compensation (continued). |
During the years ended December 31, 20182020, 2019, and 2017,2018, options to purchase 281,762, 654,332 and 186,665 and 780,000 sharesand $368,185, respectively. Further, during year 2017,2019, options to purchase 100,0006,666 shares of the Company’s common stock were exercised on a “cashless” basis, resulting in the issuance of an aggregate of 84,2803,444 shares of the Company’s common stock, respectively.
, respectively,
of the Company’s common stock were exercised with gross proceeds to the Company of $758,130, $1,116,242, and $297,563, During
theyears
ended December 31, 2020 and 2018,
no options to purchase shares of the Company’s common stock were exercised on a “cashless” basis. During the year ended December 31, stock.
During the years ended December 31, 20182020, 2019, and 20172018 the Company recordedand $2,342,625, respectively.
non-cash
stock-based compensation expense related to stock options totaling $5,694,120, $3,780,086, and $3,535,647, During the years ended December 31, 20182020, 2019, and 2017,2018, the Company granted seven-year options to purchase an aggregate of 5,822,5002,715,000, 2,183,500 and 1,550,0005,882,500 shares, respectively, of the Company’s common stock to certain of the Company’s officers, employees, directors, and consultants.
|
Stock option activity under the Company’s Plans for the year ended December 31, 20182020 is summarized as follows:
| Number of Options | Weighted Average Exercise Price | Weighted Average Remaining Contractual Term (in years) | Aggregate Intrinsic Value | |||||||||||||
Outstanding at beginning of year | 5,191,666 | $ | 1.96 | |||||||||||||
Granted | 5,822,500 | 3.04 | ||||||||||||||
Exercised or released | (186,665 | ) | 1.59 | |||||||||||||
Forfeited or cancelled | (270,001 | ) | 2.94 | |||||||||||||
Expired | (25,000 | ) | 0.47 | |||||||||||||
|
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| |||||||||||||
Outstanding at end of year | 10,532,500 | $ | 2.54 | 5.39 | $ | 2,239,500 | ||||||||||
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| |||||||||
Exercisable at end of year | 4,349,996 | $ | 2.16 | 4.00 | $ | 1,679,297 | ||||||||||
|
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|
|
| |||||||||
Number of Options | Weighted Average Exercise Price | Weighted Average Remaining Contractual Term (in years) | Aggregate Intrinsic Value | |||||||||||||
Outstanding at beginning of year | 11,478,334 | $ | 2.95 | |||||||||||||
Granted | 2,715,000 | 3.75 | ||||||||||||||
Exercised or released | (281,762 | ) | 2.69 | |||||||||||||
Forfeited or cancelled | (160,668 | ) | 3.84 | |||||||||||||
Expired | (357,235 | ) | 3.38 | |||||||||||||
Outstanding at end of year | 13,393,669 | $ | 3.10 | 4.42 | $ | 8,237,645 | ||||||||||
Exercisable at end of year | 7,926,136 | $ | 2.64 | 3.38 | $ | 7,381,601 | ||||||||||
Other information pertaining to stock option activity during the years ended December 31, 20182020, 2019, and 20172018 was as follows:
| 2018 | 2017 | |||||||
Weighted–average fair value of granted stock options | $ | 1.93 | $ | 0.91 | ||||
Total fair value of vested stock options | $ | 2,193,294 | $ | 2,016,992 | ||||
Total intrinsic value of exercised stock options | $ | 274,864 | $ | 2,296,100 | ||||
The following table summarizes information about the Company’s options outstanding at December 31, 2018:
| Options Outstanding | Options Exercisable | |||||||||||||||||||||||
Range of Exercise Prices | Number Outstanding | Weighted Average Remaining Contractual Life (Years) | Weighted Average Exercise Price | Number Exercisable | Weighted Average Remaining Contractual Life (Years) | Weighted Average Exercise Price | ||||||||||||||||||
$0.79 to $1.13 | 2,385,000 | 4.78 | $ | 0.99 | 1,686,664 | 4.69 | $ | 0.93 | ||||||||||||||||
$1.14 to $2.28 | 2,440,000 | 6.87 | $ | 2.22 | 209,999 | 6.22 | $ | 2.07 | ||||||||||||||||
$2.29 to $3.07 | 1,765,000 | 4.84 | $ | 2.60 | 1,098,333 | 3.72 | $ | 2.53 | ||||||||||||||||
$3.08 to $3.75 | 2,005,000 | 4.59 | $ | 3.30 | 995,000 | 2.71 | $ | 3.14 | ||||||||||||||||
$3.76 to $4.64 | 1,937,500 | 5.62 | $ | 4.03 | 360,000 | 3.92 | $ | 4.11 | ||||||||||||||||
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| 10,532,500 | 5.39 | $ | 2.54 | 4,349,996 | 4.00 | $ | 2.16 | |||||||||||||||||
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2020 | 2019 | 2018 | ||||||||||
Weighted–average fair value of granted stock options | $ | 2.33 | $ | 2.69 | $ | 1.93 | ||||||
Total fair value of vested stock options | $ | 5,311,616 | $ | 3,864,995 | $ | 2,193,294 | ||||||
Total intrinsic value of exercised stock options | $ | 325,102 | $ | 1,899,862 | $ | 274,864 | ||||||
As of December 31, 2018,2020, there was approximately $8.8$10.02 million of unrecognized compensation expense related to2.582.35 years.
non-vested
stock option awards granted under the Plans. That cost is expected to be recognized over a weighted average period of approximately The Company utilizes the Black-Scholes option-pricing model to determine the fair value of stock options on the date of grant. This model derives the fair value of stock options based on certain assumptions related to the expected stock price volatility, expected option life, risk-free interest rate and dividend yield. Expected volatility is based on reviews of historical volatility of the Company’s common stock. The estimated expected option life is based upon estimated employee exercise patterns and considers whether and the extent to which the options areThe Company estimates the expected option life for options granted to employees and directors based upon the simplified method. Under this method, the expected life is presumed to be thezero.0. Forfeitures are recognized as a reduction of stock-based compensation expense as they occur.
in-the-money.
mid-point
between the vesting date and the end of the contractual term. The Company will continue to use the simplified method until it has sufficient historical exercise data to estimate the expected life of the options. The risk-free interest rate assumption is based upon the U.S. Treasury yield curve appropriate for the estimated life of the stock options awards. The expected dividend rate is F-26
12. | Stock Compensation |
Assumptions used during the years were as follows:
December 31, | December 31, | |||
Risk free interest rate | 2.09% to 2.88% | 1.66% to 2.25% | ||
Expected term | 0 to 7 years | 4 to 7 years | ||
Expected volatility | 82% | 104% | ||
Expected dividend yield | — % | — % | ||
Expected forfeiture rate | — % | — % |
December 31, 2020 | December 31, 2019 | December 31, 2018 | ||||||||||
Risk free interest rate | 0.24% to 1.64 | % | 1.51% to 2.53 | % | 2.09% to 2.88 | % | ||||||
Expected term | 4.5 years | 4.5 years | 0 to 7 years | |||||||||
Expected volatility | 80.5% to 83.7 | % | 75.5 | % | 82 | % | ||||||
Expected dividend yield | 0 | % | — | % | — | % | ||||||
Expected forfeiture rate | 0 | % | — | % | — | % | ||||||
Restricted Stock Units
Under the 2018 Plan, participants may be granted restricted stock units, each of which represents a conditional right to receive shares of common stock in the future. The restricted stock units granted under this plan generally vest ratably over a four-yearthree-year period. Upon vesting, the restricted stock units will convert into an equivalent number of shares of common stock. The amount of expense relating to the restricted stock units is based on the closing market price of the Company’s common stock on the date of grant and is amortized on a straight-line basis over the requisite service period. No restricted stock units were granted during 2018. Restricted stock unit activity during 20172020 was as follows:
| 2017 | ||||||||
| Number of Restricted Stock Units | Weighted Average Grant Date Fair Value | |||||||
Nonvested balance at beginning of year | 26,667 | $ | 2.83 | |||||
Granted | — | — | ||||||
Vested | (26,667 | ) | 2.83 | |||||
Forfeited | — | — | ||||||
|
|
|
| |||||
Nonvested balance at end of year | — | $ | — | |||||
|
|
|
| |||||
2020 | |||||||||
Number of Restricted Stock Units | Weighted Average Grant Date Fair Value | ||||||||
Nonvested balance at beginning of year | 352,500 | $ | 4.64 | ||||||
Granted | 30,000 | 4.70 | |||||||
Vested | (117,495 | ) | 4.64 | ||||||
Forfeited | (29,334 | ) | 4.64 | ||||||
Nonvested balance at end of year | 235,671 | $ | 4.65 | ||||||
During the year ended December 31, 2019, 352,500
r
estricted stock units were granted and outstanding and there were no vested or forfeited shares. There was no restricted stock unit activity during 2018.During the year ended December 31, 2020 and 2019, the Company recorded During
non-cash
stock-based compensation expense related to restricted stock units totaling $566,803 and $44,729, respectively. No stock-based compensation related to restricted stocks was recorded during 2018.Common Stock
No shares of common stock were granted during the year ended December 31, 2017, the Company recordednon-cash stock-based compensation expense related to restricted stock units totaling $65,336. All restricted stock units were vested as of December 31, 2017.
Common Stock
2020 or 2019. During the year ended December 31, 2018, the Company granted 3,094 net shares of common stock to an employee as compensation. The Company recorded stock-based compensation related to common stock issued to an employee totaling approximately $15,000, during the year ended December 31, 2018. No shares of common stock were granted during the year ended December 31, 2017.
13. | Benefit Plan. |
The Company maintains an employee savings plan pursuant to Section 401(k) of the Internal Revenue Code covering all eligible employees. Subject to certain dollar limits, eligible employees may contribute up to 15% of their20182020, 2019, and 2017,2018, the Company’s matching contributions were approximately $465,000, $268,000 and $123,000, and $84,000, respectively.
pre-tax
annual compensation to the plan. The Company has elected to make discretionary matching contributions of employee contributions up to 4% of an employee’s gross salary. For the years ended December 31,
|
The following table presents unaudited supplemental quarterly financial information for the years ended December 31, 2018 and 2017:
| Quarter Ended | ||||||||||||||||
| March 31, 2018 | June 30, 2018 | September 30, 2018 | December 31, 2018 | |||||||||||||
Revenues | $ | — | $ | — | $ | — | $ | 500,000 | ||||||||
Loss from operations | $ | (5,933,440 | ) | $ | (6,335,855 | ) | $ | (8,182,603 | ) | $ | (14,843,267 | ) | ||||
Net loss | $ | (5,699,892 | ) | $ | (5,965,140 | ) | $ | (7,838,873 | ) | $ | (14,499,609 | ) | ||||
Net loss per share – basic and diluted | $ | (0.06 | ) | $ | (0.06 | ) | $ | (0.08 | ) | $ | (0.14 | ) | ||||
| Quarter Ended | ||||||||||||||||
| March 31, 2017 | June 30, 2017 | September 30, 2017 | December 31, 2017 | |||||||||||||
Revenues | $ | — | $ | — | $ | — | $ | — | ||||||||
Loss from operations | $ | (4,679,871 | ) | $ | (4,181,271 | ) | $ | (4,306,708 | ) | $ | (5,511,786 | ) | ||||
Change in fair value of warrants liability | $ | (397,235 | ) | $ | 210,331 | $ | — | $ | — | |||||||
Net loss | $ | (4,967,129 | ) | $ | (3,879,901 | ) | $ | (4,177,649 | ) | $ | (5,387,698 | ) | ||||
Net loss per share – basic and diluted | $ | (0.06 | ) | $ | (0.05 | ) | $ | (0.05 | ) | $ | (0.06 | ) | ||||
Quarterly basic and diluted net loss per common share were computed independently for each quarter and do not necessarily total to the full year basic and diluted net loss per common share.
|
On January 15, 2019, the Company launched its first product, Firdapse®, in the United States for the treatment of adults with LEMS.
F-23
F-27