2001, Senior Vice President, Research and Development,
from 1996 to 2000 and Vice President, Medical and Regulatory Affairs, with Lemmon Company (a wholly owned subsidiary of Teva Pharmaceuticals, Inc.) from 1993 to 1996. She served as the Chairman of the board of the Generic Pharmaceutical Association from 1999 to 2002. Dr. Ben-Maimon is a graduate of Thomas Jefferson Medical College and received a Bachelor of Arts in biology from The University of Pennsylvania, where she graduated magna cum laude. She completed clinical and research training in internal medicine and nephrology at Thomas Jefferson University. We believe that Dr. Ben-Maimon’s qualifications to serve on the Board of Directors include her years of experience in the pharmaceutical industry, including prior positions in various senior executive roles at pharmaceutical companies. John Celentano – Director
John Celentano, age 60, has served as a member of our Board of Directors since March 2015. Mr. Celentano currently works as an advisor to the pharmaceutical industry. He retired from Bristol-Myers Squibb Company in 2013 where he held senior leadership positions including: President, Bristol-Myers Squibb Healthcare Group (Mead Johnson Nutrition, ConvaTec, and Medical Imaging); Regional President roles in Emerging Markets/Asia Pacific, Latin America/Canada, and UK/Northern Europe; and SVP of Human Resources. He serves on the Boards of privately held JJ White Inc. and YourEncore Inc. Mr. Celentano holds a B.A. from the University of Delaware and an MBA from Drexel University. We believe Mr. Celentano’s qualifications to serve on the Board of Directors include his extensive experience in the pharmaceutical industry.
Bhaskar Chaudhuri – Director
Bhaskar Chaudhuri, age 65, has served as a member of our Board of Directors since 2010. Mr. Chaudhuri has more than 20 years’ experience in pharmaceutical management, research and development. Since June 2011, he has been the Operating Partner at Frazier Healthcare Ventures. Prior to that time, Mr. Chaudhuri served as President of Valeant Pharmaceuticals International, Inc. from January 2009 to September 2010. Prior to joining Valeant, Mr. Chaudhuri served for seven years as President and Chief Executive Officer of Dow Pharmaceutical Sciences, Inc. and as a member of its board of directors from 2003 to 2008, at which time Dow was acquired by Valeant. Prior to that, Mr. Chaudhuri served as Executive Vice President of Scientific Affairs at Bertek Pharmaceuticals, Inc., a subsidiary of Mylan N.V., from 1998 to 2000. Prior to his positions at Bertek, Mr. Chaudhuri served as the General Manager of the Dermatology Division of Mylan. Mr. Chaudhuri joined Mylan through the acquisition of Penederm, Inc., where he worked from 1992 to 1998 in a number of senior positions before becoming the Vice President of Research and Development. Mr. Chaudhuri serves on the boards of directors of Corium International, Inc., Silvergate Pharmaceuticals, Inc. and Vyome Biosciences, Ltd. Mr. Chaudhuri holds a B.S. in Pharmacy and an M.S. in Industrial Pharmacy from Jadavpur University and a Ph.D. in Pharmaceutics from the University of Louisiana. We believe Mr. Chaudhuri’s qualifications to serve on the Board of Directors include his many years of experience in the pharmaceutical industry, including his prior positions in senior executive roles at major pharmaceutical companies.
Steven Koehler – Director
Steven Koehler, age 69, has served as a member of our Board of Directors since October 2014. Mr. Koehler retired from Merck & Co., Inc. in September 2011 where, from November 2009 to September 2011, he served as Vice President, Schering-Plough Controller and Special Projects, and was a member of the Finance Senior Leadership Team. From March 2006 to November 2009, Mr. Koehler served as Vice President, Corporate Controller of Schering-Plough Corporation, where he also served as Chief Accounting Officer. Prior to his positions at Schering-Plough, Mr. Koehler served in several capacities at The Medicines Company, including Senior Vice President and Chief Financial Officer, from 2004 through 2006, and Vice President, Finance and Business Administration, from 2002 to 2004. From 2001 to 2002, Mr. Koehler was Vice President, Finance and Chief Financial Officer, of Vion Pharmaceuticals, Inc. Prior to his position at Vion, Mr. Koehler served in a number of senior finance positions at Knoll Pharmaceuticals, Inc. and Knoll AG between 1995 and 2001. From 1977 to 1993, he held positions in finance and accounting with the American Hospital Supply Corporation, then with Baxter International, Inc. after the two companies merged in 1985. Mr. Koehler began his career with Arthur Andersen LLP in Chicago from 1973 to 1977. Mr. Koehler holds a B.A. from Duke University and an MBA from the Kellogg Graduate School of Management, Northwestern University. We believe Mr. Koehler’s qualifications to serve on the Board of Directors include his many years of experience in the pharmaceutical industry, including his senior leadership positions at several pharmaceutical companies, as well as his extensive financial experience.
Thomas J. Sabatino, Jr. – Director
Thomas J. Sabatino, Jr., age 61, has served as a member of our Board of Directors since September 2017. From April 2016 to December 2018, Mr. Sabatino served as Executive Vice President and General Counsel of Aetna Inc with worldwide responsibility for leading its legal operations, including formulating corporate legal policy. Prior to joining Aetna, Mr. Sabatino worked for Hertz Global Holdings, Inc., where he served as Senior Executive Vice President, Chief Administrative Officer and General Counsel. He joined Hertz in 2015 after serving as Executive Vice President, Global Legal and Chief Administrative Officer of Walgreens Boots Alliance. Previously, in 2010, Mr. Sabatino was Executive Vice President and General Counsel of UAL Corporation and United Airlines, Inc., and was Executive Vice President and General Counsel of Schering-Plough Corporation from 2004 through 2009. He also has held General Counsel positions at Baxter International and American Medical International. Mr. Sabatino has received numerous awards from his peers, including Inside Counsel’s Transformative Leader Award (2012), the National Bar Association Gertrude E. Rush Award (2013) and the Equal Justice Works Scales of Justice Award (2014). He is Co-Chair of the Board of Directors of the Humane Society of the United States. He serves on the Board of Overseers for the University of Pennsylvania Law School and the Board of Directors of the International Institute for Conflict Prevention and Resolution. Mr. Sabatino earned his law degree from the University of Pennsylvania and his undergraduate degree from Wesleyan University in Connecticut. We believe Mr. Sabatino’s qualifications to serve on the Board of Directors include his many years of experience in the legal profession and his senior leadership positions of several healthcare companies.
Committees of the Board of Directors and Meetings
Meeting Attendance.During the fiscal year ended December 31, 2019, there were 11 meetings of our Board of Directors, and the various committees of the Board of Directors met a total of 15 times. No director attended fewer than 75% of the total number of meetings of the Board and of committees of the Board of Directors on which he or she served during fiscal 2019. The Board of Directors has adopted a policy under which each member of the Board of Directors is strongly encouraged to attend each annual meeting of our stockholders. All of our directors attended our annual meeting of stockholders held in 2019.
Audit Committee.Our R&D activitiesAudit Committee met 7 times during fiscal 2019. This committee currently has four members, Steven Koehler (Chairman), Carole S. Ben-Maimon, M.D., John Celentano and Thomas J. Sabatino, Jr. Our Audit Committee’s role and responsibilities are integralset forth in the Audit Committee’s written charter and include the authority to retain and terminate the services of our independent registered public accounting firm. In addition, the Audit Committee reviews annual financial statements, considers matters relating to accounting policy and internal controls and reviews the scope of annual audits. All members of the Audit Committee satisfy the current independence standards promulgated by the SEC and by the Nasdaq Marketplace Rules, as such standards apply specifically to members of audit committees. The Board of Directors has determined that Mr. Koehler is an “audit committee financial expert,” as the SEC has defined that term in Item 407 of Regulation S-K. Please also see the report of the Audit Committee set forth elsewhere in this Form 10-K/A.
A copy of the Audit Committee’s written charter is publicly available on our website atwww.teligent.com.
Organization and Compensation Committee. Our Organization and Compensation Committee met 7 times during fiscal 2019. This committee currently has three members, John Celentano (Chairman), James C. Gale and Bhaskar Chaudhuri. Our Organization and Compensation Committee’s role and responsibilities are set forth in the Organization and Compensation Committee’s written charter, and includes reviewing, approving and making recommendations regarding our compensation policies, practices and procedures to ensure that legal and fiduciary responsibilities of the Board of Directors are carried out and that such policies, practices and procedures contribute to our businesssuccess. Our Organization and are conducted atCompensation Committee also administers our facility in Buena, New Jersey. Our R&D department is led by our Chief Scientific Officer, Stephen Richardson, who joined the Teligent team in October 2015.2016 Equity Incentive Plan, as amended (the “2016 Plan”). The R&D teamOrganization and Compensation Committee is responsible for formulation, reverse engineering, methods development, analyticalthe determination of the compensation of our chief executive officer, and microbiologic testingshall conduct its decision-making process with respect to that issue without the chief executive officer present. All members of the Organization and scale up,Compensation Committee qualify as independent under the Nasdaq Marketplace Rules.
The Organization and regulatory expertise.Compensation Committee did not utilize the services of an independent compensation consultant in fiscal 2019. The Organization and Compensation Committee’s independent compensation consultant during fiscal year 2018 was Pearl Meyer. Pearl Meyer was engaged by, and reported directly to, the Organization and Compensation Committee, which had the sole authority to hire or fire them and to approve fee arrangements for work performed. Pearl Meyer assisted the Organization and Compensation Committee in fulfilling its responsibilities under its charter, including advising on proposed compensation packages for executive officers and directors, compensation program design and market practices generally. The Organization and Compensation Committee authorized Pearl Meyer to interact with management on behalf of the Organization and Compensation Committee, as needed, in connection with advising the Organization and Compensation Committee, and Pearl Meyer was included in discussions with management. Pearl Meyer assisted the Organization and Compensation Committee in defining the appropriate market of our peer companies for executive compensation and practices. Pearl Meyer also assisted the Organization and Compensation Committee in comparing our director compensation program and practices against those of our peers. We used the information that we obtained from Pearl Meyer primarily for evaluating our executive compensation practices, including measuring the competitiveness of our practices. The Organization and Compensation Committee has assessed the independence of Pearl Meyer pursuant to SEC rules and the corporate governance rules of The Nasdaq Stock Market and concluded that Pearl Meyer’s work with and on behalf of the Organization and Compensation Committee raises no conflict of interest.
The Organization and Compensation Committee, and, where applicable, the Chief Executive Officer reviews the performance of each named executive officer in light of the above factors and determines whether the named executive officer should receive any increase in base salary or receive a discretionary equity award based on such evaluation. During fiscal year 2019, the Organization and Compensation Committee determined the appropriate levels of compensation for our named executives by evaluating and weighting the achievement of certain corporate goals. The Organization and Compensation Committee also considered each executive’s weighted personal key performance indicator score, base salary, performance target and target of bonus for each such executive.
A copy of the Organization and Compensation Committee’s written charter is publicly available on our website atwww.teligent.com.
Nominating and Corporate Governance Committee. Our employees have specific expertise in developing injectable productsNominating and topical products in a wide range of dosage forms, including simple solutions through complex creams. All ANDA topical development is conducted in-house except for bioequivalence testing, which is performed by a contract research organization ("CRO"). Our injectable development is primarily conducted in house with some assistance from certain CRO's.
We incurred $14.1 million, $19.3 million,Corporate Governance Committee met once during fiscal 2019 and $17.1 million in R&D expenses in 2018, 2017has three members, Bhaskar Chaudhuri (Chairman), James C. Gale and 2016, respectively. As the business continues to grow over the next three to five years, we expect researchCarole S. Ben-Maimon, M.D. The Nominating and development costs as a percentage of revenue to decline.
Product DevelopmentCorporate Governance Committee’s role and Government Regulation
United States
Prescription pharmaceutical productsresponsibilities are set forth in the U.S. are generally marketedNominating and Corporate Governance Committee’s written charter and include evaluating and making recommendations to the full Board of Directors as either brand or generic drugs. Brand products are usually marketed under brand names through marketing programs that are designed to generate physicianthe size and consumer loyalty. Brand products are patent protected, which provides a period of market exclusivity during which time they are sold with little or no competition for the compound, although there typically are other participants in the therapeutic area. Additionally, brand products may benefit from other periods of non-patent market exclusivity. Exclusivity normally provides brand products with the ability to maintain their profitability for a period of time and brand products typically continue to play a significant role in the market due to physician and consumer loyalties after the end of patent protection or other market exclusivities.
Generic pharmaceutical products are the pharmaceutical and therapeutic equivalentscomposition of the
brand product, also knownBoard of Directors and its committees, evaluating and making recommendations as
to potential candidates and evaluating current Board of Directors members’ performance. All members of the
reference listed drug, or RLD. A reference listed brand drugNominating and Corporate Governance Committee qualify as independent under the Nasdaq Marketplace Rules.If a stockholder wishes to nominate a candidate for director who is an approved drug product listed in the FDA publication entitled Approved Drug Products with Therapeutic Equivalence Evaluations, popularly known as the Orange Book. The Drug Price Competition and Patent Term Restoration Act of 1984, or the Hatch-Waxman Act, provides that generic drugs may enter the market after the approval of an ANDA. An ANDA approval requires that bioequivalence to the reference listed drug be demonstrated and also requires that any patents on the corresponding reference listed drug be expired, invalidated, non-infringed and/or any other relevant market exclusivity periods related to the reference listed drug be expired as well. Generic drugs are bioequivalent to their reference brand name counterparts. Accordingly, generic products provide a safe, effective and cost-efficient alternative to users of these reference brand products. Branded generic pharmaceutical products are generic products in that they are approved for marketing under an ANDA, but they may be more responsive to promotion efforts generally used to promote branded pharmaceutical products. Growth in the generic pharmaceutical industry has been, and will continuenot to be drivenincluded in our proxy statement, it must follow the procedures described in our Amended and Restated By-Laws.
In addition, under our current corporate governance policies, the Nominating and Corporate Governance Committee may consider candidates recommended by the increased market acceptance of generic drugs,stockholders as well as the number of brand drugs for which patent terms and/from other sources, such as other directors or officers, third party search firms or other market exclusivities have expired.
We obtain new generic products primarily through internal product development. Additionally, we license or co-develop products through arrangements with other companies. All applications for FDA approval must contain information relating to product formulation, raw material suppliers, stability, manufacturing processes, packaging, labelingappropriate sources. For all potential candidates, the Nominating and quality control. Information to support the bioequivalence of generic drug products or the safetyCorporate Governance Committee may consider all factors it deems relevant, such as a candidate’s personal integrity and effectiveness of new drug products for their intended use is also required to be submitted. There are generally two types of applications used for obtaining FDA approval of new products:
•New Drug Application — An NDA is filed when approval is sought to market a newly developed branded productsound judgment, business and in certain instances, for a new dosage form, a new delivery system or a new indication for a previously approved drug.
•Abbreviated New Drug Application — An ANDA is filed when approval is sought to market a generic equivalent of a drug product previously approved under an NDAprofessional skills and listed in the FDA’s Orange Book or for a new dosage strength for a drug previously approved under an ANDA.
The ANDA development process is generally less time-consuming and complex than the NDA development process. It typically does not require new preclinical and clinical studies, because it relies on the studies establishing safety and efficacy conducted for the RLD previously approved through the NDA process. The ANDA process, however, does typically require one or more bioequivalence studies to show that the ANDA drug is bioequivalent to the previously approved reference listed brand drug. Bioequivalence studies compare the bioavailabilityexperience, independence, knowledge of the
proposed drug product with thatindustry in which we operate, possible conflicts of
interest, diversity, the
RLD product containing the same active ingredient. Bioavailability is a measure of the rate and extent to which the
active ingredientcandidate would fill a present need on the Board of Directors, and concern for the long-term interests of our stockholders. In general, persons recommended by stockholders will be considered on the same basis as candidates from other sources. If a stockholder wishes to propose a candidate for consideration as a nominee by the Nominating and Corporate Governance Committee under our corporate governance policies, it should submit such recommendation in writing to our Corporate Secretary at our corporate offices, 105 Lincoln Avenue, PO Box 687, Buena, New Jersey 08310.The Nominating and Governance Committee considers issues of diversity among its members in identifying and considering nominees for director, and strives, where appropriate, to achieve a diverse balance of backgrounds, perspectives and experience on the board and its committees. The Nominating and Governance Committee seeks to develop a Board that reflects diverse backgrounds, experience, expertise, skill sets and viewpoints, actively seeking director candidates who bring diversity of age, gender, nationality, race, ethnicity, and sexual orientation.
A copy of the Nominating and Governance Committee’s written charter is publicly available on the our website atwww.teligent.com.
Organization and Compensation Committee Interlocks and Insider Participation. Our Organization and Compensation Committee has three members, John Celentano (Chairman), James C. Gale and Carole S. Ben-Maimon, M.D. No member of the Organization and Compensation Committee has been an officer or active moiety is absorbed from a drug product and becomes available atemployee of Teligent. None of our executive officers serves on the siteboard of action. Thus, a demonstration of bioequivalence confirms the absencedirectors or compensation committee of a significant difference betweencompany that has an executive officer that serves on our Board of Directors or Organization and Compensation Committee.
Board of Directors Leadership Structure and Role in Risk Oversight
Our Board of Directors has six independent members and one non-independent member who serves as our Chief Executive Officer. We believe that the proposed product andnumber of independent, experienced directors that make up our Board of Directors, along with the reference listed brand drug in termsindependent oversight of the rateBoard of Directors by the Non-Executive Chairman, benefits our Company and extent to whichour stockholders. All of our independent directors have demonstrated leadership in other organizations and are familiar with board of director processes.
The Chairman of the active ingredient or active moiety becomes availableBoard of Directors presides at all meetings of the siteBoard of drug action when administered atDirectors. The Chairman is appointed on an annual basis by a majority vote of the same molar dose under similar conditions.
Generic productsdirectors. Currently, the offices of Chairman of the Board of Directors and Chief Executive Officer are generally introduced to the marketplace at the expiration of patent protection for the brand product or at the end of a period of non-patent market exclusivity. However, if an ANDA applicant files an ANDA containing a certification of invalidity, non-infringement or unenforceability related to a patent listed in the Orange Bookseparated. We have no fixed policy with respect to a reference drug product, the applicant may be able to market the generic equivalent prior to the expiration of patent protection for the brand product. Such patent certification is commonly referred to as a Paragraph IV certification. If the holderseparation of the NDA sues, claiming infringement or invalidation, within 45 days of notification by the applicant, the FDA may not approve the ANDA application until the earlieroffices of the rendering of a court decision favorable to the ANDA applicant or the expiration of 30 months. An ANDA applicant that is first to file a Paragraph IV certification is eligible for a period of generic marketing exclusivity. This exclusivity, which under certain circumstances may be required to be shared with other ANDA sponsors that have made Paragraph IV certifications, lasts for 180 days, during which the FDA cannot grant final approval to other ANDA applications for a generic equivalent to the same reference drug.
In addition to patent exclusivity, the holderChairman of the NDA for the listed drug may be entitled to a periodBoard of non-patent market exclusivity, during which the FDA cannot approve an application for a generic version product. If the reference drug is a new chemical entity, the FDA may not accept an ANDA for a generic product for up to five years following approval of the NDA for the new chemical entity. If it is not a new chemical entity, but the holder of the NDA conducted clinical trials essential to approval of the NDA or a supplement thereto, the FDA may not approve an ANDA for a reference NDA product before the expiration of three years. Certain other periods of exclusivity may be available if the RLD is indicated for treatment of a rare disease or the sponsor conducts pediatric studies in accordance with FDA requirements.
Supplemental ANDAs are required for approval of various types of changes to an approved applicationDirectors and these supplements may be under review for six months or more. In addition, certain types of changes may only be approved once new bioequivalence studies are conducted or other requirements are satisfied.
An additional requirement for FDA approval of NDAs and ANDAs is that our manufacturing procedures and operations conform to FDA requirements and guidelines, generally referred to as current Good Manufacturing Practices, or cGMPs. The requirements for FDA approval encompass all aspects of the production process, including validation and recordkeeping, the standards around which are continuously changing and evolving.
Facilities, procedures, operations and/or testing of products are subject to periodic inspection by the FDA, the U.S. Drug Enforcement Administration, or DEA, and other authorities. In addition, the FDA conducts pre-approval and post-approval reviews and plant inspections to determine whether our systems and processes are in compliance with cGMP and other FDA regulations. Our suppliers are subject to similar regulations and periodic inspections.
In 2012, the U.S. Food and Drug Administration Safety and Innovation Act, or the FDASIA, was enacted into law. FDASIA is intended to enhance the safety and security of the U.S. drug supply chain by holding all drug manufacturers supplying products to the U.S. to the same FDA inspection standards and schedules. Specifically, prior to the passage of FDASIA, U.S. law required U.S. based manufacturers to be inspected by the FDA everyChief Executive Officer. Currently, two years but remained silent with respect to foreign manufacturers, causing some foreign manufacturers to go as many as nine years without a routine FDA cGMP inspection, according to the Government Accountability Office.
FDASIA also included GDUFA, a novel user fee program focused on three key aims:
•Safety – Ensure that industry participants, foreign or domestic, are held to consistent quality standards and are inspected with parity using a risk-based approach.
•Access – Expedite the availability of generic drugs by bringing greater predictability to the review times for abbreviated new drug applications, amendments and supplements and improving timelinessseparate individuals serve in the review process.
•Transparency – Enhance FDA’s visibility into the complex global supply environment by requiring the identificationpositions of facilities involved in the manufacture of generic drugs and associated APIs, and improve FDA’s communications and feedback with industry.
Under GDUFA, 62% of the total fees are being derived from facility fees paid by Finished Dosage Form manufacturers and API facilities listed in pending or approved generic drug applications. The remaining 38% of the total fees are being derived from application fees, including generic drug application fees, prior approval supplement fees and fees for certain types of Drug Master Files, or DMFs.
Canada
In Canada, the registration process for approval of all generic pharmaceuticals has two tracks that proceed in parallel. The first track of the process involves an examination of the proposed generic product by Health Canada, the federal department responsible for national public health, to ensure that the quality, safety and efficacy of the proposed generic product meets Canadian standards and bioequivalence requirements. The second track concerns patent rights of the brand drug owner. Companies may submit an application called an abbreviated new drug submission, or ANDS, to Health Canada that compares the proposed generic drug to another drug marketed in Canada under a Notice of Compliance, or NOC, issued to a first person. When Health Canada is satisfied that the generic pharmaceutical product described in the ANDS satisfies the statutory requirements, it issues an NOC for that product for the uses specified in the ANDS, subject to any court order that may be made in the second track of the approval process.
The second track of the approval process is governed by the Patented Medicines NOC Regulations, or the Regulations. We currently do not have any applications in development that would utilize this track.
Section C.08.004.1 of the Canadian Food and Drug Regulations is the so-called data protection provision, and the current version of this section applies in respect of all drugs for which an NOC was issued on or after June 17, 2006. A subsequent applicant for approval to market a drug for which an NOC has already been issued does not need to perform duplicate clinical trials similar to those conducted by the first NOC holder, but is permitted to demonstrate safety and efficacy by submitting data demonstrating that its formulation is bioequivalent to the formulation that was issued for the first NOC. The first party to obtain an NOC for a drug will have an eight-year period of exclusivity starting from the date it received its NOC based on those clinical data. A subsequent applicant for approval that seeks to establish safety and efficacy by comparing its product to the product that received the first NOC will not be able to file its own application until six years after the issuance of the first NOC. The Minister of Health will not be permitted to issue a NOC to that applicant until eight years after the issuance of the first NOC — this additional two-year period will correspond in most cases to the 24-month automatic stay under the Regulations. If the first person provides the Minister with the description and results of clinical trials relating to the use of the drug in pediatric populations, it will be entitled to an extra six months of data protection. A drug is only entitled to data protection so long as it is being marketed in Canada.
Facilities, procedures, operations and/or testing of products are subject to periodic inspection by Health Canada. In addition, Health Canada conducts pre-approval and post-approval reviews and plant inspections to determine whether our systems are in compliance with the Good Manufacturing Practices in Canada, Drug Establishment Licensing requirements and other provisions of the Regulations. Competitors are subject to similar regulations and inspections.
The federal government, provinces and territories in Canada operate drug benefit programs through which eligible recipients receive drugs through public funding; these drugs are listed on provincial or territorial Drug Benefit Formularies (each, a “Formulary”). Eligible recipients include First Nations and Inuit clients, seniors, persons on social assistance, low-income earners, and those with certain specified conditions or diseases. Formulary listings are also used by private payors to reimburse generic products. To be listed in a Formulary, drug products must have received an NOC from Health Canada and must comply with each jurisdiction’s individual review process.
The primary regulatory approval for pharmaceutical manufacturers, distributors and importers selling pharmaceuticals to be marketed in Canada is the issuance of an establishment license, or EL. An EL is issued to a Canadian facility once Health Canada has approved the facilities in which the pharmaceuticals are manufactured, distributed or imported. A key requirement for EL-issuance is compliance with the Good Manufacturing Practices as set out by Health Canada. For pharmaceuticals that are imported into Canada, the license for the Canadian importing facility must list all foreign sites at which imported pharmaceuticals, and their active ingredients, are manufactured and tested. To be listed on our EL, all our foreign sites must demonstrate compliance with relevant Good Manufacturing Practices recognized by Health Canada.
Sales and Marketing
We manufacture, sell, distribute and market our prescription drug products to national chain drug stores and drug wholesalers and distributors and group purchasing organizations, or GPOs, in the United States and Canada. This commercialization infrastructure includes satisfying our state, provincial, territorial, or national licensing requirements, implementing procedures with our third-party logistics partners, and maintaining appropriate sales order to cash administrative processes and a manager of national accounts to manage our sales.
Competition
In our generic topical prescription drug business, we face competition from other generic drug manufacturers and brand-name pharmaceutical companies through authorized generics. Although there are a significant number of competitors in the generic drug market, there are fewer competitors in the topical generic drug market. The five dominant companies in the topical generic drug market are: Perrigo Company, Sandoz (the generic pharmaceutical division of Novartis AG), Taro Pharmaceutical Industries, Ltd., Mylan N.V., and Teva Pharmaceutical Industries, Ltd. We believe the concentrated nature of the topical generic drug market creates an opportunity for us to be able to compete based on a variety of factors, including our focus on niche opportunities within the market segment and our dedication to quality in every areaChairman of our business.
In our generic injectable prescription drug business, we also face competition from other generic drug manufacturersBoard of Directors and brand-name pharmaceutical companies through authorized generics. Although there are a significant number of competitors in the generic drug market, there are fewer dominant competitors in the injectable generic drug market. The three dominant companies in the injectable generic drug market in the United States consist of Fresenius Kabi USA, Hospira, Inc. (a subsidiary of Pfizer, Inc.) and Sandoz (the generic pharmaceutical division of Novartis AG). In Canada, we face competition from largely the same firms as in the United States as well as certain Canada-only firms. The Canadian generic injectable market is dominated by Sandoz (the generic pharmaceutical division of Novartis AG), Pfizer Injectables and Fresenius Kabi Canada.
Our generic injectable strategy is focused on injectable products with limited competition, and products that have a history of lack of supply, or instability in the supply chain, where we can add value and leverage on our ability to be a reliable supplier to the marketplace. We believe the concentrated nature of some molecules within the injectable generic drug market, and history of lack of supply of certain molecules in the marketplace, create opportunities for us that we believe will enable us to compete based on a variety of factors, including our focus on niche opportunities within the market segment and our dedication to quality in every area of our business.
The contract manufacturing services market is highly competitive and includes larger organizations with substantially greater resources than us. Many of our competitors are companies that commercialize and/or manufacture their required products at their own facilities. These competitors include major pharmaceutical companies, generic drug manufacturers and consumer health product companies that generally have substantially greater manufacturing, R&D, marketing and financial resources than us and, in some cases, have more geographically diversified international operations. We compete specifically with a number of different privately-held contract manufacturing companies. Although this market is competitive, the competition is limited due to the need for specific expertise in topical formulations and cGMP facilities. We believe that we have the expertise required and we will continue to service our existing customers in this market by providing high quality, customer-oriented service, complemented by our contract development expertise in topical formulations.
Environmental Matters
Our operations are subject to a variety of environmental, health and safety laws and regulations, including those of the United States Environmental Protection Agency and equivalent state and local regulatory agencies. These laws and regulations govern, among other things, air emissions, wastewater discharges, the use, handling and disposal of hazardous substances and wastes, soil and groundwater contamination and employee health and safety. Our manufacturing facility uses, in varying degrees, hazardous substances in its processes. Contamination at our facility can result and has resulted in liability to us, for which we
have recorded appropriate reserves as needed. For example, two of the Company’s facilities have undergone remediation of environmental contamination.
Intellectual Property
To compete effectively, we need to develop and maintain a proprietary position with regard to our technology, product candidates and business. Our goal is to safeguard our trade secrets and know-how, attain, maintain and enforce patent protection for our product candidates, formulations, processes, methods and other proprietary technologies, and operate without infringing on the proprietary rights of others. We seek to obtain, where appropriate, the broadest intellectual property protection possible for our current product candidates and any future product candidates, proprietary information and proprietary technology. We seek to achieve this protection through a combination of contractual arrangements and patents.
We depend upon the skills, knowledge, experience and know-how of our management and R&D personnel, as well as that of our consultants, advisors and collaborators. To help protect our proprietary know-how, which is not patentable, and for inventions for which patents may be difficult to enforce, we currently rely, and will continue to rely in the future, on confidentiality agreements to protect our interests. We require our employees, consultants, advisors and collaborators to enter into confidentiality agreements that prohibit the disclosure of confidential information to any other parties. We also require our employees and consultants to disclose and assign to us their ideas, developments, discoveries and inventions. We understand that these agreements may not provide us with adequate protection for our trade secrets, know-how or other proprietary information in the event of any unauthorized use or disclosure.
We also seek to obtain patent protection when necessary, and we understand that this may not provide us with complete protection against competitors who may attempt to circumvent our patents.
Facility and Operations
The Company’s executive administrative offices are located in Buena, New Jersey, in two facilities which originally were approximately 33,000 square feet built on 8.44 acres of land in 1995, which we own. In 2017 we acquired an additional 3.0 acres of adjacent land in support of our facility expansion. We now own a total of 11.44 acres at our Buena facility. This facility is used for production, product development, marketing and warehousing for our pharmaceutical, cosmeceutical and cosmetic products. We completed construction on an expansion of our Buena, New Jersey facility to total approximately 110,000 square feet. Although the injectable manufacturing lines installed have yet to receive FDA approval, we received a Certificate of Occupancy in the fourth quarter of 2018 and are currently occupying the space. Once FDA approved, the expanded facility will increase our manufacturing capability for topical products and will also enable the production of sterile injectable products in both vial and ampule presentations. We are using this facility expansion as an opportunity to upgrade and improve the degree of automation and capacity in our existing topical production suite. The sterile production area is designed around isolator-based technology. Our capabilities encompass a full suite of competencies, including manufacturing, regulatory, quality assurance and in-house validation.
We operate our facility in accordance with cGMP. Our facility is registered with the FDA.Chief Executive Officer. We believe that our
facilitycurrent leadership structure is optimal for the Company at this time.Our management is principally responsible for defining the various risks facing the Company, formulating risk management policies and equipmentprocedures, and managing our risk exposures on a day-to-day basis. The Board of Directors’ principal responsibility in this area is to ensure that sufficient resources, with appropriate technical and managerial skills, are provided throughout the Company to identify, assess and facilitate processes and practices to address material risk and to monitor our risk management processes by informing itself concerning our material risks and evaluating whether management has reasonable controls in good condition,place to address the material risks. The involvement of the Board of Directors in reviewing our business strategy is an integral aspect of the Board of Directors’ assessment of management’s tolerance for risk and also its determination of what constitutes an appropriate level of risk for the Company.
While the full Board of Directors has overall responsibility for risk oversight, the Board of Directors has elected to delegate oversight responsibility related to certain risks committees, which, in turn, report on the matters discussed at the committee level to the full Board of Directors. For instance, our Audit Committee focuses on the material risks facing the Company, including operational, market, credit, liquidity and legal risks. Additionally, our Organization and Compensation committee could be charged with reviewing and discussing with management whether our compensation arrangements are well-maintainedconsistent with effective controls and are ablesound risk management. Our management reports to operate at present levels. Our manufacturing operations are focused on regulatory compliance, continuous improvement, process standardizationthe Board of Directors and excellence in quality and execution across the organization.
We lease additional warehouse space in Vineland, New Jersey, as needed to complement our existing warehouse capacity.
The Company also leases approximately 9,500 square feet of corporate office space in Iselin, New Jersey, approximately 4,000 square feet of office space in Mississauga, Canada and approximately 3,000 square feet of office and laboratory space in Tallinn, Estonia.
Employees
On December 31, 2018, we had a total of 189 full-time employees, including ten full-time employees in Canada and 13 full-time employees in Estonia. In addition, as the need arises, we occasionally utilize short-term, part-time employees who are paid on an hourly basis. We also utilize temporary employees provided by third-partiesAudit Committee on a regular basis
primarilyregarding risk management.Stockholder Communications to the Board of Directors
Stockholders who wish to send communications to our Board of Directors may do so by sending them c/o Teligent, Inc., Corporate Secretary, 105 Lincoln Avenue, PO Box 687, Buena, New Jersey 08310. Such communications may be addressed either to specified individual directors or the entire Board of Directors. The Corporate Secretary will have the discretion to screen and not forward to directors communications that the Corporate Secretary determines are communications unrelated to our business or governance, commercial solicitations, offensive, obscene, or otherwise inappropriate. The Corporate Secretary will, however, compile all stockholder communications that are not forwarded and such communications will be available to any director.
Code of Conduct and Ethics
We have adopted a code of conduct and ethics, the Standards of Business Conduct that applies to all of our employees, including our chief executive officer and chief financial and accounting officers. The text of the Standards of Business Conduct is posted on our website at www.teligent.com. Disclosure regarding any amendments to, or waivers from, provisions of the code of conduct and ethics that apply to our directors, principal executive and financial officers will be included in a Current Report on Form 8-K within four business days following the date of the amendment or waiver, unless website posting or the issuance of a press release of such amendments or waivers is then permitted by the rules of Nasdaq.
Report of Audit Committee
The Audit Committee of the Board of Directors, which consists entirely of directors who meet the independence and experience requirements of Nasdaq, has furnished the following report:
The Audit Committee assists the Board of Directors in overseeing and monitoring the integrity of our financial reporting process, compliance with legal and regulatory requirements and the quality of internal and external audit processes. This committee’s role and responsibilities are set forth in our production department. We do not have a collective bargaining agreementcharter adopted by the Board of Directors, which is available on our website at www.teligent.com. This committee reviews and reassesses our charter annually and recommends any changes to the Board of Directors for approval. The Audit Committee is responsible for overseeing our overall financial reporting process, and for the appointment, compensation, retention and oversight of the work of Deloitte & Touche LLP. In fulfilling its responsibilities for the financial statements for the fiscal year ended December 31, 2019, the Audit Committee took the following actions:
| · | Reviewed and discussed the audited financial statements for the fiscal year ended December 31, 2019 with management and Deloitte & Touche LLP, our independent registered public accounting firm; |
| · | Discussed with Deloitte & Touche LLP the matters required to be discussed in accordance with Auditing Standard No. 1301 - Communications with Audit Committees; and |
| · | Received written disclosures and the letter from Deloitte & Touche LLP regarding its independence as required by applicable requirements of the Public Company Accounting Oversight Board regarding Deloitte & Touche LLP’s communications with the Audit Committee and further discussed with Deloitte & Touche LLP their independence. The Audit Committee also considered the status of pending litigation, taxation matters and other areas of oversight relating to the financial reporting and audit process that the committee determined appropriate. |
Based on the Audit Committee’s review of the audited financial statements and discussions with management and Deloitte & Touche LLP, the Audit Committee recommended to the Board of Directors that the audited financial statements be included in our employeesAnnual Report on Form 10-K for the fiscal year ended December 31, 2019.
| Members of the Teligent, Inc.Audit Committee |
| |
| Steven Koehler (Chair) |
| Carole S. Ben-Maimon, M.D. |
| John Celentano Thomas J. Sabatino, Jr. |
| Item 11. | EXECUTIVE COMPENSATION |
Summary Compensation Table
The following table shows the total compensation paid or accrued during the fiscal years ended December 31, 2019 and we believe that2018 to our employee relations are good.
Item 1A. RISK FACTORS
Our current businessformer Chief Executive Officer, our Chief Financial Officer and
future results may be affected by a numberour former General Counsel.Name and Principal Position | | Year | | Salary ($) | | | Bonus ($) | | | Stock Awards ($)(1) | | | Option Awards ($)(1) | | | All Other Compensation ($) | | | Total ($) | |
| Jason Grenfell-Gardner, | | 2019 | | | 466,356 | | | | 82,000 | | | | -- | | | | 361,263 | | | | 27,720 | (2) | | | 897,339 | |
| Former President and Chief ExecutiveOfficer(8) | | 2018 | | | 459,638 | | | | 96,830 | | | | 117,207 | | | | 102,742 | | | | 26,386 | (3) | | | 802,803 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Damian Finio, | | 2019 | | | 329,750 | | | | 70,858 | | | | -- | | | | 127,358 | | | | 23,856 | (4) | | | 551,822 | |
| ChiefFinancial Officer | | 2018 | | | 287,500 | | | | 172,385 | | | | 85,500 | | | | 156,035 | | | | 21,012 | (5) | | | 722,431 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Martin Wilson, | | 2019 | | | 308,950 | | | | -- | | | | -- | | | | 133,468 | | | | 23,928 | (6) | | | 466,346 | |
| Former General Counsel(8) | | 2018 | | | 304,414 | | | | 82,754 | | | | 39,014 | | | | 34,200 | | | | 25,294 | (7) | | | 485,676 | |
| (1) | These amounts represent the aggregate grant date fair value for stock awards for fiscal years 2019 and 2018, respectively, computed in accordance with FASB ASC Topic 718. A discussion of the assumptions used in determining grant date fair value may be found in Note 10 to our Financial Statements, included in our Annual Report on Form 10-K for the year ended December 31, 2019. |
| (2) | Includes $15,209 relating to premiums for medical and dental insurance paid for by the Company, $1,311 in premiums paid for by the Company for a life insurance policy to benefit Mr. Grenfell-Gardner with a face amount of $600,000, and $15,209 of matching contributions made under the Company’s 401(k) plan. |
| (3) | Includes $14,857 relating to premiums for medical and dental insurance paid for by the Company, $666 in premiums paid for by the Company for a life insurance policy to benefit Mr. Grenfell-Gardner with a face amount of $600,000, and $10,800 of matching contributions made under the Company’s 401(k) plan. |
| (4) | Includes $11,357 relating to premiums for medical and dental insurance paid for by the Company, $1,299 in premiums paid for by the Company for a life insurance policy to benefit Mr. Finio with a face amount of $600,000, and $11,200 of matching contributions made under the Company’s 401(k) plan. |
| (5) | Includes $8,929 relating to premiums for medical and dental insurance paid for by the Company, $399 in premiums paid for by the Company for a life insurance policy to benefit Mr. Finio with a face amount of $600,000, and $10,000 of matching contributions made under the Company’s 401(k) plan. |
| (6) | Includes $23,848 relating to premiums for medical and dental insurance paid for by the Company, and $1,446 in premiums paid for by the Company for a life insurance policy to benefit Mr. Wilson with a face amount of $600,000. |
| (7) | Includes $22,617 relating to premiums for medical and dental insurance paid for by the Company, and $1,446 in premiums paid for by the Company for a life insurance policy to benefit Mr. Wilson with a face amount of $600,000. |
| (8) | Mr. Grenfell-Gardner resigned as Chief Executive Officer on February 4, 2020. Mr. Wilson resigned as General Counsel on December 30, 2019. |
2019 Fiscal YearGrants of risksPlan-Based Awards
The following table shows information regarding grants of non-equity incentive plan awards and uncertainties, including those described below. The risks and uncertainties described below are not the only risks and uncertainties we face. Additional risks and uncertainties not currently known to us orgrants of equity awards that we currently deem immaterial also may impair our business operations. If any ofmade during the following risks actually occur, our business, results of operations and financial condition could suffer. The risks discussed below also include forward-looking statements and our actual results may differ substantially from those discussed in these forward-looking statements.
Risks Related to Our Business
We have a history of losses and cannot assure you that we will become profitable. As a result, we may have to cease operations and liquidate our business.
With the exception of 2015, our expenses exceeded our revenue in each of the last 13 years, and no net income has been available to common stockholders during each of these years. As offiscal year ended December 31,
2018,2019.| Name | | Grant date | | All other stock awards: Number of shares of stock or units (#) | | | All other option awards: Number of securities underlying options (#) | | | Exercise or base price of option awards ($/Share) | | | Grant date fair value of stock and option awards ($) | |
| Jason Grenfell-Gardner, | | | | | | | | | | | | | | | | | | |
| Former Chief Executive Officer | | 2/19/2019 | | | -- | | | | 466,274 | | | | 1.62 | | | | 321,263 | |
| | | | | | | | | | | | | | | | | | | |
| Damian Finio, | | | | | | | | | | | | | | | | | | |
| Chief Financial Officer | | 2/19/2019 | | | -- | | | | 184,844 | | | | 1.62 | | | | 127,358 | |
| | | | | | | | | | | | | | | | | | | |
| Martin Wilson, | | | | | | | | | | | | | | | | | | |
| Former General Counsel | | 2/19/2019 | | | -- | | | | 193,712 | | | | 1.62 | | | | 133,468 | |
Annual Equity Incentive Program for Management. On February 11, 2015, the Organization and Compensation Committee instituted an annual equity incentive program for our stockholders’ equity was $18.4 million andnamed executive officers pursuant to which we had an accumulated deficit of $96.4 million. Our future profitability depends on revenue exceeding expenses, but we cannot assure you that this will occur. If we do not become profitable or continue to raise external financing, we could be forced to curtail operations and sell or liquidate our business, and you could lose some or all of your investment.
We rely on a limited number of customers for a large portionwould issue, in the sole discretion of our revenues.
We depend on a limited numberOrganization and Compensation Committee, to our (i) Chief Executive Officer, an annual equity grant of
customers for a large portionoptions to purchase shares of our
revenue. Threecommon stock and/or RSUs, in an amount equal to 100% of his annual base salary, and (ii) Chief Financial Officer, an annual equity grant of options to purchase shares of our
customers accounted for 54%common stock and/or RSUs, in an amount equal to 60% of
his annual base salary. The equity grants were to be made pursuant to our
revenue2009 Equity Incentive Plan, which has since been discontinued and was replaced by our 2016 Plan, and, if granted, would be subject to a three-year vesting schedule. The allocation of different securities within each annual equity grant shall be determined by the Organization and Compensation Committee in its sole discretion.The annual equity grants for the year ended December 31, 2018,2019 were approved on February 19, 2019. Mr. Grenfell-Gardner, our former President and three of our customers accounted for 52% of our revenue for the year ended December 31, 2017. The loss of one or more of these customers could have a significant impact on our revenues and harm our business and results of operations.
Due to our dependence on a limited number of products, our business will be materially adversely affected if these products do not perform as well as expected.
We expect to generate a significant portion of our total revenues and gross margin from the sale of a limited number of products. While we continue to diversify our product portfolio, one of our products accounted for 7% and 17% of our revenue for the years ended December 31, 2018 and 2017, respectively. Any material adverse developments, including increased competition, loss of customers, pricing pressures and supply shortages, with respect to the sale or use of our products and prospective products, or our failure to successfully introduce such products, could have a material adverse effect on our revenues and gross margin.
The pharmaceutical industry in which we operate is intensely competitive. We are particularly subject to the pressures of direct competition. For example, the competition we encounter may have a negative impact upon the prices we may charge for our products, the market share of our products and our revenue and profitability.
The pharmaceutical industry in which we operate is intensely competitive. The competition that we encounter has an effect on our product prices, market share, revenue and profitability. Depending upon how we respond to this competition, its effect may be materially adverse to us.
We compete with:
•the original manufacturers of the brand-name equivalents of our generic products; and
•other generic drug manufacturers.
Most of the products that we are developing are either generic drugs or products without patent protection. These drugs and are therefore more subject to the risk of competition than patented products. In addition, because many of our competitors have substantially greater financial, production and research and development resources, substantially larger sales and marketing organizations, and substantially greater name recognition than we have, we are particularly subject to the risks inherent in competing with them. For example, many of our competitors may be able to develop products and processes competitive with, or superior to, our own. Furthermore, we may not be able to successfully develop or introduce new products that are less costly
than those of our competitors or offer purchasers of our products payment and other commercial terms as favorable as those offered by our competitors.
Furthermore, in the current political climate in which drug prices are a focus of the current administration, Congress, government and private payors, and the public more broadly, we cannot predict whether new legislative, regulatory, or other measures related to drug pricing may be enacted. If enacted, such drug pricing measures could have an impact on our gross margins from product sales, which could significantly and adversely impact our financial condition and cash flows.
As our competitors introduce their own generic equivalents of our generic pharmaceutical products, our revenues and gross margin from such products may decline, potentially rapidly.
Revenues and gross margin derived from generic pharmaceutical products often follow a pattern based on regulatory and competitive factors that we believe are unique to the generic pharmaceutical industry. As the patent(s) for a brand name product and the statutory marketing exclusivity period (if any) expires, the first generic manufacturer to receive regulatory approval for a generic equivalent of the product often is able to capture a substantial share of the market. However, as other generic manufacturers receive regulatory approvals for identical competing products, that market share, and the price of that product, may decline depending on several factors, including the number of competitors, the price of the brand product and the pricing strategy of the new competitors. In addition, the FDA has continued to shorten the review and response time to certain ANDAs, as a result of their guidelines established under GDUFA, and it has recently finalized policies to implement the Competitive Generic Therapy (“GCT”) designation pathway created by Congress in 2017 as part of FDARA. Based on these trends and regulatory developments, competitors could potentially enter the markets in which we compete more quickly. We cannot provide assurance that we will be able to continue to develop such products or that the number of competitors with such products will not increase to such an extent that we may stop marketing a product for which we previously obtained approval, which may have a material adverse impact on our revenues and gross margin.
Our strategy depends on our ability to successfully develop and launch new pharmaceutical products ahead of our competitors.
Our continued growth is dependent upon our ability to develop and commercialize products in a timely manner. We may encounter delays in testing and manufacturing new pharmaceutical products, submitting applications for regulatory approval, receiving approval from the relevant authorities and commercializing new products. This process is costly and time-consuming. Delays at any stage could prevent us from successfully launching new products ahead of our competitors and could have a material adverse effect on our business, financial condition and results of operations.
If pharmaceutical companies are successful in limiting the use of generics through their legislative, regulatory and other efforts, sales of our generic products may be adversely impacted.
Many pharmaceutical companies increasingly have used state and federal legislative and regulatory means to delay generic competition. These efforts have included:
•pursuing new patents for existing products that may be granted just before the expiration of earlier patents, which could extend patent protection for additional years or otherwise delay the launch of generics;
•selling the brand product as an “authorized generic,” either by the brand company directly, through an affiliate or by a marketing partner;
•using the Citizen Petition process to request amendments to FDA standards or otherwise delay generic drug approvals;
•seeking changes to the U.S. Pharmacopeia, an FDA, and industry recognized compendia of drug standards;
•attaching patent extension amendments to non-related federal legislation;
•engaging in state-by-state initiatives to enact legislation that restricts the substitution of some generic drugs, which could have an impact on products that we are developing; and
•seeking patents on methods of manufacturing certain active pharmaceutical ingredients.
If pharmaceutical companies or other third parties are successful in limiting the use of generic products through these or other means, our sales of our generic products may decline. If we experience a material decline in generic product sales, our results of operations, financial condition and cash flows may be significantly and adversely impacted.
Our generics business also faces increasing competition from brand-name manufacturers that do not face any significant regulatory approval or other barriers to enter into the generics market.
Our generics business also faces increasing competition from brand-name manufacturers that do not face any significant regulatory approval or other barriers to enter into the generics market. These brand-name companies sell “authorized generic” versions of their products to the market directly, acquire or form strategic alliances with our competitor generic pharmaceutical companies, or grant them rights to sell “authorized generics.” Moreover, brand-name companies continually seek new ways to delay the introduction of generic products and decrease the impact of generic competition, such as filing new patents on drugs whose original patent protection is about to expire, developing patented controlled-release products, changing product claims and product labeling, or developing and marketing as over-the-counter products those branded products that are about to face generic competition, when feasible. Our competitors, which include major multinational corporations, are consolidating in both the branded and generics industries, and the strength of the combined companies could affect our competitive position in all of our business areas. Furthermore, if one of our competitors or its customers acquires any of our customers or suppliers, we may lose business from the customer or lose a supplier of a critical raw material.
We may need to raise additional capital that will be required to operate and grow our business, and we may not be able to raise capital on terms acceptable to us or at all.
Operating our business and maintaining our growth efforts will require additional cash outlays and capital expenditures. If cash on hand and cash generated from operations are not sufficient to meet our cash requirements, we will need to seek additional capital, potentially through debt or equity financings, to fund our growth. We cannot assure you that we will be able to raise needed cash on terms acceptable to the Company, our significant stockholders, or at all. Financings may be on terms that are dilutive or potentially dilutive to our stockholders, and the prices at which new investors would be willingChief Executive Officer, received options to purchase our securities may be lower than the current price per share of our common stock. The holders of new securities may also have rights, preferences or privileges which are seniorup to those of existing holders of common stock. If new sources of financing are required, but are insufficient or unavailable, we will be required to modify our growth and operating plans based on available funding, if any, which would harm our ability to grow our business or even stay in business.
Our business and operations have experienced rapid growth, and if we do not appropriately manage any future growth, our business will be adversely affected.
We have experienced, and are continuing to experience, rapid growth over the last several years, and additional growth through acquisitions is possible in the future. Such growth has put significant demands on our management and infrastructure. Our success will depend in part upon our ability to manage this growth effectively. As we continue to grow, we must improve our operational, financial and management controls and our reporting systems and procedures. We must ensure that our policies and procedures evolve to reflect our current operations. We must also continue to effectively manage existing employees and to hire, train and manage new employees as needed. Any failure to expand these areas and implement appropriate procedures and controls in an efficient manner and at a pace consistent with our business objectives could have a material adverse effect on our business, financial condition and results of operations.
Sales of our products may continue to be adversely affected by the continuing consolidation of our distribution network and the concentration of our customer base. The result of such developments could have a material adverse effect on our business, financial position and results of operations and could cause the market value of our common stock to decline.
Our principal customers are wholesale drug distributors and major retail drug store chains. These customers comprise a significant part of the distribution network for pharmaceutical products in the U.S. This distribution network is continuing to undergo significant consolidation marked by mergers and acquisitions, alliances and partnerships among wholesale distributors and the growth of large retail drug store chains. As a result, a small number of large wholesale distributors control a significant share of the market, and the number of independent drug stores and small drug store chains has decreased. We expect that consolidation of drug wholesalers and retailers will increase pricing and other competitive pressures on drug manufacturers. In addition, the Company generally does not enter into long-term supply agreements with its customers that would require them to purchase our products. The result of these developments may have a material adverse impact on our business, financial position and results of operations, and could cause the market value of our common stock to decline.
We face intense competition in the consumer products business.
Our business competes with large, well-financed cosmetic, pharmaceutical and consumer products companies with development and marketing groups that are experienced in the industry and possess far greater resources than those available to us. There is no assurance that we can compete successfully against our competitors or that we can develop and market products that will be favorably received in the marketplace.
Lack of availability, issues with quality or significant increases in the cost of raw materials used in manufacturing our products could adversely impact our profit margins and operating results.
Affordable, high quality raw materials and packaging components are essential to our business due to the nature of the products we manufacture. Raw materials and packaging components are generally available from multiple suppliers. Supplies of certain raw materials, and finished goods purchased by us are limited, or are available from one or only a few suppliers that have been pre-approved by the FDA for use in the manufacture of our products. In this type of limited-supplier situation, increased prices, rationing and/or shortages can occur. In response to the situation, we try to identify alternative materials or suppliers for such raw materials and finished goods like containers and closures. However, FDA requirements for products approved through the ANDA or NDA process could substantially lengthen the time for approval of an alternate material source. Certain material shortages and approval of alternate sources could adversely affect our financial results. The rapid increase in cost of many raw materials from inflationary forces, such as increased energy costs, and our ability or inability to pass on these increases to our customers, could have a material impact on our financial results.
In addition, raw materials purchased from third parties, including those from foreign countries, may contain counterfeit ingredients or other adulterants. We maintain a strict program of verification and product testing throughout the ingredient sourcing and manufacturing process to identify potential counterfeit ingredients, adulterants and toxic substances. Nevertheless, discovery of previously unknown problems with the raw materials or product manufacturing processes or new data suggesting an unacceptable safety risk associated therewith, could result in a voluntary or mandatory withdrawal of a potentially contaminated product from the marketplace, either temporarily or permanently. In addition, because regulatory authorities must generally approve raw material sources for pharmaceutical products, changes in raw material suppliers or the quality of their products may result in production delays or higher raw material costs. Also, any future recall or removal would result in additional costs to us, and may give rise to product liability or other litigation, either of which could have a material adverse effect on our operating results.
Our products, and the raw materials used to make those products, generally have limited shelf lives. Our inventory levels are based, in part, on expectations regarding future sales. We may experience build-ups in inventory if sales slow. Any significant shortfall in sales may result in higher inventory levels of raw materials and finished products, thereby increasing the risk of inventory spoilage and corresponding inventory write-downs and write-offs, which may materially and adversely affect our results of operations. Additionally, labeling changes required for regulatory compliance could render packaging inventories obsolete. Cargo thefts and/or diversions and economically or maliciously motivated product tampering in store shelves may be experienced from time to time, causing unexpected shortages.
We depend on a limited number of suppliers for API. Generally, only a single source of API is qualified for use in each product due to the costs and time required to validate a second source of supply. Changes in API suppliers must usually be approved by the FDA through a Prior Approval Supplement to each ANDA.
We maintain several single-source supplier relationships, either because alternative sources are not available or because the relationship is advantageous due to regulatory, performance, quality, support, or price considerations. Unavailability or delivery delays of single-source components or products could adversely affect our ability to ship the relevant product in a timely manner. The effect of unavailability or delivery delays would be more severe if associated with our higher volume or more profitable products. Even where alternative sources of supply are available, qualifying the alternate suppliers and establishing reliable supplies could cost more or could result in delays and a loss of revenues. As a result, the loss of a single-source supplier could have a material adverse effect on our results of operations.
Incidents related to hazardous materials could materially adversely affect our reputation, business, financial condition, operating results and cash flows.
There are portions of our operations that require the controlled use of hazardous materials. Although we are diligent in designing and implementing safety procedures to comply with the standards prescribed by federal, state, and local regulations, the risk of accidental contamination of property or injury to individuals from these materials cannot be completely eliminated. In the event of such an incident, we could be liable for any damages that result, which could materially adversely affect our reputation, business, financial condition, operating results and cash flows.
We are subject to stringent regulatory requirements related to environmental protection and hazardous waste disposal. Failure to adhere to such requirements could harm our business and results of operations.
In the United States, we and our suppliers of raw materials are also subject to regulation under the Occupational Safety and Health Act, the Toxic Substances Control Act, the Resource Conservation and Recovery Act and other current and potential future federal, state or local regulations. Failure to adhere to such regulations, by either us or our suppliers, could harm our business and results of operations. In addition, our analytical department uses certain hazardous materials and chemicals in limited and controlled quantities. We have implemented safety procedures for handling and disposing of such materials, however, such procedures may not comply with the standards prescribed by federal, state and local regulations. Even if we follow such safety procedures for handling and disposing of hazardous materials and chemicals and such procedures comply with applicable law, the risk of accidental contamination or injury from these materials cannot be completely eliminated. In the event of such an accident, we could be held liable for any damages and any such liability could exceed our resources.
Our operations and properties are also subject to a wide variety of increasingly complex and stringent federal, state and local environmental laws and regulations, including those governing the remediation of contaminated soil and groundwater. Such environmental laws may apply to conditions at properties and facilities presently or formerly owned or operated by us, as well as to conditions at properties at which wastes or other contamination attributable to us have been sent or otherwise come to be located. One of our facilities has undergone remediation of environmental contamination, and one of our facilities is currently undergoing remediation of environmental contamination. The total estimated costs for the clean-up and remediation is $0.9 million as of December 31, 2018, and remaining costs accrued at December 31, 2018 totaled $0.1 million. Based on information provided to us from our environmental consultants and what is known to date, we believe the reserves are sufficient for the remaining remediation of the environmental contamination. There is a possibility, however, that the remediation costs may exceed our estimates. In addition, we can give no assurance that the future cost of compliance with existing environmental laws will not give rise to additional significant expenditures or liabilities that would be material to us. Future events, such as new information, changes in existing environmental laws or their interpretation, and more vigorous enforcement policies of federal, state or local regulatory agencies, may have a material adverse effect on our business, financial condition and results of operations.
In Canada, we and our suppliers of raw materials are also subject to regulation under the Hazardous Products Act, Controlled Products Regulations, Consumer Product Safety Act. Canadian Environmental Protection Act and other current and potential future federal, provincial/territorial or local regulations. Failure to adhere to such regulations, by either us or our suppliers, could harm our business and results of operations. In addition, our analytical department uses certain hazardous materials and chemicals in limited and controlled quantities. We have implemented safety procedures for handling and disposing of such materials, however, such procedures may not comply with the standards prescribed by federal, provincial/territorial and local regulations. Even if we follow such safety procedures for handling and disposing of hazardous materials and chemicals and such procedures comply with applicable law, the risk of accidental contamination or injury from these materials cannot be completely eliminated. In the event of such an accident, we could be held liable for any damages and any such liability could exceed our resources.
Future events, such as new information, changes in existing environmental laws or their interpretation, and more vigorous enforcement policies of federal, provincial/territorial or local regulatory agencies, may have a material adverse effect on our business, financial condition and results of operations.
We are subject to extensive government regulation by the FDA and other federal, state and local regulatory authorities that increases our costs and could prevent us from marketing or selling our products.
The manufacturing, processing, formulation, packaging, labeling, testing, storing, distributing, marketing, advertising and sale of our products, among other things, are subject to extensive regulation by one or more U.S. agencies, including the FDA, the Federal Trade Commission and the Consumer Products Safety Commission, as well as by several state and local agencies in localities where our products are stored, distributed or sold. In addition, we manufacture and market certain of our products in accordance with standards set by organizations, such as the U.S. Pharmacopeia, or USP, a scientific nonprofit organization that sets standards for the identity, strength, quality, and purity of medicines, food ingredients, and dietary supplements manufactured, distributed and consumed worldwide. USP’s drug standards are enforceable in the United States by the FDA.
The FDA regulates the testing, manufacture, labeling, marketing and sale of pharmaceutical products. Approval by the FDA is required before any new drug, including any new generic drug, may be marketed or sold in the United States. In order to receive approval from the FDA for our product candidates that are generic versions of brand-name drugs, we intend to use the Abbreviated New Drug Application, or ANDA, route, which requires us to demonstrate to the FDA that each generic product
candidate has the same active ingredient, strength, dosage form, route of administration and intended use as a corresponding approved drug product and is bioequivalent to the branded drug product (approved under a New Drug Application, or NDA), meaning that there is no significant difference between the drugs in their rate and extent of absorption in the body. However, if the FDA determines that an ANDA for a generic drug product is not adequate to support approval, it could deny our application or request additional data or information, which could delay approval of the product and impair our ability to compete with the brand-name drug product and/or other generic versions of the product.
If our product candidates receive FDA approval through the ANDA process, the labeling claims and marketing statements that we can make for our generic drugs are generally limited to the claims approved by the FDA for use in the brand-name product’s label. In addition, following regulatory approval, the labeling, packaging, adverse event reporting, storage, advertising and promotion for the product will be subject to extensive and ongoing regulatory requirements.
As a manufacturer of pharmaceutical products, we must also comply with cGMPs, or current Good Manufacturing Practices, which include requirements related to production processes, quality control and assurance and recordkeeping. Our manufacturing facilities and procedures and those of our suppliers are subject to periodic inspection by the FDA and foreign regulatory agencies. Any material deviations from pharmaceutical cGMPs or other applicable requirements identified during such inspections may result in recalls or other enforcement actions, including warning letters, a delay or suspension in manufacturing operations, consent decrees or civil or criminal penalties. Further, discovery of previously unknown problems with a product or manufacturer may result in restrictions or sanctions, including suspension or withdrawal of marketing approvals, seizures or recalls of products from the market, or civil or criminal fines or penalties, any of which could significantly and adversely affect supplies of our products.
We are subject to extensive government regulation by Health Canada and other federal, state provincial/territorial and local regulatory authorities that increases our costs and could prevent us from marketing or selling our products.
The manufacturing, processing, formulation, packaging, labeling, testing, storing, distributing, marketing, advertising and sale of our products, among other things, are subject to extensive regulation by one or more Canadian agencies, including Health Canada, as well as by several state and local agencies in localities where our products are stored, distributed or sold. In addition, we market certain of our products in accordance with standards set by organizations, such as the United States Pharmacopeial Convention, or USP, and the British Pharmacopeia, or BP, scientific nonprofit organizations that sets standards for the identity, strength, quality, and purity of medicines, food ingredients, and dietary supplements manufactured, distributed and consumed worldwide. Adherence to USP and BP published drug standards are prescribed by the Canadian Food and Drug Regulations.
Health Canada regulates the testing, manufacture, labeling, marketing and sale of pharmaceutical products. Approval by Health Canada is required before any new drug, including any new generic drug, may be marketed or sold in Canada. In order to receive approval from Health Canada for our product candidates that are generic versions of brand-name drugs, we intend to use the ANDS, or Drug Identification Number Application, or DINA, routes, which requires us to demonstrate to Health Canada that each generic product candidate has the same active ingredient, strength, dosage form, route of administration and intended use as a corresponding approved drug product and is bioequivalent to the branded drug product (approved under a New Drug Submission or NDS or Drug Identification Number Application, or DINA), meaning that there is no significant difference between the drugs in their rate and extent of absorption in the body. However, if Health Canada determines that an ANDS or DINA for a generic drug product is not adequate to support approval, it could deny our application or request additional data or information, which could delay approval of the product and impair our ability to compete with the brand-name drug product and/or other generic versions of the product.
If our product candidates receive Health Canada approval through the ANDS or DINA process, the labeling claims and marketing statements that we can make for our generic drugs are generally limited to the claims approved by Health Canada for use in the brand-name product’s label. In addition, following regulatory approval, the labeling, packaging, adverse event reporting, storage, advertising and promotion for the product will be subject to extensive and ongoing regulatory requirements.
As an importer and distributor of pharmaceutical products, we must also comply with cGMPs, or current Good Manufacturing Practices, which include requirements related to production processes, quality control and assurance and recordkeeping. Our facilities and procedures and those of our suppliers are subject to periodic inspection by Health Canada and foreign regulatory agencies. Any material deviations from pharmaceutical cGMPs or other applicable requirements identified during such inspections may result in recalls or other enforcement actions, including non-compliance ratings, a delay or suspension in manufacturing operations. Further, discovery of previously unknown problems with a product or manufacturer may result in restrictions or sanctions, including suspension or withdrawal of marketing approvals, seizures or recalls of products from the market, and revoking of licenses, any of which could significantly and adversely affect supplies of our products.
Inadequate funding for the FDA, the SEC and other government agencies could hinder their ability to hire and retain key leadership and other personnel, prevent new products and services from being developed or commercialized in a timely manner or otherwise prevent those agencies from performing normal business functions on which the operation of our business may rely, which could negatively impact our business.
The ability of the FDA to review and approve new products can be affected by a variety of factors, including government budget and funding levels, ability to hire and retain key personnel and accept the payment of user fees, and statutory, regulatory, and policy changes. Average review times at the agency have fluctuated in recent years as a result. In addition, government funding of the SEC and other government agencies on which our operations may rely, including those that fund research and development activities is subject to the political process, which is inherently fluid and unpredictable.
Disruptions at the FDA and other agencies may also slow the time necessary for new drugs to be reviewed and/or approved by necessary government agencies, which would adversely affect our business. For example, over the last several years, including beginning on December 22, 2018, the U.S. government has shut down several times and certain regulatory agencies, such as the FDA and the SEC, have had to furlough critical FDA, SEC and other government employees and stop critical activities. If a prolonged government shutdown occurs, it could significantly impact the ability of the FDA to timely review and process our regulatory submissions, which could have a material adverse effect on our business. Further in our operations as a public company, future government shutdowns could impact our ability to access the public markets and obtain necessary capital in order to properly capitalize and continue our operations.
We may be subject to, or may in the future become subject to, U.S. federal and state, and foreign laws and regulations imposing obligations on how we collect, use, disclose, store and process personal information. Our actual or perceived failure to comply with such obligations could result in liability or reputational harm and could harm our business. Ensuring compliance with such laws could also impair our efforts to maintain and expand our customer base, and thereby decrease our revenue.
In many activities, including the conduct of clinical trials, we are subject to laws and regulations governing data privacy and the protection of health-related and other personal information. These laws and regulations govern our processing of personal data, including the collection, access, use, analysis, modification, storage, transfer, security breach notification, destruction and disposal of personal data. We must comply with laws and regulations associated with the international transfer of personal data based on the location in which the personal data originates and the location in which it is processed. Although there are legal mechanisms to facilitate the transfer of personal data from the European Economic Area, or EEA, and Switzerland to the United States, the decision of the European Court of Justice that invalidated the safe harbor framework has increased uncertainty around compliance with EU privacy law requirements. As a result of the decision, it was no longer possible to rely on safe harbor certification as a legal basis for the transfer of personal data from the European Union to entities in the United States. In February 2016, the European Commission announced an agreement with the Department of Commerce, or DOC, to replace the invalidated safe harbor framework with a new EU-U.S. “Privacy Shield.” On July 12, 2016, the European Commission adopted a decision on the adequacy of the protection provided by the Privacy Shield. The Privacy Shield is intended to address the requirements set out by the European Court of Justice in its recent ruling by imposing more stringent obligations on companies, providing stronger monitoring and enforcement by the DOC and Federal Trade Commission and making commitments on the part of public authorities regarding access to information.
The privacy and security of personally identifiable information stored, maintained, received or transmitted, including electronically, subject to significant regulation in the United States and abroad. While we strive to comply with all applicable privacy and security laws and regulations, legal standards for privacy continue to evolve and any failure or perceived failure to comply may result in proceedings.
Our global operations expose us to certain risks, including challenges associated with political and economic instability, major hostilities and acts of terrorism.
We are a global company with operations outside of the United States. We face numerous risks inherent in conducting business internationally, including terrorist acts, acts of war, political unrest, public health concerns, labor disputes and national disasters. Such events may lead to economic and political uncertainties and contribute to global economic instability. We may not be successful in developing and implementing policies and strategies to address the foregoing events in a timely and effective manner. Consequently, the occurrence of one or more of the foregoing events could have a material adverse impact on our business, operating results and financial condition, including loss of sales or customers.
Violations of cGMP and other government regulations could have a material adverse effect on our reputation, business, financial condition and results of operations.
All facilities and manufacturing techniques used to manufacture pharmaceutical products for clinical use or for commercial sale in the United States and other Teligent markets must be operated in conformity with cGMP regulations as required by the FDA and other regulatory bodies. Our suppliers’ facilities are subject to scheduled periodic regulatory and customer inspections to ensure compliance with cGMP and other requirements applicable to such products. A finding that we or one or more of our suppliers had materially violated these requirements could result in one or more regulatory sanctions, loss of a customer contract, disqualification of data for client submissions to regulatory authorities and a mandated closing of our suppliers’ facilities, which in turn could have a material adverse effect on our reputation, business, financial condition, operating results and cash flows.
During our efforts to expand our existing manufacturing facility, as well as potentially select and build out an additional manufacturing facility, we could experience business interruptions, as well as incur significant capital expenditures to complete the expansions, which may have a material adverse effect on our business, financial position and results of operations.
We manufacture drug products at one domestic manufacturing facility. This facility may be forced to shut down or may be unable to operate at full capacity as a result of potential expansion plans. A significant disruption at this facility, even on a short-term basis, could impair our ability to produce and ship drug products to the market on a timely basis, which may have a material adverse effect on our business, financial position and results of operations.
We could experience business interruptions at our manufacturing facility, which may have a material adverse effect on our business, financial position and results of operations.
We manufacture drug products at one domestic manufacturing facility. This facility may be forced to shut down or may be unable to operate at full capacity as a result of hurricanes, tornadoes, earthquakes, storms and other extreme weather events as well as strikes, war, violent upheavals, terrorist acts and other force majeure events. A significant disruption at this facility, even on a short-term basis, could impair our ability to produce and ship drug products to the market on a timely basis, which may have a material adverse effect on our business, financial position and results of operations.
We are currently in the process of expanding our manufacturing facilities. Any delays in the expansion process or in the receipt of certain regulatory approvals in connection therewith could have a material adverse effect on our business and results of operations.
We are in the process of expanding and upgrading our existing manufacturing facilities in Buena, New Jersey. Upon the completion of this expansion, we intend to transfer the manufacture of certain sterile injectable, for which we currently rely on CMOs, to this facility. Any delays in the expansion process could increase the overall cost of the expansion and could force us to postpone the planned transfer of our manufacturing to this facility. In addition, any delays or denials of the regulatory approvals needed to begin manufacturing products at this facility could have a material adverse effect on our business.
Our reporting and payment obligations related to our participation in federal health care programs, including Medicare and Medicaid, are complex and often involve subjective decisions that could change. Any failure to comply with those obligations could subject us to investigation, penalties, and sanctions.
Federal laws regarding reporting and payment obligations with respect to a pharmaceutical company’s participation in federal health care programs, including Medicare and Medicaid, are complex. These programs generally require us to pay rebates or provide discounts to government payors in connection with our products that are dispensed to beneficiaries of these programs. In some cases, such as with the Medicaid Drug Rebate Program, the rebates are based on pricing and rebate calculations that we report on a quarterly basis to the government agencies that administer the programs. Because our processes for calculating applicable government prices and the judgments involved in making these calculations involve subjective decisions and complex methodologies, these calculations are subject to risk of errors and differing interpretations. In addition, they are subject to review and challenge by the applicable governmental agencies, and it is possible that such reviews could result in changes that may have material adverse legal, regulatory, or economic consequences. Responding to current and future changes may increase our costs and the complexity of compliance will be time-consuming, and could have a material adverse effect on our results of operations. The U.S. Department of Health and Human Services (“DHHS”) has issued a proposed rule that would remove safe harbor protections for certain rebates, which if finalized as released would go into effect in January 2020. Given the complexity of the drug pricing systems in the United States, DHHS is also soliciting input on multiple issues and other proposals as part of this formal rulemaking process, and the timeline for any final government action could be lengthy. It is unclear what changes a DHHS final rule, if any, would make to the current drug rebate rules for Medicare and Medicaid programs, and what the potential impact of such changes would be to our business or operations.
In addition, the Office of Inspector General has recently increased its focus on the methodologies used by manufacturers to calculate the average manufacturer price, or AMP, and best price, or BP, to assess manufacturer compliance with reporting requirements under the Medicaid Drug Rebate Program. We are liable for errors associated with our submission of pricing data and for overcharging government payors. For example, failure to submit quarterly AMP and BP data on a timely basis could result in a civil monetary penalty of $10,000 per day for each day the submission is late beyond the due date. Failure to make necessary disclosures and/or to identify overpayments could result in allegations against us under the Federal False Claims Act and other laws and regulations.
Our policies regarding returns, allowances and chargebacks, failure to supply penalties and marketing programs adopted by wholesalers may reduce revenues in future fiscal periods.
We, like other generic drug manufacturers, have agreements with customers allowing chargebacks, product returns, administrative fees, failure to supply penalties and other rebates. Under many of these arrangements, we may match lower prices offered to customers by competitors. If we choose to lower our prices and if contractually obligated, we issue a credit on the products that the customer is holding in inventory, which could reduce sales revenue and gross margin for the period the credit is provided. Under many of these arrangements, we may have failure to supply penalties, which in the event we are unable to supply a certain product and are unable to meet the needs of our customers, we may incur failure to supply penalties which may be significant. Like our competitors, we also give credits for chargebacks to wholesalers with whom we have contracts for their sales to hospitals, group purchasing organizations, pharmacies or other customers. A chargeback is the difference between the price at which we invoice the wholesaler and the price that the wholesaler’s end-customer pays for a product. Although we establish reserves based on prior experience and our best estimates of the impact that these policies may have in subsequent periods, we cannot ensure that our reserves are adequate or that actual product returns, allowances, and chargebacks will not exceed our estimates. As we continue to experience the consolidation of our customers, which may result in changes to previous patterns of ordering and/or pricing of our products, this could disrupt our established methodologies for calculating our provisions for chargebacks and other accruals.
We are subject to federal and state healthcare fraud and abuse and false claims laws and may be subject to related litigation brought by the government or private individuals.
We are subject to state and federal healthcare laws pertaining to fraud and abuse, physician payment transparency and laws that govern the submission of claims for reimbursement. These laws include the following:
•the federal Anti-Kickback Statute, which prohibits, among other things, persons from knowingly and willfully soliciting, receiving, offering or paying remuneration, directly or indirectly, in exchange for or to induce 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 federal healthcare programs, such as Medicare and Medicaid. In addition, the government may assert that a claim including items or services resulting from a violation of the federal Anti-Kickback Statute constitutes a false or fraudulent claim for purposes of the False Claims Act;
•the federal False Claims Act, or FCA, which imposes civil liability and criminal fines on individuals or entities that knowingly submit, or cause to be submitted, false or fraudulent claims for payment to the government. The FCA also allows private individuals to bring a suit on behalf of the government against an individual or entity for violations of the FCA. These suits, also known as qui tam actions, may be brought by, with only a few exceptions, any private citizen who believes that he has material information of a false claim that has not yet been previously disclosed. These suits have increased significantly in recent years because the FCA allows an individual to share in any amounts paid to the federal government in fines or settlement as a result of a successful qui tam action;
•federal criminal laws that prohibit executing a scheme to defraud any federal healthcare benefit program or making false statements relating to healthcare matters;
•the federal Physician Payment Sunshine Act, which requires manufacturers of drugs, devices, biologics and medical supplies for which payment is available under Medicare, Medicaid or the Children’s Health Insurance Program (with certain exceptions) to report annually to the government information related to payments or other “transfers of value” made to a “covered recipient,” which include physicians (defined to include doctors, dentists, optometrists, podiatrists and chiropractors) and teaching hospitals, and beginning in 2022, physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, and certified nurse-midwives following an expansion of the law by Congress in 2018. Applicable manufacturers and group purchasing organizations also must report annually ownership and investment interests held by physicians (as defined above) and their immediate family members and payments or other “transfers of value” to such physician owners and their immediate family members;
•the Federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act, or HITECH Act, which governs the conduct of certain electronic healthcare transactions and protects the security and privacy of protected health information;
•the Foreign Corrupt Practices Act, or FCPA, including its anti-bribery provisions, which make it unlawful for certain classes of persons and entities to make payments to foreign government officials to assist in obtaining or retaining business; and
•analogous state law equivalents of each of the above federal laws, such as anti-kickback and false claims laws which may apply to items or services reimbursed by any third-party payor, including commercial insurers; state laws that require pharmaceutical companies to comply with the industry’s voluntary compliance guidelines and the applicable compliance guidance promulgated by the federal government, or otherwise restrict payments that may be made to healthcare providers and other potential referral sources; state laws that require drug manufacturers to report information related to payments and other transfers of value to physicians and other healthcare providers or marketing expenditures; 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 may not have the same effect, thus complicating compliance efforts.
If our past or present operations are found to be in violation of any of such laws or any other governmental regulations that may apply to us, we may be subject to penalties, including civil and criminal penalties, damages, fines, exclusion from federal health care programs, and/or the curtailment or restructuring of our operations. Any penalties, damages, fines, curtailment, or restructuring of our operations could adversely affect our ability to operate our business and our financial results, action against us for violation of these laws, even if we successfully defend against them, it could cause us to incur significant legal expenses and divert our management’s attention from the operation of our business.
Healthcare legislative reform measures may have a material adverse effect on our business and results of operations.
In the United States, there have been and continue to be a number of legislative initiatives to contain healthcare costs. For example, in March 2010, the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act, or the Affordable Care Act, was passed, which substantially changes the way health care is financed by both governmental and private insurers, and significantly impacts the U.S. pharmaceutical industry. The Affordable Care Act, among other things, addresses a new methodology by which rebates owed by manufacturers under the Medicaid Drug Rebate Program are calculated for drugs that are inhaled, infused, instilled, implanted or injected, increases the minimum Medicaid rebates owed by manufacturers under the Medicaid Drug Rebate Program and extends the rebate program to individuals enrolled in Medicaid managed care organizations.
There also continues to be uncertainty that any provisions of the Affordable Care Act will continue to exist in their current form. Certain legislators are continuing their efforts to repeal the Act, although there is little clarity on how such a repeal would be implemented and what an Affordable Care Act replacement might look like, and there continue to be lawsuits in federal courts seeking to invalidate parts or all of the Act. For the immediate future, there continues to be significant uncertainty regarding the health care, health care coverage and health care insurance markets. The 116th Congress convened in January 2019 is expected to focus on health care markets broadly and also to target widely publicized cases of product failures as well as corporate misconduct in the health care industry writ large. The 116th Congress has a much different House of Representatives than the prior 115th Congress, and these and other political changes create additional uncertainty for all industries offering goods and services to medical professionals, including generic pharmaceuticals like ours.
We expect that additional state and federal healthcare reform measures will be adopted in the future, any of which could limit the amounts that federal and state governments will pay for healthcare products and services, which could result in reduced demand for our products or additional pricing pressures.
Even after our products receive regulatory approval, such products may not achieve expected levels of market acceptance.
Even if we are able to obtain regulatory approvals for our generic pharmaceutical products the success of those products is dependent upon market acceptance. Levels of market acceptance for our products could be impacted by several factors, including but not limited to:
•the availability of alternative products from our competitors;
•the price of our products relative to that of our competitors;
•the timing of our market entry;
•the ability to market our products effectively to the different levels in the distribution chain;
•other competitor actions; and
•the continued acceptance of and/or reimbursement for our products by government and private formularies and/or third party payors.
Additionally, studies of the proper utilization, safety, and efficacy of pharmaceutical products are being conducted by the industry, government agencies, and others. Such studies, which increasingly employ sophisticated methods and techniques, including methods to investigate the comparative effectiveness of different products used for similar indications, can call into question the utilization, safety, and efficacy of previously marketed as well as future products. In some cases, studies have resulted, and may in the future result, in the discontinuance of product marketing or other risk management programs, such as the need for a patient registry, as well as delays in approvals. The occurrence of any of the above risks could adversely affect our profitability, business, financial position, results of operations and/or cash flow, and could cause the market value of our common stock to decline.
Product recalls could harm our business.
Product recalls or product field alerts may be issued at our discretion or required by the FDA and Health Canada, other governmental agencies or other companies having regulatory authority for pharmaceutical product sales. From time to time, we may recall products for various reasons, including failure of our products to maintain their stability through their expiration dates or other quality issues. Any recall or product field alert has the potential of damaging our reputation or the reputation of the product. Any significant recalls could materially affect our sales. In these cases, our business, financial condition, results of operations and cash flows could be materially adversely affected.
We are susceptible to product liability claims that may not be covered by insurance and could require us to pay substantial sums.
We face the risk of loss resulting from, and adverse publicity and reputational harm associated with, product liability lawsuits, whether or not such claims are valid. We may not be able to avoid such claims. In addition, our product liability insurance may not be adequate to cover such claims and we may not be able to obtain adequate insurance coverage in the future at acceptable costs. A successful product liability claim that exceeds our policy limits could require us to pay substantial sums. In addition, product liability coverage for pharmaceutical companies is becoming more expensive and increasingly difficult to obtain and, as a result, we may not be able to obtain the type and amount of coverage we desire or to maintain our current coverage.
The manufacture and storage of pharmaceutical and other products are subject to inherent risk.
Because chemical ingredients are used in the manufacture of our products and due to the nature of the manufacturing process itself, there is a risk of incurring liability for damages caused by or during the storage or manufacture of both the chemical ingredients and the finished products. Although we have never incurred any material liability for damages of that nature, we may be subject to liability in the future. In addition, while we believe our insurance coverage is adequate, it is possible that a successful claim would exceed our coverage, requiring us to pay a substantial sum.
The testing required for the regulatory approval of our products is conducted by independent third parties. Any failure by any of these third parties to perform this testing properly and in a timely manner may have an adverse effect upon our ability to obtain regulatory approvals.
Our applications for the regulatory approval of our products incorporate the results of testing and other information that is conducted or gathered by independent third parties (including, for example, manufacturers of raw materials, testing laboratories, CROs or independent research facilities). Our ability to obtain regulatory approval of the products being tested is dependent upon the quality of the work performed by these third parties, the quality of the third parties’ facilities, and the accuracy of the information provided to us by third parties. We have little or no control over any of these factors. If this testing is not performed properly, our ability to obtain regulatory approvals could be restricted or delayed. In addition, if third party fraud or other recordkeeping problems are discovered after our products are approved for marketing, any government investigations or findings could result in any products that incorporated those fraudulent results having their regulatory approvals withdrawn.
The failure to obtain, maintain or protect patents, trade secrets, know-how and other intellectual property could impact our ability to compete effectively.
To compete effectively, we need to develop and maintain a proprietary position with regard to our own technology, products and business. We rely on a combination of patents, trade secrets, proprietary know-how and other intellectual property to protect our proprietary technology and rights. We also maintain a number of trade secrets, know-how and other intellectual property.
The risks and uncertainties that we face with respect to patents and other proprietary rights include the following:
•the pending patent applications we have filed or may file, or to which we have exclusive rights, may not result in issued patents, or may take longer than we expect to result in issued patents;
•changes in U.S. patent laws may adversely affect our ability to obtain or maintain our patent protection;
•we may be subject to interference proceedings;
•the claims of any patents that are issued may not provide meaningful protection;
•we may not be able to develop additional proprietary technologies that are patentable;
•the patents licensed or issued to us or our collaborators may not provide a competitive advantage;
•other companies may challenge patents licensed or issued to us or our collaborators;
•other companies may independently develop similar or alternative technologies, or duplicate our technology;
•other companies may design around technologies we have licensed or developed; and
•enforcement of patents is complex, uncertain and expensive.
The trademark applications we have filed or may file may not result in trademark registrations, which would result in lesser protections for our brands.
Our product offerings and our customers’ products may infringe on the intellectual property rights of third parties.
From time to time, third parties have asserted intellectual property infringement claims against us and our customers and there can be no assurance that third parties will not assert infringement claims against either us or our customers in the future. While we believe that our product offerings do not infringe in any material respect upon proprietary rights of other parties and/or that meritorious defenses would exist with respect to any assertions to the contrary, there can be no assurance that we would not be found to infringe on the proprietary rights of others.
Patent applications in the U.S. and some foreign countries are generally not publicly disclosed until they are published or the patent is issued, and we may not be aware of currently filed patent applications that relate to our offerings or processes. If patents later issue on these applications, we may be found liable for subsequent infringement. There has been substantial litigation in the pharmaceutical and biotechnology industries with respect to the manufacture, use and sale of products and processes that are the subject of conflicting patent rights.
Any claims that our product offerings or processes infringe these rights, regardless of their merit or resolutions, could be costly and may divert the efforts and attention of our management and technical personnel. We may not prevail in such proceedings given the complex technical issues and inherent uncertainties in intellectual property litigation. If such proceedings result in an adverse outcome, we could, among other things, be required to:
•pay damages in the form of lost profits and/or a reasonable royalty for any infringement;
•pay substantial damages (potentially treble damages in the U.S. if any such infringement is found to be willful);
•pay attorney fees of a prevailing party, if the case is found to be exceptional;
•cease the manufacture, use or sale of the infringing offerings or processes;
•discontinue the use of the infringing technology;
•expend significant resources to design around patented technology and develop non-infringing technology; and
•license patented technology from the third party claiming infringement, which license may not be available on commercially reasonable terms, or may not be available at all.
In addition, our customers’ products may be subject to claims of intellectual property infringement and such claims could materially affect our business if their products cease to be manufactured and they have to discontinue the use of the infringing technology which we may provide. Further, depending on the particular circumstances of any given claim, it may be the case that we may be responsible for indemnifying our customers for a claim of intellectual property infringement.
If we were to assert any of our own intellectual property against third parties and the third parties were found not to infringe our intellectual property or our intellectual property was found to be invalid, and/or unenforceable, we would lose the opportunity to leverage our own intellectual property, for example, through licensing of our technology to others, collection of damages and/or royalty payments based upon successful assertion of our intellectual property rights via enjoining others from practicing the technology at issue.
Any of the foregoing could affect our ability to compete or have a material adverse effect on our business, financial condition and results of operations.
Significant balances of intangible assets, including goodwill, are subject to impairment testing and may result in impairment charges, which may materially and adversely affect our results of operations and financial condition.
A significant amount of our total assets is related to goodwill and intangible assets, including in-process research and development. As of December 31, 2018 the value of our goodwill and intangible assets net of accumulated amortization was $48.8 million. Goodwill and other intangible assets are tested for impairment annually when events occur or circumstances change that could potentially reduce the fair value of the reporting unit or intangible asset. Impairment testing compares the fair value of the reporting unit or intangible asset to its carrying amount. Any future goodwill or other intangible asset impairment, if any, would be recorded in operating income and could have a material adverse effect on our results of operations and financial condition.
We may not be able to fully realize the expected benefits from the acquisition of certain products and/or companies.
Our recent acquisition of certain products and a company subjects us to additional operational and financial risks, including the following:
•additional costs that we may need to incur in order to return the products to the market and to comply with regulatory requirements;
•difficulties in coordinating research and development activities;
•uncertainties in the business relationships with our customers and suppliers; and
•lack of previous experiences in manufacturing, commercializing, and distributing products in therapeutic areas outside of the topical generic pharmaceutical market and in markets outside of the United States.
Our approved products may not achieve commercialization at levels of market acceptance that allow us to achieve profitability, which could have a material adverse effect on our business, financial position and results of operations.
We seek to develop, license or acquire products that we can commercialize at levels of market acceptance that would allow us to recoup the costs of development and commercialization, grow market share, and achieve profitability. Even if we are able to obtain regulatory approvals for certain pharmaceutical products, if we fail to accurately predict demand for such products, our business, financial position, and results of operations could be adversely impacted. Levels of market acceptance for products could be impacted by several factors, including but not limited to:
•the availability of alternative products from our competitors;
•the price of our products relative to that of our competitors;
•the effectiveness of our marketing relative to that of our competitors;
•the timing of our market entry;
•the ability to market our products effectively to the retail level; and
•the acceptance of our products by government and private formularies.
Some of these factors are not within our control and, if any such factor arises, our profitability, business, financial position and results of operations could be materially adversely affected.
Future acquisitions and investments could disrupt our business and harm our financial condition and operating results.
Our growth will depend, in part, on our continued ability to develop, commercialize and expand our drug products, including in response to changing regulatory and competitive pressures. In some circumstances, we accelerate our growth through the acquisition of complementary products and technologies rather than through internal development. The identification of suitable products to be acquired can be difficult, time-consuming and costly, and we may not be able to successfully complete or successfully execute strategies for identified acquisitions. The risks faced in connection with acquisitions include:
•diversion of management time and focus from operating our business to addressing acquisition and/or product integration challenges;
•coordination of research and development and sales and marketing functions;
•retention of key employees from the acquired company;
•integration of the acquired company’s accounting, management information, human resources and other administrative systems;
•the need to implement or improve controls, procedures, and policies at a business that prior to the acquisition may have lacked effective controls, procedures and policies;
•liability for activities of the acquired company and/or products before the acquisition, including patent infringement claims, violations of laws, commercial disputes, tax liabilities and other known and unknown liabilities;
•unanticipated write-offs or charges; and
•litigation or other claims in connection with the acquired company or product, including claims from product users, former stockholders or other third parties.
In any acquisition that we may undertake, our failure to address these risks or other problems encountered in connection with any acquisitions and investments could cause us to fail to realize the anticipated benefits of these acquisitions or investments, cause us to incur unanticipated liabilities, and harm our business generally.
We may become involved in legal proceedings from time to time which may result in losses, damage to our business and reputation and place a strain on our internal resources.
In the ordinary course of our business, we may be involved in legal proceedings with both private parties and certain government agencies, including the FDA. Enforcement actions and litigation may result in verdicts against us, which may include significant monetary awards, judgments that certain of our intellectual property rights are invalid or unenforceable and injunctions preventing the manufacture, marketing and sale of our products. If disputes are resolved unfavorably, our business, financial condition and results of operations may be adversely affected.
Any government enforcement action or litigation, whether or not successful, may damage our reputation. Furthermore, we are likely to incur substantial expense in defending these actions and lawsuits, and the time demands of such enforcement actions and lawsuits could divert management’s attention from ongoing business concerns and interfere with our normal operations.
In the normal course of business, we periodically enter into employment agreements, legal settlements, and other agreements which incorporate indemnification provisions. We maintain insurance coverage which we believe will effectively mitigate our obligations under these indemnification provisions. However, should our obligation under an indemnification provision exceed our coverage or should coverage be denied, it could have a material adverse effect on our business, financial position and results of operations.
Our business and operations would suffer in the event of system failures.
Despite the implementation of security measures, our internal computer systems are vulnerable to damage from computer viruses, unauthorized access, natural disasters, terrorism, war and telecommunication and electrical failures. Any system failure, accident or security breach that causes interruptions in our operations could result in a material disruption of our product development programs. To the extent that any disruption or security breach results in a loss or damage to our data or applications, or inappropriate disclosure of confidential or proprietary information, we may incur liability and the further development of our product candidates may be delayed.
In addition, we rely on complex information technology systems, including Internet-based systems, to support our supply chain processes as well as internal and external communications. The size and complexity of our systems make them potentially vulnerable to breakdown or interruption, whether due to computer viruses or other causes that may result in the loss of key information or the impairment of production and other supply chain processes. Such disruptions and breaches of security could adversely affect our business.
Compliance with ongoing post-marketing obligations for our approved ANDAs, NDAs, NDSs, and ANDSs may uncover new safety information that could give rise to a product recall, updated warnings, or other regulatory actions that could have an adverse impact on our business.
After the FDA or Health Canada approves a drug for marketing under an NDA, ANDA, NDS, or ANDS, the product’s sponsor must comply with several post-marketing obligations that continue until the product is discontinued. These post-marking obligations include the prompt reporting of serious adverse events to the appropriate regulatory agency or agencies, the submission of product-specific annual reports that include changes in the distribution, manufacturing, and labeling information, and notification when a drug product is found to have significant deviations from its approved manufacturing specifications (among others). Our ongoing compliance with these types of mandatory reporting requirements could result in additional requests for information from the FDA or Health Canada and, depending on the scope of a potential product issue that the FDA or Health Canada may decide to pursue, potentially also result in a request from the agency to conduct a product recall or to strengthen warnings and/or revise other label information about the product. Any of these post-marketing regulatory actions could materially affect our sales and, therefore, they have the potential to adversely affect our business, financial condition, results of operations and cash flows.
Economic conditions could severely impact us.
Current economic conditions may cause a decline in business and consumer spending which could adversely affect our business and financial performance. Our operating results are impacted by the health of the North American economies. Our business and financial performance, including collection of our accounts receivable, realization of inventory, recoverability of assets including investments, may be adversely affected by current and future economic conditions, such as a reduction in the availability of credit, financial market volatility and recession.
Adverse conditions in the economy and disruption of financial markets could negatively impact our customers and therefore our results of operations.
An economic downturn in the businesses or geographic areas in which we sell our products could reduce demand for these products and result in a decrease in sales volume that could have a negative impact on our results of operations. Volatility and disruption of financial markets could limit our customers’ ability to obtain adequate financing or credit to purchase and pay for our products in a timely manner, or to maintain operations, and result in a decrease in sales volume that could have a negative impact on our results of operations. Additionally, economic conditions and market turbulence may also impact our suppliers causing them to be unable to supply in a timely manner sufficient quantities of product components, thereby impairing our ability to manufacture on schedule and at commercially reasonable costs.
If the U.S. economy rapidly contracts or expands, we may have difficulty quickly scaling our operations in response, which may negatively impact our business and financial position.
If we are unable to hire additional qualified personnel, our ability to grow our business may be harmed.
We will need to hire or retain qualified personnel with expertise in nonclinical testing, government regulation, formulation and manufacturing, sales and marketing and finance. We compete for qualified individuals with numerous pharmaceutical and consumer products companies, universities and other research institutions. Competition for such individuals is intense, and we cannot be certain that our search for such personnel will be successful. Attracting and retaining qualified personnel will be critical to our success.
We have identified material weaknesses in our internal control over financial reporting, and if we are unable to satisfy regulatory requirements relating to internal controls, our stock price could suffer.
Section 404 of the Sarbanes-Oxley Act of 2002 requires companies to conduct a comprehensive evaluation of the effectiveness of their internal control over financial reporting. At the end of each fiscal year, we must perform an evaluation of our internal control over financial reporting, include in our annual report the results of the evaluation and have our external auditors also publicly attest to the effectiveness of our internal control over financial reporting. We have identified material weaknesses in our internal control over financial reporting, and if additional material weaknesses are found in our internal controls in the future, if we fail to remediate our existing material weaknesses, if we fail to complete future evaluations on time or if our external auditors cannot attest to the effectiveness of our internal control over financial reporting, we could fail to meet our regulatory reporting requirements and be subject to regulatory scrutiny and a loss of public confidence in our internal controls, which could have an adverse effect on our stock price.
We have identified material weaknesses in our internal control over financial reporting, which could continue to impact negatively our ability to report our results of operations and financial condition accurately and in a timely manner.
As required by Section 404 of the Sarbanes-Oxley Act of 2002, management has conducted an evaluation of the effectiveness of our internal control over financial reporting at December 31, 2018. We identified a number of material weaknesses in our internal control over financial reporting and concluded that, as of December 31, 2018, we did not maintain effective control over financial reporting based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. For a detailed description of these material weaknesses, see Item 9A, "Controls and Procedures." Each of our material weaknesses results in more than a remote likelihood that a material misstatement of the annual or interim financial statements that we prepare will not be prevented or detected. As a result, we must perform extensive additional work to obtain reasonable assurance regarding the reliability of our financial statements. In addition, on March 15, 2018, we filed an amendment to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2017 and on December 12, 2018, we filed an amendment to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2018, in each case in order to revise and restate certain items disclosed in such reports. Moreover, other material weaknesses may be identified.
We are in the process of remedying all of the identified material weaknesses, and this work will continue during fiscal 2019 and beyond. For a detailed description of our remedial efforts, see Item 9A, "Controls and Procedures." There can be no assurance as to when all of the material weaknesses will be remedied. Until our remedial efforts are completed, management will continue to devote significant time and attention to these efforts, and we will continue to incur expenses associated with the additional procedures and resources required to prepare our Consolidated Financial Statements. Certain of our remedial actions, such as hiring additional qualified personnel to implement our reconciliation and review procedures, will be ongoing and will result in our incurring additional costs even after our material weaknesses are remedied.
If we are unsuccessful in implementing or following our remediation plan, or fail to update our internal control over financial reporting as our business evolves or to integrate acquired businesses into our controls system, if additional material weaknesses are found in our internal controls in the future, or if our external auditors cannot attest to the effectiveness of our internal control over financial review we may not be able to timely or accurately report our financial condition, results of operations or cash flows or to maintain effective disclosure controls and procedures. If we are unable to report financial information in a timely and accurate manner or to maintain effective disclosure controls and procedures, we could be subject to, among other things, regulatory or enforcement actions by the SEC, an inability for us to be accepted for listing on any national securities exchange in the near future, securities litigation and a general loss of investor confidence, any one of which could adversely affect our business prospects and the market value of our Common Stock. Further, there are inherent limitations to the effectiveness of any system of controls and procedures, including the possibility of human error and the circumvention or overriding of the controls and procedures. We could face additional litigation exposure and a greater likelihood of an SEC enforcement or other regulatory action if further restatements were to occur or other accounting-related problems emerge. In addition, any future
restatements or other accounting-related problems may adversely affect our financial condition, results of operations and cash flows.
Currency fluctuations and changes in exchange rates could adversely affect our business, financial condition, results of operations, cash flows, and/or common stock price.
Although we report our financial results in U.S. Dollars, a portion of our revenues and other liabilities and our costs are denominated in non-U.S. currencies, including the Euro and Canadian Dollar. Our results of operations and, in some cases, cash flows, have in the past been and may in the future be adversely affected by certain movements in currency exchange rates. The occurrence of any of the above risks could cause a material adverse effect on our business, financial condition, results of operations, cash flows, and/or share price.
The Company is exposed to market risk from fluctuations in currency exchange rates.
The Company operates in multiple jurisdictions denominated in currencies of the local jurisdiction. Additionally, the Company
may enter into acquisition, licensing, borrowing or other financial transactions that may give rise to currency exposure. Since
the Company cannot, with certainty, foresee and mitigate against such adverse fluctuations, fluctuations in currency exchange
rates could negatively affect the Company’s results of operations, financial position and cash flows.
Our ability to use our net operating loss carry forwards and certain other tax attributes may be limited.
As of December 31, 2018, we had federal net operating loss carry forwards, or NOLs, of approximately $45.1 million which expire from 2020 through 2037. Federal operating losses arising during and after 2018 are not subject to expiration; however, their usage is limited to 80% of taxable income during the year of use. Our ability to utilize our NOLs may be limited under Section 382 of the Internal Revenue Code. The limitations apply if an ownership change, as defined by Section 382, occurs. Generally, an ownership change occurs when certain shareholders increase their aggregate ownership by more than 50 percentage points over their lowest ownership percentage in a testing period (typically three years). Our ability to use net operating loss carry forwards is subject to substantial limitation in future periods under certain provisions of Section 382 of the Internal Revenue Code, which limit the utilization of net operating losses upon a more than 50% change in ownership of our stock that is held by 5% or greater stockholders. We examined the application of Section 382 with respect to an ownership change that took place during 2010, as well as the limitation on the application of net operating loss carry forwards. We believe that operating losses subsequent to the change date in 2010 (aggregating $26.5 million) are not subject to Section 382 limitations. We have estimated that the annual limitation starting in 2010 aggregates from $1.0 million to $2.3 million per year including the effect of amortization of built in gains.
We are subject to the provisions of ASC 740-10-25, Income Taxes (ASC 740). ASC 740 prescribes a more likely-than-not threshold for the financial statement recognition of uncertain tax positions. ASC 740 clarifies the accounting for income taxes by prescribing a minimum recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. On a quarterly basis, we undergo a process to evaluate whether income tax accruals are in accordance with ASC 740 guidance on uncertain tax positions. For federal purposes, (except for the years 2014 and 2015, which have been examined by the Internal Revenue Services), post 1998 tax years remain open to examination as a result of net operating loss carryforwards. We are currently open to audit by the appropriate state income taxing authorities for tax years 2014 through 2017.
The recently passed comprehensive federal tax reform bill could adversely affect our business and financial condition.
On December 22, 2017, President Trump signed into law the “United States Tax Cuts and Jobs Act,” or U.S. TCJA, significantly revising the Internal Revenue Code of 1986, as amended, or the Code. The U.S. TCJA, among other things, includes changes to U.S. federal tax rates, imposes significant additional limitations on the deductibility of interest and net operating loss carryforwards, allows for the expensing of capital expenditures, and puts into effect the migration from a “worldwide” system of taxation to a territorial system. Our net deferred tax assets and liabilities have been revalued at the newly enacted U.S. corporate rate, and the impact was recognized in our tax expense in the year of enactment. We continue to examine the impact this tax reform legislation may have on our business. We urge investors to consult with their legal and tax advisers regarding the implications of the U.S. TCJA on an investment in our common stock.
We are currently involved in antitrust litigation related to our pricing practices. which is also part of a larger investigation by the attorneys general of forty-five states into alleged generic drug price fixing schemes and asserting claims under federal antitrust law (specifically, section 1 of the Sherman Act).
Complaints have been filed against us in each of the U.S. District Court for the District of New Jersey and the U.S. District Court for the Eastern District of Pennsylvania alleging violations of various provisions of federal and state antitrust laws in connection with the sale of our antifungal skin cream Econazole Nitrate 1% product. While we intend to vigorously defend our position in connection with both lawsuits, the outcome of the litigation could result in serious fines being levied on us, along with harm to our reputation. Any negative outcome from this or any other investigation related to our pricing could have a material adverse effect on our business, financial condition and results of operations.
We may be subject to, or may in the future become subject to, U.S. federal and state, and foreign laws and regulations imposing obligations on how we collect, use, disclose, store and process personal information. Our actual or perceived failure to comply with such obligations could result in liability or reputational harm and could harm our business. Ensuring compliance with such laws could also impair our efforts to maintain and expand our customer base, and thereby decrease our revenue.
In many activities, including the conduct of clinical trials, we are subject to laws and regulations governing data privacy and the protection of health-related and other personal information. These laws and regulations govern our processing of personal data, including the collection, access, use, analysis, modification, storage, transfer, security breach notification, destruction and disposal of personal data. We must comply with laws and regulations associated with the international transfer of personal data based on the location in which the personal data originates and the location in which it is processed. Although there are legal mechanisms to facilitate the transfer of personal data from the European Economic Area, or EEA, and Switzerland to the United States, the decision of the European Court of Justice that invalidated the safe harbor framework has increased uncertainty around compliance with EU privacy law requirements. As a result of the decision, it was no longer possible to rely on safe harbor certification as a legal basis for the transfer of personal data from the European Union to entities in the United States. In February 2016, the European Commission announced an agreement with the Department of Commerce, or DOC, to replace the invalidated safe harbor framework with a new EU-U.S. “Privacy Shield.” On July 12, 2016, the European Commission adopted a decision on the adequacy of the protection provided by the Privacy Shield. The Privacy Shield is intended to address the requirements set out by the European Court of Justice in its recent ruling by imposing more stringent obligations on companies, providing stronger monitoring and enforcement by the DOC and Federal Trade Commission and making commitments on the part of public authorities regarding access to information.
Inadequate funding for the FDA, the SEC and other government agencies could hinder their ability to hire and retain key leadership and other personnel, prevent new products and services from being developed or commercialized in a timely manner or otherwise prevent those agencies from performing normal business functions on which the operation of our business may rely, which could negatively impact our business.
The ability of the FDA to review and approve new products can be affected by a variety of factors, including government budget and funding levels, ability to hire and retain key personnel and accept the payment of user fees, and statutory, regulatory, and policy changes. Average review times at the agency have fluctuated in recent years as a result. In addition, government funding of the SEC and other government agencies on which our operations may rely, including those that fund research and development activities is subject to the political process, which is inherently fluid and unpredictable.
Disruptions at the FDA and other agencies may also slow the time necessary for new drugs to be reviewed and/or approved by necessary government agencies, which would adversely affect our business. For example, over the last several years, including beginning on December 22, 2018, the U.S. government has shut down several times and certain regulatory agencies, such as the FDA and the SEC, have had to furlough critical FDA, SEC and other government employees and stop critical activities. If a prolonged government shutdown occurs, it could significantly impact the ability of the FDA to timely review and process our regulatory submissions, which could have a material adverse effect on our business. Further in our operations as a public company, future government shutdowns could impact our ability to access the public markets and obtain necessary capital in order to properly capitalize and continue our operations.
Risks Related to Our Common Stock
Shares of our common stock can be relatively illiquid which may affect the trading price of our common stock.
For the year ended December 31, 2018, the average daily trading volume of our common stock on the Nasdaq Global Select Market was approximately 518,868 shares. As a result of our relatively small public float, our common stock may be less liquid than the stock of companies with broader public ownership. Among other things, trading of a relatively small volume of our common stock may have a greater impact on the trading price for our shares than would be the case if our public float were larger.
We have not paid dividends to our common stockholders in the past nor do we expect to pay dividends in the foreseeable future, and any return on investment may be limited to potential future appreciation on the value of our common stock.
We currently intend to retain any future earnings to support the development and expansion of our business and do not anticipate paying cash dividends in the foreseeable future. Our payment of any future dividends will be at the discretion of our Board of Directors after taking into account various factors, including without limitation, our financial condition, operating results, cash needs, growth plans and the terms of any credit agreements that we may be a party to at the time. To the extent we do not pay dividends, our stock may be less valuable because a return on investment will only occur if and to the extent our stock price appreciates, which may never occur. In addition, investors must rely on sales of their common stock after price appreciation as the only way to realize their investment, and if the price of our stock does not appreciate, then there will be no return on investment. Investors seeking cash dividends should not purchase our common stock.
If we fail to comply with the reporting obligations of the Exchange Act and Section 404 of the Sarbanes-Oxley Act of 2002, or if we fail to achieve and maintain adequate disclosure controls and procedures and internal control over financial reporting, our business results of operations and financial condition, and investors’ confidence in us, could be materially adversely affected.
As a public company, we are required to comply with the periodic reporting obligations of the Exchange Act including preparing annual reports, quarterly reports and current reports. We did not timely file our Quarterly Report on Form 10-Q for the quarter ended September 30, 2018, which quarterly report was filed on December 12, 2018. Our failure to prepare and disclose this information in a timely manner could subject us to penalties under federal securities laws, expose us to lawsuits and restrict our ability to access financing. In addition, we are required under applicable law and regulations to integrate our systems of disclosure controls and procedures and internal control over financial reporting. Our management assessed our existing disclosure controls and procedures as of December 31, 2018, and our management concluded that our disclosure controls and procedures were not effective as of December 31, 2018, solely because of the material weaknesses in our internal control over financial reporting described herein in Item 9A(ii).
If we fail to achieve and maintain the adequacy of our disclosure controls and procedures and internal control over financial reporting, we may not be able to ensure that we can conclude that we have effective disclosure controls and procedures and internal control over financial reporting in accordance with the Sarbanes-Oxley Act of 2002. Moreover, effective disclosure controls and procedures and internal control over financial reporting are necessary for us to produce reliable financial reports and are important to help prevent fraud. As a result, our failure to satisfy the requirements of Section 404 of the Sarbanes-Oxley Act of 2002 on a timely basis could result in the loss of investor confidence in the reliability of our financial statements, which in turn could harm our business and negatively impact the trading price of our common stock.
Our principal stockholders, directors and executive officers own a significant percentage of our stock and will be able to exercise significant influence over our affairs.
Our current principal stockholders, directors and executive officers own in the aggregate a significant portion of the voting power of our capital stock. As a result, these stockholders, if acting together, would be able to influence or control matters requiring approval by our stockholders, including the election of directors and the approval of mergers, acquisitions or other extraordinary transactions. They may also have interests that differ from yours and may vote in a way with which you disagree and which may be adverse to your interests. This concentration of ownership may have the effect of delaying, preventing or deterring a change of control of our company, could deprive our stockholders of an opportunity to receive a premium for their common stock as part of a sale of our company and might ultimately affect the market price of our common stock.
Due to the concentration of common stock owned by significant stockholders, the sale of such stock might adversely affect the price of our common stock.
Our largest stockholders own shares of common stock that have been registered for resale under the Securities Act. The sale of such stock, depending on the interplay of numerous factors, including, without limitation, the method and timing of the sales, could substantially depress the value of our common stock. If such stockholders sold a significant amount of stock it could have an adverse effect on the price of the stock.
Our stock price is, and we expect it to remain, volatile and subject to wide fluctuations, which may make it difficult for stockholders to sell shares of common stock at or above the price for which they were acquired.
Our stock price is, and we expect it to remain, volatile, which could limit investors’ ability to sell stock at a profit. During the last two fiscal years, our stock price has closed at a low of $1.13 in the fourth quarter of 2018 and a high of $9.54 in the second quarter of 2017. The volatile price of our stock makes it difficult for investors to predict the value of their investment, to sell shares at a profit at any given time, or to plan purchases and sales in advance. A variety of factors may affect the market price of our common stock. These include, but are not limited to:
•publicity regarding actual or potential clinical results relating to products under development by our competitors or us;
•delay or failure in initiating, completing or analyzing nonclinical or clinical trials or the unsatisfactory design or results of these trials;
•achievement or rejection of regulatory approvals by our competitors or us;
•announcements of technological innovations or new commercial products by our competitors or us;
•developments concerning proprietary rights, including patents;
•developments concerning our collaborations;
•regulatory developments in the U.S. and foreign countries;
•economic or other crises in the markets in which we compete, and other external factors;
•stock market price and volume fluctuations of other publicly traded companies and, in particular, those that are in the cosmetic, pharmaceutical and consumer products industry;
•actual or anticipated sales of our common stock, including sales by our directors, officers or significant stockholders;
•period-to-period fluctuations in our revenues and other results of operations; and
•speculation about our business in the press or the investment community.
In the past, securities class action litigation has often been instituted against companies following periods of volatility in their stock price. This type of litigation, even if it does not result in liability for us, could result in substantial costs to us and divert management’s attention and resources.
If we fail to meet the continued listing standards of the Nasdaq Global Select Market, our common stock could be delisted and our liquidity and stock price could suffer.
Our common stock is listed on the Nasdaq Global Select Market, a national securities exchange, which imposes continued listing requirements with respect to listed shares. On November 13, 2018, we received a notification letter from The Nasdaq Stock Market advising that, because we did not timely file our Quarterly Report on Form 10-Q for the period ended September 30, 2018, we were not in compliance with Listing Rule 5250(c)(1), which requires timely filing of all required periodic financial reports with the SEC. While we regained compliance with Listing Rule 5250(c)(1) on December 12, 2018, if in the future we fail to meet this or any other continued listing standard of the Nasdaq Global Select Market, our common stock could be delisted and our stock price could suffer. A delisting of our shares of common stock could negatively impact us by further reducing the liquidity and market price of our shares of common stock and the number of investors willing to hold or acquire our shares of common stock, which could negatively impact our ability to raise equity financing.
Risks Related to our Notes and Credit Facilities
We may not have the ability to raise the funds necessary to settle conversions of the Notes, purchase the Notes as required pursuant to the terms of the indenture governing the Notes or pay the redemption price for any Notes we redeem, and our future debt may contain limitations on our ability to pay cash upon conversion or repurchase of the Notes.
On December 16, 2014, we completed the sale of $125 million aggregate principal amount of our 3.75% Convertible Senior Notes due 2019, or the 2019 Notes, to Deutsche Bank Securities Inc. and J.P. Morgan Securities LLC as the initial purchasers and on December 22, 2014, we issued to the initial purchasers an additional $18.75 million aggregate principal amount of the
Notes. On May 1, 2018, we entered into separate, privately negotiated exchange agreements with certain holders of the Notes to exchange an aggregate principal amount of approximately $75 million of the 2019 Notes in exchange for an equal amount of our 4.75% Convertible Senior Notes due 2023, or the 2023 Notes (together with the 2019 Notes, the “Notes”). Pursuant to the terms of the indentures governing the Notes, following certain events, holders of Notes will have the right to require us to purchase their Notes for cash. Such event may also constitute an event of default or prepayment under, and result in the acceleration of the maturity of, our then-existing indebtedness. We cannot assure you that we will have sufficient financial resources, or will be able to arrange financing, to pay the purchase price in cash with respect to any Notes surrendered by holders for purchase at that time, make cash payments upon conversions or pay the redemption price for any Notes we redeem. In addition, restrictions in our then existing credit facilities or other indebtedness, if any, may not allow us to purchase the Notes (even if required pursuant to the terms of the indentures), make cash payments upon conversions of the Notes or pay the redemption price for any Notes we redeem would result in an event of default with respect to the Notes which could, in turn, constitute a default under the terms of our other indebtedness, if any. If the repayment of the related indebtedness were to be accelerated after any applicable notice or grace periods, we may not have sufficient funds to repay the indebtedness and purchase the Notes, make cash payments upon conversions thereof or pay the redemption price for any Notes we redeem.
Our substantial indebtedness could materially adversely affect our business, financial condition or results of operations and prevent us from fulfilling our obligations under the Notes.
As of December 31, 2018, our total consolidated indebtedness was $175.8 million. Our substantial level of indebtedness coupled with our net loss increases the possibility that we may be unable to generate cash sufficient to pay, when due, the principal of, interest on, or other amounts due in respect of our indebtedness. Our substantial indebtedness, combined with our other financial obligations and contractual commitments, may have a material adverse impact on us. For example, it could
•make it difficult for us to satisfy our obligations with respect to our outstanding and other future debt obligations;
•increase our vulnerability to general adverse economic conditions or a downturn in the industries in which we operate;
•impair our ability to obtain additional financing in the future for working capital, investments, acquisitions and other general corporate purposes;
•require us to dedicate a substantial portion of our cash flows to the payment to our financing sources, thereby reducing the availability of our cash flows to fund working capital, investments, acquisitions and other general corporate purposes; and
•place us at a disadvantage compared to our competitors.
Servicing our debt requires a significant amount of cash, and we may not have sufficient cash flow from our business to pay our debt.
Our ability to make scheduled payments of the principal of, to pay interest on, to pay any cash due upon conversion of or to refinance our indebtedness, including the Notes and New Senior Credit Facilities, depends on our future performance, which is subject to economic, financial, competitive and other factors beyond our control. Our business may not continue to generate cash flow from operations in the future sufficient to service our debt and make necessary capital expenditures. If we are unable to generate such cash flow, we may be required to adopt one or more alternatives, such as selling assets, restructuring debt or obtaining additional equity capital on terms that may be onerous or highly dilutive. Our ability to refinance our indebtedness will depend on the capital markets and our financial condition at such time. We may not be able to engage in any of these activities or engage in these activities on desirable terms, which could result in a default on our debt obligations.
To the extent we issue shares of our common stock to satisfy all or a portion of our conversion obligation, conversions of the Notes will dilute the ownership interest of our existing stockholders, including holders who had previously converted their Notes.
The holders of our Notes can require us, under certain circumstances, to convert their Notes. We have the option to satisfy this conversion obligation with cash, shares of our common stock or a combination of cash and466,274 shares of our common stock at
an exercise price of $1.62 per share, with one-third of the common stock underlying such options to vest ratably over the next three anniversaries of the date of grant, starting on February 19, 2020. Mr. Finio, our
election. To the extent we issueChief Financial Officer, received options to purchase up to 184,844 shares of our common stock
to satisfy all or a portionat an exercise price of
our conversion obligation, the conversion of some or all$1.62 per share, with one-third of the
Notes will dilutecommon stock underlying such options to vest ratably over the
ownership interestsnext three anniversaries of
the date of grant, starting on February 19, 2020. Mr. Wilson, our
existing stockholders. Any sales in the public marketformer General Counsel, received options to purchase up to 193,712 shares of our common stock
issuableat an exercise price of $1.62 per share, with one-third of the common stock underlying such options to vest ratably over the next three anniversaries of the date of grant, starting on February 19, 2020. To the extent not already vested, Mr. Grenfell-Gardner’s equity vested in full and became fully exercisable upon
his resignation on February 4, 2020 To the extent not already vested, Mr. Wilson forfeited any unvested equity upon his resignation on December 30, 2019.Narrative Disclosure to Summary Compensation Table and Grants of Plan-Based Awards Table
Employment Agreements with Executive Officers
Chief Executive Officer. Timothy B. Sawyer joined Teligent as our Chief Executive Officer and entered into an employment agreement, effective February 4, 2020 (the “CEO Employment Agreement”). Under the CEO Employment Agreement, Mr. Sawyer is entitled to an annual base salary of $480,000.Mr. Sawyer is also eligible to receive an annual performance bonus for each calendar year during the term of his employment, which may be payable in either cash, stock options and/or restricted stock, provided Mr. Sawyer is employed on December 31 of such conversion could adversely affect prevailing market pricesfiscal year. Mr. Sawyer’s target annual performance bonus will be equal to 85% of his base salary then-in effect for the applicable fiscal year. The amount of any such annual performance bonus shall be determined by the Organization and Compensation Committee of the Board of Directors in their discretion, with reference to Mr. Sawyer’s fulfillment of performance goals established by the Organization and Compensation Committee of our Board of Directors.
In connection with the entry into the CEO Employment Agreement, Mr. Sawyer received a one-time grant of non-qualified stock options to purchase 1,500,000 shares of common stock. In addition,stock, $0.01 par value per share, as an “inducement grant” under the existencerules of the Notes may encourage short selling by market participants becauseNasdaq Stock Market. The options will vest according to the conversionfollowing schedule: one-fourth of the Notes could depress the price of our common stock.
Our abilityshares subject to make scheduled payments and satisfy our other obligations pursuant to our Senior Credit Facility dependssuch award shall vest on our future operating performance and on economic, financial, competitive, and other factors beyond our control.
On December 13, 2018, pursuant to a previously disclosed commitment letter by and between us and Ares Management LLC, we entered into: (i) a First Lien Revolving Credit Agreement, by and among us, as the borrower, certain subsidiaries of ours, as guarantors, the lenders from time to time party thereto, and ACF Finco I LP, as administrative agent (the “Revolver Credit Agreement”) and (ii) a Second Lien Credit Agreement, by and among us, as the borrower, certain subsidiaries of ours, as guarantors, the lenders from time to time party thereto, and Ares Capital Corporation, as administrative agent (the “Second Lien Credit Agreement” and, together with the Revolver Credit Agreement, the “Senior Credit Facilities”). The Senior Credit Facilities consist of a $25.0 million senior revolving credit facility governed by a Revolver Credit Agreement, a $50.0 million second lien initial term, a $30.0 million second lien delayed draw term loan A and a $15.0 million second lien delayed draw term loan B. The interest rate under the revolver is calculated at either the one, two, three or six-month London Inter-Bank Offered Rate, or LIBOR plus 3.75%, or the base rate plus 2.75%. The interest rate on the new term loans is calculated at either LIBOR plus 8.75% or the base rate plus 7.75%.
We may not generate sufficient cash flow from operations to cover required interest and principal payments, which could result in an event of default and acceleration of our obligations under these agreements, which may require us to seek additional financing or restructure existing debt on unfavorable terms. In addition, adverse changes in credit markets could increase our cost of borrowing and make it more difficult for us to obtain financing.
Restrictive covenants in our Senior Credit Facilities may interfere with our ability to obtain additional advances under existing credit facilities or to obtain new financing or to engage in other business activities.
Our Senior Credit Facilities contain certain affirmative, negative, and financial covenants, including cross-defaults on other material indebtedness, as well as events of default triggered by a change of control and certain actions initiated by the FDA. In addition, we are required to comply with certain financial covenants consisting of a minimum revenue test, a minimum adjusted EBITDA test and a maximum total net leverage ratio.
These restrictions may interfere with our ability to obtain additional advances under our credit facilities or to obtain restrictions may interfere with our ability to obtain additional advances under existing credit facilities or to obtain new financing or to engage in other business activities, which may inhibit our ability to grow our business and increase revenue. In addition, If an event of default occurs, the lenderseach of the
revolver would be entitledfirst, second, third and fourth anniversaries of the effective date of the CEO Employment Agreement.Either party may terminate Mr. Sawyer’s employment at any time, provided that Mr. Sawyer shall provide 30 days’ written notice to take enforcement actions, including foreclosure on collateral and accelerationthe Company of amounts owed under the revolver, and the lenders under the new term loans wouldany such termination.
Mr. Sawyer is also be entitled to take such actions, subject to any limitationscertain restrictive covenants as set forth in the CEO Employment Agreement, including confidentiality, non-solicitation and non-competition covenants. Mr. Sawyer also agrees to assign certain intellectual property to the Company. Mr. Sawyer is also entitled to participate in certain of the Company’s benefit programs on the same terms and conditions generally provided by the Company to its executive employees.
Former President and Chief Executive Officer. Jason Grenfell-Gardner joined Teligent as our President and Chief Executive Officer and entered into an inter creditoremployment agreement, effective July 30, 2012 (the “Grenfell-Gardner Employment Agreement”). Under the Grenfell-Gardner Employment Agreement, Mr. Grenfell-Gardner was entitled to an annual base salary of $315,000, which was increased in 2017 in accordance with terms of the Grenfell-Gardner Employment Agreement to $459,638.Mr. Grenfell-Gardner was also eligible to receive an annual performance bonus for each calendar year during the term of his employment, which was payable in either cash, stock options and/or restricted stock, provided Mr. Grenfell-Gardner was employed on December 31 of such fiscal year. Mr. Grenfell-Gardner’s target annual performance bonus was equal to 70% of his base salary then-in effect for the applicable fiscal year. The amount of any such annual performance bonus was to be determined by the Organization and Compensation Committee of the Board of Directors in their discretion, with reference to Mr. Grenfell-Gardner’s fulfillment of performance goals established by the Organization and Compensation Committee of our Board of Directors.
In connection with the entry into the Grenfell-Gardner Employment Agreement, Mr. Grenfell-Gardner received (i) 325,000 shares of restricted stock (the “Restricted Stock Award”), (ii) an option to purchase 975,000 shares of the Company’s common stock at an exercise price of $1.02 per share (the “Primary Option”) and (iii) a supplemental option to purchase 50,000 shares of the Company’s common stock (the “Supplemental Option”). The Restricted Stock Award and the Primary Option are subject to and governed by the terms of the 2009 Plan and a restricted stock award agreement and stock option award agreement, respectively. The Supplemental Option is subject to and governed by the terms of the 2009 Plan and stock option award agreements. To the extent not already vested, all of Mr. Grenfell-Gardner’s equity vested in full and became fully exercisable upon his resignation on February 4, 2020.
Either party was entitled to terminate Mr. Grenfell-Gardner’s employment at any time, provided that Mr. Grenfell-Gardner was required to provide 30 days’ written notice to the Company of any such termination.
Mr. Grenfell-Gardner was also subject to certain restrictive covenants as set forth in the Grenfell-Gardner Employment Agreement, including confidentiality, non-solicitation and non-competition covenants. Mr. Grenfell-Gardner also agreed to assign certain intellectual property to the Company. Mr. Grenfell-Gardner was also entitled to participate in certain of the Company’s benefit programs on the same terms and conditions generally provided by the Company to its executive employees.
Chief Financial Officer.Mr. Finio joined Teligent as our Chief Financial Officer and Corporate Secretary pursuant to an employment agreement, dated January 2, 2018 (the “CFO Employment Agreement”). Under the CFO Employment Agreement, Mr. Finio receives an annual base salary of $331,500 which is subject to annual review by the Company. He also received a one-time sign-on bonus of $100,000 in cash. Mr. Finio is also eligible to receive an annual performance bonus for each calendar year during the term of his employment, which may be payable in either cash, stock options and/or restricted stock, provided Mr. Finio is employed on December 31 of such fiscal year. Mr. Finio’s target annual performance bonus will be equal to 45% of his base salary then in effect for the applicable fiscal year. The amount of any such annual performance bonus shall be determined by the Organization and Compensation Committee of the Board of Directors in their discretion, with reference to Mr. Finio’s fulfillment of performance goals established by the Board of Directors or any committee with respect to the new term loans, whichapplicable fiscal year.
In connection with entering into the CFO Employment Agreement, Mr. Finio received a one-time grant of 30,000 RSUs and incentive stock options to purchase 125,000 shares of common stock. The RSUs and options are governed by the terms of the 2016 Plan and will vest according to the following schedule: one-third of the shares subject to such awards shall vest on each of the first, second and third anniversaries of the effective date of the CFO Employment Agreement. In addition, any options or restricted stock that remain unvested immediately prior to a change in each case could havecontrol, as defined below, will immediately vest, provided that Mr. Finio remains in continuous service with the Company through the consummation of that change in control.
On January 3, 2020, pursuant to a material adverse effect on our business, financial condition and results of operations.
We will continue to have the ability to incur debt; if we incur substantial additional debt, these higher levels of debt may affect our ability to pay the principal of and interest on the Notes and the Senior Credit Facilities.
We and our subsidiaries may be able to incur substantial additional debtRetention Bonus Program for certain key employees, Mr. Finio was awarded a retention bonus in the
future,amount of $37,294 payable on June 30, 2020 provided Mr. Finio is employed as Chief Financial Officer of the Company on such date. On February 4, 2020, Mr. Finio received a grant of incentive stock options to purchase 250,000 shares of common stock at an exercise price equal to $0.39 per share. The options are governed by the terms of the 2016 Plan and will vest according to the following schedule: one-third of the shares subject to
such awards shall vest on yearly basis beginning February 4, 2021. On March 2, 2020, based on Mr. Finio’s increased responsibilities, (i) his annual base salary was increased to $360,000, (ii) his target annual performance bonus was increased to 50% of his base salary, (iii) he was awarded an additional retention bonus of $37,294 payable on September 30, 2020 provided he is employed as Chief Financial Officer of the
restrictions contained in our debt instruments, someCompany on such date and (iv) he received a grant of
whichincentive stock options to purchase 263,580 shares of common stock at an exercise price equal to $0.44 per share. The options are governed by the terms of the 2016 Plan and will vest according to the following schedule: one-third of the shares subject to such awards shall vest on yearly basis beginning on March 2, 2021.Either party may be secured debt. The indenture governingterminate Mr. Finio’s employment at any time, provided that Mr. Finio shall provide 30 days’ written notice to the Notes does not restrict our abilityCompany of any such termination.
Mr. Finio is also subject to incur additional indebtedness or require us to maintain financial ratios or specified levels of net worth or liquidity. If we incur substantial additional indebtednesscertain restrictive covenants as set forth in the future, these higher levels of indebtedness may affect our abilityCFO Employment Agreement, including confidentiality, non-solicitation and non-competition covenants. Mr. Finio also agrees to payassign certain intellectual property to the principal of and interest on the Notes, or any fundamental change purchase price or any cash due upon conversion,Company. Mr. Finio is also entitled to pay the principal of and interest on our Senior Credit Facilities, and our creditworthiness generally.
Item 1B. UNRESOLVED STAFF COMMENTS
None.
Item 2. PROPERTIES
The Company’s executive administrative offices are locatedparticipate in Buena, New Jersey, in two facilities now totaling approximately 110,000 square feet with the expansion of the facility completed in the fourth quarter of 2018 is built on 8.44 acres of land in 1995, which we own. In 2017 we acquired an additional 3.0 acres of adjacent land in support of our facility expansion. We now own a total of 11.44 acres at our Buena facility. One of those facilities is used for production, product development, marketing and warehousing for our own generic prescription pharmaceutical products and pharmaceutical, cosmeceutical and cosmetic products. In July 2016, the Company completed the first phase of the facility expansion in the Buena, New Jersey location. The facility now houses our new product development laboratory for work on topical and sterile pharmaceuticals. The other facility
is currently being expanded to increase our manufacturing capacity for topical products, and will also enable the production of sterile injectable products in both vial and ampule presentations. We lease additional square feet of warehouse space as needed in Vineland, New Jersey, lease approximately 9,500 square feet of corporate office space in Iselin, New Jersey, and lease approximately 4,000 square feet of office space in Mississauga, Canada. The Company also leases approximately 3,000 square feet of office and laboratory space in Tallinn, Estonia.
Item 3. LEGAL PROCEEDINGS
To date, twelve putative class action antitrust lawsuits have been filed against the Company along with co-defendants, including Taro Pharmaceuticals U.S.A., Inc. and Perrigo New York Inc., regarding the pricing of generic econazole nitrate cream (“econazole”). The class plaintiffs seek to represent nationwide or state classes consisting of persons who directly purchased, indirectly purchased, paid and/or reimbursed patients for the purchase of generic econazole from July 1, 2014 until the time the defendants’ allegedly unlawful conduct ceased or will cease. The class plaintiffs seek treble damages for alleged overcharges for econazole during the alleged period of conspiracy, and certain of the class plaintiffs also seek injunctive relief againstCompany’s benefit programs on the defendants. All actions have been consolidated by the Judicial Panel on Multidistrict Litigation to the Eastern District of Pennsylvania for pre-trial proceedings as part of the In re Generic Pharmaceuticals Pricing Antitrust Litigation matter. On October 16, 2018 the court dismissed the class plaintiffs’ claims against the Company with leave to replead. On December 21, 2018 the class plaintiffs filed amended complaints, which the Company moved to dismiss on February 21, 2019. This motion remains pending.
Three “opt-out” antitrust lawsuits have additionally been filed against the Company by Humana Inc.; The Kroger Co. et al.;same terms and
United HealthCare Services, Inc., and consolidated into the In re Generic Pharmaceuticals Pricing Antitrust Litigation matter by the Judicial Panel on Multidistrict Litigation. Each of the opt-out complaints names between thirty-six and forty-three defendants (including the Company) and involves allegations regarding the pricing of econazole along with between twenty-four and twenty-nine other drug products that were not manufactured or soldconditions generally provided by the Company
to its executive employees.Former General Counsel. Martin Wilson joined Teligent as our General Counsel pursuant to an employment agreement, effective March 31, 2017 (the “GC Employment Agreement”). Under the GC Employment Agreement, Mr. Wilson received an annual base salary of $300,000. Mr. Wilson was also eligible to receive an annual performance bonus for each fiscal year during the period at issue. The opt-out plaintiffs seek treble damages for alleged overchargesterm of his employment, which was payable in either cash, stock options and/or restricted stock, provided Mr. Wilson was employed on December 31 of such fiscal year. Mr. Wilson’s target annual performance bonus was equal to 40% of his base salary then in effect for the drug products identified inapplicable fiscal year. The amount of any such annual performance bonus was determined by the complaint duringBoard of Directors or the alleged period of conspiracy,Organization and twoCompensation Committee of the complaints also seek injunctive relief. A motionBoard of Directors in their discretion, with reference to dismissMr. Wilson’s fulfillment of performance goals established by the Humana Inc.Organization and The Kroger Co., et al. opt-out complaints was filed on February 21, 2019. A motion to dismiss the United HealthCare Services, Inc. opt-out complaint has not yet been filed.
DueCompensation Committee with respect to the
early stageapplicable fiscal year.In connection with his appointment, on April 25, 2017, Mr. Wilson received (i) a grant of these cases, we are unableincentive stock options to form a judgment at this time as to whether an unfavorable outcome is either probable or remote or to provide an estimate of the amount or range of potential loss. We believe these cases are without merit, and we intend to vigorously defend against these claims.
On October 20, 2017, a Demand for Arbitration was filed with the American Arbitration Association by Stayma Consulting Services, Inc. (“Stayma”) against the Company regarding the Company’s development and manufacture for Stayma of two generic drug products, one a lotion and one a cream, containing 0.05% of the active pharmaceutical ingredient flurandrenolide. The Company developed the two products and Stayma purchased commercial quantities of each; however, Stayma alleges that the Company breached agreements between the parties by developing an additional and different generic drug product, an ointment, containing flurandrenolide, and failing to meet certain contractual requirements. Stayma seeks monetary damages. Because discovery in this matter is ongoing, the Company is unable to form a judgment at this time as to whether an unfavorable outcome is either probable or remote or to provide an estimate of the amount or range of potential loss. The Company believes this case is without merit, and the Company intends to vigorously defend against these claims. The Company filed three counter-claims against Stayma for its failure to pay several past due invoices of approximately $1.7 million relating to the development and commercial supply of the two subject products and for breaching the confidentiality provisions and exclusivity provisions of the parties’ agreements.
On December 13, 2018, Valdepharm SA filed a lawsuit alleging that the Company breached contracts regarding two drug products that the Company had sought to have Valdepharm manufacture. On February 12, 2019 the Company answered the complaint and counterclaimed, alleging that Valdepharm breached the contracts by failing to perform its work in compliance with FDA regulations and current Good Manufacturing Practices. Each party seeks damages associated with the alleged breach and related claims. Due to the early stage of the case we are unable to form a judgment at this time as to whether an unfavorable outcome is either probable or remote or to provide an estimate of the amount or range of potential loss. We believe the claims against Teligent are without merit, and we intend to vigorously defend against them.
Item 4. MINE SAFETY DISCLOSURES
Not applicable.
PART II
Item 5.MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
Market Information
We transferred the listing of our common stock from the NYSE MKT to the NASDAQ Global Select Market. Our common stock ceased trading on the NYSE MKT under the symbol “IG” at the close of business on October 23, 2015 and began trading on the Nasdaq Global Select Market under the symbol “TLGT” on October 26, 2015.
Stockholders
As of March 25, 2019, there were approximately 345 stockholders of record of our 53,845,427 outstandingpurchase 40,000 shares of common stock.
Dividends
We havestock at an exercise price equal to $8.15 and (ii) 15,000 RSUs.One-third of the shares underlying such derivative securities was scheduled to vest ratably on an annual basis beginning on April 25, 2018. On March 22, 2018, Mr. Wilson received: (i) a grant of incentive stock options to purchase 22,105 shares of common stock at an exercise price equal to $3.53 and (ii) 11,052 RSUs.One-third of the shares underlying such derivative securities was scheduled to vest ratably on an annual basis beginning on March 22, 2019.To the extent not
paid cash dividendsalready vested, Mr. Wilson forfeited any unvested equity upon his resignation on December 30, 2019.Either party was entitled to our stockholders since inception and we do not planterminate Mr. Wilson’s employment at any time, provided that Mr. Wilson was required to pay cash dividendsprovide 30 days’ written notice to the Company of any such termination.
Mr. Wilson was also subject to certain restrictive covenants as set forth in the foreseeable future. We currently intendGC Employment Agreement, including confidentiality, non-solicitation and non-competition covenants. Mr. Wilson also agreed to retain earnings, if any,assign certain intellectual property to finance the growthCompany. Mr. Wilson was also entitled to participate in certain of the Company.Company’s benefit programs on the same terms and conditions generally provided by the Company to its executive employees.
Outstanding Equity Compensation Plans
Awards at 2019 Fiscal Year-EndThe information required by Item 5following table shows grants of Form 10-K regarding equity compensation plans is incorporated herein by reference to Item 12stock options and grants of Part III of this Annual Report.
Unregistered Sales of Securities
None.
Issuer Purchases of Equity Securities
None.
Item 6. SELECTED FINANCIAL DATA
As discussed in Note 1, Correction of Previously Issued Consolidated Financial Statements, inunvested stock awards outstanding on the Company’s consolidated financial statements included in Item 8, the consolidated financial statementslast day of the Company for years ended December 31, 2017 and 2016 have been revised to give effect to the correction of certain immaterial accounting errors described therein. Accordingly, the 2017 and 2016 selected consolidated financial data presented in the table below has been revised to give effect to the correction of these immaterial accounting errors, as derived from the Company's audited consolidated financial statements included in Item 8. In addition, the immaterial accounting errors discussed in Note 1 originated prior to fiscal year 2016 and as such, the 2015 and 2014 selected consolidated financial data presented in the table below has also been revised to give effect to the correction of these immaterial accounting errors. The revised selected consolidated financial data presented below should be read in conjunction with the Company's consolidated financial statements included in Item 8 and "Management's Discussion and Analysis of Financial Condition and Results of Operations," included in Item 7.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | As of and For the Years Ended December 31, | | | | | | | | |
| | 2018 | | 2017 | | 2016 | | 2015 | | 2014 |
| (In thousands, except per share data) | | | | | | | | | | |
| Revenues | | $ | 65,865 | | $ | 60,202 | | $ | 63,012 | | $ | 37,940 | | $ | 30,647 |
| Gross profit | | 22,385 | | 27,372 | | 34,687 | | 21,315 | | 16,972 |
| Operating (loss) income | | (15,099) | | (11,797) | | 2,542 | | (3,192) | | 3,906 |
| Interest and other non-operating income (expense) | | (21,219) | | (3,479) | | (14,240) | | 9,895 | | 1,518 |
| Foreign currency exchange (loss) gain | | (3,371) | | 7,719 | | (936) | | 109 | | — |
| Loss before income tax expense | | (36,318) | | (15,276) | | (11,698) | | 6,703 | | 5,424 |
| Income tax (benefit) provision | | (62) | | (85) | | 287 | | 35 | | 173 |
| Net (loss) income | | (36,256) | | (15,191) | | (11,985) | | 6,668 | | 5,251 |
| | | | | | | | | | |
| Net (loss) income attributable to common stockholders | | (36,256) | | (15,191) | | (11,985) | | 6,668 | | 5,251 |
| Weighted average shares outstanding: | | | | | | | | | | |
| Basic | | 53,593 | | 53,324 | | 53,078 | | 52,873 | | 49,818 |
| Diluted | | 53,593 | | 53,324 | | 53,078 | | 67,112 | | 64,207 |
| PER SHARE: | | | | | | | | | | |
| Net (loss) income: | | | | | | | | | | |
| Basic | | (0.68) | | (0.28) | | (0.23) | | 0.13 | | 0.11 |
| Diluted | | (0.68) | | (0.28) | | (0.23) | | (0.07) | | 0.09 |
| | | | | | | | | | |
| | | | | | | | | | |
| | | | | | | | | | |
| BALANCE SHEET DATA: | | | | | | | | | | |
| Current assets | | $ | 48,386 | | $ | 59,131 | | $ | 101,965 | | $ | 115,542 | | $ | 176,743 |
| Property, plant and equipment, net | | 91,775 | | 68,355 | | 26,215 | | 8,706 | | 3,262 |
| Total assets | | 190,892 | | 184,585 | | 181,895 | | 183,503 | | 196,603 |
| Current liabilities | | 32,612 | | 18,696 | | 13,632 | | 9,509 | | 12,527 |
| Long-term obligations, less current installments | | 139,859 | | 121,136 | | 111,596 | | 107,235 | | 144,942 |
| Stockholders’ equity | | 18,421 | | 44,753 | | 56,667 | | 66,759 | | 39,134 |
| CASH FLOW DATA: | | | | | | | | | | |
| Net cash (used in) provided by operating activities | | $ | (13,275) | | $ | 398 | | $ | (447) | | $ | (15,459) | | $ | (3,767) |
| Net cash used in investing activities | | (25,294) | | (40,429) | | (20,076) | | (53,068) | | (3,792) |
| Net cash provided by (used in) financing activities | | 25,333 | | 269 | | (10) | | (3,111) | | 164,465 |
| Net (decrease)/increase in cash, cash equivalents and restricted cash | | (13,236) | | (39,762) | | (20,533) | | (71,638) | | 156,906 |
Revenues for the years ended December 31, 2015 and 2014 have been adjusted by $6.3 million and $3.1 million respectively. Current assets, Total assets and Current liabilities as of December 31, 2015 have been adjusted by $1.3 million respectively and Current assets, Total assets and Current
liabilities as of December 31, 2014 have been adjusted by $0.5 million respectively to correct for the immaterial errors described in footnote 1 to the consolidated financial statements.
Item 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Forward-Looking Statements
This “Management’s Discussion and Analysis of Financial Condition and Results of Operation” section and other sections of this Annual Report on Form 10-K contain forward-looking statements that are based on current expectations, estimates, forecasts and projections about the industry and markets in which the Company operates and on management’s beliefs and assumptions. In addition, other written or oral statements, which constitute forward-looking statements, may be made by or on behalf of the Company. Words such as “expects,” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “estimates,” variations of such words and similar expressions are intended to identify such forward-looking statements. These statements are not guarantees of future performance, and involve certain risks, uncertainties and assumptions, which are difficult to predict. See “Item 1A: Risk Factors” above. Therefore, actual outcomes and results may differ materially from what is expressed or forecasted in such forward-looking statements. The Company undertakes no obligation to update publicly any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
As discussed in Note 1, Correction of Previously Issued Consolidated Financial Statements, in the Company’s consolidated financial statements included in Item 8, the Company’s consolidated financial statements for years ended December 31, 2017 and 2016 have been revised to give effect to the correction of certain immaterial accounting errors described therein. Accordingly, the discussion and analysis presented below for the years ended December 31, 2017 and 2016 has also been revised to give effect to the correction of these immaterial accounting errors. The revised discussion and analysis presented below provides information to assist in understanding the Company's financial condition and results of operations and, as such, should be read in conjunction with the Company's consolidated financial statements included in Item 8.
Company Overview
Strategic Overview
Teligent, Inc. and its subsidiaries (collectively the "Company") is a specialty generic pharmaceutical company. Our mission is to become a leader in the specialty generic pharmaceutical market. Under our own label, we currently market and sell generic topical and generic and branded generic injectable pharmaceutical products in the United States and Canada. In the United States we currently market 35 generic topical pharmaceutical products and four branded generic pharmaceutical products. In Canada we sell a total of over 27 generic and branded generic injectable products and medical devices. Generic pharmaceutical products are bioequivalent to their brand name counterparts. We also provide contract manufacturing services to the pharmaceutical, over-the-counter, ("OTC"), and cosmetic markets. We operate our business under one segment. Our common stock is trading on the Nasdaq Global Select Market under the trading symbol “TLGT.” Our principal executive office, laboratories and manufacturing facilities are located at 105 Lincoln Avenue, Buena, New Jersey. We have additional offices located in Iselin, New Jersey, Mississauga, Canada, and Tallinn, Estonia.
Currently, we have two platforms for growth:
•Developing, manufacturing and marketing a portfolio of generic pharmaceutical products in our own label in topical, injectable, complex and ophthalmic dosage forms; and
•Managing our current contract manufacturing and formulation services business.
We have been in the contract manufacturing and development of topical products business since the early 1990s, but our strategy since 2010 has been focused on the growth of our own generic pharmaceutical business. Since 2010, we have focused on transitioning our business to include more customers in the topical pharmaceutical industry. In 2014, we broadened our target product focus from topical pharmaceuticals to include a wider specialty pharmaceutical approach. We believe that expanding our development and commercial base beyond topical generics, to include injectable generics, complex generics and ophthalmic generics (what we call our “TICO strategy”), will leverage our existing expertise and capabilities, and broaden our platform for more diversified strategic growth.
In 2014, we acquired 23 drug products that had been previously approved by the United States Food and Drug Administration, or FDA. Our pipeline includes 20 Abbreviated New Drug Applications ("ANDAs") for additional pharmaceutical products filed with the FDA. We have six abbreviated new drug submissions ("ANDSs") on file with Health Canada. In addition, we have 46
product candidates at various stages of our development pipeline. We expect to continue to expand our presence in the generic pharmaceutical market through the filing of additional ANDAs with the FDA, the filing of applications to Health Canada and the subsequent launch of products as these applications are approved. We will also seek to license or acquire further products, intellectual property, or pending applications to expand our portfolio. On November 13, 2015, we acquired all of the rights, title and interest in the development, production, marketing, import and distribution of all products of Alveda Pharmaceuticals Inc., or Alveda, pursuant to two asset purchase agreements, one relating to the acquisition of all of the intellectual property-related assets of Alveda and the other relating to the acquisition of all other assets of Alveda.
We also develop, manufacture, fill, and package topical semi-solid and liquid products for branded and generic pharmaceutical customers, as well as the OTC and cosmetic markets. These products are used in a wide range of applications from cosmetics and cosmeceuticals to the prescription treatment of conditions like dermatitis, psoriasis, and eczema.
Product and Pipeline Approvals
The following is a summary of approvals received in 2018:
On February 14, 2018, we announced approval of an ANDA for Betamethasone Dipropionate Lotion USP (Augmented), 0.05%. This was our first approval for 2018 and our twentieth approval from our internally-developed pipeline of topical generic pharmaceutical medicines. We launched this product in May of 2018.
On March 21, 2018, we announced approval of an ANDA for Halobetasol Propionate Ointment, 0.05%. This was our second approval for 2018 and our twenty-first approval from our internally-developed pipeline of topical generic pharmaceutical medicines. We launched this product in April of 2018.
On April 6, 2018, we announced approval of an ANDA for Ciclopirox Shampoo, 1%. This was our third approval for 2018 and our twenty-second approval from our internally-developed pipeline of topical generic pharmaceutical medicines. We launched this product in May of 2018.
On April 17, 2018, we announced approval of an ANDA for Clobetasol Propionate Cream USP, 0.05%. This was our fourth approval for 2018 and our twenty-third approval from our internally-developed pipeline of topical generic pharmaceutical medicines. We launched this product in May of 2018.
On June 13, 2018, we announced approval of an ANDA for Diflorasone Diacetate Ointment, 0.05%. This was our fifth approval for 2018 and our twenty-fourth approval from our internally-developed pipeline of topical generic pharmaceutical medicines. We launched this product in August of 2018.
On June 20, 2018, we announced approval of an ANDA for Fluocinonide Gel USP, 0.05%. This was our sixth approval for 2018 and our twenty-fifth approval from our internally-developed pipeline of topical generic pharmaceutical medicines. We launched this product in October 2018.
On July 2, 2018, we announced approval of an ANDA for Lidocaine and Prilocaine Cream USP, 2.5%/2.5%. This was our seventh approval for 2018 and our twenty-sixth approval from our internally-developed pipeline of topical generic pharmaceutical medicines. We launched this product in November of 2018.
On July 24, 2018, we announced approval of an ANDA for Hydrocortisone Cream USP, 2.5%. This was our eighth approval for 2018 and our twenty-seventh approval from our internally-developed pipeline of topical generic pharmaceutical medicines. We expect to launch this product in the third quarter of 2019.
On July 30, 2018, we announced approval of an ANDA for Hydrocortisone Lotion USP, 2.5%. This was our ninth approval for 2018 and our twenty-eighth approval from our internally-developed pipeline of topical generic pharmaceutical medicines. We expect to launch this product in the second quarter of 2019.
On October 2, 2018, we announced approval of an ANDA for Fluocinonide Ointment USP, 0.05%. This was our tenth approval for 2018 and our twenty-ninth approval from our internally-developed pipeline of topical generic pharmaceutical medicines. We launched this product in November of 2018.
On October 17, 2018, we announced approval of an ANDA for Fluocinonide Cream USP, 0.05%. This was our eleventh approval for 2018 and our thirtieth approval from our internally-developed pipeline of topical generic pharmaceutical medicines. We expect to launch this product in the fourth quarter of 2019.
On October 24, 2018, we announced approval of an ANDA for Desoximetasone Ointment USP, 0.05%. This was our twelfth approval for 2018 and our thirty-first approval from our internally-developed pipeline of topical generic pharmaceutical medicines. We expect to launch this product in the first quarter of 2019.
Results of Operations
Fiscal Year ended December 31, 2018 compared to year ended December 31, 2017
We had a net loss of $36.3 million, or $0.68 per share, during the year ended December 31, 2018 ("Current Year") compared to net loss of $15.2 million, or $0.28 per share, during the year ended December 31, 2017 ("Prior Year"). Product Sales, net, include Company Product Sales and Contract Manufacturing Sales, as follows:
Revenues (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Year Ended December 31, | | | | Increase/(Decrease) | | |
| Components of Revenue: | | 2018 | | 2017 | | $ | | % |
| Product sales, net | | $ | 65,638 | | $ | 59,950 | | $ | 5,688 | | 9 | % |
| Research and development services and other income | | 227 | | 252 | | (25) | | (10) | % |
| Total Revenues | | $ | 65,865 | | $ | 60,202 | | $ | 5,663 | | 9 | % |
Total revenues increased 9%, or $5.7 million, to $65.9 million Current Year from $60.2 million Prior Year. The increase was primarily due to (i) increased revenue from the expansion of our own generic pharmaceutical product line of $1.6 million, (ii) increased revenues from our specialty generic injectable portfolio in Canada of $7.0 million, partially offset by (iii) decreased contract manufacturing revenues of $3.0 million.
Research and development services and other income will not be consistent and will vary, from period to period, depending on the required timeline of each development project and/or agreement.
Costs and expenses (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Year Ended December 31, | | | | Increase/(Decrease) | | |
| | | 2018 | | 2017 | | $ | | % |
| Cost of revenues | | $ | 43,480 | | $ | 32,830 | | $ | 10,650 | | 32 | % |
| Selling, general and administrative | | 23,408 | | 19,904 | | 3,504 | | 18 | % |
| Product development and research | | 14,076 | | 19,265 | | (5,189) | | (27) | % |
| Totals costs and expenditures | | $ | 80,964 | | $ | 71,999 | | $ | 8,965 | | 12 | % |
Total costs and expenditures increased 12%, or $9.0 million to $81.0 million in the Current Year from $72.0 million in the Prior Year. Cost of revenues increased as a percentage of total revenue to 66% in the Current Year as compared to 55% in the Prior Year. Cost of revenues increased $10.7 million in the Current Year mainly due to $8.2 million increase from incremental sales volume and $1.9 million increase from incremental material price. Our rapid growth has contributed to some production inefficiencies, as we have expanded our manufacturing footprint and capacity in topical manufacturing and have added sterile manufacturing capabilities to our facility. Cost of revenues included an incremental change in inventory reserves of $1.5 million related to inventory and raw materials that were expected to expire in less than six months.
Selling, general and administrative expenses in the Current Year increased by $3.5 million as compared to the Prior Year. The changes primarily consist of (i) $1.9 million impairment loss in the Current Year as compared to $0.1 million from the Prior year, (ii) $2.5 million incremental professional fees in the Current Year including ongoing legal litigation, and audit fees, partially offset by (iii) a reduction of $1.2 million in bad debt related expenses in the Current Year.
Product development and research expenses decreased by $5.2 million as compared to the Prior Year. As we shift focus from our portfolio of topical generic prescription pharmaceutical products to injectable generic pharmaceutical products with the addition of our new facility, we saw a lower investment in R&D for 2018. This was mainly due to (i) $4.1 million decrease in clinical studies, (ii) $0.7 million decrease in salaries and related costs inclusive of stock based compensation related to options
and restricted stock, (iii) $1.3 million decrease in exhibit and pilot batch costs, partially offset by (iv) $0.6 million increase to overhead costs related to the R&D department as we expand in order to utilize our new facilities and injectable pipeline of products and $0.3 million increase in GDUFA and associated fees.
Other (Expense) Income, net (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Year Ended December 31, | | | | Increase/(Decrease) | | |
| | | 2018 | | 2017 | | $ | | % |
| Interest and other expense, net | | $ | (12,298) | | $ | (11,198) | | $ | 1,100 | | 10 | % |
| Foreign exchange (loss) / gain | | $ | (3,371) | | $ | 7,719 | | $ | 11,090 | | 144 | % |
| Debt partial extinguishment of 2019 Notes | | $ | (4,235) | | $ | — | | $ | 4,235 | | 100 | % |
| Debt extinguishment of 2021 term loan | | $ | (1,315) | | $ | — | | $ | 1,315 | | 100 | % |
| | | | | | | | |
Other (Expense) income, net increased in the Current Year primarily as a result of a $4.2 million loss on debt extinguishment from the 2019 Notes and $1.3 million from the loss on debt extinguishment from the 2021 Term Loan in addition to $1.5 million of interest expense from the 2021 Term loan and $0.5 million of interest expense from the Ares financings partially offset by an increase in capitalized interest of $0.8 million.
Foreign exchange loss of $3.4 million in the Current Year is related to the foreign currency translation of our intercompany loans denominated in U.S. dollars to our foreign subsidiaries to be repaid in November 2022. Depending on the changes in foreign currency exchange rates, we will continue to record a non-cash gain or loss on translation for the remaining term of these loans.
Net loss attributable to common stockholders (in thousands, except per share numbers):
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Year Ended December 31, | | | | Increase/(Decrease) | | |
| | | 2018 | | 2017 | | $ | | % |
| Net loss attributable to common stockholders | | $ | (36,256) | | $ | (15,191) | | $ | 21,065 | | (139) | % |
| Basic and diluted loss per share | | $ | (0.68) | | $ | (0.28) | | $ | 0.40 | | (143) | % |
| | | | | | | | |
Net loss for the Current Year was $36.3 million as compared to net loss of $15.2 million for the Prior Year. The increase is primarily due to increase i) in costs and expenses of $9.0 million, ii) in interest and other expenses of $1.1 million, iii) in foreign exchange loss of $11.1 million, (iv) debt extinguishment losses of $5.5 million, partially offset by an increase in revenues of $5.7 million in the Current Year as discussed above.
Fiscal year ended December 31, 2017 compared to fiscal year ended December 31,
20162019to each of the executive officers named in the Summary Compensation Table.| | | Option Awards | | Stock Awards | |
| Name | | Number of Securities Underlying Unexercised Options (#) Exercisable | | | Number of Securities Underlying Unexercised Options (#) Unexercisable(1) | | | Option Exercise Price ($) | | | Option Expiration Date | | Number of Shares or Units of Stock That Have Not Vested (#)(1) | | | Market Value of Shares or Units of Stock That Have Not Vested ($)(2) | |
| Jason Grenfell-Gardner, | | | 975,000 | | | | – | | | | 1.02 | | | 7/30/22 | | | – | | | | – | |
| Former Chief Executive Officer | | | 25,000 | | | | – | | | | 1.02 | | | 7/30/22 | | | – | | | | – | |
| | | | 25,000 | | | | – | | | | 2.89 | | | 12/30/23 | | | – | | | | – | |
| | | | 180,000 | | | | – | | | | 10.67 | | | 2/11/25 | | | – | | | | – | |
| | | | 42,500 | | | | – | | | | 10.67 | | | 2/11/25 | | | – | | | | – | |
| | | | 56,274 | | | | – | | | | 7.50 | | | 1/26/26 | | | | | | | | |
| | | | 36,302 | | | | 18,151 | | | | 7.09 | | | 2/3/27 | | | 8,854 | | | | 3,807 | |
| | | | 22,135 | | | | 44,271 | | | | 3.53 | | | 3/22/28 | | | 22,135 | | | | 9,518 | |
| | | | – | | | | 466,274 | | | | 1.62 | | | 2/19/29 | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | |
| Damian Finio, | | | 41,666 | | | | 83,334 | | | | 2.85 | | | 2/5/28 | | | 20,000 | | | | 8,600 | |
| Chief Financial Officer | | | – | | | | 184,844 | | | | 1.62 | | | 2/19/29 | | | – | | | | – | |
| | | | – | | | | – | | | | – | | | – | | | – | | | | – | |
| | | | | | | | | | | | | | | | | | | | | | | |
| Martin Wilson, | | | 26,666 | | | | 13,334 | | | | 8.15 | | | 4/25/27 | | | 5,000 | | | | 2,150 | |
| Former General Counsel | | | 7,368 | | | | 14,737 | | | | 3.53 | | | 3/22/28 | | | 7,368 | | | | 3,168 | |
| | | | -- | | | | 193,712 | | | | 1.62 | | | 2/19/29 | | | | | | | | |
| (1) | To the extent not already vested, all of Mr. Grenfell-Gardner’s equity vested in full and became fully exercisable upon his resignation on February 4, 2020. Mr. Finio’s grants of (i) options to purchase up to 125,000 shares of common stock and (ii) 30,000 RSUs each vest over a three-year period in three equal installments beginning on February 5, 2019; Mr. Finio’s grant of options to purchase up to 184,844 shares of common stock vest over a three-year period in three equal installments beginning on February 19, 2020. Mr. Wilson’s grant of options to purchase up to 22,105 shares of common stock and (ii) 10,536 each vest over a three-year period in three equal installments beginning on February 5, 2019. Mr. Wilson has the option to exercise any vested equity until March 29, 2020 and thereafter any unexercised equity will expire. Mr. Wilson forfeited any unvested equity upon his resignation on December 30, 2019. |
| (2) | The market value of the stock awards is determined by multiplying the number of shares by $0.43, the closing price of our common stock on The Nasdaq Stock Market on December 31, 2019, the last day of our fiscal year. |
We had a net loss
Option Exercises and Stock Vested in 2019
The following table shows information regarding exercises of $15.2 million, or $0.28 per share,options to purchase our common stock and vesting of stock awards held by each executive officer named in 2017 compared to net loss of $12.0 million, or $0.23 per share, in 2016.
Revenues (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Year Ended December 31, | | | | Increase/(Decrease) | | |
| Components of Revenue: | | 2017 | | 2016 | | $ | | % |
| Product sales, net | | $ | 59,950 | | $ | 62,035 | | $ | (2,085) | | (3) | % |
| Research and development services and other income | | 252 | | 977 | | (725) | | (74) | % |
| Total Revenues | | $ | 60,202 | | $ | 63,012 | | $ | (2,810) | | (4) | % |
The decrease in product sales for the
Summary Compensation Table during the fiscal year ended December 31,
2017 as compared2019.No executive officer exercised an option to purchase our common stock during the same period in 2016 was primarily due to a decrease in contract manufacturing revenues of $8.0 million, specifically related to a decline in sales to one of our
customers, partially offset by increased revenue from the expansion of our own generic pharmaceutical product line, increased revenue from Lidocaine Hydrochloride topical solution and Zantac injectable and increased revenue from our specialty generic injectable portfolio in Canada.
Research and development services and other income will not be consistent and will vary, from period to period, depending on
the required timeline of each development project and/or agreement.
Costs and expenses (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Year Ended December 31, | | | | Increase/(Decrease) | | |
| | | 2017 | | 2016 | | $ | | % |
| Cost of revenues | | $ | 32,830 | | $ | 28,325 | | $ | 4,505 | | 16 | % |
| Selling, general and administrative | | 19,904 | | 15,005 | | 4,899 | | 33 | % |
| Product development and research | | 19,265 | | 17,140 | | 2,125 | | 12 | % |
| Totals costs and expenditures | | $ | 71,999 | | $ | 60,470 | | $ | 11,529 | | 19 | % |
Cost of revenues increased as a percentage of total revenue to 55% for thefiscal year ended December 31,
2017 as compared2019.
| | | Number of Shares Acquired on Exercise (#) | | | Value Realized on Exercise
($) | | | Number of Shares Acquired on Vesting (#) | | | Value Realized on Vesting ($) | |
| Jason Grenfell-Gardner, | | | – | | | | | | | | 9,379 | | | | 17,539 | (1) |
| Former Chief Executive Officer | | | | | | | | | | | 8,855 | | | | 14,434 | (1) |
| | | | | | | | | | | | 11,068 | | | | 12,839 | (1) |
| | | | | | | | | | | | | | | | | |
| Damian Finio, | | | – | | | | | | | | | | | | | |
| Chief Financial Officer | | | | | | | | | | | 10,000 | | | | 16,100 | (2) |
| | | | | | | | | | | | | | | | | |
| Martin Wilson, | | | – | | | | | | | | 3,684 | | | | 4,273 | (3) |
| Former General Counsel(3) | | | | | | | | | | | 5,000 | | | | 4,350 | (3) |
| (1) | 9,379 shares vested on January 26, 2019 and the value realized is calculated by multiplying the closing price of our common stock on the vesting date ($1.87). 8,855 shares vested on February 3, 2019 and the value realized is calculated by multiplying the closing price of our common stock on the vesting date ($1.63). 11,068 shares vested on March 22, 2019 and the value realized is calculated by multiplying the closing price of our common stock on the vesting date ($1.16). |
| (2) | 10,000 shares vested on February 5, 2019 and the value realized is calculated by multiplying the closing price of our common stock on the vesting date ($1.61). |
| (3) | 3,684 shares vested on March 22, 2019 and the value realized is calculated by multiplying the closing price of our common stock on the vesting date ($1.16). 5,000 shares vested on April 25, 2019 and the value realized is calculated by multiplying the closing price of our common stock on the vesting date ($0.87). |
Pension Benefits
We do not have any qualified or non-qualified defined benefit plans.
Nonqualified Deferred Compensation
We do not have any nonqualified defined contribution plans or other deferred compensation plan.
Potential Payments upon Termination or Change in Control
Set forth below is a description of the potential payments we would have needed to 45% formake upon termination of any of our named executive officers’ employment or upon a change in control of the same periodCompany in 2016. The increase in cost of revenue as a percentage of sales was primarily due toconnection with the increased revenue from our own generic pharmaceutical product line. Increase in cost of sales as a percentage of revenue was driven by new product launches as well as changes in product mix, pricing and related fees, in addition to customer and product mix for our contract services revenue. For thefiscal year ended December 31, 2017, cost of revenues included $0.6 million of costs related2019. Any such payments would be conditioned upon such executive’s execution and delivery to the write offCompany, within 60 days following cessation of inventory related to two presentationsemployment, of our frozen bag products. For the year ended December 31, 2017, costa general release of revenues also included an increaseclaims.
Payments upon Termination of Change in inventory reserves of $0.9 million of costs related to inventory and raw materials that were expected to expire in less than six months. Consistent with our strategy, we have increased headcount in our production and quality groups to support our growth and expansion into injectable manufacturing. Total employee related costs increased by $0.3 million, headcount increased from 87Control at December 31, 2016 to 117 at December 31, 2017. In addition, our rapid growth has contributed to some production inefficiencies, as2019:
Termination by us without cause. If the executive’s employment is terminated by the Company without cause (as defined below), we are expanding our manufacturing footprintrequired to pay (i) their unpaid base salary through the effective date of termination and capacityany reimbursable business expenses; (ii) the executive’s base salary as then in topical manufacturing,effect for a period of six months following termination of employment; and adding sterile manufacturing capabilities at(iii) the existing facility. In addition, costs as a percentage of sales increased as revenue from contract services decreased by $8.0 million as comparedexecutive’s annual performance bonus that would otherwise have been payable to the same period in 2016, and the change in product mix resulted in an increase in costs as a percentage of sales.
Selling, general and administrative expensesexecutive for the year
ended December 31, 2017 increased by $4.9 millionin which the termination occurs, prorated as
comparedof the date of termination. Further, to the
same period in 2016. In 2017, there was an increaseextent then unvested, upon such termination, a pro-rata portion of
$1.4 million in bad debt expense, $1.6 million in professional fees primarily related to increased legal costs associated with twelve putative class action lawsuits filed against us along with others regarding pricing of econazole nitrate cream. In addition, there were increases of $1.3 million in salaries and related costs, $0.4 million in corporate expenses, $0.1 million in recruiting fees, $0.1 million from the
issuance of stock-based compensation related toexecutive’s options and restricted stock
$0.1 millionwill become vested. However, any such payment obligations shall immediately terminate upon a judicial determination that the executive has breached certain confidentiality, non-solicitation, non-competition and/or conflict of interest provisions under their respective employment agreements.Termination for any other reason. If the executive’s employment is terminated by the Company other than without cause (as defined below), including, but limited to, termination for cause, as a result of the executive’s death or disability, or as a result of the executive’s resignation, we are required to pay their unpaid base salary through the effective date of termination.
Payments upon a Change in amortization expense offset byControl. The employment agreements of Mr. Grenfell-Gardner, Mr. Finio and Mr. Wilson provide that, in the event of a decrease“change in control,” provided they remain in continuous service with the Company through the consummation of $0.1 millionsuch change in conferences and seminars.
Product development and research expenses for the year ended December 31, 2017 increased by $2.1 million as compared to the same period in 2016. Consistent with our strategy to expand our portfolio of generic prescription pharmaceutical products, we increased headcount, which resulted in an increase of $1.2 million in salaries and related costs, $0.8 million in clinical studies, $0.5 million in overhead costs, $0.1 million related to the impairment of an intangible asset, $0.1 million in stock based compensation related tocontrol, all unvested options and restricted stock
awarded to them will immediately vest.“Cause,” for purposes of each of the employment agreements, includes (i) commission of a willful and $0.1 millionmaterial act of dishonesty in GDUFA and associated fees. These were partially offsetthe course of the executive’s duties under their respective employment agreements, (ii) conviction by decreasesa court of competent jurisdiction of a crime constituting a felony or conviction in exhibit and pilot batch costsrespect of $0.4 million and consulting feesany act involving fraud, dishonesty or moral turpitude, (iii) the executive’s performance under the influence of $0.3 million.
Other (Expense) Income, net (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Year Ended December 31, | | | | Increase/(Decrease) | | |
| | | 2017 | | 2016 | | $ | | % |
| Interest and other expense, net | | $ | (11,198) | | $ | (13,304) | | $ | (2,106) | | (16) | % |
| Foreign exchange gain/ (loss) | | $ | 7,719 | | $ | (936) | | $ | 8,655 | | 100 | % |
Other (expense) income decreased forcontrolled substances, or continued habitual intoxication, during working hours, after the year ended December 31, 2017 as comparedCompany shall have provided written notice to the same period in 2016. The decrease is relatedexecutive and given the executive 30 days within which to the interest expense, amortization of debt discount and amortization of debt issuance costs of the Notes (see Note
6), partially offset by capitalized interest of $3.6 million related to our facility expansion. Foreign exchange gain of $7.7 million was recorded for the year ended December 31, 2017, primarily related to the foreign currency translation of our intercompany loans denominated in U.S. dollars to our foreign subsidiaries. These loans are to be repaid in November 2022. Depending on the changes in foreign currency exchange rates, we will continue to record a non-cash gain or loss on translation for the remainder of the term of these loans.
Net loss attributable to common stockholders (in thousands, except per share numbers):
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Year Ended December 31, | | | | Increase/(Decrease) | | |
| | | 2017 | | 2016 | | $ | | % |
| Net loss attributable to common stockholders | | $ | (15,191) | | $ | (11,985) | | $ | 3,206 | | 27 | % |
| Basic loss per share | | $ | (0.28) | | $ | (0.23) | | $ | 0.05 | | 22 | % |
| Diluted loss per share | | $ | (0.28) | | $ | (0.23) | | $ | 0.05 | | 22 | % |
Net loss for the year ended December 31, 2017 was $15.2 million as compared to net loss of $12.0 million for the year ended December 31, 2016. The change is due to increases in costs and expenses in 2017 offset by foreign currency exchange gain of $7.7 million.
Liquidity and Capital Resources
Our capital resources were comprised of cash and cash equivalents of $9.7 million and $26.7 million as of December 31, 2018 and December 31, 2017, respectively. We had working capital of $15.8 million at December 31, 2018. Our liquidity needs have typically arisen from the funding of our new manufacturing facility, product manufacturing costs, research and development programscommence rehabilitation with respect thereto, and the launch of new products. Inexecutive shall have failed to commence such rehabilitation or continued to perform under the past, we have met these cash requirements through cash inflows from operations, working capital management,influence after such rehabilitation, (iv) frequent or extended, and proceeds from borrowings discussed in Note 6. Although the construction of our new manufacturing facility was completed in October of 2018, additional investment will be needed to prepare the facility and our employees for a prior approval inspection from the FDA. In addition, we expect to continue to incur significant expenditures for the development of new products in our pipeline, and the manufacturing and sales and marketing of our existing product. While we rely heavily on cash flows from operating activities and borrowings from outside sources to execute our operational strategy and meet our financial commitments and other short-term financial needs, we cannot be certain that sufficient capital will be generated through operations or will be available to the Company to the extent required and on acceptable terms.
The $13.2 million reduction in our cash during the twelve months ended December 31, 2018 was largely due to additional investment in the Company's new manufacturing facility located in Buena, New Jerseyunjustifiable (not as evidenced by the $25.3 million increase of property, plant and equipment, net, along with the timing of our accounts receivable collections and expense payments associated with our launch of eight new products in the U.S. market. In addition, we had an accumulated deficit of $96.4 million as of December 31, 2018, and incurred a $36.3 million net loss and used $13.3 million in net cash from operating activities during the twelve months ended December 31, 2018.
On April 27, 2018, we entered into separate exchange agreements with certain holders of the 2019 Notes. The agreements gave the holders the right to exchange, in aggregate, $75.1 million of the 2019 Notes for $75.1 million of new Convertible 4.75% Senior Notes due 2023 (the “2023 Notes”). The 2023 Notes bear a fixed interest rate of 4.75% per year, payable semi-annually with the principal payable in May 2023. At the option of the holders, the 2023 Notes are convertible into shares of our common stock, cash or a combination thereof. The initial conversion rate is $224.71 per share, subject to certain adjustments, related to either our stock price volatility, or the Company's declaration of a stock dividend, stock distribution, share combination or share split expected dividends or other anti-dilutive activities. In addition, holders will be entitled to receive additional shares of common stock for a potential increase of the conversion rate up to $280.90 per share under a make-whole provision in some circumstances. We incurred debt issue costs of $1.6 million upon issuance of the 2023 Notes.
In addition, on May 4, 2018, we filed a Registration Statement on Form S-3 ("the Form S-3") pursuant to the Securities Act of 1933, as amended. The Form S-3 registration allows us to issue, from time to time and at prices to be determined at or prior to the offering, up to $50.0 million of any combination of the securities described in the prospectus, either individually or in units should the need to raise cash arise. We did not timely file our financial statements for the quarter ended September 30, 2018. As a result our accessof incapacity or disability) absenteeism, which shall not have been cured within 30 days after the Company’s written notice of breach and its intention to offer up to $50.0 million ofterminate the identified securities was suspended for twelve months.
On December 13, 2018, we entered into a $25.0 million Revolving Credit Agreement (the “Revolver”) and Term Loan Agreement (the “2023 Term Loan”, and together with the Revolver, the “Senior Credit Facilities”). The Term Loan consists of (i) a $50.0 million initial term loan (the “Initial Term Loan”); (ii) a $30.0 million delayed draw term loan A (the “Delayed Draw Term Loan A”) and (iii) a $15.0 million delayed draw term loan B (the “Delayed Draw Term Loan B” and, together with the Delayed Draw Term Loan A, the “Delayed Draw Term Loans”). The Initial Term Loan matures on the earlier to occur of (a) three months prior to maturity of the 2023 Notes and (b) June 13, 2024. Commitments related to undrawn amounts of the Delayed Draw Term Loan A terminate on June 30, 2019, and drawn amounts under the Delayed Draw Term Loans mature at the same time as the Initial Term Loan. The Revolver matures on the earlier to occur of (a) six months prior to the maturity of the 2023 Notes and (b) December 13, 2023. Our ability to borrow under the Revolver is subject to a borrowing base determined based upon eligible inventory, eligible equipment, eligible real estate and eligible receivables. The Senior Credit Facilities are secured by substantially all of our assets. All of our debt is subordinated to the Senior Credit Facilities. The 2023 Term Loan is subordinated to the Revolver. The Senior Credit Facilities have customary financial and non-financial covenants, including affirmative, negative and reporting covenants, representations and warranties, and events of default, including cross-defaults on other material indebtedness, as well as events of default triggered by a change of control and certain actions initiated by the FDA. The financial covenants consist of a minimum revenue test, a minimum adjusted EBITDA test and a maximum total net leverage ratio.
In December 2018 the Company used $52.8 million of proceeds from the Senior Credit Facilities to repurchase the 2019 Notes as well as $0.3 million of proceeds to pay for transaction costs. The repurchase of the 2019 Notes for is considered a debt extinguishment under ASC 470-50. The 2019 Notes are accounted for under cash conversion guidance ASC 470-20, which requires us to allocate the fair value of the consideration transferred upon settlement to the extinguishment of the liability component and the reacquisition of the equity component upon derecognition. We allocated the total amount of unamortized debt issuance costs incurred to the liability and equity components using the same proportions as the consideration transferred to extinguish the 2019 Notes. Inexecutive’s employment in accordance with the guidance above, we recorded $1.7 million as an extinguishment loss relatedprovisions of his or her employment agreement, (v) the executive’s personal, willful and continuing misconduct or refusal to the repurchaseperform his or her duties and responsibilities, or to carry out directives of the 2019 Notes in the Consolidated StatementBoard of Operations. In addition, we recorded a $2.9 million reductionDirectors, which, if capable of Additional Paid in Capital in connection with the extinguishment of the 2019 Notes.
In the event the Company needs liquidity beyond what is available from the Senior Credit Facilities, in order to continue normal business operations and execution ofbeing cured, shall not have been cured within 60 days after the Company’s growth strategy,written notice of breach and its intention to terminate the Company will need to exercise its ability to significantly defer or reduce planned discretionary investments in research and development and capital projects or seek other financing alternatives. Other financing alternatives may include raising additional capital through the sale of its equity, a strategic alliance with a third party or securing additional debt. If additional acquisition and growth opportunities arise, external financing will be required.
Our operating activities used $13.3 million of cash during the year ended December 31, 2018 compared to $0.4 million of cash provided during the year ended December 31, 2017 and $0.5 million of cash used during the year ended December 31, 2016. The cash used for the year ended December 31, 2018 was mostly due to an increase in accounts receivable of $4.0 million and inventories of $1.6 million, and a reduction in accounts payable of $3.4 million, in addition to $7.3 million of interest paid on our Notes, Revolver, and Term Loans. The cash provided by operating activities for the year ended December 31, 2017 was mostly due to the collections of accounts receivable in 2017, which contributed to a net decline in accounts receivable of $6.0 million offset by $5.4 million of interest expense paid in 2017 related to our Notes. The cash provided for the year ended December 31, 2016was mostly due to the collection of the Canadian goods and services tax (GST) and the harmonized sales tax (HST), of $5.2 million, in addition to other changes in operating assets and liabilities, offset by $5.4 million of interest expense related to our Notes.
Consolidated revenue growth of 10% in 2018 was primarily driven by increased sales in Canada. Competitors in Canada experienced drug shortages and Teligent was able to capitalize on these opportunities, increasing sales volume and cash flow from operating activities by $7.4 million more than anticipated. During the year some products had some production constraints which resulted in a delay in shipping of the manufactured products, this had a negative impact on the statement of operations and operating cash flows as Teligent had to absorb the cost of this delay. Overall economic conditions of the market were not favorable during 2018 as the pharmaceutical industry was under scrutiny and market pressure to not increase prices. Sales for U.S. operations were also negatively impacted due to the delay in supply from suppliers, which in turn impacted sales to our customers.
Our investing activities used $25.3 million during the year ended December 31, 2018 compared to $40.4 million and $20.1 million of cash used in the years ended December 31, 2017 and December 31, 2016, respectively. The funds used for the year ended December 31, 2018 included $25.3 million in capital expenditure, the majority of which were for the facility expansion in Buena, NJ. The funds used for the year ended December 31, 2017 included $40.4 million in capital expenditures, the majority of which were also for the facility expansion in Buena. The funds used for the year ended December 31, 2016 included $16.7 million in capital expenditures, for which the majority were also for the facility expansion in Buena, as well as
expenditures for the Estonian lab, and $3.4 million in product acquisition costs including Sebela and the buyout of the royalty stream related to AstraZeneca.
Our financing activities provided $25.3 million of cash during the year ended December 31, 2018 compared to $0.3 million of cash provided by and no cash used or provided by financing activities in the year ended December 31, 2017 and December 31, 2016, respectively. The cash provided during the year ended December 31, 2018 consisted of proceeds from the 2021 Term Loan which was later replaced by the Senior Credit Facilities with Ares Capital Management. The cash provided during the year ended December 31, 2017 consisted of proceeds from the exercise of common stock options and warrants. The cash used during the year ended December 31, 2016 was mainly due to principal payments on capital lease obligations offset by proceeds from the exercise of common stock warrants and options.
Off-Balance Sheet Arrangements
We have no significant off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that are material to our shareholders.
Contractual Obligations
Our contractual obligations and commitments as of December 31, 2018 are presented below. Outstanding debt and interest obligation is discussed in Note 6 of our Consolidated Financial Statements. As more fully described under Item 2 - Properties, we lease a warehouse in Vineland, New Jersey, office space in Iselin, New Jersey, office space in Mississauga, Canada and office and laboratory space in Tallinn, Estonia. Our remaining obligations under these leases are summarized below.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Payments Due by Period
(in thousands) | | | | | | | | |
| Contractual Obligations | | Total | | Less than 1 Year | | 1-3 Years | | 3-5 Years | | More than 5
Years |
| Short term debt obligations | | $ | 15,702 | | $ | 15,702 | | $ | — | | $ | — | | $ | — |
| Long term debt obligations | | 160,090 | | — | | — | | 160,090 | | — |
| Interest on debt obligations | | 37,583 | | 9,063 | | 18,150 | | 10,370 | | — |
| Operating Lease | | 3,234 | | 573 | | 1,244 | | 1,217 | | 200 |
| Total | | $ | 216,609 | | $ | 25,338 | | $ | 19,394 | | $ | 171,677 | | $ | 200 |
We have certain licensing and development agreement in place under which we will pay certain licensing fees and milestones over the lives of certain projects. These commitments totaled approximately $2.4 million as of December 31, 2018, and will be paid over the next several yearsexecutive’s employment in accordance with agreed upon milestones.
Critical Accounting Policiesthe provision of his or her employment agreement or (vi) material non-compliance with the terms of his or her respective employment agreement, including, but not limited to, any breach of certain confidentiality, non-solicitation, non-competition and Estimates
Our consolidated financial statements were preparedconflict of interest provisions thereunder.A “change in accordance with U.S. generally accepted accounting principles, which require us to make subjective decisions, assessments and estimates aboutcontrol,” for purposes of each of the effect of matters that are inherently uncertain. As the number of variables and assumptions affecting the judgment increases,employment agreements, includes (a) any “person,” as such judgments become even more subjective. While we believe our assumptions are reasonable and appropriate, actual results may be materially different than estimated.
Fair Value of Financial Instruments
The carrying amounts of cash and cash equivalents, trade receivables, restricted cash, accounts payable and other accrued liabilities at December 31, 2018 approximate their fair value for all periods presented. The Company measures fair value in accordance with ASC 820-10, “Fair Value Measurements and Disclosures”. ASC 820-10 clarifies that fair valueterm is an exit price, representing the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. As such, fair value is a market-based measurement that should be determined based on assumptions that market participants would use in pricing an asset or a liability. As a basis for considering such assumptions, ASC 820-10 establishes a three-tier value hierarchy, which prioritizes the inputs used in the valuation methodologies in measuring fair value:
Level 1 Inputs: Unadjusted quoted prices in active markets for identical assets or liabilities accessible to the reporting entity at the measurement date.
Level 2 Inputs: Other than quoted prices included in Level 1 inputs that are observable for the asset or liability, either directly or indirectly, for substantially the full termSections 13(d) and 14(d) of the asset or liability.
Level 3 Inputs: Unobservable inputs for the asset or liability used to measure fair value to the extent that observable inputs are not available, thereby allowing for situations in which there is little, if any, market activity for the asset or liability at measurement date. The fair value hierarchy also requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value.
Accounts Receivable and Allowance for Doubtful Accounts
The Company extends credit to its contract services customers based upon credit evaluations in the normal course of business, primarily with 30-day terms. The Company does not require collateral from its customers. Bad debt provisions are provided for on the allowance method based on historical experience and management’s evaluation of outstanding accounts receivable. The Company reviews the allowance for doubtful accounts regularly, and past due balances are reviewed individually for collectability. The Company charges off uncollectible receivables against the allowance when the likelihood of collection is remote.
The Company extends credit to wholesaler and distributor customers and national retail chain customers, based upon credit evaluations, in the normal course of business, primarily with 60 to 90 day terms. The Company maintains customer-related accruals and allowances that consist primarily of chargebacks, rebates, sales returns, shelf stock allowances, administrative fees and other incentive programs. Some of these adjustments relate specifically to the generic prescription pharmaceutical business. Typically, the aggregate gross-to-net adjustments related to these customers can exceed 70% of the gross sales through this distribution channel. Certain of these accruals and allowances are recorded in the balance sheet as current liabilities and others are recorded as a reduction to accounts receivable.
Revenue Recognition
The Company recognizes revenue when a customer obtains control of promised goods or services, in an amount that reflects the consideration which the entity expects to receive in exchange for those goods or services. The Company’s revenue is recorded net of accruals for estimated chargebacks, rebates, cash discounts, other allowances, and returns. The Company derives its revenues from three types of transactions: sales of its own pharmaceutical products (Company product sales), sales of manufactured product for its customers (contract manufacturing sales), and research and product development services performed for third parties. Due to differences in the substance of these transaction types, the transactions require, and the Company utilizes, different revenue recognition policies for each. Taxes collected from customers and remitted to government authorities and that are related to the sales of the Company’s products are excluded from revenues.
Adoption of ASC Topic 606, "Revenue from Contracts with Customers”
In May 2014, the FASB issued ASU 2014-09, “Revenue from Contracts with Customers (Topic 606).” The standard, including subsequently issued amendments, replaces most existing revenue recognition guidance in U.S. GAAP. The key focus of the new standard is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services.
The Company performed a comprehensive review of its existing revenue arrangements as of January 1, 2018 following the five-step model. Based on the Company's analysis, there were no changes identified that impacted the amount or timing of revenues recognized under the new guidance as compared to the previous guidance. Additionally, the Company's analysis indicated that there were no changes to how costs to obtain and fulfill our customer contracts would be recognized under the new guidance as compared to the previous guidance. The impact of the adoption of this standard on the Company's Consolidated Balance Sheet, Consolidated Statement of Operations, and Consolidated Statement of Cash Flows was not material. The adoption of the new guidance impacted the way the Company analyzes, documents, and discloses revenue recognition under customer contracts beginning on January 1, 2018 and resulted in additional disclosures in the Company's financial statements.
Company Product Sales
Revenue from Company product sales is recognized upon transfer of control of a product to a customer at a point in time, generally as the Company's products are sold on an FOB destination basis and because inventory risk and risk of ownership passes to the customer upon delivery.
Company product sales are recorded net of accruals for estimated chargebacks, rebates, cash discounts, other allowances, and returns.
Revenue and Provision for Sales Returns and Allowances
As is customary in the pharmaceutical industry, the Company’s product sales are subject to a variety of deductions including chargebacks, rebates, cash discounts, other allowances, and returns. Product sales are recorded net of accruals for returns and allowances ("SRA"), which are established at the time of sale. The Company analyzes the adequacy of its accruals for returns and allowances quarterly. Amounts accrued for sales deductions are adjusted when trends or significant events indicate that an adjustment is appropriate. Accruals are also adjusted to reflect actual results. These provisions are estimates based on historical payment experience, historical relationship to revenues, estimated customer inventory levels and current contract sales terms with direct and indirect customers. The Company uses a variety of methods to assess the adequacy of its returns and allowances reserves to ensure that its financial statements are fairly stated. These include periodic reviews of customer inventory data, customer contract programs, subsequent actual payment experience, and product pricing trends to analyze and validate the return and allowances reserves.
Chargebacks are one of the Company's most significant estimates for recognition of product sales. A chargeback represents an amount payable in the future to a wholesaler for the difference between the invoice price paid to the Company by its wholesale customer for a particular product and the negotiated contract price that the wholesaler’s customer pays for that product. The Company’s chargeback provision and related reserve varies with changes in product mix, changes in customer pricing and changes to estimated wholesaler inventories. The provision for chargebacks also takes into account an estimate of the expected wholesaler sell-through levels to indirect customers at contract prices. The Company validates the chargeback accrual quarterly through a review of the inventory reports obtained from its largest wholesale customers. This customer inventory information is used to establish the estimated liability for future chargeback claims based on historical chargeback and contract rates. These large wholesalers represent a majority of the Company’s chargeback payments. The Company continually monitors current pricing trends and wholesaler inventory levels to ensure the liability for future chargebacks is fairly stated.
Rebates are used for various discounts and rebates provided to customers. This account has been used for various one-time discounts given to customers. The Company reviews the percentage of products sold through these programs by reviewing chargeback data and uses the appropriate percentages to calculate the rebate accrual. Rebates are invoiced monthly, quarterly or annually and reviewed against the accruals. Other items that could be included in accrued rebates would be price protection fees, shelf stock adjustments (SSAs), or other various amounts that would serve as one time discounts on specific products.
Net revenues and accounts receivable balances in the Company’s consolidated financial statements are presented net of SRA estimates. Certain SRA balances are included in accounts payable and accrued expenses.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America, or GAAP, requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Significant estimates include SRA allowances, allowances for excess and obsolete inventories, allowances for doubtful accounts, provisions for income taxes and related deferred tax asset valuation allowances, stock based compensation, the impairment of long-lived assets (including intangibles, goodwill, and property, plant and equipment), property, plant and equipment and legal accruals for environmental cleanup and remediation costs. Actual results could differ from those estimates.
Accounting Pronouncements
See Note 3 to the Consolidated Financial Statements for Recently Adopted Accounting Pronouncements and Recently Issued Accounting Pronouncements.
Item 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
As of December 31, 2018, our principal debt obligation was related to our 2019 and 2023 Notes and New Senior Credit Facilities. Interest accrues at a fixed rate of 3.75% on the outstanding principal amount of the 2019 Notes and is paid semi-annually every June 15 and December 15 until the 2019 Notes mature on December 15, 2019. Interest accrues at a fixed rate of 4.75% on the outstanding principal amount of the 2023 Notes and is paid semi-annually every May 1 and November 1 until the 2023 Notes mature on May 1, 2023. Since the interest rate is fixed, we have no market risk related to the 2019 and 2023 Notes.
On December 13, 2018, pursuant to a Commitment Letter, dated November 12, 2018, between us and Ares Management LLC, we entered into: (i) a First Lien Revolving Credit Agreement, by and among us, as the borrower, certain subsidiaries of the ours, as guarantors, the lenders from time to time party thereto, and ACF Finco I LP, as administrative agent (the “Revolver Credit Agreement”) and (ii) a Second Lien Credit Agreement, by and among the Company, as the borrower, certain subsidiaries of the Company, as guarantors, the lenders from time to time party thereto, and Ares Capital Corporation, as administrative agent (the “Second Lien Credit Agreement” and, together with the Revolver Credit Agreement, the “New Senior Credit Facilities”).
The New Senior Credit Facilities consist of an asset based revolving credit facility of $25.0 million due November 2022 ("Revolver"), a term loan of $80.0 million due February 2023 (“2023 Term Loan”), and a delayed draw term loan of $15.0 million also due in February 2023 (“2023 Delayed Draw Term Loan”). The Revolver bears interest at a rate of one, two, three or six-month LIBOR plus 3.75% or base rate plus 2.75%, whereas the 2023 Term Loan and 2023 Delayed Draw Term Loan bear interest at a rate of LIBOR plus 8.75% or base rate plus 2.75% with a 24-month paid-in-kind interest option available to us should it choose to defer cash payments in order to maintain the liquidity needed to continue launching new products. All three tranches of funding are subject to market risk.
Our financial instruments include cash and cash equivalents, accounts receivable, accounts payable and Notes. The fair values of cash and cash equivalents, accounts receivable and accounts payable approximate book value because of the short maturity of these instruments. As of December 31, 2018, based on level 2 inputs, the fair value of our Notes (2019 Notes and 2023 Notes) was approximately $67.6 million compared to their carrying value of $71.3 million. For description of the fair value hierarchy and the Company's fair value methodologies, see Note 3 " Summary of Significant Accounting Policies." In addition, the value of our Senior Credit Facilities was stated at carrying value at December 31, 2018. The Company believes it could obtain borrowings at December 31, 2018 with comparable terms as the December 13, 2018 Senior Credit Facilities, therefore, the carrying value approximates fair value.
At December 31, 2018, the majority of our cash and cash equivalents was invested in overnight instruments, the interest rates of which may change daily. Accordingly, these overnight investments are subject to market risk.
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
See Index to Financial Statements on page F-1.
Item 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON AUDITING AND FINANCIAL DISCLOSURE
None.
Item 9a. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
Our disclosure controls and procedures are designed to ensure that information required to be disclosed by us in the reports that we file or submit under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”“Exchange Act”)
, (other than (i) an individual or entity holding securities of the Company as of the date hereof which represent 3% or more of the outstanding voting power of the all securities on matters to be generally voted upon by the Company's stockholders, (ii) Jane Hager, Edward Hager, Steve Morris, Frank Gerardi or any of their respective affiliates, any entity of which any of the foregoing are trustees, or trusts established for their benefit, (iii) the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, (iv) Signet Healthcare Partners, its affiliates or any of its affiliated funds, or (v) any corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportion as their ownership of stock of the Company) is
recorded, processed, summarized and reported withinor becomes the
time periods specifiedowner, directly or indirectly, of outstanding securities of the Company representing 60% or more of the combined voting power of the Company's then outstanding securities; (b) the consummation of a merger or consolidation of the Company with any other corporation, other than (i) a merger or consolidation which would result in the
SEC’s rulesvoting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 40% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (ii) a merger or consolidation effected to implement a re-capitalization of the Company (or similar transaction) or a reincorporation of the Company into another jurisdiction; or (c) a sale of all or substantially all of the assets of the Company.
Payments upon Termination of Change in Control as of January 9, 2020:
On January 9, 2020, the Organization and forms. Disclosure controlsCompensation Committee approved the Teligent, Inc. Change in Control Severance Policy (the “Policy”). The purpose of the Policy is to provide certain Company employees, including the Company’s named executive officers, with certain compensation and procedures include,other benefits in the event of a termination of employment by the Company (or its acquirer or successor) without limitation, controlsCause (as defined below) or by such employee for Good Reason (as defined below) that occurs duringthe period following the date on which a Change of Control (as defined below) is consummated, as designated in the addendum to the Policy for a participant's applicable salary grade classification.In addition, if an eligible employee is entitled to similar severance or benefit continuation under another Company severance policy or an employment or severance agreement with the Company or an affiliate, any severance payable or benefits provided under such other arrangement will reduce or otherwise offset the severance benefits provided under the Policy.
In the event of a qualifying termination, the Policy makes available benefits to the participants in a tiered approach, with the nature of the benefits provided based upon the seniority of the position such participant occupies. Upon a qualifying termination, the Company’s named executive officers will receive (i) base salary continuation payments for a period of twelve months following the qualifying termination; (ii) a prorated portion of the target bonus for the year in which the qualifying termination occurs (the “Prorated Bonus”); (iii) an amount equal to the target annual bonus and procedures designed(iv) continued medical, dental and vision coverage under COBRA, which ceases after twelve months or when the individual becomes covered by another employer program, whichever occurs first. As more fully described in the Policy, upon a qualifying termination other participants will receive (i) base salary continuation payments for a period ranging from three months to ensure that informationtwelve months (with certain participants entitled to additional base salary continuation payments based upon years of service to the Company); (ii) a Prorated Bonus; (iii) for certain participants, an amount equal to the target annual bonus and (iv) continued medical, dental and vision coverage under COBRA for periods ranging from six months to twelve months (or ceasing earlier if such participant becomes covered by another employer program).
In each case, receipt of any compensation or benefits under the Policy is subject to the participant’s execution of a general release of claims in favor of the Company, its successors and affiliates, and each of their officers, directors and employees. In the event a participant has beached any duty of confidentiality, non-solicitation or non-competition owing to the Company, the participant will forfeit all further benefits payable under the Policy and will, at the Organization and Compensation Committee’s direction, be required to repay to the Company any benefits previously received under the Policy.
For purposes of the Policy:
“Cause”means "Cause" as defined in the participant's applicable employment or severance agreement, if any; or, if the participant has no employment or severance agreement or there is no such definition in the employment or severance agreement, "Cause" means the occurrence of one or more of the following events: (i) any act or omission to act by the participant which would reasonably be disclosed by uslikely to have a material adverse effect on the business of the Company;(ii) the participant's conviction (including any pleas of guilty or nolo contendere) of any felony or any other crime (other than ordinary traffic violations);(iii)the participant's material misconduct or willful and deliberatenon-performance of his or her duties (other than as a result of disability);(iv) the participant's theft, embezzlement, dishonesty or fraud withrespect to the Company;(v) the participant's commission of an act involving fraud, dishonestyor moral turpitude which is actually or potentially injurious to the business interests or reputation of the Company;(vi) the participant's material breach of any written policy applicableto employees of the Company and its affiliates, where such breach is actually or potentially injurious to the business interests or reputation of the Company; or(vii) the participant's unauthorized disclosure of any confidential or proprietary information of the Company or its affiliates.
“Good Reason”means "Good Reason" as defined in reports we filethe employee's applicable employment agreement, if any; or, submitif the employee has no employment agreement or there is no such definition in the employment agreement, "Good Reason" means the occurrence of any of the following events, without the participant's written consent: (i) amaterial reduction in the amount of the participant's base salary as of the date immediately prior to a Change of Control;(ii) theparticipant's job responsibilities are substantially reduced in scope compared with his or her duties as of the date immediately prior to a Change of Control; or(iii) amaterial change in the participant's principal place of employment to a location more than thirty-five (35) miles from his or her place of employment as of the date immediately prior to a Change of Control.
“Change of Control”means any of the following events: (i) any individual, firm, corporation or other entity, or any group (asdefined in Section 13(d)(3) of the Exchange Act) becomes, directly or indirectly, the beneficial owner (as defined in Rule 13d-3 as promulgated under the Exchange Act is accumulatedAct) of more than fifty percent (50%) of the then outstanding shares of the Company's common stock entitled to vote generally in the election of members of the Board of Directors; or(ii)the consummation of (a) a merger or other business combination of the Company with or into another corporation pursuant to which the stockholders of the Company do not own, immediately after the transaction, more than fifty percent (50%) of the voting power of the corporation that survives or (b) a sale, exchange or other disposition of all or substantially all of the assets of the Company.
Director Compensation
Effective January 1, 2016, after consultation with its compensation consultant, our Board of Directors unanimously revised the non-employee director compensation program. Under the Company’s new non-executive director compensation policy, each non-executive director of the Board of Directors shall receive the following compensation:
| · | an annual cash retainer of $25,000; |
| · | an annual grant of options to purchase 20,000 shares of common stock; |
| · | each member of the Audit Committee receives an annual cash retainer equal to $10,000, and the Chairman of the Audit Committee receives an additional cash retainer equal to $10,000; |
| · | each member of the Organization and Compensation Committee receives an annual cash retainer equal to $7,500, and the Chairman of the Organization and Compensation Committee receives an additional cash retainer equal to $7,500; and |
| · | each member of the Nominating and Corporate Governance Committee receives an annual cash retainer equal to $5,000, and the Chairman of the Nominating and Corporate Governance Committee receives an additional cash retainer equal to $5,000. |
In addition, at the time of his or her appointment, each newly elected director shall be granted options to purchase 20,000 shares of our common stock and communicated to our management, includingshall receive payment of the Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.applicable cash retainers, pro-rated for the duration of service during the year in which he or she has been appointed.
As ofThe following table shows the total compensation paid or accrued during the fiscal year ended December 31, 2018, an evaluation was conducted under the supervision and with the participation2019to each of our management, includingnon-employee directors. Directors who are employed by us are not compensated for their service on our Board of Directors. During fiscal year ended December 31, 2019, our non-employee directors were also granted options to purchase shares of common stock in lieu of their annual cash retainers as (i) a member of the Board, (ii) member of any committee on which he or she served, or (iii) for service as chairman of a committee on which he or she served. Mr. Sawyer, who serves as our Chief Executive Officer, does not receive additional compensation for his service as a director and, therefore, is not included in the Director Compensation table below. Mr. Grenfell-Gardner, who served as our Chief FinancialExecutive Officer until February 4, 2020, did not receive additional compensation for his service as a director for the year ended December 31, 2019 and, therefore, is not included in the Director Compensation table below. All compensation paid to Mr. Grenfell-Gardner is reported in the Summary Compensation Table included under “Executive Compensation.”
| Name | | Fees Earned or Paid in Cash(1) ($) | | | Option Awards(2) ($) | | | Change in Pension Value and Nonqualified Deferred Compensation Earnings ($) | | | Total ($) | |
| James. C. Gale | | | | | | | 29,822 | | | | — | | | | 29,822 | |
| | | | | | | | | | | | | | | | | |
| Bhaskar Chaudhuri | | | | | | | 32,938 | | | | — | | | | 32,938 | |
| | | | | | | | | | | | | | | | | |
| Steven Koehler | | | | | | | 33,560 | | | | — | | | | 33,560 | |
| | | | | | | | | | | | | | | | | |
| John Celentano | | | | | | | 36,053 | | | | — | | | | 36,053 | |
| | | | | | | | | | | | | | | | | |
| Carole S. Ben-Maimon, M.D. | | | | | | | 30,444 | | | | — | | | | 30,444 | |
| | | | | | | | | | | | | | | | | |
| Thomas J. Sabatino, Jr. | | | | | | | 28,576 | | | | — | | | | 28,576 | |
| (1) | During fiscal year ended December 31, 2019, our non-employee directors were also granted options to purchase shares of common stock in lieu of their annual cash retainers as (i) a member of the Board, (ii) member of any committee on which he or she served, or (iii) as for service as chairman of a committee on which he or she served. |
| (2) | These amounts represent the aggregate grant date fair value of options granted to each director in 2019 computed in accordance with FASB ASC Topic 718. A discussion of the assumptions used in determining the grant date fair value can be found in Note 10 to our Financial Statements, included in our Annual Report on Form 10-K for the year ended December 31, 2019. |
EQUITY COMPENSATION PLAN INFORMATION
The following table provides certain aggregate information with respect to all of the effectiveness of our disclosure controls and procedures (as definedCompany’s equity compensation plans in Rule 13a-15(e) and Rule 15d-15(e) of the Exchange Act). Based on this evaluation, such officers have concluded that our disclosure controls and procedures were not effectiveeffect as of December 31, 2018 (the “Evaluation Date”), because of the material weaknesses in our internal control over financial reporting described below.
Management's Report on Internal Control Over Financial Reporting
Management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act and based upon the criteria established in Internal Control-Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (“the COSO framework”). Our internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of our financial reporting and the preparation of our financial statements for external purposes in accordance with GAAP.
An effective internal control system, no matter how well designed, has inherent limitations, including the possibility of human error or overriding of controls, and therefore can provide only reasonable assurance with respect to reliable financial reporting. Because of its inherent limitations, our internal control over financial reporting may not prevent or detect all misstatements, including the possibility of human error, the circumvention or overriding of controls, or fraud. Effective internal controls can provide only reasonable assurance2019.| | | (a) | | | (b) | | | (c) | |
| 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 future issuance under equity compensation plans (excluding securities reflected in column (a))(2) | |
| Equity compensation plans approved by security holders(1) | | | 5,167,739 | | | | 3.34 | | | | 2.334,731 | |
| | | | | | | | | | | | | |
| Total | | | 5,167,739 | | | | 3.34 | | | | 2,334,731 | |
| (1) | These plans consist of the 2016 Equity Incentive Plan, the 2009 Equity Incentive Plan, as amended, and the 1999 Director Plan. |
| (2) | Includes information with respect to the 2016 Equity Incentive Plan. The 2009 Equity Incentive Plan (the "2009 Plan") and the 1999 Director Plan were replaced by the 2016 Plan. As of December 31, 2019, we had 2,334,731 shares available for issuance pursuant to the 2016 Plan. |
| Item 12. | SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS |
The following table sets forth certain information with respect to the preparation and fair presentationbeneficial ownership of financial statements.
Management, including our
Chief Executive Officer and Chief Financial Officer, assessed the Company’s internal control over financial reporting and concluded that they were not effectivecommon stock as of
December 31, 2018. In makingApril 22, 2020 for (a) the executive officers named in the Summary Compensation Table on page 9, (b) each of our directors and director nominees, (c) all of our current directors and executive officers as a group and (d) each stockholder known by us to own beneficially more than 5% of our common stock. Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to the securities. We deem shares of common stock that may be acquired by an individual or group within 60 days of April 22, 2020 pursuant to the exercise or vesting, as applicable, of derivatives or warrants to be outstanding for the purpose of computing the percentage ownership of such individual or group, but are not deemed to be outstanding for the purpose of computing the percentage ownership of any other person shown in the table. Except as indicated in footnotes to this
assessment, management usedtable, we believe that the
criteria set forthstockholders named in this table have sole voting and investment power with respect to all shares of common stock shown to be beneficially owned by them based on information provided to us by these stockholders. Percentage of ownership is based on 53,899,495 shares of common stock outstanding on April 22, 2020. Except as otherwise indicated, the address of each of the persons in this table is c/o Teligent, Inc., 105 Lincoln Avenue, PO Box 687, Buena, New Jersey 08310.| Name and Address of Beneficial Owner | | Number of Shares Beneficially Owned | | | Percent of Shares Beneficially Owned | |
| 5% or Greater Stockholders |
| Life Sciences Opportunities Fund II, L.P.(1)(6) | | | 1,494,873 | | | | 2.7 | % |
| Life Sciences Opportunities Fund (Institutional) II, L.P.(1)(6) | | | 8,356,988 | | | | 15.50 | % |
| Signet Healthcare Partners, LLC(1)(6) | | | 9,851,861 | | | | 18.28 | % |
| Eversept Partners, LP(2) | | | 4,501,799 | | | | 8.35 | % |
| Morgan Stanley(3) | | | 5,238,904 | | | | 9.72 | % |
| Name and Address of Beneficial Owner | | Number of Shares
Beneficially Owned | | | Percent of Shares
Beneficially Owned | |
| Directors and Named Executive Officers |
| Timothy B. Sawyer(4) | | | 0 | | | | * | |
| Jason Grenfell-Gardner(5) | | | 2,215,410 | | | | 3.97 | % |
| James C. Gale(1)(6) | | | 10,213,287 | | | | 18.87 | % |
| Thomas J. Sabatino, Jr.(7) | | | 105,348 | | | | * | |
| Bhaskar Chaudhuri(8) | | | 270,436 | | | | * | |
| Steven Koehler(9) | | | 176,162 | | | | * | |
| John Celentano(10) | | | 159,070 | | | | * | |
| Carole S. Ben-Maimon, M.D.(11) | | | 118,529 | | | | * | |
| Damian Finio(12) | | | 174,947 | | | | * | |
| Martin Wilson(13) | | | 13,684 | | | | * | |
| All current executive officers and directors as a group (8 persons)(1)(4)(6)(7)(8)(9)(10)(11)(12) | | | 11,217,779 | | | | 20.39 | % |
| * | Represents beneficial ownership of less than 1% of the outstanding shares of our common stock. |
| (1) | Total aggregate ownership of the LOF Funds, as defined below, equals 9,851,861. However, the information provided in the table above is presented on the basis of the beneficial ownership of our shares of common stock by the LOF Funds as disclosed in a Schedule 13D filed by Life Sciences Opportunities Fund II, L.P. with the SEC on March 10, 2015, which reported ownership as of March 5, 2015. Life Sciences Opportunities Fund II, L.P. (“LOF”) directly holds 1,494,873 shares and Life Sciences Opportunities Fund (Institutional) II, L.P. (“LOF Institutional,” together with LOF, the “LOF Funds”) directly holds 8,356,988 shares, for a total of 9,851,861 securities that are held indirectly by Signet Healthcare Partners, LLC (“General Partner”), the general partner of each of the LOF Funds, James C. Gale, a director of ours, and the chief investment officer, a manager and member of the General Partner, the controlling member of the General Partner, SMW Investments I, LLC (“SMW”), and Don A. Sanders, Ben T. Morris and Donald V. Weir, the managing members of SMW. The 9,851,861 securities held by the LOF Funds are subject to shared voting power and shared dispositive power with the General Partner, Mr. Gale, SMW, Mr. Sanders, Mr. Morris and Mr. Weir. The General Partner, Mr. Gale, SMW, Mr. Sanders, Mr. Morris and Mr. Weir disclaim beneficial ownership of the reported securities except to the extent of their pecuniary interest therein, if any. The address of each filer is Carnegie Hall Tower, 152 West 57th Street, 19th Floor, New York, NY 10019, except SMW, which is 600 Travis, Suite 5900, Houston, TX 77002. |
| (2) | This information is based solely on a Schedule 13G/A filed by Eversept Partners, L.P. (“Eversept”), Eversept GP, LLC (“Eversept GP”), Eversept Global Healthcare Fund, L.P. (“Eversept Fund”) and Kamran Moghtaderi with the SEC on February 14, 2020, which reported ownership as of December 31, 2019. The address of each of Eversept, Eversept GP, Eversept Fund and Mr. Moghtaderi is c/o Eversept Partners, L.P., 444 Madison Avenue, 22nd Floor, New York NY 10022. |
| (3) | This information is based solely on a Schedule 13G/A filed by Morgan Stanley (“Morgan Stanley”) and Morgan Stanley Capital Services LLC (“Morgan Stanley Capital”) with the SEC on February 13, 2020, which reported ownership as of December 31, 2019. Morgan Stanley is the beneficial owner of 5,238,904 shares of common stock and shares voting power over 5,231,127 shares and dispositive power over 5,238,904 shares with Morgan Stanley Capital. The address of each of Morgan Stanley and Morgan Stanley Capital is 1585 Broadway, New York, NY 10036. |
| (4) | Does not include options to purchase 1,500,000 shares of our common stock which have not vested and will not be exercisable within 60 days after April 22, 2020. Mr. Sawyer was appointed on February 4, 2020. |
| (5) | Includes 324,503 shares of common stock held by Mr. Grenfell-Gardner, 1,890,907 shares of common stock which may be acquired pursuant to stock options exercisable within 60 days after April 22, 2020. Mr. Grenfell-Gardner resigned on February 4, 2020. |
| (6) | Includes 9,971,485 shares of common stock held by Mr. Gale and 25,000 shares of common stock held by Gale & Haselton Family LLC, over which Mr. Gale exercises voting and dispositive power. Also includes 216,802 shares of common stock which may be acquired pursuant to stock options exercisable within 60 days after April 22, 2020. Does not include options to purchase 45,076 shares of our common stock which have not vested and will not be exercisable within 60 days after April 22, 2020. |
| (7) | Includes 25,000 shares of common stock held by Mr. Sabatino and 80,348 shares of common stock which may be acquired pursuant to stock options exercisable within 60 days after April 22, 2020. Does not include options to purchase 43,405 shares of our common stock which have not vested and will not be exercisable within 60 days after April 22, 2020. |
| (8) | Includes 10,000 shares of common stock held by Mr. Chaudhuri and 260,436 shares of common stock which may be acquired pursuant to stock options exercisable within 60 days after April 22, 2020. Does not include options to purchase 49,130 shares of our common stock which have not vested and will not be exercisable within 60 days after April 22, 2020. |
| (9) | Includes 5,000 shares of common stock held by Mr. Koehler and 171,162 shares of common stock which may be acquired pursuant to stock options exercisable within 60 days after April 22, 2020. Does not include options to purchase 50,092 shares of our common stock which have not vested and will not be exercisable within 60 days after April 22, 2020. |
| (10) | Includes 20,000 shares of common stock held by Mr. Celentano and 139,070 shares of common stock which may be acquired pursuant to stock options exercisable within 60 days after April 22, 2020. Does not include options to purchase 53,436 shares of our common stock which have not vested and will not be exercisable within 60 days after April 22, 2020. |
| (11) | Includes 16,000 shares of common stock held by Dr. Ben-Maimon and 102,529 shares of common stock which may be acquired pursuant to stock options exercisable within 60 days after April 22, 2020. Does not include options to purchase 46,038 shares of our common stock which have not vested and will not be exercisable within 60 days after April 22, 2020. |
| (12) | Includes 30,000 shares of common stock held by Mr. Finio, 144,947 shares of common stock which may be acquired pursuant to stock options exercisable within 60 days after April 22, 2020. Does not include 10,000 shares underlying RSUs which have not vested and will not be exercisable within 60 days after April 22, 2020 or options to purchase 678,477 shares of common stock which have not vested and will not be exercisable within 60 days after April 22, 2020. |
| (13) | Includes 13,684 shares of common stock held by Mr. Wilson. Mr. Wilson resigned on December 30, 2019. |
| Item 13. | CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE |
Director Independence
Our Board of Directors has reviewed the materiality of any relationship that each of our directors has with Teligent, either directly or indirectly. Based upon this review, our Board of Directors has determined that the following members of the Board of Directors are “independent directors” as defined by the COSO framework. Based on evaluation under these criteria, management determined, based uponNasdaq Marketplace Rules: James C. Gale, Bhaskar Chaudhuri, Steven Koehler, John Celentano, Carole S. Ben-Maimon, M.D and Thomas J. Sabatino, Jr.
Other than the existencecompensation agreements and other arrangements which are described in the “Executive Compensation” section of this Form 10-K, during our last fiscal year, there has not been, and there is not currently proposed, any transaction or series of similar transactions to which we were or will be a party in which the amount involved exceeded $120,000 and in which any of our directors, nominees for director, executive officers, holders of more than five percent of any class of our voting securities or any member of the material weaknesses described below, that we did not maintain effective internal control over financial reporting asimmediate family of the Evaluation Date.
Aforegoing persons had or will have a direct or indirect material
weaknessinterest.Policies and Procedures Regarding Review, Approval, or Ratification of Related Person Transactions
The Audit Committee is a deficiency, or a combinationresponsible for reviewing and approving in advance the terms and conditions of deficiencies, in internal control over financial reporting,all related person transactions. In carrying out its responsibilities, the Audit Committee reviews and considers information regarding the related person transaction as it deems appropriate under the circumstances, which may include information such that a reasonable possibility exists that a material misstatement of our annual or interim financial statements would not be prevented or detected on a timely basis.
Control Environment
We did not maintain an effective control environment based onas the criteria establishedrelated person’s interest in the COSO framework. We have identified deficienciestransaction, the approximate dollar value involved in the principles associated withtransaction, whether the control environmenttransaction was undertaken in the ordinary course of business, whether the terms of the COSO framework. Specifically, these control deficiencies constitute material weaknesses, either individually or intransaction are no less favorable to us than terms that could have been reached with an unrelated third party and the aggregate, relating to: (i) appropriate organizational structure, reporting lines,purpose of, and authority and responsibilities in pursuit of objectives, (ii) our commitmentthe potential benefits to attract, develop, and retain competent individuals, and (iii) holding individuals accountable for their internal control related responsibilities. As disclosed in the consolidated financial statements included in Item 8. “Financial Statements and Supplementary Data”, these material weaknesses contributed to accounting errors.
We did not maintain an effective control environment to enable the identification and mitigation of risks of accounting errors based on the contributing factors to material weakness in the control environment, including:
•We did not attract, develop, and retain competent management, accounting, financial reporting, internal audit, and information systems personnel or resources to ensure that internal control responsibilities were performed and that information systems were aligned with internal control objectives.
•Our oversight processes and procedures that guide individuals in applying internal control over financial reporting were not adequate in preventing or detecting accounting errors.
Risk Assessment
We did not design and implement an effective risk assessment based on the criteria established in the COSO framework. We have identified deficiencies in the principles associated with the risk assessment componentus of, the COSO framework. Specifically, these control deficiencies constitute material weaknesses, either individuallytransaction. The Audit Committee may approve or inratify the aggregate, relating to: (i) identifying, assessing, and communicating appropriate objectives, (ii) identifying and analyzing risks to achieve these objectives, and (iii) identifying and assessing changes in the businesstransaction only if it determines that, could impact our system of internal controls.
Control Activities
We did not design and implement effective control activities based on the criteria established in the COSO framework. We have identified deficiencies in the principles associated with the control activities componentunder all of the COSO framework. Specifically, these control deficiencies constitute material weaknesses, either individually or incircumstances, the aggregate, relating to: (i) selecting and developing control activities and information technology that contribute to the mitigation of risks and support achievement of
objectives and (ii) deploying control activities through policies that establish whattransaction is expected and procedures that put policies into action.
The following deficiencies in control activities, among others, contributed to accounting errors or the potential for there to have been accounting errors in substantially all financial statements account balances and disclosures:
•Lack of sufficient resources within the accounting and financial reporting department to review the accounting for non-recurring complex debt transactions;
•Ineffective controls over price concessions in Canada specifically, we have inadequate controls to ensure that the information necessary to properly record transactions is adequately communicated on a timely basis from non-financial personnel to those responsible for accounting and financial reporting;
•Ineffective controls over the application of accounting guidance and the Company’s policy including the allowance for doubtful accounts; and
•Ineffective controls over the transition, implementation and disclosure of the new accounting standard related to revenue recognition, specifically related to accounting for wholesaler fees, Medicaid and Medicare payments, and other rebates
Information and Communication
We did not generate and provide quality information and communication based on the criteria established in the COSO framework. We have identified deficiencies in the principles associatedinconsistent with the information and communication component of the COSO framework. Specifically, these control deficiencies constitute material weaknesses, either individually or in the aggregate, relating to: (i) obtaining, generating, and using relevant quality information to support the function of internal control, and (ii) communicating accurate information internally and externally, including providing information pursuant to objectives, responsibilities, and functions of internal control.
Monitoring Activities
We did not design and implement effective monitoring activities based on the criteria established in the COSO framework. We have identified deficiencies in the principles associated with the monitoring component of the COSO framework. Specifically, these control deficiencies constitute material weaknesses, either individually or in the aggregate, relating to: (i) selecting, developing, and performing ongoing evaluation to ascertain whether the components of internal controls are present and functioning, and (ii) evaluating and communicating internal control deficiencies in a timely manner to those parties responsible for taking corrective action.
The following were contributing factors to the material weaknesses in monitoring activities:
• Internal audit staffing levels were insufficient which limited our ability to effectively monitor internal controls.
• Failure to effectively communicate relevant information and internal control deficiencies to our Audit Committee for appropriate oversight, monitoring and enforcement of corrective action.
• Not communicating relevant information within our organization.
best interests. | Item 14. | PRINCIPAL ACCOUNTING FEES AND SERVICES |
Deloitte & Touche LLP, our independent registered public accounting firm, has audited the effectiveness of our internal control over financial reporting as of December 31, 2018. Deloitte &Touche LLP's opinion, as stated in their report which appears in Item 8 of this Form 10-K, is consistent with management's report on internal control over financial reporting as set forth above.
Changes in Internal Control Over Financial Reporting
Exceptstatements for the
identification of the material weaknesses described above, there were no changes during thefiscal year ended December 31,
2019. EisnerAmper LLP served as our independent registered public accounting firm until August 13, 2018,
at which time they were dismissed and Deloitte & Touche LLP was appointed.The following table presents fees for professional audit services rendered by each of Deloitte & Touche LLP and EisnerAmper LLP for the audit of the Company’s annual financial statements for the years ended December 31, 2019 and 2018, and fees billed for other services rendered by each of Deloitte & Touche LLP and EisnerAmper LLP during those periods
| | | 2019 | | | 2018 | |
| Audit fees:(1) | | $ | 1,087,000 | | | $ | 1,648,970 | |
| Audit-related fees: | | $ | — | | | | — | |
| Tax fees: | | $ | — | | | | — | |
| All other fees: | | $ | — | | | | — | |
| Total | | $ | 1,087,000 | | | $ | 1,648,970 | |
| (1) | Audit fees consisted of audit work performed in the preparation of financial statements, as well as work generally only the independent registered public accounting firm can reasonably be expected to provide, such as statutory audits. For 2019, $915,000 of the amount reflects the Deloitte & Touche LLP fees and $172,000 of the amount reflects the EisnerAmper LLP fees. For 2018, $1,000,000 of the amount reflects the Deloitte & Touche LLP fees and $648,970 of the amount reflects the EisnerAmper LLP fees. |
The percentage of services set forth above in our internal control over financial reportingthe categories that have materially affected, or are reasonably likelywere approved by the Audit Committee pursuant to materially affect, our internal control over financial reporting. Accounting errors corrected during the quarter were systemicRule 2-01(c)(7)(i)(C) (relating to the material weaknesses previously identified byapproval of a de minimis amount of non-audit services after the Company.
Remediation Plan and Status
Our remediation efforts are ongoing and we will continue our initiatives to implement and document policies, procedures, and internal controls.
Remediationfact but before completion of the
identified material weaknessesaudit), was 0%.
Policy on Audit Committee Pre-Approval of Audit and strengtheningPermissible Non-audit Services of Independent Public Accountant
Consistent with SEC policies regarding auditor independence, the Audit Committee has responsibility for appointing, setting compensation and overseeing the work of our internal control environmentindependent registered public accounting firm. In recognition of this responsibility, the Audit Committee has established a policy to pre-approve all audit and permissible non-audit services provided by our independent registered public accounting firm.
Prior to engagement of an independent registered public accounting firm for the next year’s audit, management will require a substantial effort throughout 2019submit an aggregate of services expected to be rendered during that year for each of four categories of services to the Audit Committee for approval.
1. Audit services include audit work performed in the preparation of financial statements, as well as work that generally only an independent registered public accounting firm can reasonably be expected to provide, including comfort letters, statutory audits and beyond, as necessary. We will testattest services and consultation regarding financial accounting and/or reporting standards.
2. Audit-Related services are for assurance and related services that are traditionally performed by an independent registered public accounting firm, including due diligence related to mergers and acquisitions, employee benefit plan audits and special procedures required to meet certain regulatory requirements.
3. Tax services include all services performed by an independent registered public accounting firm’s tax personnel except those services specifically related to the ongoing operating effectivenessaudit of the newfinancial statements, and existing controls in future periods. The material weaknesses cannot be considered completely remediated until the applicable controls
have operated for a sufficient period of time and management has concluded, through testing, that these controls are operating effectively.
While we believe the steps taken to date and those planned for implementation will improve the effectiveness of our internal control over financial reporting, we have not completed all remediation efforts identified herein. Accordingly, as we continue to monitor the effectiveness of our internal control over financial reportingincludes fees in the areas
affectedof tax compliance, tax planning and tax advice.4. Other Fees are those associated with services not captured in the other categories. The Company generally does not request such services from our independent registered public accounting firm.
Prior to engagement, the Audit Committee pre-approves these services by category of service. The fees are budgeted and the material weaknesses described above, we haveAudit Committee requires our independent registered public accounting firm and will continuemanagement to perform additional procedures prescribedreport actual fees versus the budget periodically throughout the year by management, includingcategory of service. During the use of manual mitigating control procedures and employing any additional tools and resources deemedyear, circumstances may arise when it may become necessary to ensure thatengage our consolidated financial statements are fairly statedindependent registered public accounting firm for additional services not contemplated in all material respects. the original pre-approval. In those instances, the Audit Committee requires specific pre-approval before engaging our independent registered public accounting firm.
The Audit Committee may delegate pre-approval authority to one or more of its members. The member to whom such authority is delegated must report, for informational purposes only, any pre-approval decisions to the Audit Committee at its next scheduled meeting.
PART IV
| Item 15. | EXHIBITS, FINANCIAL STATEMENT SCHEDULES |
(a)(3) Exhibits
The following remediation activities highlight our commitment to remediating our identified material weaknesses:
Control Environment
We have undertaken steps to address material weaknesses in the control environment. The control environment, which is the responsibilitya list of management, sets the tone of the organization, influences the control consciousness of its people, and is the foundation for all other components of internal control over financial reporting. Our Audit Committee and management have emphasized and continued to emphasize the importance of internal control over financial reporting,exhibits filed as well as the integrity of our financial statements.
Our management has taken and will continue to take steps to ensure that previously identified control deficiencies will be remediated through the implementation of uniform accounting and internal control policies and procedures with the proper oversight to promote compliance with GAAP and regulatory requirements.
To date, we hired a new senior leader in one of our foreign affiliates who, among other responsibilities, ensures customer contract terms and price concessions are reviewed with key members of the accounting and financial reporting department on a timely basis to appropriately reflect in the financial records. In addition, we hired new accounting and financial reporting team members and engaged external resources with significant experience with systems similar to the Company's ERP system and infrastructure to provide additional capacity, analytical and functional capabilities, and cross-training. The addition of skilled personnel will allow us to select and develop appropriate policies, procedures, and controls to strengthen our control environment. Management will continue to evaluate and hire additional resources within our accounting and financial reporting, internal audit, and information technology functions with the appropriate experience, certifications, education, and training for key financial reporting and accounting positions. Management believes this will reduce the risk of a material misstatement resulting from the material weaknesses described above. However, it will require a period of time to determine the operating effectiveness of these newly implemented internal controls over financial reporting.
Risk Assessment
We have begun implementing a process for performing detailed reviews of financial records at our corporate headquarters for the purpose of identifying and correcting accounting errors. We will continue to enhance risk assessment procedures and conduct a comprehensive risk assessment to enhance overall compliance. The resultspart of this effort are expected to enable us to effectively identify, develop, and implement controls and procedures to address risks.
Control Activities
We have begun the process of redesigning and implementing internal control activities. We also plan to establish policies and procedures and enhance corporate oversight over process-level controls and structures to ensure that there is appropriate assignment of authority, responsibility, and accountability to enable remediating our material weaknesses.
Information and Communication
We have taken various steps to enhance our practices as it relates to information and communication, including conducting periodic reviews of the ERP system access to ensure appropriate segregation of duties exists for functional and administrative users and establishing policies and procedures addressing the internal control framework and operating effectiveness of the Company’s third-party ERP service provider.
Monitoring Activities
In addition to the items noted above, as we continue to evaluate, remediate, and improve our internal control over financial reporting, executive management may elect to implement additional measures to address control deficiencies or may determine that the remediation efforts described above require modification. Executive management, in consultation with and at the
direction of our Audit Committee, will continue to assess the control environment and the above-mentioned efforts to remediate the underlying causes of the identified material weaknesses, including through the following:
• We will increase internal audit, finance, accounting, and information technology staffing levels.
• We are also developing effective communication plans relating to, among other things, identification of deficiencies and recommendations for corrective actions. These plans will apply to all parties responsible for remediation.
Inherent LimitationsAnnual Report on
Effectiveness of ControlsForm 10-K.
Management, including our CEO, does not expect that our disclosure controls and procedures or our internal control over financial reporting will prevent all errors and all fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues, misstatements, errors, and instances of fraud, if any, within our organization have been or will be prevented or detected.
These inherent limitations include the realities that judgments in decision-making can be faulty and that breakdowns can occur because of simple error or mistake. Controls also can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the controls. The design of any system of controls is based in part on certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Projections of any evaluation of controls effectiveness to future periods are subject to risks. Over time, internal controls may become inadequate as a result of changes in conditions, or through the deterioration of the degree of compliance with policies or procedures.
Item 9B. OTHER INFORMATION
In the interest of maintaining consistency with the Company's 2016 Equity Incentive Plan, on March 13, 2017, the Company entered into (i) an amendment to the option agreements governing each option grant currently outstanding under the Company's 2009 Equity Incentive Plan, and (ii) an amendment to the restricted stock unit, or RSU, agreements governing each RSU grant currently outstanding under the 2009 Plan. The amendments provide for the automatic vesting upon a change of control of the Company of each option grant and RSU grant, as applicable, outstanding under the 2009 Plan. The forms of amendment are Exhibits 10.31 and 10.32 and are incorporated by reference herein.
PART III
Item 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
The response to this item is incorporated by reference from the discussion responsive thereto under the captions “Management and Corporate Governance Matters,” “Section 16(a) Beneficial Ownership Reporting Compliance,” and “Code of Conduct and Ethics” in the Company’s Proxy Statement for the 2019 Annual Meeting of Stockholders.
Item 11. EXECUTIVE COMPENSATION
The response to this item is incorporated by reference from the discussion responsive thereto under the captions “Executive Officer and Director Compensation,” “Compensation Discussion and Analysis,” “Management and Corporate Governance Matters,” “Compensation Committee Report” and “Compensation Discussion and Analysis” in the Company’s Proxy Statement for the 2019 Annual Meeting of Stockholders.
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The response to this item is incorporated by reference from the discussion responsive thereto under the captions “Security Ownership of Certain Beneficial Owners and Management” and “Equity Compensation Plan Information” in the Company’s Proxy Statement for the 2019 Annual Meeting of Stockholders.
Item 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
The response to this item is incorporated by reference from the discussion responsive thereto under the captions “Certain Relationships and Related Person Transactions” and “Management and Corporate Governance” in the Company’s Proxy Statement for the 2019 Annual Meeting of Stockholders.
Item 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
The response to this item is incorporated by reference from the discussion responsive thereto under the caption “Independent Registered Public Accounting Firm” in the Company’s Proxy Statement for the 2019 Annual Meeting of Stockholders.
PART IV
Item 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
| Exhibits | | | | | |
(a) | The following documents are filed as part of this Annual Report on Form 10-K: |
| (3.1) | |
(a)(1) | See “Index to Consolidated Financial Statements and Financial Statement Schedules” at Item 8 to this Annual Report on Form 10-K. |
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(a)(2) | Other financial statement schedules have not been included because they are not applicable or the information is included in the financial statements or notes thereto. |
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(a)(3) | The following is a list of exhibits filed as part of this Annual Report on Form 10-K. |
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Exhibits | |
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(3.1) | |
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| (3.2) | |
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| (4.1) | |
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| (4.2) | |
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| (4.3) | Indenture, dated May 1, 2018, by and between the Company and Wilmington Trust, National Association, as trustee (incorporated by reference to Exhibit 10.1 to the Company’s Report on Form 8-K, filed May 2, 2018) |
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| (4.4) | Indenture, dated as of October 31, 2019, by and among the Company, certain subsidiary guarantors named therein, and Wilmington Trust, National Association, as Trustee (incorporated by reference to Exhibit 4.1 to the Company’s Report on Form 8-K, filed October 31, 2019). |
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| (4.5) | Form of Note (incorporated by reference to Exhibit 4.2 to the Company’s Report on Form 8-K, filed October 31, 2019) |
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| (4.6) | Description of Capital Stock (incorporated by reference to Exhibit 4.6 to the Company’s Annual Report on Form 10-K for fiscal year 2019 filed April 13, 2020). |
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| (4.7) | Form of Warrant, dated as of April 6, 2020, by and among the Company and the lenders party thereto (incorporated by reference to Exhibit 4.1 to the Company’s Report on Form 8-K filed April 8, 2020). |
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| (10.1)# | |
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| (10.2)# | |
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| (10.3)# | |
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| (10.4)# | |
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| (10.5)# | |
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| (10.6)# | |
| (10.7)# | | | | | |
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(10.7)# | |
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| (10.8)# | |
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| (10.9)# | |
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(10.10)# | |
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(10.11)(10.10)+ | |
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(10.12)(10.11) | |
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(10.13)(10.12) | |
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(10.14)(10.13)+ | |
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(10.15)(10.14) | Credit Agreement dated as of November 18, 2014, by and among IGI Laboratories, Inc., Igen, Inc., and IGI Labs, Inc. as Borrowers, the other Persons party thereto that are designated as Credit Parties, General Electric Capital Corporation as Agent for all Lenders, GE Capital Bank as a Lender, and the other financial institutions party thereto as Lenders (incorporated by reference to Exhibit 10.1 to the Company’s Report on Form 8-K, filed November 24, 2014). |
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(10.16)(10.15) | |
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(10.17)(10.16) | |
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(10.18)(10.17) | Second Amendment to Credit Agreement, dated as of August 14, 2015, by and among Teligent, Inc., Igen, Inc. and Teligent Pharma, Inc. as Borrowers, General Electric Capital Corporation as Agent, and the Lenders signatory thereto (incorporated by reference to Exhibit 10.1 to the Company’s Report on Form 10-Q, filed November 9, 2015). |
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(10.19)(10.18) | Third Amendment to Credit Agreement, dated as of September 16, 2015, by and among Teligent, Inc., Igen, Inc. and Teligent Pharma, Inc. as Borrowers, General Electric Capital Corporation as Agent, and the Lenders signatory thereto (incorporated by reference to Exhibit 10.2 to the Company’s Report on Form 10-Q, filed November 9, 2015). |
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(10.20)(10.19)+ | Asset Purchase Agreement, dated as of October 5, 2015, by between Concordia Pharmaceuticals Inc., S.à.r.l., Barbados Branch, on the one hand, and Teligent, Inc. and Teligent Jersey Limited, on the other hand (incorporated by reference to Exhibit 10.3 to the Company’s Report on Form 10-Q, filed November 9, 2015). |
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| (10.20) | | | | | |
(10.21) | |
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(10.22)(10.21) | |
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(10.23)(10.22) | |
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(10.24)(10.23) | |
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(10.25)(10.24) | |
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(10.26)(10.25) | |
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(10.27)(10.26) | |
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(10.28)(10.27) | First Amendment to Asset Purchase Agreement, dated December 10, 2015, by and between Concordia Pharmaceuticals Inc., S.à.r.l., Barbados Branch, on the one hand, and Teligent, Inc. and Teligent Jersey Limited, on the other hand (incorporated by reference to Exhibit 10.1 to the Company’s Report on Form 8-K, filed December 15, 2015). |
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(10.29)(10.28) | Trademark Assignment Agreement, dated December 10, 2015, by and between Concordia Pharmaceuticals Inc., S.à.r.l., Barbados Branch, on the one hand, and Teligent Jersey Limited, on the other hand (incorporated by reference to Exhibit 10.2 to the Company’s Report on Form 8-K, filed December 15, 2015). |
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(10.30)(10.29)# | |
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(10.31)(10.30)# | |
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(10.32)(10.31)# | |
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(10.33)(10.32)# | |
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(10.34)# | |
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(10.35)#(10.33) | |
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(10.36)#(10.34) | |
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| (10.35) | | | | | |
(10.37)# | |
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(10.38)#(10.36) | |
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(21)(10.37)# | |
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(23.1)*(10.38) | |
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(23.2)*(10.39) | |
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| (10.40) | Form of Purchase Agreement, dated as of October 28, 2019, between the Company and the purchaser party thereto (incorporated by reference to Exhibit 10.1 to the Company’s Report on Form 8-K filed October 31, 2019). |
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| (10.41) | Form of Exchange Agreement, dated as of October 28, 2019, between the Company and the exchanging noteholder party thereto (incorporated by reference to Exhibit 10.2 to the Company’s Report on Form 8-K filed October 31, 2019). |
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| (10.42) | Consent and Amendment No. 1 to First Lien Credit Agreement, dated as of October 31, 2019, by and among the Company, certain subsidiaries thereto, the lenders party thereto, and ACF Finco I LP, as Administrative Agent (incorporated by reference to Exhibit 10.3 to the Company’s Report on Form 8-K filed October 31, 2019). |
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| (10.43) | Consent and Amendment No. 3 to Second Lien Credit Agreement, dated as of October 31, 2019, by and among the Company, its subsidiaries signatory thereto, the lenders party thereto, and Ares Capital Corporation, as Administrative Agent (incorporated by reference to Exhibit 10.4 to the Company’s Report on Form 8-K filed October 31, 2019). |
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| (10.44) | Teligent, Inc. Change in Control Severance Policy (incorporated by reference to Exhibit 10.1 to the Company’s Report on Form 8-K filed on January 15, 2020). |
| |
| (10.45)# | Separation Agreement between the Company and Jason Grenfell-Gardner dated February 5, 2020 (incorporated by reference to Exhibit 10.46 to the Company’s Annual Report on Form 10-K for fiscal year 2019 filed April 13, 2020). |
| |
| (10.46)# | Employment Agreement dated February 4, 2020 between the Company and Tim Sawyer (incorporated by reference to Exhibit 10.1 to the Company’s Report on Form 8-K filed February 5, 2020). |
| |
| (10.47) | Amendment No. 2 to First Lien Credit Agreement, dated as of April 6, 2020, by and among the Company, its subsidiaries signatory thereto, the lenders party thereto, and ACF Finco I LP, as Administrative Agent (incorporated by reference to Exhibit 10.1 to the Company’s Report on Form 8-K filed April 8, 2020). |
| |
| (10.48) | Amendment No. 4 to Second Lien Credit Agreement, dated as of April 6, 2020 by and among the Company, its subsidiaries signatory thereto, the lenders party thereto, and Ares Capital Corporation, as Administrative Agent (incorporated by reference to Exhibit 10.2 to the Company’s Report on Form 8-K filed April 8, 2020). |
#Indicates management† Management contract or compensatory plan.
plan or arrangement.+Portions of this Exhibit were omitted and filed separately with the Secretary of the SEC pursuant to a request for confidential treatment that has been granted by the SEC.
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized
. | | | | | | | | Teligent, Inc. |
| Teligent, Inc. | |
| By: | /s/ Timothy B. Sawyer | |
| By: | /s/ Jason Grenfell-GardnerTimothy B. Sawyer |
| | Jason Grenfell-Gardner |
| | President and Chief Executive Officer |
28, 2020Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities indicated below and on the dates indicated.
| Signature | | Title | | | | | | | | | | | | Date |
Signature | | Title | | Date |
| | | | |
/s/ Jason Grenfell-GardnerTimothy B. Sawyer | | Director, President and Chief Executive Officer | | April 1, 201928, 2020 |
Jason Grenfell-GardnerTimothy B. Sawyer | | (Principal Executive Officer) | | |
| | | | |
| /s/ Damian Finio | | Chief Financial Officer | | April 1, 201928, 2020 |
| Damian Finio | | (Principal Financial Officer, Principal Accounting Officer) | | |
| | | | |
| /s/ Steven Koehler | | Director | | April 1, 201928, 2020 |
| Steven Koehler | | | | |
| | | | |
| /s/ James Gale | | Director | | April 1, 201928, 2020 |
| James Gale | | | | |
| | | | |
| /s/ Bhaskar Chaudhuri | | Director | | April 1, 201928, 2020 |
| Bhaskar Chaudhuri | | | | |
| | | | |
| /s/ John Celentano | | Director | | April 1, 201928, 2020 |
| John Celentano | | | | |
| | | | |
| /s/ Carole Ben-Maimon | | Director | | April 1, 201928, 2020 |
| Carole Ben-Maimon | | | | |
| | | | |
| /s/ Thomas Sabatino | | Director | | April 1, 201928, 2020 |
| Thomas Sabatino | | | | |
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the stockholders and the Board of Directors of Teligent, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheet of Teligent, Inc. and subsidiaries (the "Company") as of December 31, 2018, and the related consolidated statement of operations, comprehensive income (loss), stockholders' equity, and cash flows, for the year ended December 31, 2018, and the related notes and the schedule listed in the Index to Consolidated Financial Statements (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, 2018, and the results of its operations and its cash flows for the year ended December 31, 2018, in conformity with accounting principles generally accepted in the United States of America.
We have also 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, based on criteria established in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated April 1, 2019 expressed an adverse opinion on the Company's internal control over financial reporting.
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 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 the financial statements are free of material misstatement, whether due to error or fraud. Our audit 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 regarding the amounts and disclosures in the financial statements. Our audit 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 audit provide a reasonable basis for our opinion.
/s/ Deloitte & Touche LLP
Parsippany, New Jersey
April 1, 2019
We have served as the Company’s auditor since 2018.
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the stockholders and the Board of Directors of Teligent, Inc.
Opinion on the Internal Control over Financial Reporting
We have audited the internal control over financial reporting of Teligent, Inc and subsidiaries (the “Company”) as of December 31, 2018, based on criteria established in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). In our opinion, because of the effect of the material weaknesses identified below on the achievement of the objectives of the control criteria, the Company has not maintained effective internal control over financial reporting as of December 31, 2018, based on criteria established in Internal Control — Integrated Framework (2013) issued by COSO.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated financial statements as of and for the year ended December 31, 2018, of the Company and our report dated April 1, 2019 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 Report on 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.
Material Weaknesses
A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the company’s annual or interim financial statements will not be prevented or detected on a timely basis. The following material weaknesses have been identified and included in management's assessment:
Control Environment - control deficiencies constituting material weaknesses, either individually or in the aggregate, relating to: (i) appropriate organizational structure, reporting lines, and authority and responsibilities in pursuit of objectives, (ii)
commitment to attract, develop, and retain competent individuals, and (iii) holding individuals accountable for their internal control related responsibilities.
Risk Assessment - control deficiencies constituting material weaknesses, either individually or in the aggregate, relating to: (i) identifying, assessing, and communicating appropriate objectives, (ii) identifying and analyzing risks to achieve these objectives, and (iii) identifying and assessing changes in the business that could impact the system of internal controls.
Control Activities - control deficiencies constituting material weaknesses, either individually or in the aggregate, relating to: (i) selecting and developing control activities and information technology that contribute to the mitigation of risks and support achievement of objectives and (ii) deploying control activities through policies that establish what is expected and procedures that put policies into action.
Information and Communication - control deficiencies constituting material weaknesses, either individually or in the aggregate, relating to: (i) obtaining, generating, and using relevant quality information to support the function of internal control, and (ii) communicating accurate information internally and externally, including providing information pursuant to objectives, responsibilities, and functions of internal control.
Monitoring - control deficiencies constituting material weaknesses, either individually or in the aggregate, relating to: (i) selecting, developing, and performing ongoing evaluation to ascertain whether the components of internal controls are present and functioning, and (ii) evaluating and communicating internal control deficiencies in a timely manner to those parties responsible for taking corrective action.
These material weaknesses were considered in determining the nature, timing, and extent of audit tests applied in our audit of the consolidated financial statements as of and for the year ended December 31, 2018, of the Company, and this report does not affect our report on such financial statements.
/s/ DELOITTE & TOUCHE LLP
Parsippany, New Jersey
April 1, 2019
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the stockholders and the Board of Directors of Teligent, Inc.
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheet of Teligent, Inc.and subsidiaries (the “Company”) as of December 31, 2017, and the related consolidated statements of operations, comprehensive income (loss), stockholders’ equity, and cash flows for the years ended December 31, 2017 and 2016, and the related notes and schedule II (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2017, and the results of its operations and its cash flows for the years ended December 31, 2017 and 2016, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (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 consolidated 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 consolidated 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 regarding the amounts and disclosures in the consolidated 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 consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ EisnerAmper LLP
We served as the Company’s auditor from 2010 to 2018.
EISNERAMPER LLP
Iselin, New Jersey
March 19, 2018
TELIGENT, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, except share and per share information)
| | | | | | | | | | | | | | |
| | 12/31/2018 | | 12/31/2017 |
| ASSETS | | | | |
| Current assets: | | | | |
| Cash and cash equivalents | | $ | 9,705 | | $ | 26,692 |
| Restricted cash | | 2,892 | | — |
| Accounts receivable, net of allowance for doubtful accounts of $2,636 and $2,185, as of December 31, 2018 and December 31, 2017, respectively | | 16,120 | | 12,742 |
| Inventories | | 16,296 | | 16,075 |
| Prepaid expenses and other receivables | | 3,373 | | 3,622 |
| Total current assets | | 48,386 | | 59,131 |
| Property, plant and equipment, net | | 91,775 | | 68,355 |
| Intangible assets, net | | 48,375 | | 56,017 |
| Goodwill | | 470 | | 471 |
| Other | | 1,886 | | 611 |
| Total assets | | $ | 190,892 | | $ | 184,585 |
| | | | |
| LIABILITIES AND STOCKHOLDERS’ EQUITY | | | | |
| Current liabilities: | | | | |
| Accounts payable | | $ | 5,933 | | $ | 10,595 |
| Accrued expenses | | 9,842 | | 8,101 |
| Deferred income, current | | 2,426 | | — |
| Convertible 3.75% Senior Notes, net of debt discount and debt issuance costs (face of $15,702 as of December 31, 2018 ) | | 14,411 | | — |
| | | | |
| Total current liabilities | | 32,612 | | 18,696 |
| | | | |
| Convertible 3.75% Senior Notes, net of debt discount and debt issuance costs (face of $143,750 as of December 31, 2017) | | — | | 120,977 |
| Convertible 4.75% Senior Notes, net of debt discount and debt issuance costs (face of $75,090 as of December 31, 2018) | | 56,909 | | — |
| Revolver, net of debt issuance costs (face of $15,000 as of December 31, 2018) | | 15,000 | | — |
| 2023 Term Loan, net of debt issuance costs (face of $70,000 as of December 31, 2018) | | 67,662 | | — |
| Deferred tax liability | | 215 | | 159 |
| Other long term liabilities | | 73 | | — |
| Total liabilities | | 172,471 | | 139,832 |
| Commitments and Contingencies | | | | |
| Stockholders’ equity: | | | | |
| | | | |
| | | | |
| Common stock, $0.01 par value, 100,000,000 shares authorized; 53,774,221 and 53,400,281 shares issued and outstanding as of December 31, 2018 and December 31, 2017, respectively | | 557 | | 554 |
| Additional paid-in capital | | 116,864 | | 106,312 |
| Accumulated deficit | | (96,350) | | (60,094) |
| Accumulated other comprehensive loss, net of taxes | | (2,650) | | (2,019) |
| Total stockholders’ equity | | 18,421 | | 44,753 |
| Total liabilities and stockholders’ equity | | $ | 190,892 | | $ | 184,585 |
The accompanying notes are an integral part of the consolidated financial statements.
TELIGENT, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
For the years ended December 31, 2018, 2017 and 2016
(in thousands, except shares and per share information)
| | | | | | | | | | | | | | | | | | | | |
| | | 2018 | | 2017 | | 2016 |
| Revenue, net | | $ | 65,865 | | $ | 60,202 | | $ | 63,012 |
| | | | | | |
| Costs and Expenses: | | | | | | |
| Cost of revenues | | 43,480 | | 32,830 | | 28,325 |
| Selling, general and administrative expenses | | 23,408 | | 19,904 | | 15,005 |
| Product development and research expenses | | 14,076 | | 19,265 | | 17,140 |
| Total costs and expenses | | 80,964 | | 71,999 | | 60,470 |
| Operating (loss) income | | (15,099) | | (11,797) | | 2,542 |
| | | | | | |
| Other (Expense) Income: | | | | | | |
| Foreign currency exchange (loss) gain | | (3,371) | | 7,719 | | (936) |
| Debt partial extinguishment of 2019 Notes | | (4,235) | | — | | — |
| Debt extinguishment of 2021 Term Loan | | (1,315) | | — | | ��� |
| Interest and other expense, net | | (12,298) | | (11,198) | | (13,304) |
| Loss before income tax expense | | (36,318) | | (15,276) | | (11,698) |
| | | | | | |
| Income tax (benefit) expense | | (62) | | (85) | | 287 |
| | | | | | |
| | | | | | |
| | | | | | |
| | | | | | |
| | | | | | |
| Net loss attributable to common stockholders | | $ | (36,256) | | $ | (15,191) | | $ | (11,985) |
| | | | | | |
| Basic and diluted loss per share | | $ | (0.68) | | $ | (0.28) | | $ | (0.23) |
| | | | | | |
| | | | | | |
| Weighted average shares of common stock outstanding: | | | | | | |
| Basic and diluted | | 53,592,930 | | 53,323,954 | | 53,078,158 |
| | | | | | |
The accompanying notes are an integral part of the consolidated financial statements.
TELIGENT, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
For the years ended December 31, 2018, 2017 and 2016
(in thousands)
| | | | | | | | | | | | | | | | | | | | |
| | | 2018 | | 2017 | | 2016 |
| Net loss | | $ | (36,256) | | $ | (15,191) | | $ | (11,985) |
| | | | | | |
| Other comprehensive loss, net of tax | | | | | | |
| Foreign currency translation adjustment | | (631) | | (414) | | (1,475) |
| Other comprehensive loss | | (631) | | (414) | | (1,475) |
| | | | | | |
| Comprehensive loss | | $ | (36,887) | | $ | (15,605) | | $ | (13,460) |
The accompanying notes are an integral part of the consolidated financial statements.
TELIGENT, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the years ended December 31, 2018, 2017 and 2016
| | | | | | | | | | | | | | | | | | | | |
| | 2018 | | 2017 | | 2016 |
| Cash flows from operating activities: | | | | | | |
| Net loss | | $ | (36,256) | | $ | (15,191) | | $ | (11,985) |
| Reconciliation of net loss to net cash provided by (used in) operating activities: | | | | | | |
| Depreciation of fixed assets | | 2,579 | | 1,711 | | 946 |
| Gain on sale of assets | | (20) | | — | | — |
| Provision for write down of inventory | | 1,363 | | 2,132 | | 1,400 |
| Provision for bad debt | | 452 | | 1,767 | | 327 |
| Issuance of stock to consultant | | 102 | | — | | 189 |
| Stock based compensation | | 1,970 | | 3,295 | | 2,999 |
| Amortization of debt costs and debt discount | | 9,226 | | 9,586 | | 8,427 |
| Amortization of intangibles | | 3,096 | | 2,930 | | 2,833 |
| Deferred income taxes | | 73 | | — | | — |
| Foreign currency exchange loss (gain) | | 3,371 | | (7,719) | | 936 |
| Partial extinguishment of 3.75% senior notes | | 4,235 | | — | | — |
| Extinguishment of 2021 term loan | | 1,315 | | — | | — |
| Loss on impairment of intangible assets | | 1,924 | | 113 | | 16 |
| Changes in operating assets and liabilities: | | | | | | |
| Accounts receivable | | (4,047) | | 5,964 | | (7,936) |
| Inventories | | (1,877) | | (5,275) | | (5,042) |
| Prepaid expenses and other current receivables | | 224 | | (748) | | 3,427 |
| Other assets | | (26) | | 192 | | 667 |
| Accounts payable and accrued expenses | | (3,405) | | 1,641 | | 2,825 |
| Deferred income | | 2,426 | | — | | (476) |
| Net cash (used in) provided by operating activities | | (13,275) | | 398 | | (447) |
| | | | | | |
| Cash flows from investing activities: | | | | | | |
| Capital expenditures | | (25,332) | | (40,429) | | (16,655) |
| Disposal of fixed assets | | 38 | | — | | — |
| | | | | | |
| Product acquisition costs, net | | — | | — | | (3,421) |
| Net cash used in investing activities | | (25,294) | | (40,429) | | (20,076) |
| | | | | | |
| Cash flows from financing activities: | | | | | | |
| Proceeds from 2021 term loan | | 25,000 | | — | | — |
| Proceeds from 2023 term loan | | 70,000 | | — | | — |
| Proceeds from 2021 revolver | | 15,000 | | — | | — |
| Repayment of 2021 term loan, net | | (25,550) | | — | | — |
| Debt issuance costs | | (6,239) | | — | | — |
| Repurchase of 3.75% senior notes | | (53,123) | | — | | — |
| Proceeds from exercise of common stock options and warrants | | 251 | | 269 | | 96 |
| Principal payments on capital lease obligations | | (6) | | — | | (70) |
| Payment (recovery) from stockholder, net | | — | | — | | (36) |
| | | | | | |
| Net cash provided by (used in) financing activities | | 25,333 | | 269 | | (10) |
| | | | | | |
| Effect of exchange rate on cash, cash equivalents and restricted cash | | (860) | | 446 | | (301) |
| Net decrease in cash, cash equivalents and restricted cash | | (13,236) | | (39,762) | | (20,533) |
| Cash, cash equivalents and restricted cash at beginning of year | | 27,165 | | 66,481 | | 87,315 |
| | | | | | |
| Cash, cash equivalents and restricted cash at end of year | | $ | 13,069 | | $ | 27,165 | | $ | 66,481 |
| | | | | | |
| Supplemental Cash flow information: | | | | | | |
| Cash payments for interest | | $ | 7,340 | | $ | 5,391 | | $ | 5,393 |
| Cash payments for income taxes | | 89 | | 126 | | 113 |
| | | | | | |
| Non cash investing and financing transactions: | | | | | | |
| | | | | | |
| Acquisition of capital expenditures in accounts payable and accrued expenses | | 568 | | 3,186 | | 1,805 |
| Capitalized stock compensation in capital expenditures | | 96 | | 127 | | 91 |
| Issuance of stock to consultant | | 102 | | — | | 189 |
| | | | | | |
| | | | | | |
The accompanying notes are an integral part of the consolidated financial statements.
TELIGENT, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
For the years ended December 31, 2018, 2017 and 2016
(in thousands, except share information)
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | Additional | | | | Accumulated
Other | | | | Total |
| | | | | | | | | | | Common Stock | | | | Paid-In | | Accumulated | | Comprehensive | | | | Stockholders’ |
| | | | | | | | | | | Shares | | Amount | | Capital | | Deficit | | Loss | | | | Equity |
| Balance, December 31, 2015 | | | | | | | | | | 53,000,689 | | $ | 549 | | $ | 99,258 | | $ | (32,918) | | $ | (130) | | | | $ | 66,759 |
| Issuance of stock to consultant | | | | | | | | | | 25,000 | | | | 189 | | | | | | | | 189 |
| Stock based compensation expense | | | | | | | | | | | | | | 3,090 | | | | | | | | 3,090 |
| Stock options exercised | | | | | | | | | | 61,834 | | 1 | | 95 | | | | | | | | 96 |
| Issuance of stock for vested restricted stock units | | | | | | | | | | 60,918 | | 1 | | | | | | | | | | 1 |
| Recovery from stockholder, net | | | | | | | | | | | | | | (36) | | | | | | | | (36) |
| Tax benefit related to stock options | | | | | | | | | | | | | | 28 | | | | | | | | 28 |
| Cumulative translation adjustment | | | | | | | | | | | | | | | | | | (1,475) | | | | (1,475) |
| Net loss | | | | | | | | | | — | | — | | — | | (11,985) | | — | | | | (11,985) |
| | | | | | | | | | | | | | | | | | | | | | |
| Balance, December 31, 2016 | | | | | | | | | | 53,148,441 | | $ | 551 | | $ | 102,624 | | $ | (44,903) | | $ | (1,605) | | | | $ | 56,667 |
| | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | |
| Stock based compensation expense | | | | | | | | | | | | | | 3,422 | | | | | | | | 3,422 |
| Stock options exercised | | | | | | | | | | 171,566 | | 2 | | 267 | | | | | | | | 269 |
| Issuance of stock for vested restricted stock units | | | | | | | | | | 80,274 | | 1 | | (1) | | | | | | | | — |
| Cumulative translation adjustment | | | | | | | | | | | | | | | | | | (414) | | | | (414) |
| Net loss | | | | | | | | | | — | | — | | — | | (15,191) | | — | | | | (15,191) |
| | | | | | | | | | | | | | | | | | | | | | |
| Balance, December 31, 2017 | | | | | | | | | | 53,400,281 | | $ | 554 | | $ | 106,312 | | $ | (60,094) | | $ | (2,019) | | | | $ | 44,753 |
| | | | | | | | | | | | | | | | | | | | | | |
| Issuance of stock to consultant | | | | | | | | | | 25,000 | | | | 102 | | | | | | | | 102 |
| Stock based compensation expense | | | | | | | | | | | | | | 2,066 | | | | | | | | 2,066 |
| Stock options exercised | | | | | | | | | | 239,000 | | 2 | | 249 | | | | | | | | 251 |
| Issuance of stock for vested restricted stock units | | | | | | | | | | 109,940 | | 1 | | (1) | | | | | | | | — |
| Fair value of conversion feature on Convertible 4.75% Senior Notes | | | | | | | | | | | | | | 18,658 | | | | | | | | 18,658 |
| Partial extinguishment of equity component of Convertible 3.75% Senior Notes | | | | | | | | | | | | | | (10,522) | | | | | | | | (10,522) |
| Cumulative translation adjustment | | | | | | | | | | | | | | | | | | (631) | | | | (631) |
| Net loss | | | | | | | | | | | | | | | | (36,256) | | | | | | (36,256) |
| Balance, December 31, 2018 | | | | | | | | | | 53,774,221 | | $ | 557 | | $ | 116,864 | | $ | (96,350) | | $ | (2,650) | | | | $ | 18,421 |
| | | | | | | | | | | | | | | | | | | | | | |
The accompanying notes are an integral part of the consolidated financial statements.
TELIGENT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1.Correction of Previously Issued Consolidated Financial Statements
Subsequent to the issuance of the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2018, management determined adjustments were needed to correct the presentation of certain immaterial accounting errors in the Company’s previously reported consolidated financial statements for the years ended December 31, 2017 and 2016. Accordingly, the accompanying consolidated financial statements as of and for the years ended December 31, 2017 and 2016, and the related notes hereto (including the Company’s quarterly results disclosed in Note 15, Quarterly Results), have been revised to correct these immaterial accounting errors (the “Revision”). A summary of these immaterial accounting errors, and their impact on the accompanying consolidated financial statements are, as follows:
(1) The Company pays wholesalers certain fees associated with the sale of the Company's product. The payment of these fees had been historically classified by the Company as cost of revenues and accrued expenses prior to the adoption of ASC 606, Revenue from Contracts with Customers ("ASC 606"). As disclosed in Note 7, Revenues, Recognition and Allowances, the Company adopted ASC 606 on January 1, 2018 using the modified retrospective method, at which time the Company began classifying the payment of wholesaler fees as a reduction of revenue and accounts receivable. Upon further analysis, however, management determined that these fees should have always been classified as a reduction of revenue and accounts receivable, rather than as costs of revenues and accrued expenses, because the services provided by the Company’s wholesalers cannot generally be provided by third parties and the underlying fees are not specifically identifiable from other services.
As a result, the accompanying Consolidated Statement of Operations, Consolidated Balance Sheet and Consolidated Statements of Cash Flows for the years ended December 31, 2017 and 2016 have been revised to correct the presentation of wholesaler fees as a reduction of revenue rather than as cost of revenues. The correction of this immaterial error resulted in a reduction in previously reported revenue and cost of revenue of approximately $7.0 million and $3.9 million, respectively, for the years ended December 31, 2017 and 2016. In addition, the correction of this error resulted in a reduction in previously reported accounts receivable and decrease in previously reported accrued expenses of approximately $7.0 million, respectively, as of December 31, 2017.
(2) Prior to the adoption of ASC 606, the Company classified Medicaid, Medicare and other rebates (the "Rebates") as a reduction of accounts receivable, whereas subsequent to adoption of ASC 606 the Company began classifying the Rebates as accrued expenses. Upon further analysis, management determined that the Rebates should have always been classified as accrued expenses because their terms require cash settlement and are payable to third parties that are other than the Company's customer. The correction of this immaterial error resulted in an increase in previously reported accounts receivable and increase in previously reported accrued expenses of $1.6 million, respectively, as of December 31, 2017.
The following tables summarize the effects of the Revision on the accompanying consolidated financial statements of the Company (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Consolidated Statements of Operations | | | | | | | | | | |
| Year Ended December 31, 2017 | | | | | | Year Ended December 31, 2016 | | | | |
| As Previously | | | | | | As Previously | | | | |
| Reported | | Adjustment | | As Revised | | Reported | | Adjustment | | As Revised |
| | | | | | | | | | | |
| Revenue, net | $ | 67,251 | | $ | (7,049) | (1) | $ | 60,202 | | $ | 66,881 | | $ | (3,869) | (1) | $ | 63,012 |
| Cost of revenues | 39,879 | | (7,049) | (1) | 32,830 | | 32,194 | | (3,869) | (1) | 28,325 |
| Total costs and expenses | 79,048 | | (7,049) | (1) | 71,999 | | 64,339 | | (3,869) | (1) | 60,470 |
| | | | | | | | | | | | | | | | | |
| Consolidated Balance Sheet | | | | |
| December 31, 2017 | | | | |
| As Previously | | | | |
| Reported | | Adjustment | | As Revised |
| | | | | |
| Accounts receivable, net | $ | 18,143 | | $ | (5,401) | (1),(2) | $ | 12,742 |
| Total current assets | 64,532 | | (5,401) | (1),(2) | 59,131 |
| Total assets | 189,986 | | (5,401) | (1),(2) | 184,585 |
| | | | | |
| Accrued expenses | 13,502 | | (5,401) | (1),(2) | 8,101 |
| Total current liabilities | 24,097 | | (5,401) | (1),(2) | 18,696 |
| Total liabilities | 145,233 | | (5,401) | (1),(2) | 139,832 |
| Total liabilities and stockholders' equity | 189,986 | | (5,401) | (1),(2) | 184,585 |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Consolidated Statement of Cash Flows | | | | | | Consolidated Statement of Cash Flows | | | | |
| Twelve Months Ended December 31, 2017 | | | | | | Twelve Months Ended December 31, 2016 | | | | |
| As Previously | | | | | | As Previously | | | | |
| Reported | | Adjustment | | As Revised | | Reported | | Adjustment | | As Revised |
| | | | | | | | | | | |
| Cash flows from operating activities | | | | | | | | | | | |
| Accounts receivable | $ | 1,894 | | $ | 4,070 | (1),(2) | $ | 5,964 | | $ | (8,008) | | $ | 72 | (1),(2) | $ | (7,936) |
| Accounts payable and accrued expenses | 5,711 | | (4,070) | (1),(2) | 1,641 | | 2,897 | | (72) | (1),(2) | 2,825 |
2. Nature of the Business and Liquidity
Nature of the Business
Teligent, Inc. is a Delaware corporation incorporated in 1977 and is a specialty generic pharmaceutical company. Under its own label, the Company markets and sells generic topical and branded generic and generic injectable pharmaceutical products in the United States and Canada. In the United States, the Company currently markets 35 generic topical pharmaceutical products and four branded generic pharmaceutical products. In Canada, the Company sells over 27 generic and branded generic injectable products and medical devices. Generic pharmaceutical products are bioequivalent to their brand name counterparts. The Company also provides contract manufacturing services to the pharmaceutical, over-the-counter, ("OTC"), and cosmetic markets. The Company operates its business under one segment. Our common stock is trading on the Nasdaq Global Select Market, under the trading symbol “TLGT.”
Teligent also develops, manufactures, fills, and packages topical semi-solid and liquid products for branded and generic pharmaceutical customers, as well as the OTC and cosmetic markets. These products are used in a wide range of applications from cosmetics and cosmeceuticals to the prescription treatment of conditions like dermatitis, psoriasis, and eczema. Teligent has completed the facility expansion in Buena, New Jersey, to support the increased capacity demand expected from future product approvals from the FDA and is planning for a plant approval inspection in 2019. As the Company continues to execute the expansion of our development and commercial base beyond topical generics to include injectable generics, complex generics and ophthalmic generics (what we call our “TICO strategy”), it will compete in other markets, including the ophthalmic generic pharmaceutical market, and expects to face other competitors.
Liquidity
The Company’s principal sources of liquidity are cash and cash equivalents of approximately $9.7 million at December 31, 2018 and ongoing cash from operations. The Company has access to an additional $10.0 million on its Revolver and an additional $25.0 million still available on its 2023 Term Loans, in each case at December 31, 2018, as part of the credit facilities executed with Ares Capital Management in December 2018. In January 2019, the Company drew $5.0 million from its remaining $10.0 million Revolver. The Company also has the ability to defer certain product development and other programs, as well as exercise its option to defer the payment of interest on its 2023 Term Loans, if necessary.
However, the Company may require additional funding and this funding will depend, in part, on the timing and structure of potential business arrangements. If necessary, the Company may continue to seek to raise additional capital through the sale of its equity or through a strategic alliance with a third party, subject to certain restrictions in the Ares Credit Facility agreements. There may also be additional acquisition and growth opportunities that may require external financing. There can be no assurance that such financing will be available on terms acceptable to the Company, or at all. The Company believes that its existing capital resources will be sufficient to support its current business plan and operations beyond March 2020.
3. Summary of Significant Accounting Policies
Basis of Presentation and Principles of Consolidation
The accompanying financial statements of the Company have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”). The Company consolidates the following entities: Igen, Inc., Teligent Pharma. Inc., Teligent Luxembourg S.à.r.l., Teligent OÜ, Teligent Canada Inc., and Teligent Jersey Limited., in addition to the following inactive entities: Microburst Energy, Inc., Blood Cells, Inc. and Flavorsome, Ltd. All inter-company accounts and transactions have been eliminated. Certain amounts in the prior periods presented have been reclassified to conform to the current period financial statement presentation. These reclassifications have no effect on previously reported net income.
Use of Estimates
The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Significant estimates include the historical valuation of the derivative liability, sales returns and allowances, allowances for excess and obsolete inventories, allowances for doubtful accounts, provisions for income taxes and related valuation allowances, stock based compensation, the assessment for the impairment of long-lived assets (including intangibles, goodwill and property, plant and equipment), property, plant and equipment and legal accruals for environmental cleanup and remediation costs. Actual results could differ from those estimates.
Cash Equivalents
The Company considers all highly liquid instruments purchased with the original maturity of three months or less to be cash equivalents to the extent the funds are not being held for investment purposes. Cash and cash equivalents include cash on hand and bank demand deposits used in the Company’s cash management program.
The Company has restricted cash, consisting of escrow accounts and letter of credits, which is included within other assets, non-current on the Consolidated Balance Sheet. In addition, pursuant to the New Credit Facilities agreement, proceeds from the 2023 Term Loan are deposited in a blocked bank account and restricted for use with the exception of repurchasing remaining 2019 Notes, which is included within restricted cash at December 31, 2018 in the table below.
The Company presents restricted cash with cash and cash equivalents in the Consolidated Statement of Cash Flows. The following table provides a reconciliation of cash and cash equivalents and restricted cash reported in the Consolidated Balance Sheet to the total amounts in the Consolidated Statement of Cash Flows as follows (in thousands):
| | | | | | | | | | | | | | | | | |
| December 31, 2018 | | December 31, 2017 | | December 31, 2016 |
| Cash and cash equivalents | $ | 9,705 | | $ | 26,692 | | $ | 66,006 |
| Restricted cash | 2,892 | | — | | — |
| Restricted cash in other assets | 472 | | 473 | | 475 |
| Cash, cash equivalents and restricted cash in the statement of cash flows | $ | 13,069 | | $ | 27,165 | | $ | 66,481 |
Inventories
Inventories are valued at the lower of cost, using the first-in, first-out (“FIFO”) method, or market. The Company records an inventory reserve for losses associated with dated, expired, excess and obsolete raw materials. This reserve is based on management’s current knowledge with respect to inventory levels, planned production, and extension capabilities of materials on hand. Management does not believe the Company’s inventory is subject to significant risk of obsolescence in the near term.
Property, Plant and Equipment
Depreciation and amortization of property, plant and equipment is provided for under the straight-line method over the assets’ estimated useful lives as follows:
| | | | | | | | |
Descriptions | | Useful Lives |
| | |
Buildings and improvements | | 10 - 40 years |
Machinery and equipment | | 5 - 15 years |
Computer hardware and software | | 3 - 5 years |
Furniture and fixtures | | 5 years |
| | |
| | |
Leasehold improvements are amortized over the shorter of estimated useful life or the lease term. Repair and maintenance costs are charged to operations as incurred while major improvements are capitalized. Construction in progress ("CIP") costs are amortized based on the asset class when they are put into service. When assets are retired or disposed, the related cost and accumulated depreciation thereon are removed and any gains or losses are included in operating results.
Intangible Assets
Definite-lived intangible assets are stated at cost less accumulated amortization. Amortization of definite-lived intangible assets is computed on a straight-line basis over the assets’ estimated useful lives, generally for periods ranging from 10 to 15 years. The Company continually evaluates the reasonableness of the useful lives of these assets. Indefinite-lived intangible assets are not amortized, but instead are tested at least annually for impairment. Costs to renew or extend the term of a recognized intangible asset are expensed as incurred. An impairment is recognized in the amount, if any, by which the carrying amount of such assets exceeds their respective fair values and would be recorded in the selling, general and administrative expense on the Consolidated Statements of Operations.
In-Process Research and Development
Amounts allocated to in-process research and development (“IPR&D”) in connection with a business combination are recorded at fair value and are considered indefinite-lived intangible assets subject to the impairment testing in accordance with the Company’s impairment testing policy for indefinite-lived intangible assets. As products in development are approved for sale, amounts will be allocated to product rights and will be amortized over their estimated useful lives. These valuations reflect, among other things, the impact of changes to the development programs, the projected development and regulatory time frames and the current competitive environment. The Company had a third party perform a valuation of the intangible assets included in IPR&D as of December 31, 2018. IPR&D are solely those assets acquired in the 2015 business combination of Alveda. Due to changing market conditions, the Company recorded an impairment loss of $1.2 million in the fourth quarter. Going forward,
changes in any of the Company’s assumptions may result in a further reduction to the estimated fair value of IPR&D assets and could result in future impairment charges.
Long-Lived Assets
In accordance with the provisions of ASC 360-10-55, the Company reviews its long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of the assets may not be recoverable. In performing such review for recoverability, the Company compares expected future cash flows of assets to the carrying value of the long-lived assets and related identifiable intangibles. If the expected future cash flows (undiscounted) are less than the carrying amount of such assets, the Company recognizes an impairment loss for the difference between the carrying value of the assets and their estimated fair value, with fair values being determined using projected discounted cash flows at the lowest level of cash flows identifiable in relation to the assets being reviewed.
Product Acquisition Costs
Product acquisition costs represent ANDAs and NDAs acquired in asset acquisitions, which are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of these assets may not be recoverable. The Company expects to amortize these costs over a ten year useful life commencing when the product is sold. At December 31, 2018, product acquisition costs included assets acquired from AstraZeneca, Valeant and Sebala. The Company recorded an impairment loss of $0.7 million in the fourth quarter of 2018 related to product acquisition costs.
Goodwill
Goodwill, which represents the excess of purchase price over the fair value of net assets acquired, is carried at cost. Goodwill is tested for impairment on an annual basis on October 1, 2018 of each fiscal year or more frequently if events or changes in circumstances indicate that the asset might be impaired. The Company first performs a qualitative assessment to determine if the quantitative impairment test is required. If changes in circumstances indicate an asset may be impaired, the Company performs the quantitative impairment test. In accordance with accounting standards, a two-step quantitative method is used for determining goodwill impairment. In the first step, the Company determines the fair value. If the net book value exceeds its fair value, the second step of the impairment test which requires allocation of the fair value to all of its assets and liabilities using the acquisition method prescribed under authoritative guidance for business combinations would then be performed. Any residual fair value is allocated to goodwill. An impairment charge is recognized only if the implied fair value of our reporting unit’s goodwill is less than its carrying amount.
The carrying value of goodwill at December 31, 2018 was $0.5 million. We believe it is unlikely that there will be a material change in the future estimates or assumptions used to test for impairment losses on goodwill. However, if actual results were not consistent with our estimates or assumptions, we could be exposed to an impairment charge.
Fair Value of Financial Instruments
The carrying amounts of cash and cash equivalents, trade receivables, restricted cash, accounts payable and other accrued liabilities at December 31, 2018 approximate their fair value for all periods presented. The Company measures fair value in accordance with ASC 820-10, “Fair Value Measurements and Disclosures”. ASC 820-10 clarifies that fair value is an exit price, representing the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. As such, fair value is a market-based measurement that should be determined based on assumptions that market participants would use in pricing an asset or a liability. As a basis for considering such assumptions, ASC 820-10 establishes a three-tier value hierarchy, which prioritizes the inputs used in the valuation methodologies in measuring fair value:
Level 1 Inputs: Unadjusted quoted prices in active markets for identical assets or liabilities accessible to the reporting entity at the measurement date.
Level 2 Inputs: Other than quoted prices included in Level 1 inputs that are observable for the asset or liability, either directly or indirectly, for substantially the full term of the asset or liability.
Level 3 Inputs: Unobservable inputs for the asset or liability used to measure fair value to the extent that observable inputs are not available, thereby allowing for situations in which there is little, if any, market activity for the asset or liability at measurement date. The fair value hierarchy also requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value.
As of December 31, 2018, based on level 2 inputs, the fair value of our Notes (2019 Notes and 2023 Notes) was approximately $67.6 million compared to their carrying value of $71.3 million. In addition, the value of our Senior Credit Facilities was stated at carrying value at December 31, 2018. The Company believes it could obtain borrowings at December 31, 2018 with comparable terms as the December 13, 2018 Senior Credit Facilities, therefore, the carrying value approximates fair value.
Debt Issuance Costs
Expenses related to debt financing activities are capitalized and amortized on an effective interest method, over the term of the loan and are to be netted against the carrying value of the financial liability, as required by ASU 2015-3. This standard aligns the treatment of debt issuance costs and debt discounts in that both reduce the carrying value of the liability. Amortization of debt issuance costs are recorded as interest expense on the Consolidated Statement of Operations.
Revenue Recognition
The Company recognizes revenue when a customer obtains control of promised goods or services, in an amount that reflects the consideration which the entity expects to receive in exchange for those goods or services. The Company’s revenue is recorded net of accruals for estimated chargebacks, rebates, cash discounts, other allowances, and returns. The Company derives its revenues from three types of transactions: sales of its own pharmaceutical products (Company product sales), sales of manufactured product for its customers (contract manufacturing sales), and research and product development services performed for third parties. Due to differences in the substance of these transaction types, the transactions require, and the Company utilizes, different revenue recognition polices for each. Taxes collected from customers and remitted to government authorities and that are related to the sales of the Company’s products are excluded from revenues.
Adoption of ASC Topic 606, "Revenue from Contracts with Customers”
In May 2014, the FASB issued ASU 2014-09, “Revenue from Contracts with Customers (Topic 606).” The standard, including subsequently issued amendments, replaces most existing revenue recognition guidance in U.S. GAAP. The key focus of the new standard is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services.
The Company performed a comprehensive review of its existing revenue arrangements as of January 1, 2018 following the aforementioned five-step model. Based on the Company's analysis, there were no changes identified that impacted the amount or timing of revenues recognized under the new guidance as compared to the previous guidance. Additionally, the Company's analysis indicated that there were no changes to how costs to obtain and fulfill our customer contracts would be recognized under the new guidance as compared to the previous guidance. The impact of the adoption of this standard on the Company's Consolidated Balance Sheet, Consolidated Statement of Operations, and Consolidated Statement of Cash Flows was not material. The adoption of the new guidance impacted the way the Company analyzes, documents, and discloses revenue recognition under customer contracts beginning on January 1, 2018 and resulted in additional disclosures in the Company's financial statements.
Company Product Sales
Revenue from Company product sales is recognized upon transfer of control of a product to a customer at a point in time, generally as the Company's products are sold on an FOB destination basis and because inventory risk and risk of ownership passes to the customer upon delivery.
Company product sales are recorded net of accruals for estimated chargebacks, rebates, cash discounts, other allowances, and returns.
Contract Manufacturing Sales:
The Company recognizes revenue for contract manufacturing sales over-time, as milestones are achieved. Shipments are made in accordance with sales commitments and related sales orders entered into with customers either verbally or in written form.
Contract manufacturing sales are recognized net of accruals for cash discounts and returns which are established at the time of sale, and are included in Revenue, net in the Company's Consolidated Statement of Operations.
Research and Development Income:
The Company establishes agreed upon product development agreements with its customers to perform product development services. Revenues are recognized in accordance with the agreement upon the completion of the phases of development and when the Company has no future performance obligations relating to that phase of development. Other types of revenue include royalty or licensing revenue, and would be recognized over time, or at a point in time, based upon the contractual term upon completion of the earnings process. Judgments are required to evaluate contingencies such as potential variances in schedule and the costs, the impact of change orders, liability claims, contract disputes and achievement of contractual performance standards.
Revenue and Provision for Sales Returns and Allowances
As is customary in the pharmaceutical industry, the Company’s product sales are subject to a variety of deductions including chargebacks, rebates, cash discounts, other allowances, and returns. Product sales are recorded net of accruals for returns and allowances ("SRA"), which are established at the time of sale. The Company analyzes the adequacy of its accruals for returns and allowances quarterly. Amounts accrued for sales deductions are adjusted when trends or significant events indicate that an adjustment is appropriate. Accruals are also adjusted to reflect actual results. These provisions are estimates based on historical payment experience, historical relationship to revenues, estimated customer inventory levels and current contract sales terms with direct and indirect customers. The Company uses a variety of methods to assess the adequacy of its returns and allowances reserves to ensure that its financial statements are fairly stated. These include periodic reviews of customer inventory data, customer contract programs, subsequent actual payment experience, and product pricing trends to analyze and validate the return and allowances reserves.
Chargebacks are one of the Company's most significant estimates for recognition of product sales. A chargeback represents an amount payable in the future to a wholesaler for the difference between the invoice price paid to the Company by its wholesale customer for a particular product and the negotiated contract price that the wholesaler’s customer pays for that product. The Company’s chargeback provision and related reserve varies with changes in product mix, changes in customer pricing and changes to estimated wholesaler inventories. The provision for chargebacks also takes into account an estimate of the expected wholesaler sell-through levels to indirect customers at contract prices. The Company validates the chargeback accrual quarterly through a review of the inventory reports obtained from its largest wholesale customers. This customer inventory information is used to establish the estimated liability for future chargeback claims based on historical chargeback and contract rates. These large wholesalers represent a majority of the Company’s chargeback payments. The Company continually monitors current pricing trends and wholesaler inventory levels to ensure the liability for future chargebacks is fairly stated.
Rebates are used for various discounts and rebates provided to customers. This account has been used for various one-time discounts given to customers. The Company reviews the percentage of products sold through these programs by reviewing chargeback data and uses the appropriate percentages to calculate the rebate accrual. Rebates are invoiced monthly, quarterly or annually and reviewed against the accruals. Other items that could be included in accrued rebates would be price protection fees, shelf stock adjustments (SSAs), or other various amounts that would serve as one time discounts on specific products.
Net revenues and accounts receivable balances in the Company’s consolidated financial statements are presented net of SRA estimates. Certain SRA balances are included in accounts payable and accrued expenses.
Accounts receivable are presented net of SRA balances of $18.1 million and $31.8 million at December 31, 2018 and 2017, respectively. The allowance for doubtful accounts was $2.6 million and $2.2 million at December 31, 2018 and 2017, respectively. These balances are primarily related to one specific customer in the amount of $1.7 million.
In addition, in connection with four of the 39 products the Company currently manufactures, markets and distributes in its own label in the U.S., in accordance with an agreement entered into in December of 2011, the Company is required to pay a royalty calculated based on net sales to one of its pharmaceutical partners. The royalty is calculated based on contracted terms of 40% of net sales for the four products, which is to be paid quarterly to its partner. Accounts payable and accrued expenses include $0.2 million and $0.9 million at December 31, 2018 and 2017, respectively, related to these royalties. Royalty expense of $2.2 million, $2.2 million and $3.0 million was included in cost of goods sold for the years ended December 31, 2018, 2017, and 2016 respectively. The Company includes significant estimates to arrive at net product sales arising from wholesaler chargebacks, Medicaid and Medicare rebates, allowances and other pricing and promotional programs.
Concentration of Risk
Financial instruments, which subject the Company to concentration of credit risk, consist primarily of cash equivalents and trade receivables. The Company maintains its cash in accounts with quality financial institutions. Although the Company
currently believes that the financial institutions with which the Company does business will be able to fulfill their commitments to us, there is no assurance that those institutions will be able to continue to do so.
Major customers of the Company are defined as those constituting greater than 10% of our total revenue. In 2018, we had sales to three customers which individually accounted for more than 10% of our total revenue. These customers had sales of $21.2 million, $7.3 million and $6.9 million, respectively, and represented 54% of total revenues in the aggregate. Accounts receivable related to these major customers comprised of 30%, 19% and 19%, respectively, and represented 68% of all accounts receivable as of December 31, 2018. In 2017, we had sales to three customers which individually accounted for more than 10% of our total revenue. These customers had sales of $17.0 million, $7.4 million and $6.9 million, respectively, and represented 52% of total revenues in the aggregate. Accounts receivable related to these major customers comprised of 15%, 4% and 44%, respectively, and represented 63% of all accounts receivable as of December 31, 2017. In 2016, we had sales to three customers which individually accounted for more than 10% of our total revenue. These customers had sales of $12.3 million, $7.2 million and $6.8 million, respectively, and represented 41% of total revenues in the aggregate.
The Company had net revenue from one product, Econazole Nitrate Cream 1%, which accounted for 2%, 4%, and 8% of total revenues in 2018, 2017 and 2016, respectively. Lidocaine Ointment 5%, which the Company launched at the end of the first quarter of 2016 accounted for 7%, 17% and 23% of total revenues in 2018, 2017 and 2016. Zantac for injection, which the Company acquired in the fourth quarter of 2015, accounted for 5%, 10% and 3% of total revenues in 2018, 2017 and 2016.
For the year ended December 31, 2018, domestic net revenues were $45.6 million and foreign net revenues were $20.2 million. As of December 31, 2018, domestic assets were $132.7 million and foreign assets were $58.2 million. For the year ended December 31, 2017, domestic net revenues were $47.0 million and foreign net revenues were $13.2 million. As of December 31, 2017, domestic assets were $112.6 million and foreign assets were $72.0 million. For the year ended December 31, 2016, domestic net revenues were $52.8 million and foreign net revenues were $10.2 million.
While the company purchases raw materials to manufacture certain products, it also utilizes CMO's to purchase finished products. The Company currently purchases from numerous sources which therefore reduces the risk of delays or difficulties in getting materials and/or products.
Acquisitions
The Company accounts for acquired businesses using the acquisition method of accounting, which requires with limited exceptions, that assets acquired and liabilities assumed be recognized at their estimated fair values as of the acquisition date. Transaction costs are expensed as incurred. Any excess of the consideration transferred over the assigned values of the net assets acquired is recorded as goodwill. When net assets that do not constitute a business are acquired, no goodwill is recognized.
Contingent consideration, if any, is included as part of the acquisition cost and is recognized at fair value as of the acquisition date. Any liability resulting from contingent consideration is remeasured to fair value at each reporting date until the contingency is resolved. These changes in fair value are recognized in earnings.
Accounts Receivable and Allowance for Doubtful Accounts
The Company extends credit to its contract services customers based upon credit evaluations in the normal course of business, primarily with 30-day terms. The Company does not require collateral from its customers. Bad debt provisions are provided for on the allowance method based on historical experience and management’s evaluation of outstanding accounts receivable. The Company reviews the allowance for doubtful accounts regularly, and past due balances are reviewed individually for collectability. The Company charges off uncollectible receivables against the allowance when the likelihood of collection is remote.
The Company extends credit to wholesaler and distributor customers and national retail chain customers, based upon credit evaluations, in the normal course of business, primarily with 60 to 90 day terms. The Company maintains customer-related accruals and allowances that consist primarily of chargebacks, rebates, sales returns, shelf stock allowances, administrative fees and other incentive programs. Some of these adjustments relate specifically to the generic prescription pharmaceutical business. Typically, the aggregate gross-to-net adjustments related to these customers can exceed 70% of the gross sales through this distribution channel. Certain of these accruals and allowances are recorded in the balance sheet as current liabilities and others are recorded as a reduction to accounts receivable.
Foreign Currency Translation
The net assets of international subsidiaries where the local currencies have been determined to be the functional currencies are translated into U.S. dollars using current exchange rates. The U.S. dollar effects that arise from translating the net assets of these subsidiaries at changing rates are recorded in the foreign currency translation account, which is included in accumulated other comprehensive income (loss) (AOCI) and reflected as a separate component of equity. For those subsidiaries where the U.S. dollar has been determined to be the functional currency, non-monetary foreign currency assets and liabilities are translated using historical rates, while monetary assets and liabilities are translated at current rates, with the U.S. dollar effects of rate changes included in Other (income) expense, net.
Foreign exchange loss of $3.4 million was recorded for the year ended December 31, 2018, primarily related to the foreign currency translation of our intercompany loans denominated in U.S. dollars to our foreign subsidiaries. These loans are to be repaid in November 2022. Depending on the changes in foreign currency exchange rates, we will continue to record a non-cash gain or loss on translation for the remainder of the term of these loans. Due to the nature of this transaction, there is no economic benefit to the Company to hedge this transaction.
Accounting for Environmental Costs
Accruals for environmental remediation are recorded when it is probable a liability has been incurred and costs are reasonably estimable. The estimated liabilities are recorded at undiscounted amounts. Environmental insurance recoveries are included in the statement of operations in the year in which the issue is resolved through settlement or other appropriate legal process.
Income Taxes
The Company records income taxes in accordance with ASC 740-10, “Accounting for Income Taxes,” under the asset and liability method of accounting for income taxes. Under the asset and liability method, deferred income taxes are recognized for the tax consequences of temporary differences by applying enacted statutory tax rates applicable to future years to operating loss and tax credit carry forwards and differences between the financial statement carrying amounts and the tax bases of existing assets and liabilities. The effect on deferred taxes of a change in tax rates is recognized in income in the period that includes the enactment date. A valuation allowance is recorded based on a determination of the ultimate realizability of future deferred tax assets.
The Company complies with the provisions of ASC 740-10-25 that clarifies the accounting for uncertainty in income taxes recognized in an entity’s financial statements in accordance with ASC 740-10, “Accounting for Income Taxes,” and prescribes a recognition threshold and a measurement attribute for the financial statement recognition and measurement of tax positions taken or expected to be taken in a tax return. For those benefits to be recognized, a tax position must be more-likely-than-not to be sustained upon examination by taxing authorities. Additionally, ASC 740-10 provides guidance on derecognition, classification, interest and penalties, accounting in interim periods, disclosure and transition. There were no unrecognized tax benefits as of the date of adoption. As such, there are no unrecognized tax benefits included in the balance sheet that would, if recognized, affect the effective tax rate. The Company records interest and penalties relating to uncertain tax positions as a component of income tax expense.
Stock-Based Compensation
ASC 718-10 defines the fair-value-based method of accounting for stock-based employee compensation plans and transactions used by the Company to account for its issuances of equity instruments to record compensation cost for stock-based employee compensation plans at fair value as well as to acquire goods or services from non-employees. Transactions in which the Company issues stock-based compensation to employees, directors and advisors and for goods or services received from non-employees are accounted for based on the fair value of the equity instruments issued. The Company utilizes pricing models in determining the fair values of options, RSU's and warrants issued as stock-based compensation. These pricing models utilize the market price of the Company’s common stock and the exercise price of the option or warrant, as well as time value and volatility factors underlying the positions. Stock-based compensation expense is recognized over the requisite service period of the award, which usually coincides with the vesting period of the grant.
Product Development and Research
The Company’s research and development costs are expensed as incurred.
Shipping and Handling Costs
Costs related to shipping and handling is comprised of outbound freight and the associated labor. These costs are recorded in costs of sales. For the years ended December 31, 2018, 2017 and 2016, the costs relating to shipping and handling totaled $2.1 million, $1.2 million and $0.7 million, respectively.
Loss per Common Share
Basic loss per share of common stock is computed based on the weighted average number of shares of common stock outstanding during the period. Diluted loss per share of common stock is computed using the weighted average number of shares of common stock and potential dilutive common stock equivalents outstanding during the period. Potential dilutive common stock equivalents include shares issuable upon the conversion of the notes and the exercise of options and warrants. Due to the net loss for the years ended December 31, 2018, 2017 and 2016, the effect of the Company’s potential dilutive common stock equivalents was anti-dilutive; as a result, the basic and diluted weighted average number of common shares outstanding and net loss per common share are the same. As of December 31, 2018, the shares of common stock issuable in connection with stock options and warrants have been excluded from the diluted loss per share, as their effect would have been anti-dilutive.
For the years ended December 31, 2018, 2017 and 2016
(in thousands except shares and per share data)
| | | | | | | | | | | | | | | | | | | | |
| | | 2018 | | 2017 | | 2016 |
| Basic loss per share computation: | | | | | | |
| Net loss attributable to common stockholders —basic and diluted | | $ | (36,256) | | $ | (15,191) | | $ | (11,985) |
| Weighted average common shares —basic and diluted | | 53,592,930 | | 53,323,954 | | 53,078,158 |
| Basic and diluted loss per share | | $ | (0.68) | | $ | (0.28) | | $ | (0.23) |
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Adoption of Other Recent Accounting Pronouncements
In November 2016, the FASB issued ASU 2016-18, Statement of Cash Flows (Topic 230): "Restricted Cash (a consensus of the FASB Emerging Issues Task Force)". The update addresses the diversity in the industry with respect to classification and presentation of changes in restricted cash on the statement of cash flows. These amendments require that a statement of cash flows explain the restricted cash change during the period in the total of cash, cash equivalents, and amounts generally described as restricted cash or restricted cash equivalents. The amendments in this update were effective for fiscal years beginning after December 15, 2017 for public business entities, including interim periods within those fiscal years. For the Company, the amendments are effective January 1, 2018. The Company's adoption of this ASU was a full retrospective adoption, effective January 1, 2018, which did not have a significant impact on its consolidated financial statements.
In January 2017, the FASB issued ASU 2017-01, Business Combinations (Topic 805): “Clarifying the Definition of a Business”. The update clarifies the definition of a business, specifically for companies to better evaluate whether transactions should be accounted for as acquisitions (or disposals) of assets or businesses. The amendments in this update are effective for public companies for annual periods beginning after December 15, 2017, including interim periods within those annual periods. The Company's adoption of this ASU, effective January 1, 2018, did not have a significant impact on its consolidated financial statements.
In January 2017, the FASB issued ASU 2017-03, Accounting Changes and Error Corrections (Topic 250) and Investments—Equity Method and Joint Ventures (Topic 323): “Amendments to SEC Paragraphs Pursuant to Staff Announcements at the September 22, 2016 and November 17, 2016 EITF Meetings”. The update shows amendments to two SEC Announcements made late in 2016 regarding four specific standards as follows: ASU 2014-09, Revenue from Contracts with Customers (Topic 606), ASU 2016-02, Leases (Topic 842), ASU 2016-13, Financial Instruments - Credit Losses (Topic 326), and ASU 2014-01, Investments - Equity Method and Joint Ventures (Topic 323). The amendments in this update require changes to the U.S. GAAP Financial Reporting Taxonomy and the changes will be incorporated into the proposed 2018 Taxonomy which are available for public comment and finalized as part of the annual release process. The Company's adoption of this ASU, effective January 1, 2018, did not have a significant impact on its consolidated financial statements.
In February 2017, the FASB issued ASU 2017-05, Other Income—Gains and Losses from the Derecognition of Nonfinancial Assets (Subtopic 610-20): “Clarifying the Scope of Asset Derecognition Guidance and Accounting for Partial Sales of Nonfinancial Assets”. This update addresses guidance for partial sales of nonfinancial assets. It affects (i) an entity that enters into a contract to transfer to a customer a nonfinancial asset, group of nonfinancial assets, or ownership interest in a consolidated subsidiary that is not a business or nonprofit entity, (ii) an entity that historically had transactions within the scope
of the real estate-specific derecognition guidance, and (iii) an entity that contributes nonfinancial assets that are not a business or a nonprofit activity to a joint venture or other noncontrolled investee. The amendments are effective at the same time as the amendments in ASU 2014-09. Therefore, for the Company, the amendments are effective for annual reporting periods beginning after December 15, 2017, including interim reporting periods within that reporting period. Public entities may apply the guidance earlier but only as of annual reporting periods beginning after December 15, 2016, including interim reporting periods within that reporting period. The Company does not currently expect to enter into any such nonfinancial asset or ownership interest in its consolidated subsidiaries agreements but will refer to the guidance in ASU 2017-05 should that occur. The Company's adoption of this ASU, effective January 1, 2018, did not have a significant impact on its consolidated financial statements.
In May 2017, the FASB issued ASU 2017-09, Compensation—Stock Compensation (Topic 718): “Scope of Modification Accounting”. This update provides guidance about which changes to the terms or conditions of a share-based payment award require an entity to apply modification accounting in Topic 718, Compensation—Stock Compensation, to a change to the terms or conditions of a share-based payment award. The amendments affect any entity that changes the terms or conditions of a share-based payment award. The amendments are effective for fiscal years beginning after December 15, 2017. For the Company, the amendments are effective January 1, 2018. The Company has not made any changes to the terms or conditions of share-based payment awards but will refer to the guidance in ASU 2017-09 should that occur. The Company's adoption of this ASU, effective January 1, 2018, did not have a significant impact on its consolidated financial statements.
Recently Issued and Not Yet Adopted Accounting Pronouncements
In February 2016, the FASB issued ASU 2016-02, Leases (Topic 842), which supersedes the existing lease guidance under Topic 840. The new standard requires lessees to recognize Right-of-Use ("ROU") assets and lease liabilities for all leases with terms greater than 12 months, including those leases that were previously classified as operating leases. Topic 842 retains a distinction between finance leases and operating leases, with measurement and presentation of expenses and cash flows being dependent upon the classification. The Company adopted the new standard on January 1, 2019 utilizing the optional transition method allowed under ASU 2018-11, Leases (Topic 842): Targeted Improvements. As a result, the effects of applying the new standard will be recognized as a cumulative effect adjustment to the opening balance of retained earnings on the date of initial adoption without recasting comparative periods under ASC 842. The Company elected to adopt the package of practical expedients allowed under the new accounting guidance, which allows the Company to not reassess previous conclusions regarding 1) whether existing or expired leases are or contain leases 2) the lease classification of existing or expired leases and 3) initial direct costs for existing leases. In addition, the Company adopted the practical expedient to combine lease and non-lease components. Lastly, the Company elected the short-term lease recognition exemption.
The Company reviewed its portfolio of lease agreements, and other service contracts to identify embedded leases, and reached conclusions on key accounting assessments related to the standard and is finalizing the related accounting policies. As a result of the implementation of the new standard all leases with a term greater than 12 months previously classified as operating leases and only expensed through the Consolidated Statements of Operations will now be recorded on the Consolidated Balance Sheets. Per the requirements of the standard the company will record a ROU asset and a lease liability representing the present value of future lease payments to be paid in exchange of the use of an asset. However, there will be no impact on the net assets as the assets and the liabilities will off-set each other. Based on the assessment performed the adoption of the new standard is not expected to have a material impact on the financial statements. The value of the ROU asset and lease liability to be recorded upon adoption is less than 5% of total assets and total liabilities.
In January 2017, the FASB issued ASU 2017-04, Intangibles - Goodwill and Other (Topic 350): “Simplifying the Test for Goodwill Impairment”. The update simplifies how an entity is required to test goodwill for impairment by eliminating Step 2 from the goodwill impairment test. Step 2 measures a goodwill impairment loss by comparing the implied fair value of a reporting unit’s goodwill with the carrying amount of that goodwill. For the Company, the amendments are effective January 1, 2020. The Company is currently evaluating the impact of this ASU on its consolidated financial statements.
In February 2018, the FASB issued ASU 2018-02, “Income Statement - Reporting Comprehensive Income (Topic 220): Reclassification of Certain Tax Effects from Accumulated Other Comprehensive Income,” which allows a reclassification from accumulated other comprehensive income to retained earnings for stranded tax effects resulting from the Tax Cuts and Jobs Act. This guidance is effective for all entities for fiscal years, and interim periods within those years, beginning after December 15, 2018, with early adoption permitted. The amendments in ASU 2018-02 should be applied either in the period of adoption or retrospectively to each period in which the effect of the change in the U.S. federal corporate income tax rate in the Tax Cuts and Jobs Act is recognized. The adoption of this guidance is not expected to have a material impact on the Company's consolidated financial statements and related disclosures.
In November 2018, the FASB issued ASU 2018-18, Collaborative Arrangements (Topic 808): “Clarifying the Interaction between Topic 808 and Topic 606”. The guidance clarifies that certain transactions between collaborative arrangement participants should be accounted for as revenue under Topic 606 when the collaborative arrangement participant is a customer. For the company, the amendment will be effective January 1, 2020. The Company is evaluating the impact this guidance will have on its consolidated financial statements and related disclosures.
4. Inventories
Inventories as of December 31, 2018 and 2017 consisted of (in thousands):
| | | | | | | | | | | | | | |
| | | 2018 | | 2017 |
| Raw materials | | $ | 10,456 | | $ | 8,231 |
| Work in progress | | 116 | | 616 |
| Finished goods | | 8,391 | | 8,532 |
| Inventories reserve | | (2,667) | | (1,304) |
| | | $ | 16,296 | | $ | 16,075 |
5. Property, Plant and Equipment
Property, plant and equipment, at cost, as of December 31, 2018 and 2017, consisted of (in thousands):
| | | | | | | | | | | | | | |
| | | 2018 | | 2017 |
| Land | | $ | 401 | | $ | 257 |
| Building and improvements | | 53,813 | | 8,613 |
| Machinery and equipment | | 12,229 | | 9,142 |
| Computer hardware and software | | 4,182 | | 3,244 |
| Furniture and fixtures | | 694 | | 449 |
| Construction in progress | | 30,949 | | 55,017 |
| | | 102,268 | | 76,722 |
| Less accumulated depreciation and amortization | | (10,493) | | (8,367) |
| Property, plant and equipment, net | | $ | 91,775 | | $ | 68,355 |
The Company recorded depreciation expense of $2.6 million, $1.7 million and $0.9 million in 2018, 2017 and 2016, respectively.
During the twelve months ended December 31, 2018 and 2017 there were $4.4 million of interest and $3.6 million of interest, respectively, capitalized into construction in progress. During the twelve months ended December 31, 2018 and 2017 there were $1.8 million of payroll and $0.8 million of payroll, respectively, capitalized into construction in progress. The Company received certificate of completion of its building in the fourth quarter of 2018 and therefore reclassified a total of $37.0 million from Construction in process to Building and improvements upon completion.
6. Debt
Convertible Notes
On December 16, 2014, the Company issued $125.0 million aggregate principal amount of Convertible 3.75% Senior Notes, due 2019, (the "2019 Notes"). On December 22, 2014, the Company announced the closing of the initial purchasers’ exercise in full of their option to purchase an additional $18.75 million aggregate principal amount of the 2019 Notes. The 2019 Notes bear interest at a fixed rate of 3.75% per year, payable semiannually in arrears on June 15 and December 15 of each year, beginning on June 15, 2015 and mature on December 15, 2019, unless earlier repurchased, redeemed or converted. The 2019 Notes are convertible into shares of the Company’s common stock, cash or a combination thereof. On May 20, 2015, the Company received shareholder approval for the increase in the number of shares of common stock authorized and available for issuance upon conversion of the 2019 Notes.
On April 27, 2018, the Company entered into separate exchange agreements with certain holders of the 2019 Notes. The agreements gave the holders the right to exchange, in aggregate, $75.1 million of the 2019 Notes for $75.1 million of new
Convertible 4.75% Senior Notes due 2023 (the “2023 Notes”). The new 2023 Notes bear a fixed interest rate of 4.75% per year, payable semi-annually with the principal payable in May 2023. At the option of the holders, the 2023 Notes are convertible into shares of the Company’s common stock, cash or a combination thereof. The initial conversion rate is $224.71 per share, subject to certain adjustments, related to either the Company's stock price volatility, or the Company's declaration of a stock dividend, stock distribution, share combination or share split expected dividends or other anti-dilutive activities. In addition, holders will be entitled to receive additional shares of common stock for a potential increase of the conversion rate up to $280.90 per share under a make-whole provision in some circumstances. The Company incurred debt issuance costs of $1.6 million upon issuance of the 2023 Notes.
In accordance with accounting for convertible debt within the cash conversion guidance of ASC 470-20, the Company allocated the principal amount of the 2023 Notes between its liability and equity components. The carrying amount of the liability component was determined by measuring the fair value of a similar debt instrument of similar credit quality and maturity that did not have the conversion feature. The carrying amount of the equity component, representing the embedded conversion option, was determined by deducting the fair value of the liability component from the principal amount of the 2023 Notes as a whole. The equity component was recorded to additional paid-in capital and is not remeasured as long as it continues to meet the conditions for equity classification. The excess of the principal amount of the 2023 Notes over the carrying amount of the liability component was recorded as a debt discount of $19.0 million, and is being amortized to interest expense using the effective interest method through the maturity date. The Company allocated the total amount of debt issuance costs incurred to the liability and equity components using the same proportions as the proceeds from the 2023 Notes. The debt issuance costs attributable to the liability component were recorded as a direct deduction from the liability component of the 2023 Notes, and are being amortized to interest expense using the effective interest method through the maturity date. Transaction costs attributable to the equity component were netted with the equity component of the 2023 Notes in additional paid-in capital. The effective interest rate of the 2023 Notes, inclusive of the debt discount and issuance costs, is 11.9%.
The exchange of $75.1 million of the 2019 Notes for the 2023 Notes is considered a debt extinguishment under ASC 470-50. The 2019 Notes are accounted for under cash conversion guidance ASC 470-20, which requires the Company to allocate the fair value of the consideration transferred upon settlement to the extinguishment of the liability component and the reacquisition of the equity component upon derecognition. In accordance with the aforementioned guidance, the Company allocated a portion of the $75.1 million to the extinguishment of the liability component equal to the fair value of that component immediately before extinguishment and recognized a $2.5 million extinguishment loss in the Consolidated Statement of Operations to measure the difference between (i) the fair value of the liability component and (ii) the net carrying amount of the liability component (which is already net of any unamortized debt issuance costs). In addition, the Company recorded a $7.6 million reduction of Additional Paid in Capital in connection with the extinguishment of $75.1 million of the 2019 Notes.
In December 2018 the Company used $52.8 million of proceeds from the Senior Credit Facilities (see below) to repurchase the 2019 Notes as well as $0.3 million of proceeds to pay for transaction costs. The repurchase of the 2019 Notes is considered a debt extinguishment under ASC 470-50. The 2019 Notes are accounted for under cash conversion guidance ASC 470-20, which requires the Company to allocate the fair value of the consideration transferred upon settlement to the extinguishment of the liability component and the reacquisition of the equity component upon derecognition. In accordance with the guidance above, the Company allocated a portion of the $52.8 million to the extinguishment of the liability component equal to the fair value of that component immediately before extinguishment and recognized a $1.7 million extinguishment loss in the Consolidated Statement of Operations to measure the difference between (i) the fair value of the liability component and (ii) the net carrying value amount of the liability component (which is already net of any unamortized debt issuance costs). In addition, the Company recorded a $2.9 million reduction of Additional Paid in Capital in connection with the extinguishment of the 2019 Notes. In January and February of 2019, the Company used $0.5 million and $2.2 million, respectively, of proceeds from the Senior Credit Facilities to repurchase the 2019 Notes.
2021 Term Loan
On June 1, 2018, the Company entered into a credit agreement for $25.0 million secured by all Company assets, due June 1, 2021 (“2021 Term Loan”). The 2021 Term Loan has limited financial and non-financial covenants inclusive of a minimum cash carry balance of $5.0 million. The 2019 Notes and 2023 Notes are subordinate to the 2021 Term Loan. The first $15.0 million million of loan proceeds was received on June 1, 2018. The remaining loan proceeds of $10.0 million were subject to closing conditions as defined in the agreement and were received on July 16, 2018. The 2021 Term Loan incurred debt issuance costs of $0.5 million and a debt discount of $0.4 million. The debt discount is due to lender fees paid on the initial drawdown of $15.0 million. The debt issuance costs and debt discount are amortized to interest expense using the effective interest method through the maturity date. The 2021 Term Loan bears interest at a rate of LIBOR plus 9.0%, with a stated floor of 2.0%. The effective interest, inclusive of the debt discounts and issue costs, was 12.78% as of September 30, 2018. In December 2018, the Company used $25.6 million of proceeds from the Senior Credit Facilities (see below) to repay the 2021 Term Loan which was comprised of $25.0 million of principal, $0.5 million of transaction costs and $0.1 million of interest.
The repayment of the 2021 Term Loan is considered a debt extinguishment under ASC 470-50. The Company recorded $1.3 million of an extinguishment loss related to the repayment of the 2021 Term Loan in the Consolidated Statement of Operations.
Senior Credit Facilities
On December 13, 2018, the Company entered into a $25.0 million Revolving Credit Agreement (the “Revolver”) and Term Loan Agreement (the “2023 Term Loan”, and together with the Revolver, the “Senior Credit Facilities”). The Term Loan consists of (i) a $50.0 million initial term loan (the “Initial Term Loan”); (ii) a $30.0 million delayed draw term loan A (the “Delayed Draw Term Loan A”) and (iii) a $15.0 million delayed draw term loan B (the “Delayed Draw Term Loan B” and, together with the Delayed Draw Term Loan A, the “Delayed Draw Term Loans”). The Initial Term Loan matures on the earlier to occur of (a) three months prior to maturity of the 2023 Notes and (b) June 13, 2024. Commitments related to undrawn amounts of the Delayed Draw Term Loan A terminate on June 30, 2019, and drawn amounts under the Delayed Draw Term Loans mature at the same time as the Initial Term Loan. The Revolver matures on the earlier to occur of (a) six months prior to the maturity of the 2023 Notes and (b) December 13, 2023. The Company’s ability to borrow under the Revolver is subject to a borrowing base determined based upon eligible inventory, eligible equipment, eligible real estate and eligible receivables. The Senior Credit Facilities are secured by substantially all of the Company’s assets. All of the Company’s debt is subordinated to the Senior Credit Facilities. The 2023 Term Loan is subordinate to the Revolver. The Senior Credit Facilities have customary financial and non-financial covenants, including affirmative, negative and reporting covenants, representations and warranties, and events of default, including cross-defaults on other material indebtedness, as well as events of default triggered by a change of control and certain actions initiated by the FDA. The financial covenants consist of a minimum revenue test, a minimum adjusted EBITDA test and a maximum total net leverage ratio.
The interest rate under the Revolver and the 2023 Term Loan is calculated, at the option of the Company, at either the one, two, three or six-month London Inter-Bank Offered Rate (or LIBOR) plus 3.75% or the base rate plus 2.75%. The interest rate on the 2023 Term Loan is calculated, at the option of the Company, at either LIBOR plus 8.75% or the base rate plus 7.75%. Interest on the Senior Credit Facilities is payable in cash except that interest on the 2023 Term Loan is payable, at the option of the Company, in cash or in kind by being added to the principal balance thereof, until the earlier of December 13, 2020 and the date the Company has provided the lenders of the Senior Credit Facilities financial statements demonstrating that the Company has attained twelve months of revenue of at least $125.0 million. A commitment fee of 1.0% per annum is payable by the Company quarterly in arrears on the unused portion of the Delayed Draw Term Loans.
Amounts drawn under the Revolver may be prepaid at the option of the Company without premium or penalty, subject, in the case of acceleration of the Revolver or termination of the revolving credit commitments thereunder, to certain call protections which vary depending on the time at which such prepayments are made. Amounts drawn under the Revolver are subject to mandatory prepayment to the extent that aggregate extensions under the Revolver exceed the lesser of the revolving credit commitment then in effect and the borrowing base then in effect, and upon the occurrence of certain events and conditions, including non-ordinary course asset dispositions, receipt of certain insurance proceeds and condemnation awards and issuances of certain debt obligations. Amounts outstanding under the 2023 Term Loan may be prepaid at the option of the Company subject to applicable premiums, including a make-whole premium, and certain call protections which vary depending on the time at which such prepayments are made. Subject to payment of outstanding obligations under the Revolver as a result of any corresponding mandatory prepayment requirements thereunder, amounts outstanding under the 2023 Term Loan are subject to mandatory prepayment upon the occurrence of certain events and conditions, including non-ordinary course asset dispositions, receipt of certain insurance proceeds and condemnation awards, issuances of certain debt obligations and a change of control transaction.
The Initial Term Loan of $50.0 million and $15.0 million of the Revolver were drawn by the Company on December 13, 2018. On December 21, 2018, the Company drew $20.0 million of the Delayed Draw Term Loan A. As of December 31, 2018, the $10.0 million of the Delayed Draw Term Loan A, $15.0 million of the Delayed Draw Term Loan B and $10.0 million of the Revolver remain available to the Company. In addition, in January 2019, the Company drew $5.0 million from the remaining $10.0 million Revolver.
In connection with the Revolver the Company incurred a debt discount of $0.5 million and debt issuance issue costs of $0.3 million. The debt discount is due to annual fees and lender fees paid on the initial drawdown of $15.0 million. The debt issuance costs and debt discount are recorded as an asset on the Consolidated Balance Sheet and are amortized to interest expense using the straight-line method through the estimated Revolver maturity date. The annual fees related to the Revolver and the Initial Term Loan are amortized to interest expense using the straight-line method over the annual period they relate to. In connection with the Initial Term Loan and Delayed Draw Term Loan A, the Company incurred a debt discount of $1.8 million and debt issuance issue costs of $0.8 million. The debt discount is due to lender fees paid on the Initial Term Loan of $50.0 million and drawdown of Delayed Draw Term Loan A of $20.0 million. The debt issuance costs and debt discount costs are amortized to interest expense using the effective interest rate method through the estimated maturity date. In addition, the Company incurred $0.5 million of debt issuance costs related to the commitment fees paid to the lenders for the undrawn
amounts of the Delayed Draw Term Loans. These debt issuance costs are recorded as an asset on the balance sheet and amortized on a straight-line basis over the access period of the Delayed Draw Term Loans through June 30, 2019. As of December 31, 2018, the effective interest, inclusive of the debt discounts and issue costs, of the Revolver and Initial Term Loan and Delayed Draw Term Loan A is 9.3% and 12.4%, respectively.
At December 31, 2018 and December 31, 2017, the net carrying amount of the debt and the remaining unamortized debt discounts and debt issuance costs were as follows (in thousands):
| | | | | | | | | | | |
| December 31, 2018 | | December 31, 2017 |
| (Current) | | (Non-current) |
| Face amount of the 2019 Notes (due December 2019) | $ | 15,702 | | $ | 143,750 |
| Less unamortized discounts and debt issuance costs | 1,291 | | 22,773 |
| Total net carrying value | $ | 14,411 | | $ | 120,977 |
| | | |
| December 31, 2018 | | December 31, 2017 |
| Face amount of the 2023 Notes (due May 2023) | $ | 75,090 | | $ | — |
| Face amount of the Revolver Credit Facility (due December 2022) | 15,000 | | — |
| | | |
| Face amount of the 2023 Loan (due February 2023) | 70,000 | | — |
| Total carrying value, non-current | $ | 160,090 | | $ | — |
| Less unamortized discounts and debt issuance costs | 20,519 | | — |
| Total net carrying value, non-current | $ | 139,571 | | $ | — |
Debt Maturities Schedule
Aggregate maturities of the Company’s debt are presented below (in thousands):
| | | | | |
| Year Ending December 31, | |
| 2019 | $ | 15,702 |
| 2020 | — |
| 2021 | — |
| 2022 | 15,000 |
| 2023 | 145,090 |
| Total | $ | 175,792 |
7. Revenues, Recognition and Allowances
Revenue Recognition
As of January 1, 2018, the Company adopted the ASC 606 guidance for revenue recognition for contracts, using the modified retrospective method. The implementation of this guidance had no material impact on the measurement or recognition of revenue from customer contracts of prior periods.
Upon adoption of this new guidance, the Company recognizes revenue using the following five steps:
•Identification of the contract, or contracts, with a customer;
•Identification of the performance obligations in the contract;
•Determination of the transaction price, including the identification and estimation of variable consideration;
•Allocation of the transaction price to the performance obligations in the contract; and
•Recognition of revenue when we satisfy a performance obligation.
The Company derives its revenues from three types of transactions: sales of its own pharmaceutical products (Company product sales), sales of manufactured product for its customers (contract manufacturing sales), and research and product development services performed for third parties.
Revenue is recognized when a customer obtains control of promised goods or services, in an amount that reflects the consideration which the entity expects to receive in exchange for those goods or services. To the extent the transaction price includes variable consideration, the Company estimates the amount of variable consideration that should be included in the transaction price using the expected value method based on historical experience as well as applicable information currently available.
Company Product Sales
Revenue from Company product sales is recognized upon transfer of control of a product to a customer at a point in time, generally as the Company's products are sold on an FOB destination basis and because inventory risk and risk of ownership passes to the customer upon delivery.
Company product sales are recorded net of accruals for estimated chargebacks, rebates, cash discounts, other allowances, and returns.
Contract Manufacturing Sales
The Company recognizes revenue for contract manufacturing sales over-time, as milestones are achieved. Shipments are made in accordance with sales commitments and related sales orders entered into with customers either verbally or in written form.
Contract manufacturing sales are recognized net of accruals for cash discounts and returns which are established at the time of sale, and are included in Revenue, net in the Company's Consolidated Statement of Operations.
Research and Development Services and Other Income
The Company establishes agreed upon product development agreements with its customers to perform product development services. Revenues are recognized in accordance with the agreement upon the completion of the phases of development and when the Company has no future performance obligations relating to that phase of development. Other types of revenue include royalty or licensing revenue, and would be recognized over time, or at a point in time, based upon the contractual term upon completion of the earnings process. Judgments are required to evaluate contingencies such as potential variances in schedule and the costs, the impact of change orders, liability claims, contract disputes and achievement of contractual performance standards.
Revenues by Transaction Type
The Company operates in one reportable segment and, therefore, the results of the Company's operations are reported on a consolidated basis, consistent with internal management reporting for the chief decision maker. Net Sales (in thousands) for the three years ended December 31, 2018, 2017 and 2016 were as follows (prior-period amounts are not adjusted under the modified-retrospective method of adoption):
| | | | | | | | | | | | | | | | | |
| Years ended December 31, | | | | |
| 2018 | | 2017 | | 2016 |
| Company product sales | $ | 59,591 | | $ | 50,955 | | $ | 45,002 |
| Contract manufacturing sales | 6,047 | | 8,995 | | 17,033 |
| Research and development services and other income | 227 | | 252 | | 977 |
| Revenue, net | $ | 65,865 | | $ | 60,202 | | $ | 63,012 |
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Disaggregated information for the Company product sales revenue has been recognized in the accompanying audited Consolidated Statements of Operations, and is presented below according to contract type (in thousands):
| | | | | | | | | | | | | | | | | |
| Years ended December 31, | | | | |
| Company Product Sales | 2018 | | 2017 | | 2016 |
| Topical | $ | 35,118 | | $ | 29,446 | | $ | 29,011 |
| Injectables | 24,473 | | 21,509 | | 15,991 |
| Total | $ | 59,591 | | $ | 50,955 | | $ | 45,002 |
| | | | | |
In the twelve months ended December 31, 2018, Company did not incur, and therefore did not defer, any material incremental costs to obtain contracts.
Returns and Allowances
As is customary in the pharmaceutical industry, the Company’s product sales are subject to a variety of deductions including chargebacks, rebates, cash discounts, other allowances, and returns. Product sales are recorded net of accruals for returns and allowances, which are established at the time of sale. The Company analyzes the adequacy of its accruals for returns and allowances quarterly. Amounts accrued for sales deductions are adjusted when trends or significant events indicate that an adjustment is appropriate. Accruals are also adjusted to reflect actual results. These provisions are estimates based on historical payment experience, historical relationship to revenues, estimated customer inventory levels and current contract sales terms with direct and indirect customers. The Company uses a variety of methods to assess the adequacy of its returns and allowances reserves to ensure that its financial statements are fairly stated. These include periodic reviews of customer inventory data, customer contract programs, subsequent actual payment experience, and product pricing trends to analyze and validate the return and allowances reserves.
Accounts receivable are presented net of returns and allowances of $18.1 million and $31.8 million at December 31, 2018 and 2017, respectively. The allowance for doubtful accounts was $2.6 million and $2.2 million at December 31, 2018 and 2017, respectively. These balances are primarily related to one specific customer in the amount of $1.7 million.
Chargebacks are one of the Company's most significant estimates for recognition of product sales. A chargeback represents an amount payable in the future to a wholesaler for the difference between the invoice price paid to the Company by its wholesale customer for a particular product and the negotiated contract price that the wholesaler’s customer pays for that product. The Company’s chargeback provision and related reserve varies with changes in product mix, changes in customer pricing and changes to estimated wholesaler inventories. The provision for chargebacks also takes into account an estimate of the expected wholesaler sell-through levels to indirect customers at contract prices. The Company validates the chargeback accrual quarterly through a review of the inventory reports obtained from its largest wholesale customers. This customer inventory information is used to establish the estimated liability for future chargeback claims based on historical chargeback and contract rates. These large wholesalers represent a majority of the Company’s chargeback payments. The Company continually monitors current pricing trends and wholesaler inventory levels to ensure the liability for future chargebacks is fairly stated.
Rebates are used for various discounts and rebates provided to customers. This account has been used for various one-time discounts given to customers. The Company reviews the percentage of products sold through these programs by reviewing chargeback data and uses the appropriate percentages to calculate the rebate accrual. Rebates are invoiced monthly or quarterly and reviewed against the accruals. Other items that could be included in accrued rebates would be price protection fees, shelf stock adjustments (SSAs), or other various amounts that would serve as one time discounts on specific products.
In 2018, the Company reduced wholesaler acquisition costs on several products sold to major wholesalers as part of the Company's cash management strategy. As a result, its gross product sales and related chargebacks and billbacks are reduced accordingly. The Company's adjustments for the deductions to gross product sales for the three years ended December 31, 2018, 2017 and 2016 are as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | |
| | | Years ended December 31, | | | | |
| | | 2018 | | 2017 | | 2016 |
| Gross product sales | | $ | 158,278 | | $ | 215,883 | | $ | 217,633 |
| | | | | | |
| Reduction to gross product sales: | | | | | | |
| Chargebacks and billbacks | | 60,770 | | 125,159 | | 141,343 |
| Wholesaler fees for service | | 5,503 | | 7,049 | | 3,869 |
| Sales discounts and other allowances | | 32,414 | | 32,720 | | 27,419 |
| Total reduction to gross product sales | | $ | 98,687 | | $ | 164,928 | | $ | 172,631 |
| | | | | | |
| Product sales, net | | $ | 59,591 | | $ | 50,955 | | $ | 45,002 |
| | | | | | |
| Contract manufacturing product sales | | $ | 6,047 | | $ | 8,995 | | $ | 17,033 |
| | | | | | |
| Total product sales, net | | $ | 65,865 | | $ | 60,202 | | $ | 63,012 |
8. Goodwill and Intangible Assets
Goodwill
The Company acquired the assets of Canadian pharmaceutical company Alveda Pharmaceuticals, Inc., in November 2015. As a result of the acquisition, we recorded goodwill of $0.4 million. We assessed the recoverability of the carrying value of goodwill at October 1, 2018. Whenever events occur or circumstances change, more likely than not, the company is likely to reduce the fair value of its reporting unit below its carrying value. There have been no events or changes in circumstances that would have reduced the fair value of our reporting unit below its carrying value. No impairment losses were recognized during the year ended December 31, 2018.
Changes in goodwill during the two years ended December 31, 2018 and December 31, 2017 were as follows (in thousands):
| | | | | |
| Goodwill |
December 31, 2016 | $ | 446 |
| |
| |
Foreign currency translation | 25 |
December 31, 2017 | 471 |
| |
| |
Foreign currency translation | (1) |
December 31, 2018 | $ | 470 |
Intangible Assets
The following sets forth the major categories of the Company’s intangible assets and the weighted-average remaining amortization period as of December 31, 2018 and December 31, 2017 for those assets that are not already fully amortized (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | December 31, 2018 | | | | | | |
| | Gross Carrying
Amount | | Accumulated
Amortization | | Net Carrying
Amount | | Weighted Average
Remaining Amortization
Period |
| Trademarks and Technology | | $ | 40,169 | | $ | (8,239) | | $ | 31,930 | | 11.8 |
| Product acquisition costs | | 13,308 | | — | | 13,308 | | N/A - See description below |
In-process research and development
(“IPR&D”) | | 719 | | — | | 719 | | N/A - See description below |
| Customer relationships | | 3,557 | | (1,139) | | 2,418 | | 6.9 |
| Total | | $ | 57,753 | | $ | (9,378) | | $ | 48,375 | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | December 31, 2017 | | | | | | |
| | Gross Carrying
Amount | | Accumulated
Amortization | | Net Carrying
Amount | | Weighted Average
Remaining Amortization
Period |
| Trademarks and Technology | | $ | 40,380 | | $ | (5,684) | | $ | 34,696 | | 12.8 |
| Product acquisition costs | | 14,682 | | — | | 14,682 | | N/A - See description below |
In-process research and development
(“IPR&D”) | | 3,629 | | — | | 3,629 | | N/A - See description below |
| Customer relationships | | 3,783 | | (773) | | 3,010 | | 7.9 |
| Total | | $ | 62,474 | | $ | (6,457) | | $ | 56,017 | | |
Changes in intangibles during the year ended December 31, 2018 were as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Product Acquisition Costs | | Trademarks and
Technology | | IPR&D | | Customer
Relationships |
| | | | | | | | |
| | | | | | | | |
| | | | | | | | |
| | | | | | | | |
| | | | | | | | |
| Balance at December 31, 2017 | | $ | 14,682 | | $ | 34,696 | | $ | 3,629 | | $ | 3,010 |
| Amortization | | — | | (2,727) | | — | | (369) |
| | | | | | | | |
| Intangible assets placed in service | | — | | 1,346 | | (1,346) | | — |
| Loss on impairment | | (716) | | (7) | | (1,201) | | — |
| Foreign currency translation | | (658) | | (1,378) | | (363) | | (223) |
| Balance at December 31, 2018 | | $ | 13,308 | | $ | 31,930 | | $ | 719 | | $ | 2,418 |
The Company recorded amortization expense of $3.1 million, $2.9 million and $2.8 million in 2018, 2017 and 2016, respectively. In addition, the Company recorded impairment loss of $0.7 million and $1.2 million related with product acquisition costs and IPR&D respectively in 2018, and nil and $0.1 million impairment loss related with IPR&D and product acquisition costs in 2017.
During the preparation of the 2018 consolidated financial statements, management identified a misclassification within the product acquisition costs and in-process research and development (“IPR&D”) categories for the year ended December 31, 2017. Accordingly, a reclassification has been made to the December 31, 2017 balances to decrease IPR&D and increase product acquisition costs in the amount of $14.7 million. The correction has no impact on the Company’s consolidated financial statements.
Assuming no additions, disposals or adjustments are made to the carrying values and/or useful lives of the intangible assets, annual amortization expense on trademarks and technology and customer relationships for each of the following years is estimated to be as follows (in thousands):
| | | | | | | | |
| Year ending December 31, | | Amortization Expense * |
| 2019 | | $ | 3,096 |
| 2020 | | 3,096 |
| 2021 | | 3,096 |
| 2022 | | 3,096 |
| 2023 | | 3,096 |
| Thereafter | | 18,868 |
| Total | | $ | 34,348 |
*IPR&D and Product Acquisition Costs are assessed for impairment at least annually and will be amortized once products are commercialized, and are not included in the table.
The useful lives of the Company’s intangible assets are as follows:
| | | | | | | | |
Intangibles Category | | Amortizable Life |
Product Acquisition Costs | | 10 years |
Trademarks & Technology | | 15 years |
Customer Relationships | | 10 years |
9. Stock-Based Compensation
Stock Options
The 1999 Director Stock Option Plan, as amended (the “Director Plan”), provides for the grant of stock options to non-employee directors of the Company at an exercise price equal to the fair market value per share on the date of the grant. As of December 31, 2017, an aggregate of 1,975,000 shares had been approved and authorized for issuance pursuant to the Director Plan, with no change as of December 31, 2018. A total of 2,634,798 options had been granted to non-employee directors as of December 31, 2017, with no change as of December 31, 2018. A total of 807,782 of those options had been forfeited as of December 31, 2017 and returned to the option pool for future issuance, with no change as of December 31, 2018. The options granted under the Director Plan vest in full one year after their respective grant dates and have a maximum term of ten years. As of each of December 31, 2018 and December 31, 2017, there were 500,000 shares of common stock options outstanding. As of December 31, 2017, the 147,984 options available were transferred to a plan that has superseded the Director Plan, as discussed further in this section, with no additional options transferred as of December 31, 2018.
The 1999 Stock Incentive Plan, as amended (“1999 Plan”), replaced all previously authorized employee stock option plans, and no additional options may be granted under those previous plans. Under the 1999 Plan, options or stock awards may be granted to all of the Company’s employees, officers, directors, consultants and advisors to purchase a maximum of 3,200,000 shares of common stock. However, pursuant to the terms of the 1999 Plan, no awards may be granted after March 16, 2009. A total of 2,892,500 options, having a maximum term of ten years, have been granted at 100% of the fair market value of the Company’s common stock at the date of grant. Options outstanding under the 1999 Plan were generally exercisable in cumulative increments over four years commencing one year from date of grant. As of December 31, 2018, there were no options outstanding under the 1999 Plan.
On June 26, 2009, the Board of Directors adopted, and the Company’s stockholders subsequently approved by written consent, the IGI Laboratories, Inc. 2009 Equity Incentive Plan (the “2009 Plan”). The 2009 Plan became effective on July 29, 2009. The 2009 Plan allows the Company to continue to grant options and restricted stock, as under the 1999 Plan, but also authorizes the Board of Directors to grant a broad range of other equity-based awards, including stock appreciation rights, restricted stock units ("RSUs") and performance awards. The 2009 Plan has been created, pursuant to and consistent with the Company’s current compensation philosophy, to assist the Company in attracting, retaining and rewarding designated employees, directors, consultants and other service providers of the Company and its subsidiaries and affiliates, in a manner that will be cost efficient to the Company from both an economic and financial accounting perspective. On April 12, 2010, the Board of Directors adopted, and the Company’s stockholders subsequently approved, an amendment and restatement of the 2009 Plan to increase
the number of shares of Common Stock available for grant under such plan by adding 2,000,000 shares of Common Stock. The 2009 Plan, as amended on May 29, 2010, authorizes up to 5,000,000 shares of the Company’s common stock for issuance pursuant to the terms of the 2009 Plan. The maximum number of shares that may be subject to awards made to any individual in any single calendar year under the 2009 Plan is 1,000,000 shares. As of December 31, 2018, there were 14,377 RSUs outstanding, 1,853,925 shares of stock outstanding and 2,458,106 shares of common stock options outstanding. As of December 31, 2017, there were 99,626 RSUs outstanding, 1,422,020 shares of stock outstanding and 3,038,634 shares of common stock options outstanding. As of December 31, 2017, the 249,052 options available were transferred to a plan that has superseded the 2009 Plan, as discussed further in this section. As of December 31, 2018, an additional 346,504 options available were transferred to the superseded plan.
On May 25, 2016, the Board of Directors approved the Company's 2016 Equity Incentive Plan (the "2016 Plan"). On May 21, 2018, the Board of Directors adopted, and the Company's stockholders subsequently approved, an amendment and restatement of the 2016 Plan to increase the number of shares of Common Stock available for grant under such plan by adding 2,000,000 shares of Common Stock. The 2016 Plan, as amended, provides for the issuance of awards of up to 4,000,000 shares of the Company's common stock, plus any shares of common stock that are represented by awards granted under our Director Plan and 2009 Plan that are forfeited, expire or are canceled without delivery of shares of common stock or which result in the forfeiture of shares of common stock back to the Company on or after May 25, 2016 up to 2,500,000 shares. Generally, shares of common stock reserved for awards under the 2016 Plan that lapse or are canceled, will be added back to the share reserve available for future awards. However, shares of common stock tendered in payment for an award or shares of common stock withheld for taxes will not be available again for grant. The 2016 Plan provides that no participant may receive awards for more than 1,000,000 shares of common stock in any fiscal year. As the 2016 Plan supersedes both the Director Plan and the 2009 Plan, any available shares from both are now incorporated into the 2016 Plan. As of December 31, 2018, there were 161,214 RSU's outstanding, 74,667 shares of common stock outstanding and options to purchase 1,394,285 shares of common stock outstanding under the 2016 Plan. As of December 31, 2017, there were 89,003 RSU's outstanding, 20,000 shares of common stock outstanding and options to purchase 761,176 shares of common stock outstanding under the 2016 Plan. As of December 31, 2018 and December 31, 2017, there were a total of 3,113,374 shares of common stock and 1,526,857 shares of common stock available under the 2016 Plan, respectively.
As of December 31, 2018 and December 31, 2017, there were options to purchase 4,352,391 and 4,299,810 shares of common stock outstanding, respectively, in the Director Plan, 2009 Plan, and the 2016 Plan.
In the interest of maintaining consistency with the Company's 2016 Equity Incentive Plan, on March 13, 2017, the Company entered into (i) an amendment to the option agreements governing each option grant currently outstanding under the Company's 2009 Equity Incentive Plan, and (ii) an amendment to the restricted stock unit, or RSU, agreements governing each RSU grant currently outstanding under the 2009 Plan. The amendments provide for the automatic vesting upon a change of control of the Company of each option grant and RSU grant, as applicable, outstanding under the 2009 Plan. The amendments had a de minimis value to the holders as of December 31, 2018, and therefore no additional stock compensation expense was recognized related to the amendments. The forms of amendment are Exhibits 10.31 and 10.32, respectively, and are incorporated by reference herein.
The fair value of each option award is estimated on the date of grant using the Black-Scholes option-pricing formula that uses assumptions noted in the following table. Expected volatilities and risk-free interest rates are based upon the expected life of the grant.
| | | | | | | | | | | | | | | | | | | | |
| Assumptions | | 2018 | | 2017 | | 2016 |
| Expected dividends | | 0 | % | | 0 | % | | 0 | % |
| Risk free rate | | 2.44 | % | | 1.56 | % | | 1.14 | % |
| Expected volatility | | 52.7%-72.5% | | 58.0% - 69.7% | | 68.0% - 71.3% |
| Expected term (in years) | | 2.3 – 3.3 years | | 3.2 – 3.3 years | | 3.1 – 3.3 years |
Estimated volatility was calculated using the historical volatility of the Company’s stock over the expected life of the options. The expected life of the options was estimated based on the Company’s historical data. The risk-free interest rate is based on U.S. Treasury yields for securities with terms approximating the terms of the grants. Forfeitures are recognized in the period they occur. The assumptions used in the Black-Scholes option valuation model are highly subjective, and can materially affect the resulting valuation.
Stock option transactions in each of the past three years under the aforementioned plans in total were:
| | | | | | | | | | | | | | | | | | | | |
| | | Shares | | Exercise
Price Per Share | | Weighted
Average
Exercise
Price |
| January 1, 2016 shares issuable under options | | 3,592,734 | | $0.79 - $10.67 | | $ | 4.36 |
| Granted | | 739,135 | | 4.72 - 8.81 | | 7.26 |
| Exercised | | (61,834) | | 1.10 - 6.51 | | 1.54 |
| Expired | | — | | — | | — |
| Forfeited | | (164,666) | | 4.55 – 10.67 | | 8.37 |
| December 31, 2016 shares issuable under options | | 4,105,369 | | $0.79 - $10.67 | | $ | 4.76 |
| Granted | | 577,845 | | 3.38 - 9.28 | | 7.15 |
| Exercised | | (171,566) | | 0.79 - 5.85 | | 1.92 |
| Expired | | — | | — | | — |
| Forfeited | | (211,838) | | 4.80 - 10.67 | | 7.70 |
| December 31, 2017 shares issuable under options | | 4,299,810 | | $0.79 - $10.67 | | $ | 5.09 |
| Granted | | 839,785 | | 1.73-4.25 | | 3.34 |
| Exercised | | (239,000) | | 1.02-1.83 | | 1.05 |
| Expired | | — | | — | | — |
| Forfeited | | (548,204) | | 2.02-10.67 | | 8.04 |
| December 31, 2018 shares issuable under options | | 4,352,391 | | $0.79-$10.67 | | $ | 4.61 |
The following table summarizes information concerning outstanding and exercisable options as of December 31, 2018:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Options Outstanding | | | | | | Options Exercisable | | |
Range of
Exercise Price | | Number of
Options | | Weighted
Average
Remaining
Life (Years ) | | Weighted
Average
Exercise
Price | | Number of
Options | | Weighted
Average
Exercise
Price |
| $0.79 - $1.50 | | 1,510,000 | | 3.12 | | $ | 1.06 | | 1,510,000 | | $ | 1.06 |
| $1.51 - $5.50 | | 992,457 | | 8.27 | | 3.23 | | 199,826 | | 2.76 |
| $5.51 - $10.67 | | 1,849,934 | | 6.99 | | 8.24 | | 1,528,686 | | 8.45 |
| | | | | | | | | | |
| Total | | 4,352,391 | | 5.94 | | $ | 4.61 | | 3,238,512 | | $ | 4.65 |
The following table summarizes information concerning outstanding and exercisable options as of December 31, 2017:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Options Outstanding | | | | | | Options Exercisable | | |
Range of
Exercise Price | | Number of
Options | | Weighted
Average
Remaining
Life (Years ) | | Weighted
Average
Exercise
Price | | Number of
Options | | Weighted
Average
Exercise
Price |
| $0.79 - $1.00 | | 25,000 | | 2.01 | | $ | 0.79 | | 25,000 | | $ | 0.79 |
| $1.01 - $1.50 | | 1,721,000 | | 4.14 | | 1.06 | | 1,721,000 | | 1.06 |
| $1.51 - $10.67 | | 2,553,810 | | 7.76 | | 7.85 | | 1,369,466 | | 7.92 |
| | | | | | | | | | |
| Total | | 4,299,810 | | 6.28 | | $ | 5.09 | | 3,115,466 | | $ | 4.07 |
The following table summarizes information concerning outstanding and exercisable options as of December 31, 2016:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Options Outstanding | | | | | | Options Exercisable | | |
Range of
Exercise Price | | Number of
Options | | Weighted
Average
Remaining
Life (Years ) | | Weighted
Average
Exercise
Price | | Number of
Options | | Weighted
Average
Exercise
Price |
| $0.79 - $1.00 | | 50,000 | | 3.01 | | $ | 0.79 | | 50,000 | | $ | 0.79 |
| $1.01 - $1.50 | | 1,808,400 | | 5.11 | | 1.07 | | 1,808,400 | | 1.07 |
| $1.51 - $10.67 | | 2,246,969 | | 8.35 | | 7.82 | | 805,803 | | 7.15 |
| | | | | | | | | | |
| Total | | 4,105,369 | | 6.86 | | $ | 4.76 | | 2,664,203 | | $ | 2.90 |
The Company has recorded $1.5 million, $2.3 million and $2.3 million related to its stock option based expenses in cost of sales, product development and research expenses, and selling, general and administrative expenses on the accompanying Consolidated Statements of Operations for the years ended December 31, 2018, 2017 and 2016, respectively.
The aggregate intrinsic value of options outstanding was $0.5 million at December 31, 2018, $4.7 million at December 31, 2017 and $11.5 million at December 31, 2016. The aggregate intrinsic value of the options exercisable was $0.5 million at December 31, 2018, $4.7 million at December 31, 2017 and $11.3 million at December 31, 2016. The total intrinsic value of the options exercised during 2018, 2017 and 2016 was $0.1 million, $0.4 million and $0.3 million, respectively.
A summary of non-vested options at December 31, 2018 and changes during the year ended December 31, 2018 is presented below:
| | | | | | | | | | | | | | |
| | Options | | Weighted
Average
Grant Date
Fair Value |
| Non-vested options at January 1, 2018 | | 1,184,344 | | $ | 3.48 |
| Granted | | 839,785 | | 1.44 |
| Vested | | (699,572) | | 3.54 |
| Forfeited | | (210,678) | | 3.37 |
| Non-vested options at December 31, 2018 | | 1,113,879 | | $ | 2.00 |
As of December 31, 2018, there was $1.2 million of total unrecognized compensation cost related to non-vested share-based compensation arrangements under the Plan. The costs will be recognized through December 2020.
Restricted Stock and RSUs
The Company periodically grants restricted stock and RSU awards to certain officers and other employees that typically vest one to three years from their grant date. The Company recognized $0.5 million, $1.0 million and $0.8 million, respectively, of compensation expense during the years ended December 31, 2018, 2017 and 2016 related to restricted stock awards and RSUs. Stock compensation expense is recognized over the vesting period of the restricted stock and RSUs. At December 31, 2018, the Company had approximately $0.5 million of total unrecognized compensation cost related to non-vested restricted stock and RSUs, all of which will be recognized through April 2021.
There have been no restricted stock issuances in the years ended 2018, 2017 or 2016.
A summary of non-vested RSUs and changes during each of the past three years is as follows:
| | | | | | | | | | | | | | |
| | Number of
RSUs | | Weighted Average
Issuance Price |
| Non-vested balance at January 1, 2016 | | 182,750 | | $10.23 |
| | | | |
| Changes during the period: | | | | |
| Shares granted | | 58,068 | | 7.50 |
| Shares vested | | (60,918) | | 10.13 |
| Shares forfeited | | — | | — |
| Non-vested balance at December 31, 2016 | | 179,900 | | $9.35 |
| | | | |
| Changes during the period: | | | | |
| Shares granted | | 93,468 | | 7.26 |
| Shares vested | | (80,274) | | 9.57 |
| Shares forfeited | | (4,465) | | 7.09 |
| Non-vested balance at December 31, 2017 | | 188,629 | | $8.27 |
| | | | |
| Changes during the period: | | | | |
| Shares granted | | 122,949 | | 3.36 |
| Shares vested | | (109,940) | | 8.95 |
| Shares forfeited | | (26,047) | | 5.76 |
| Non-vested balance at December 31, 2018 | | 175,591 | | $4.78 |
10. Accrued Expenses
Accrued expenses represent various obligations of the Company including certain operating expenses and taxes payable.
For the fiscal years ended December 31, 2018, and 2017 the largest components of accrued expenses were (in thousands):
| | | | | | | | | | | | | | |
| | 2018 | | 2017 |
| Professional fees | | $ | 2,153 | | $ | 546 |
| Payroll | | 1,908 | | 1,580 |
| Inventory and supplies | | 1,809 | | 58 |
| Interest expense | | 1,042 | | 240 |
| Rebates | | 714 | | 83 |
| Medicaid and Medicare | | 383 | | 1,487 |
| Clinical Studies | | 334 | | 596 |
| Royalties | | 222 | | 856 |
| Capital expenditures | | 275 | | 1,947 |
| Wholesaler Fees | | 203 | | — |
| Income Tax | | 45 | | 58 |
| Other | | 754 | | 650 |
| | $ | 9,842 | | $ | 8,101 |
11. Income Taxes
The Company is subject to U.S. federal income tax and files a consolidated federal income tax return which includes all eligible U.S. subsidiary companies. The Company is also subject to tax in the states of Alabama, Illinois, Montana, New Jersey and
Tennessee. The Company conducts significant operations in certain foreign countries and is, accordingly, subject to tax in those foreign jurisdictions consisting of Canada (including the province of Ontario), Estonia, Luxembourg and Jersey.
Loss before income tax for the years ended December 31, 2018, 2017 and 2016 consisted of the following (in thousands):
| | | | | | | | | | | | | | | | | | | | |
| | 2018 | | 2017 | | 2016 |
| U.S. operations | | $ | (32,183) | | $ | (21,938) | | $ | (9,514) |
| Foreign operations | | (4,135) | | 6,662 | | (2,184) |
| | | | | | |
| Global Total | | $ | (36,318) | | $ | (15,276) | | $ | (11,698) |
The Company’s current tax (benefit) expense was $(0.1) million, $(0.1) million and $0.3 million for the years ended December 31, 2018, 2017 and 2016, respectively. The (credit) provision for income taxes attributable to continuing operations before income taxes for the years ended December 31, 2018, 2017 and 2016 is as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | |
| | | 2018 | | 2017 | | 2016 |
| Current tax expense (benefit): | | | | | | |
| Federal | | $ | — | | $ | (86) | | $ | 26 |
| State and local | | 30 | | 20 | | 35 |
| Foreign | | (157) | | 42 | | 272 |
| Total current tax (benefit) expense | | (127) | | (24) | | 333 |
| Deferred tax expense: | | | | | | |
| Federal | | — | | — | | — |
| State and local | | — | | — | | — |
| Foreign | | 65 | | (61) | | (46) |
| Total deferred tax expense (benefit) | | 65 | | (61) | | (46) |
| | | | | | |
| Total income tax (benefit) expense | | $ | (62) | | $ | (85) | | $ | 287 |
A comparison of income tax (benefit) expense at the U.S. statutory rate of 21% in 2018 and 35% in 2017 and 2016 to the Company's effective rate is as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | |
| | | 2018 | | 2017 | | 2016 |
| Expected Statutory expense (benefit) | | $ | (7,627) | | $ | (5,195) | | $ | (3,977) |
| U.S. TCJA recovery of alternative minimum tax credits | | — | | (73) | | — |
| Change in the fair values of derivative and amortization of debt discount | | — | | 2,939 | | 2,584 |
| Other non-deductible expenses | | 256 | | 24 | | 63 |
| Change in valuation allowance including U.S. TCJA rate reduction | | 6,572 | | (2,012) | | 590 |
| Reduction in deferred tax assets related to U.S. TCJA rate reduction | | — | | 7,504 | | — |
| Change to Accounting for Equity Compensation Windfalls | | — | | (1,112) | | — |
| Tax rate differential - foreign vs. U.S. | | 791 | | (2,276) | | 822 |
| State income taxes, net of federal benefit | | 23 | | 13 | | 23 |
| Shortfalls related to stock compensation expense | | — | | 129 | | 154 |
| Prior year true-up | | (93) | | (13) | | — |
| Exchange gain | | 16 | | (13) | | 28 |
| | | $ | (62) | | $ | (85) | | $ | 287 |
On December 22, 2017, the President signed into law the United States Tax Cuts and Jobs Act (U.S. TCJA) significantly revising the Internal Revenue Code of 1986, as amended. The U.S. TCJA includes, among other items, (1) a permanent reduction of the corporate tax rate from a top marginal rate of 35% to a flat rate of 21%; (2) limitations on the tax deduction for net interest expense, (3) a one-time transition tax on certain unrepatriated earnings of foreign subsidiaries; (4) a shift of the U.S. taxation of multinational corporations from a tax on worldwide income to a territorial system; (5) elimination of the Alternative Minimum Tax regulations; (6) recovery of Alternative Minimum Tax Credits over a five year period; and (7) modifying or repealing many other business deductions and credits.
The Company has assessed the impacts of the changes resulting from the U.S. TCJA and during the fourth quarter of 2017 recognized an income tax benefit and a corresponding receivable of $73 thousand related to the recoverability of Alternative Minimum Tax Credits. Also, during the fourth quarter of 2017, deferred tax assets, liabilities and valuation allowances were remeasured at the new rate of 21%. There was no income impact from the remeasurement since all U.S. net deferred tax assets are fully reserved by the Company.
In December 2017, the SEC provided regulatory guidance for accounting of the impacts of the TCJA, referred to as SAB 118. Under the guidance of SAB 118, the income tax effects, for which the accounting under ASC 740 is incomplete, are reported as a provisional amount based on a reasonable estimate. The reasonable estimate is subject to adjustment during a “measurement period”, not to exceed one year, until the accounting is complete. The estimate is also subject to the finalization of management’s analysis related to certain matters, such as developing interpretations of the provisions of the TCJA, changes to certain estimates and profits of certain subsidiaries and the filing of tax returns.
During the fourth quarter of 2018, the Company completed its full assessment and finalized the accounting for the impact of TCJA and concluded that there was no additional impact.
Deferred tax balances included in the Consolidated Balance Sheets as of December 31, 2018 and 2017 consisted of the following (in thousands):
| | | | | | | | | | | | | | |
| | | 2018 | | 2017 |
| Deferred Tax Assets: | | | | |
| Sales allowances and doubtful accounts | | $ | 1,964 | | $ | 506 |
| Inventory reserve | | 962 | | 619 |
| Deferred revenue | | 590 | | — |
| Accrued expenses | | 23 | | 664 |
| Property, plant and equipment | | 258 | | 214 |
| Tax operating loss carryforwards | | 9,951 | | 9,327 |
| Tax credit and other carryforwards | | 1,299 | | 168 |
| Stock compensation | | 538 | | 1,817 |
| Total deferred tax assets | | 15,585 | | 13,315 |
| Less valuation allowance | | (12,120) | | (13,309) |
| Net deferred tax assets | | 3,465 | | 6 |
| | | | |
| Deferred Tax Liabilities: | | | | |
| Convertible debt conversion features | | (3,514) | | — |
| Foreign exchange | | (28) | | — |
| Intangible assets | | (138) | | (165) |
| Total deferred tax liabilities | | (3,680) | | (165) |
| Net deferred tax liability | | $ | (215) | | $ | (159) |
The Company evaluates the recoverability of its deferred tax assets based on its history of operating results, its expectations for the future, and the expiration dates of the net operating loss carry forwards. Based on the preponderance of the evidence, the Company has concluded that it is more likely than not that it will be unable to realize the net deferred tax assets in the immediate future and has established a full valuation allowance for substantially all deferred tax assets. Accordingly, the Company has provided a valuation allowance of $12.1 million and $13.3 million for the years ended December 31, 2018 and 2017, respectively, on its deferred tax assets. The valuation allowance decreased $1.2 million during 2018. This decrease was
due to a decrease of $2.0 million related to changes in deferred taxes offset by an increase of $0.8 million related to the 2018 net operating loss.
Operating loss, tax credit and other carry forwards as of December 31, 2018 and 2017 were as follows (in thousands):
| | | | | | | | | | | | | | |
| | | 2018 | | 2017 |
| Federal: | | | | |
| Net operating losses (see below) | | $ | 45,081 | | $ | 41,688 |
| Disallowed interest expense (no expiration) | | 5,018 | | — |
| Contributions (expiring through 2023) | | 524 | | 210 |
| Research tax credits (expiring through 2025) | | 135 | | 168 |
| | | | |
| State: | | | | |
| New Jersey (expiring in 2038) | | 2,976 | | 4,320 |
| Other states (expiring through 2038) | | 2,307 | | 1072 |
| | | | |
| Foreign | | | | |
| Net operating losses (no expiration) | | $ | 257 | | $ | 255 |
At December 31, 2018, the Company’s U.S. federal net operating loss carryforwards will expire as follows (in thousands):
| | | | | | | | |
| Year | | Net Operating Loss |
| 2020 - 2023 | | $ | 8,227 |
| 2024 - 2029 | | 9,063 |
| 2030 - 2032 | | 9,926 |
| 2033 - 2036 | | 6,296 |
| 2037 | | 8,116 |
| No expiration but subject to limitation | | 3,453 |
| Total | | $ | 45,081 |
Federal net operating losses arising during and after 2018 are not subject to expiration; however, their usage is limited to 80% of taxable income during the year of use.
The Company’s ability to use net operating loss carry forwards is subject to substantial limitation in future periods under certain provisions of Section 382 of the Internal Revenue Code of 1986, as amended, which limit the utilization of net operating losses upon a more than 50% change in ownership of the Company’s stock that is held by 5% or greater stockholders. The Company examined the application of Section 382 with respect to an ownership change that took place during 2010, as well as the limitation on the application of net operating loss carry forwards. The Company believes that operating losses subsequent to the change date in 2010 (aggregating $26.5 million) are not subject to Section 382 limitations. The Company has estimated that the annual limitation starting in 2010 aggregates from $1.0 million to $2.3 million per year including the effect of amortization of built in gains. The Company's loss carryforwards may be further limited in the future if additional ownership changes occur.
The Company is subject to the provisions of ASC 740-10-25, Income Taxes (ASC 740). ASC 740 prescribes a more likely-than-not threshold for the financial statement recognition of uncertain tax positions. ASC 740 clarifies the accounting for income taxes by prescribing a minimum recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. On a quarterly basis, the Company undergoes a process to evaluate whether income tax accruals are in accordance with ASC 740 guidance on uncertain tax positions.
Federal income tax returns for the years 2014 and 2015 have been examined by the U.S. Internal Revenue Service without any income tax expense consequences. For federal purposes (except for the years 2014 and 2015), post 1998 tax years remain open to examination as a result of net operating loss carryforwards. The Company is currently open to audit by the appropriate state income taxing authorities for tax years 2014 through 2017. The Company has not recorded any liability for uncertain tax positions at December 31, 2018 or December 31, 2017.
12. Commitments
The Company’s commitments and contingencies consisted of operating leases for warehouse and office space and equipment. Future minimum lease payments under non-cancelable operating leases are as follows (in thousands):
| | | | | |
| | Commitments |
| | |
| 2019 | $ | 573 |
| 2020 | 611 |
| 2021 | 633 |
| 2022 | 610 |
| 2023 | 607 |
| 2024 | 200 |
| | $ | 3,234 |
Rent expense was $0.5 million, $0.5 million and $0.9 million for the years ended December 31, 2018, 2017 and 2016, respectively.
The Company has certain licensing and development agreement in place under which the Company will pay certain licensing fees and milestones over the lives of certain projects. These commitments totaled approximately $2.4 million as of December 31, 2018, and will be paid over the next several years in accordance with agreed upon milestones.
13. Legal and U.S. Regulatory Proceedings
To date, twelve putative class action antitrust lawsuits have been filed against the Company along with co-defendants, including Taro Pharmaceuticals U.S.A., Inc. and Perrigo New York Inc., regarding the pricing of generic econazole nitrate cream (“econazole”). The class plaintiffs seek to represent nationwide or state classes consisting of persons who directly purchased, indirectly purchased, paid and/or reimbursed patients for the purchase of generic econazole from July 1, 2014 until the time the defendants’ allegedly unlawful conduct ceased or will cease. The class plaintiffs seek treble damages for alleged overcharges for econazole during the alleged period of conspiracy, and certain of the class plaintiffs also seek injunctive relief against the defendants. All actions have been consolidated by the Judicial Panel on Multidistrict Litigation to the Eastern District of Pennsylvania for pre-trial proceedings as part of the In re Generic Pharmaceuticals Pricing Antitrust Litigation matter. On October 16, 2018 the court dismissed the class plaintiffs’ claims against the Company with leave to replead. On December 21, 2018 the class plaintiffs filed amended complaints, which the Company moved to dismiss on February 21, 2019. This motion remains pending.
Three “opt-out” antitrust lawsuits have additionally been filed against the Company by Humana Inc.; The Kroger Co. et al.; and United HealthCare Services, Inc., and consolidated into the In re Generic Pharmaceuticals Pricing Antitrust Litigation matter by the Judicial Panel on Multidistrict Litigation. Each of the opt-out complaints names between thirty-six and forty-three defendants (including the Company) and involves allegations regarding the pricing of econazole along with between twenty-four and twenty-nine other drug products that were not manufactured or sold by the Company during the period at issue. The opt-out plaintiffs seek treble damages for alleged overcharges for the drug products identified in the complaint during the alleged period of conspiracy, and two of the complaints also seek injunctive relief. A motion to dismiss the Humana Inc. and The Kroger Co., et al. opt-out complaints was filed on February 21, 2019. A motion to dismiss the United HealthCare Services, Inc. opt-out complaint has not yet been filed.
Due to the early stage of these cases, we are unable to form a judgment at this time as to whether an unfavorable outcome is either probable or remote or to provide an estimate of the amount or range of potential loss. We believe these cases are without merit, and we intend to vigorously defend against these claims.
On October 20, 2017, a Demand for Arbitration was filed with the American Arbitration Association by Stayma Consulting Services, Inc. (“Stayma”) against the Company regarding the Company’s development and manufacture for Stayma of two generic drug products, one a lotion and one a cream, containing 0.05% of the active pharmaceutical ingredient flurandrenolide. The Company developed the two products and Stayma purchased commercial quantities of each; however, Stayma alleges that the Company breached agreements between the parties by developing an additional and different generic drug product, an ointment, containing flurandrenolide, and failing to meet certain contractual requirements. Stayma seeks monetary damages. Because discovery in this matter is ongoing, the Company is unable to form a judgment at this time as to whether an unfavorable outcome is either probable or remote or to provide an estimate of the amount or range of potential loss. The
Company believes this case is without merit, and the Company intends to vigorously defend against these claims. The Company filed three counter-claims against Stayma for its failure to pay several past due invoices of approximately $1.7 million relating to the development and commercial supply of the two subject products and for breaching the confidentiality provisions and exclusivity provisions of the parties’ agreements.
On December 13, 2018, Valdepharm SA filed a lawsuit alleging that the Company breached contracts regarding two drug products that the Company had sought to have Valdepharm manufacture. On February 12, 2019 the Company answered the complaint and counterclaimed, alleging that Valdepharm breached the contracts by failing to perform its work in compliance with FDA regulations and current Good Manufacturing Practices. Each party seeks damages associated with the alleged breach and related claims. Due to the early stage of the case we are unable to form a judgment at this time as to whether an unfavorable outcome is either probable or remote or to provide an estimate of the amount or range of potential loss. We believe the claims against Teligent are without merit, and we intend to vigorously defend against them.
14. Employee Benefits
The Company has a 401(k) contribution plan, pursuant to which employees may elect to contribute to the plan, in whole percentages, up to 100% of compensation. Employees’ contributions are subject to a minimum contribution by participants of 1% of compensation and a maximum contribution of $18,500 for 2018, $18,000 for 2017 and $18,000 for 2016, plus a catch-up contribution of up to $6,000 for 2018, $6,000 for 2017 and $6,000 for 2016, if a participant qualifies. The Company matches 100% of the first 3% of compensation contributed by participants and 50% of the next 2% of compensation contributed by participants. The Company contribution is in the form of cash, which is vested immediately. The Company has recorded charges to expense related to this plan of approximately $358,167, $311,467 and $228,619 in 2018, 2017 and 2016, respectively.
15. Quarterly Results (Unaudited)
As disclosed in Note 1, Correction of Prior Year Consolidated Financial Statements, the Company’s consolidated financial statements for the years ended December 31, 2017 and 2016 have been revised to correct certain immaterial accounting errors described therein. Accordingly, the effect of the correction of these immaterial accounting errors resulted in a reduction in the Company’s previously reported revenue and cost of revenue of $2.2 million, $2.0 million, $1.5 million, and $1.3 million for the quarters ended March 31, 2017, June 30, 2017, September 30, 2017 and December 31, 2017, respectively. The following is a summary of certain quarterly financial information for the fiscal years 2018 and 2017:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | First
Quarter | | Second
Quarter | | Third
Quarter | | Fourth
Quarter | | Total |
| | (in thousands, except per share data) | | | | | | | | |
| Year Ended December 31, 2018 | | | | | | | | | | |
| Total revenues, net | | $ | 14,545 | | $ | 16,249 | | $ | 18,294 | | $ | 16,777 | | $ | 65,865 |
| Gross profit | | 5,220 | | 4,784 | | 6,719 | | 5,662 | | 22,385 |
| Operating loss | | (3,531) | | (4,910) | | (1,213) | | (5,445) | | (15,099) |
| Net loss | | (4,802) | | (13,119) | | (3,945) | | (14,390) | | (36,256) |
| Net loss attributable to common stockholders | | (4,802) | | (13,119) | | (3,945) | | (14,390) | | (36,256) |
| Basic loss per share | | $ | (0.09) | | $ | (0.25) | | $ | (0.07) | | $ | (0.27) | | $ | (0.68) |
| Diluted loss per share | | $ | (0.09) | | $ | (0.25) | | $ | (0.07) | | $ | (0.27) | | $ | (0.68) |
| | | | | | | | | | |
| Year Ended December 31, 2017 | | | | | | | | | | |
| Total revenues, net | | $ | 17,663 | | $ | 16,432 | | $ | 11,340 | | $ | 14,767 | | $ | 60,202 |
| Gross profit | | 10,934 | | 8,037 | | 2,538 | | 5,863 | | 27,372 |
| Operating income (loss) | | 2,967 | | (1,782) | | (8,039) | | (4,943) | | (11,797) |
| Net income (loss) | | 831 | | (919) | | (8,982) | | (6,121) | | (15,191) |
| Net income (loss) attributable to common stockholders | | 831 | | (919) | | (8,982) | | (6,121) | | (15,191) |
| Basic income (loss) per share | | $ | 0.02 | | $ | (0.02) | | $ | (0.17) | | $ | (0.11) | | $ | (0.28) |
| Diluted income (loss) per share | | $ | 0.02 | | $ | (0.02) | | $ | (0.17) | | $ | (0.11) | | $ | (0.28) |
TELIGENT, INC.
SCHEDULE II-VALUATION AND QUALIFYING ACCOUNTS
(in thousands)
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | Additions | | | | | | |
| | Balance at
Beginning
of Year | | Charged to
Costs and
Expenses | | Charged
other
Accounts | | Deductions | | Balance at
End of Year |
| Year Ended December 31, 2016 | | | | | | | | | | |
| Change in Tax Valuation Allowance | | $ | 14,309 | | — | | 941 | | — | | $ | 15,250 |
| Allowance for Doubtful Accounts | | $ | 90 | | 347 | | — | | 20 | | $ | 417 |
| Reserve for Inventory Obsolescence | | $ | 121 | | 872 | | — | | 583 | | $ | 410 |
| Year Ended December 31, 2017 | | | | | | | | | | |
| Change in Tax Valuation Allowance | | $ | 15,250 | | (61) | | (1,880) | | — | | $ | 13,309 |
| Allowance for Doubtful Accounts | | $ | 417 | | 1,768 | | — | | — | | $ | 2,185 |
| Reserve for Inventory Obsolescence | | $ | 410 | | 2,000 | | 9 | | 1,115 | | $ | 1,304 |
| Year Ended December 31, 2018 | | | | | | | | | | |
| Change in Tax Valuation Allowance | | $ | 13,309 | | 67 | | (1,256) | | — | | $ | 12,120 |
| Allowance for Doubtful Accounts | | $ | 2,185 | | 451 | | — | | — | | $ | 2,636 |
| Reserve for Inventory Obsolescence | | $ | 1,304 | | 3,343 | | — | | 1,980 | | $ | 2,667 |