UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
☑
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2021
or
☐
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number: 000-29089
Agenus Inc.
(exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
06-1562417
(I.R.S. Employer
Identification No.)
3 Forbes Road, Lexington, Massachusetts 02421
(Address of principal executive offices, including zip code)
Registrant’s telephone number, including area code:
(781) 674-4400
Securities registered pursuant to Section 12(b) of the Act:
Common Stock, $.01 Par Value
(Title of each class)
AGEN
(Trading Symbol)
The Nasdaq Capital Market
(Name of each exchange on which registered)
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☒ No ☐
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐ No ☒
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90
days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation
S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging
growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the
Exchange Act.
Large accelerated filer
Non-accelerated filer
Emerging growth company
☒
☐
☐
Accelerated filer
Smaller reporting company
☐
☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over
financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
The aggregate market value of Common Stock held by non-affiliates of the registrant as of June 30, 2021 (the last trading day of the registrant’s second fiscal quarter
of 2021) was: $1.23 billion. There were 257,153,860 shares of the registrant’s Common Stock outstanding as of January 31, 2022.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant’s Definitive Proxy Statement relating to the 2022 Annual Meeting of Stockholders, which the registrant intends to file with the Securities
and Exchange Commission pursuant to Regulation 14A within 120 days after the end of the registrant’s fiscal year ended December 31, 2021, are incorporated by reference
into Part III of this Report.
ITEM 1.
BUSINESS
TABLE OF CONTENTS
PART I
Our Business
Intellectual Property Portfolio
Regulatory Compliance
Competition
Human Capital Resources and Employees
Corporate History
Availability of Periodic SEC Reports
RISK FACTORS
UNRESOLVED STAFF COMMENTS
PROPERTIES
LEGAL PROCEEDINGS
MINE SAFETY DISCLOSURES
PART II
MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER
PURCHASES OF EQUITY SECURITIES
RESERVED
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
CONTROLS AND PROCEDURES
OTHER INFORMATION
DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
ITEM 1A.
ITEM 1B.
ITEM 2.
ITEM 3.
ITEM 4.
ITEM 5.
ITEM 6.
ITEM 7.
ITEM 7A.
ITEM 8.
ITEM 9.
ITEM 9A.
ITEM 9B.
ITEM 9C.
ITEM 10.
ITEM 11.
ITEM 12.
DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
EXECUTIVE COMPENSATION
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED
STOCKHOLDER MATTERS
ITEM 13.
ITEM 14.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
PRINCIPAL ACCOUNTANT FEES AND SERVICES
PART III
ITEM 15.
ITEM 16
PART IV
EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
FORM 10-K SUMMARY
Page
3
3
9
10
11
13
13
13
13
65
65
65
65
66
67
68
76
77
114
114
116
117
118
118
118
118
118
119
124
Note Regarding Forward-Looking Statements
This Annual Report on Form 10-K and other written and oral statements the Company makes from time to time contain forward-looking statements.
You can identify these forward-looking statements by the fact they use words such as “could,” “expect,” “anticipate,” “estimate,” “target,” “may,”
“project,” “guidance,” “intend,” “plan,” “believe,” “will,” “potential,” “opportunity,” “future” and other words and terms of similar meaning. Forward-
looking statements include discussion of future operating or financial performance. You also can identify forward-looking statements by the fact that they
do not relate strictly to historical or current facts. Forward-looking statements involve risks and uncertainties that could delay, divert or change any of them,
and could cause actual outcomes to differ materially. These statements relate to, among other things, our business strategy, our research and development,
our product development efforts, our ability to commercialize our product candidates, the activities of our licensees, our prospects for initiating
partnerships or collaborations, the timing of the introduction of products, the effect of new accounting pronouncements, our future operating results and our
potential profitability, availability of additional capital as well as our plans, objectives, expectations, and intentions.
Although we believe we have been prudent in our plans and assumptions, no assurance can be given that any goal or plan set forth in forward-
looking statements can be achieved, and readers are cautioned not to place undue reliance on such statements, which speak only as of the date of this report.
We undertake no obligation to release publicly any revisions to forward-looking statements as a result of new information, future events or otherwise.
The risks identified in this Annual Report on Form 10-K, including, without limitation, the risks set forth in Part I-Item 1A. “Risk Factors,” could
cause actual results to differ materially from forward-looking statements contained in this Annual Report on Form 10-K. We encourage you to read those
descriptions carefully. Such statements should be evaluated in light of all the information contained in this document.
ASV™, Agenus™, AutoSynVax™, EVAMPLIX™, MiNK™, PSV™, PhosPhoSynVax™, Prophage™, Retrocyte Display™ and Stimulon™ are
trademarks of Agenus Inc. and its subsidiaries. All rights reserved.
2
Item 1.
Business
Our Business
PART I
We are a clinical-stage company advancing an extensive pipeline of immune checkpoint antibodies, adoptive cell therapies (through our subsidiary
MiNK Therapeutics, Inc. (“MiNK”)) and adjuvants and vaccines (through our subsidiary SaponiQx, Inc. (“SaponiQx”)) to fight cancer and other immune
related diseases. This robust product pipeline is supported by our in-house capabilities, including current good manufacturing practice (“cGMP”)
manufacturing and a clinical operations platform. Our primary focus is immuno-oncology (“I-O”), and our business is designed to drive success through
speed, innovation and effective combination therapies. We believe that a deep understanding of each patient’s cancer and the potential to deliver
combination therapies will drive substantial expansion of the patient population benefiting from current I-O therapies. In addition to a diverse pipeline, we
have assembled fully integrated end-to-end capabilities including novel target discovery, antibody generation, cell line development and cGMP
manufacturing. We believe that these fully integrated capabilities enable us to produce novel candidates on timelines that are shorter than the industry
standard. Leveraging our science and capabilities, we have forged important partnerships to advance our innovation.
We believe the next generation of cancer treatment will build on clinically validated antibodies targeting CTLA-4 and PD-1 combined with novel
immunomodulatory agents designed to address underlying tumor escape mechanisms. Our most advanced antibody candidates are balstilimab (an anti-PD-
1 antibody) and zalifrelimab (an anti-CTLA-4 antibody), which have been evaluated in Phase 2 trials as both a monotherapy (balstilimab) and combination
therapy (balstilimab/zalifrelimab) for treatment of patients with second-line cervical cancer. Both trials met their clinical endpoints. In the largest single
arm Phase 2 trial to date evaluating anti PD-1 therapy in second-line cervical cancer (140 patients), balstilimab monotherapy demonstrated objective
responses in both PD-L1-positive and PD-L1-negative patients, 20% and 8%, respectively, compared to pembrolizumab responses of 14% and 0% in a trial
of 77 patients. In a separate trial, the combination of balstilimab with zalifrelimab demonstrated objective response rates in PD-L1-positive and PD-L1-
negative patients of 32.8% and 9.1%, respectively, more than double the benefit reported in pembrolizumab’s label.
We are also advancing a proprietary next-generation anti-CTLA-4 antibody, botensilimab (also known as AGEN1181), which is designed to
improve the magnitude of responses to first-generation anti-CTLA-4 molecules, to expand the population of patients currently benefiting from anti-CTLA-
4 therapy, and to reduce or eliminate side effects that lead to treatment discontinuation. Botensilimab is currently in a Phase 1/2 study as a monotherapy and
as a combination therapy with balstilimab. We recently reported data from the Phase 1 study at the Society for Immunotherapy of Cancer meeting in
November 2021, which demonstrated clinical responses across nine cold and treatment-resistant cancers. As a monotherapy, we observed four cases of
confirmed objective response, including the first reported anti-CTLA-4 monotherapy responses in endometrial, pancreatic and PD-1 relapse / refractory
cervical cancer. In combination with our PD-1 antibody, balstilimab, we saw broad clinical benefit across a number of cancers – including colorectal,
ovarian, endometrial, non-small cell lung cancer, angiosarcoma, and leiomyosarcoma. These responses have been durable, with half lasting at least six
months and the majority ongoing at the time of data cut-off.
In addition to our lead programs, Agenus scientists have leveraged our internal discovery and translational platforms and powerful algorithms to
develop a pipeline of molecules that are intended to address key aspects of antitumor immunity and tumor resistance mechanisms, by modulating myeloid
cell biology, conditioning the tumor microenvironment, and augmenting the activity of immune cells. Some of these novel agents are advancing to the
clinic via the Agenus pipeline or via partnering relationships. Given the diversity of our pipeline, we are positioned to advance differentiated combination
therapies with our goal being to enhance response rates and thereby benefit patients who are unresponsive to current immunotherapies.
Additionally, in October 2021, we completed the initial public offering (“IPO”) of MiNK, trading on the Nasdaq Global Market under the ticker
symbol “INKT”. MiNK is a clinical stage biopharmaceutical company focused on developing allogeneic invariant natural killer T (“iNKT”) cell therapies
to treat cancer and other life-threatening immune diseases. MiNK’s most advanced product candidate, AGENT-797, is an off-the-shelf, allogeneic, native
iNKT cell therapy. MiNK has commenced a Phase 1 clinical trial of AGENT-797 for the treatment of multiple myeloma and received clearance from the
United States Food and Drug Administration (“FDA”) to initiate a Phase 1 clinical trial for the treatment of solid tumors as a monotherapy and in
combination with commercially approved checkpoint inhibitors. MiNK is also evaluating AGENT-797 as a variant-agnostic therapy for patients with viral
acute respiratory distress syndrome (“ARDS”) and published top-line data from this Phase 1 clinical trial in the fourth quarter of 2021, reporting a 77%
survival rate in older, mechanically ventilated patients with COVID-19 respiratory failure.
To succeed in I-O, innovation and speed are paramount. We are a vertically integrated biotechnology company equipped with a suite of technology
platforms to advance from novel target identification through manufacturing for clinical trials of antibodies and vaccines.
Our common stock is currently listed on The Nasdaq Capital Market under the symbol “AGEN.”
3
Our Vision
We believe that combination therapies and a deep understanding of each patient’s cancer will be key drivers of success in substantially expanding
the patient population benefiting from current I-O therapies. In addition, delivering innovation with speed is critical for our future success, as drug
development timelines in oncology shorten while product obsolescence rates climb. We believe our fully integrated, end-to-end capabilities from our
artificial intelligence-powered VISION platform for novel target discovery, antibody generation, cell line development, to cGMP manufacturing and
clinical development and operations capability, together with a comprehensive and complementary portfolio will uniquely position us to produce novel
therapies on accelerated timelines. We believe that a balanced pipeline of product candidates should focus on both validated targets as well as novel targets
designed to address tumor escape mechanisms. In this context, CTLA-4 and PD-1 antagonists are recognized as the first clinically validated
immunotherapy combination. These therapeutic targets, in combination with innovative immunomodulatory antibodies, cell therapies, or immune
educating vaccines, are reasonably anticipated to be focal points of the next generation of I-O combination therapies. Therefore, we plan to develop,
register and launch proprietary antibodies targeting PD-1 and CTLA-4 aggressively through the clinic and expand with novel combination therapies
designed to improve clinical response and the durability of response of existing therapies.
Our Strategy
Our strategy is to bring innovative combination therapies for cancer patients to substantially expand the patient population benefiting from current I-
O therapies. Our diverse pipeline of antibody-based therapeutics, cell therapies, adjuvants and cancer vaccines enable us to pursue therapeutically relevant
approaches focused on safe and effective therapeutic agent combinations. In line with this approach, we are pursuing clinical trials designed to strengthen
the efficacy and safety signals demonstrated to date and that may support a potential filing for full approval and/or accelerated approval based on the
magnitude of benefit demonstrated.
Our strategies for our more novel, earlier stage development programs are to leverage learnings from prior programs to address limitations of first-
generation molecules and build a portfolio that addresses resistance mechanism. Our clinical portfolio also includes a number of differentiated approaches
to novel I-O targets, including TIGIT, LAG-3, ILT4, and CD137. For example, our CD137 agonist, AGEN2373, was designed to be conditionally active in
the tumor microenvironment and has demonstrated clinical benefit without evidence of liver toxicity that have stalled other clinical-stage CD137
therapies. These agents are being pursued in anti-PD-1 combinations, as well as unique combinations driven by biology and clinical experience, such as
our combination study evaluating botensilimab with CD137 (AGEN2373) antibodies in PD-1 relapsed or refractory melanoma.
We are advancing our portfolio through a combination of independent development and strategic partnerships with industry leaders.
Our Assets
Our I-O assets include antibody-based therapeutics, monospecific and bispecific antibodies, cell therapy (through MiNK), vaccines and adjuvants
(through SaponiQx). Our clinical-stage portfolio includes the following assets:
•
•
•
•
•
•
Balstilimab (AGEN2034) – an anti-PD-1 monospecific antibody currently being evaluated in combinations with botensilimab and
zalifrelimab, as well as in a clinical collaboration with Rottapharm S.p.A. in combination with CR6086;
Zalifrelimab (AGEN1884) – a first-generation anti-CTLA-4 monospecific antibody currently being evaluated in combination with
balstilimab, as well as in a clinical collaboration with Nelum in combination with NLM-001;
Botensilimab (AGEN1181) – a next-generation anti-CTLA-4 monospecific antibody currently in a Phase 1/2 clinical trial being advanced
by Agenus as a monotherapy and in combination with balstilimab;
AGEN2373 – an anti-CD137 monospecific antibody currently in a Phase 1 clinical trial being advanced by Agenus as monotherapy and in
combination with botensilimab, and which Gilead Sciences, Inc. (“Gilead”) has an option to license exclusively;
AGEN1423 – a tumor microenvironment conditioning anti-CD73/TGFβ TRAP bifunctional antibody that recently completed a Phase 1
clinical trial sponsored by Gilead;
AGEN1777 – a bispecific antibody targeting TIGIT exclusively licensed to Bristol Myers Squibb Company (“BMS”) and being advanced
by Agenus in a Phase 1 clinical trial.
• MK-4830 – a monospecific antibody targeting ILT4 exclusively licensed to Merck Sharpe & Dohme (“Merck”) and being advanced by
•
•
•
Merck in a Phase 2 clinical trial.
INCAGN1876 – an anti-GITR monospecific antibody exclusively licensed to Incyte Corporation (“Incyte”) and being advanced by Incyte
in a Phase 1/2 clinical trial;
INCAGN1949 – an anti-OX40 monospecific antibody exclusively licensed to Incyte and being advanced by Incyte in a Phase 1/2 clinical
trial;
INCAGN2390 – an anti-TIM-3 monospecific antibody exclusively licensed to Incyte and being advanced by Incyte in a Phase 1/2 clinical
trial;
4
•
•
•
INCAGN2385 – an anti-LAG-3 monospecific antibody exclusively licensed to Incyte and being advanced by Incyte in a Phase 1/2 clinical
trial;
AGENT 797 – allogeneic iNKT cells exclusively licensed to MiNK and being advanced by MiNK in Phase 1 studies in solid tumors,
multiple myeloma, and viral ARDS; and
QS-21 Stimulon™ – adjuvant extracted from the bark of the Quillaja saponaria (soap bark) evergreen tree native and purified using
Agenus’ proprietary process; key component in several GlaxoSmithKline plc (“GSK”) vaccines, including the most efficacious shingles
vaccine, Shingrix®, which has demonstrated >90% efficacy, as well as the first ever malaria vaccine, Mosquirix®.
We also have a robust pipeline of pre-clinical assets, which include AGEN1571, an antibody targeting tumor associated macrophages. We expect to
initiate clinical trials with AGEN1571 in 2022.
Our proprietary QS-21 Stimulon is considered to be one of the most potent adjuvants known. By way of example, QS-21 Stimulon is a key
component in several GSK vaccines, including GSK’s Shingrix, which reported sales in excess of $2.0 billion in each of 2019 and 2020, its first two years
on the market. Sales in 2019 triggered a $15.1 million milestone payment to us from Healthcare Royalty Partners III, L.P. and certain of its affiliates
(collectively, “HCR”), which we received in 2020. In 2019, the Bill & Melinda Gates Foundation awarded us a grant to develop an alternative, plant cell
culture-based manufacturing process to ensure continuous future supplies of QS-21 Stimulon, which we are pursuing in partnership with Phyton Biotech
and Ginkgo Bioworks.
Our Antibody Discovery Platforms and CPM Programs
Checkpoint antibodies regulate immune response against tumor expressing antigens and are achieving positive outcomes in a number of cancers that
were considered untreatable only a few years ago. Two classes of checkpoint targets include:
1.
inhibitory checkpoints that help suppress an immune response in order to prevent excessive immune reaction resulting in
undesired inflammation and/or auto-immunity; and
2.
stimulatory checkpoints that can enhance or amplify an antigen-specific immune response.
We possess end-to-end capabilities in-house – from discovery through to manufacturing – that have enabled us to advance our discoveries at lower
costs with efficiency and speed. These product development advantages allow us to manage a large portfolio of discoveries; and have given rise to clinical
stage antibody candidates, pre-clinical programs, and partnerships (i.e., with BMS, Gilead, Incyte, Merck, GSK and Betta Pharmaceuticals Co., Ltd.
(“Betta”)).
Over approximately the past six months, we and our partners have reported the following clinical data on our checkpoint antibody programs:
•
•
•
•
•
Results from clinical trials in second-line cervical cancer revealed in n=140 patient balstilimab (anti-PD-1 antibody) monotherapy trial
achieved response rates of 15% in all treated patients and 20% in PD-L1 positive patients, and in a trial of n=125 patient balstilimab (anti-PD-1
antibody) + zalifrelimab (anti-CTLA-4 antibody) combination trial achieved response rates of 25.6% in all patients and 32.8% in PD-L1
positive patients;
Updated data from a Phase 1/2 trial of botensilimab (Fc-enhanced anti-CTLA-4 antibody), as monotherapy and in combination with Agenus’
anti-PD-1 balstilimab, with clinical responses reported across nine cold and treatment-resistant tumor types, including microsatellite stable
(“MSS”) colorectal cancer, ovarian cancer, MSS endometrial cancer, and melanoma; as well as responses in tumors not previously reported,
including pancreatic cancer, cervical cancer, visceral angiosarcoma, non-small cell lung cancer, and leiomyosarcoma. The majority of responses
lasted at least six months and were ongoing at the time of data cut-off, demonstrating strong durability;
Preliminary data from a Phase 1 trial of AGEN2373 (CD137 agonist) showing good tolerability and disease stabilization in heavily pretreated
patients with advanced solid tumors, with no dose limiting toxicities or evidence of drug related liver toxicity observed to date;
Preliminary data from a Phase 1 trial of iNKT cell therapy demonstrating a pronounced survival rate of 77% in mechanically ventilated elderly
COVID-19 patients with moderate to severe viral ARDS after a single dose of AGENT-797 compared to a national average of approximately
40% (range 24-53%) for intubated or mechanically ventilated patients during time of enrollment; further, early data of single dose
administration of AGENT-797 without lymphodepletion in a heavily pre-treated multiple myeloma population refractory to approved therapies
revealed suppression of M spike protein, tumor cells in the bone marrow, and durable disease stabilization continuing beyond six months; and
Data from a Phase 1 trial of MK-4830 as monotherapy and in combination with pembrolizumab, showing that the single agent and combination
were well tolerated and demonstrated dose-related evidence of target engagement and antitumor activity.
With respect to our novel discovery pipeline, our most advanced asset is our next generation anti-CTLA-4 antibody, botensilimab (AGEN1181), an
anti-CTLA-4 antagonist with an Fc-enhanced IgG1 backbone. Botensilimab was designed to have multiple potential advantages relative to competing anti-
CTLA-4 molecules, including:
5
(1) Enhancing clinical benefit in hot tumors such as melanoma where CTLA-4 can be effective, but not for all patients. Approximately 40% of
patients express the low affinity FcyRIIIA receptor and a study in melanoma suggest these patients had a worse clinical outcome with first-
generation CTLA-4 therapy (ipilimumab). In our Phase 1 study, we have already observed multiple responses in patients expressing the low
affinity FcyRIIIA receptor;
(2) Expanding the curative benefits of I-O to cold tumors that do not respond to approved immunotherapies. This is achieved by increased potency –
through improved T cell activation, priming, memory formation, and counteracting the immune suppressive activity of regulatory T cells. In our
Phase 1 study, we have reported confirmed objective responses to botensilimab monotherapy, including the first reported CTLA-4 monotherapy
responses in MSS endometrial, pancreatic and PD-1 relapse / refractory cervical cancer; and
(3)
Improving safety to reduce or eliminate side effects that influence treatment discontinuation. Our Fc engineering is designed to avoid
complement fixation, preventing difficult-to-treat side effects such as irreversible hypophysitis observed with first generation anti-CTLA-4,
Yervoy®. In our Phase 1 study, botensilimab has been well tolerated, with no observed cases of hypophysitis or pneumonitis.
In October 2021, we announced the withdrawal of our Biologics Licensing Application (“BLA”) for balstilimab monotherapy to treat second-line
cervical cancer. Our decision came at the recommendation of the FDA following the full approval of pembrolizumab, four months earlier than the FDA
goal date. The BLA submission for balstilimab received Fast Track and Priority Review designation from the FDA, with a target action date of December
16, 2021. As part of the BLA review process, we successfully completed three FDA inspections, with no cited issues, concerns, or Form-483s. Based on
this change to the treatment landscape, we are no longer pursuing US registration for the combination of balstilimab and zalifrelimab in second-line
cervical cancer.
Partnered CPM Programs
In May 2021, we entered into a License, Development and Commercialization Agreement (“BMS License Agreement”) with BMS pursuant to
which we granted BMS an exclusive license to develop, manufacture and commercialize our proprietary anti-TIGIT bispecific antibody program
AGEN1777. Pursuant to the BMS License Agreement, we received a non-refundable upfront cash payment of $200.0 million and are eligible to receive up
to $1.36 billion in aggregate development, regulatory and commercial milestone payments plus royalties on worldwide net sales of products containing
AGEN1777. In October 2021, we announced that the first patient was dosed in the AGEN1777 Phase 1 clinical trial, triggering the achievement of a $20.0
million milestone. Under the BMS License Agreement, we retain an option to access the licensed antibodies for use in clinical studies in combination with
certain of our other pipeline assets subject to certain restrictions. Additionally, we have the option, but not the obligation, to co-fund a minority of the
global development costs of products containing AGEN1777 or its derivatives, in exchange for increased tiered royalties on U.S. net sales of co-funded
products ranging from the mid-teens to low twenties percent and ex-U.S. net sales of co-funded products ranging from the low double digits to mid-teens
percent. Finally, Agenus also has the option to co-promote AGEN1777 in the U.S.
In June 2020, we entered into a license and collaboration agreement (the “Betta License Agreement”) with Betta, pursuant to which we granted
Betta an exclusive license to develop, manufacture and commercialize balstilimab and zalifrelimab in the People’s Republic of China, Hong Kong, Macau
and Taiwan (collectively, “Greater China”). Under the terms of the Betta License Agreement, we received $15.0 million upfront and are eligible to receive
up to $100.0 million in milestone payments plus royalties on any future sales in Greater China. In connection with this transaction, we also entered into a
stock purchase agreement with Betta and a wholly-owned subsidiary of Betta (“Betta HK”), pursuant to which we sold to Betta HK 4,962,779 shares of
Agenus common stock for an aggregate purchase price of approximately $20.0 million in July 2020.
In December 2018, we entered into a series of agreements with Gilead to collaborate on the development and commercialization of up to five novel
I-O therapies. Pursuant to the collaboration agreements, we received an upfront cash payment from Gilead of $120.0 million following the closing in
January 2019, and Gilead also purchased 11,111,111 shares of Agenus common stock for an additional $30.0 million. At closing, Gilead received
worldwide exclusive rights to our bispecific antibody, AGEN1423, as well as a right of first negotiation for two undisclosed programs. Gilead also received
the exclusive option to license exclusively AGEN1223, a bispecific antibody, and AGEN2373, a monospecific antibody. In November 2020, Gilead elected
to return AGEN1423 to us and to voluntarily terminate the license agreement effective as of February 4, 2021. In the third quarter of 2021, we ceased
development of AGEN1223 and in October 2021, the AGEN1223 option and license agreement was formally terminated. The AGEN2373 option and
license agreement and the stock purchase agreement remain in full force and effect, and we are responsible for developing AGEN2373 up to the option
decision point, at which time Gilead may acquire exclusive rights to the programs on option exercise. Pursuant to the terms of the AGEN2373 option
agreement, we remain eligible to receive up to $10.0 million in aggregate milestone payments prior to option exercise, a $50.0 million option exercise fee
and, if exercised, up to an additional $520.0 million in aggregate milestone payments, as well as royalties on any future sales. We also have the right to opt-
in to share Gilead’s development and commercialization costs in the United States in exchange for a profit (loss) share on a 50:50 basis and revised
milestone payments.
6
In January 2015, we entered into a collaboration with Incyte to discover, develop and commercialize novel immuno-therapeutics using our antibody
platforms. The collaboration was initially focused on four CPM programs targeting GITR, OX40, TIM-3 and LAG-3, and in November 2015, we expanded
the alliance by adding three novel undisclosed CPM targets. Pursuant to the terms of the original agreement, Incyte paid us $25.0 million in upfront cash.
Targets under the collaboration were designated as either profit-share programs, where the parties shared all costs and profits equally, or royalty-bearing
programs, where Incyte funded all costs, and we were eligible to receive milestones and royalties. Under the original collaboration agreement, programs
targeting GITR, OX40 and two of the undisclosed targets were designated as profit-share programs, while the other targets were royalty-bearing programs.
For each profit-share product, we were eligible to receive up to $20.0 million in future contingent development milestones. For each royalty-bearing
product, we were eligible to receive (i) up to $155.0 million in future contingent development, regulatory, and commercialization milestones and (ii) tiered
royalties on global net sales at rates generally ranging from 6%-12%. Concurrent with the execution of the original collaboration agreement, we and Incyte
also entered into a stock purchase agreement pursuant to which Incyte purchased approximately 7.76 million shares of our common stock for an aggregate
purchase price of $35.0 million. In February 2017, we and Incyte amended the terms of the original collaboration agreement to, among other things,
convert the GITR and OX40 programs from profit-share to royalty-bearing programs with royalties on global net sales at a flat 15% rate for each. In
addition, the profit-share programs relating to two undisclosed targets were removed from the collaboration, with one reverting to Incyte and one to Agenus
(the latter being our Fc enhanced anti-TIGIT program), each with royalties on global net sales at a flat 15% rate. The remaining three royalty-bearing
programs in the collaboration targeting TIM-3, LAG-3 and one undisclosed target remain unchanged, and there are no more profit-share programs under
the collaboration. Pursuant to the amended agreement, we received accelerated milestone payments of $20.0 million from Incyte related to the clinical
development of INCAGN1876 (anti-GITR agonist) and INCAGN1949 (anti-OX40 agonist). Concurrent with the execution of the amendment agreement,
we and Incyte entered into a separate stock purchase agreement whereby Incyte purchased an additional 10 million shares of our common stock for an
aggregate purchase price of $60.0 million.
In April 2014, we entered into a collaboration and license agreement with Merck to discover and optimize fully-human antibodies against two
undisclosed CPM targets. In 2016, Merck selected a lead product candidate against ILT4, MK-4830, to advance into preclinical studies, and subsequently
initiated a Phase 1 clinical trial in August 2018. In November 2020, Merck initiated a Phase 2 clinical trial with MK-4830, triggering a $10.0 million
milestone payment to us. Under the terms of the agreement, Merck is responsible for all future product development expenses for MK-4830, and Agenus is
eligible to receive potential milestone payments plus royalties on any future sales.
On September 20, 2018, we, through our wholly-owned subsidiary, Agenus Royalty Fund, LLC, entered into a Royalty Purchase Agreement (the
“XOMA Royalty Purchase Agreement”) with XOMA (US) LLC (“XOMA US”). Pursuant to the terms of the XOMA Royalty Purchase Agreement,
XOMA US paid us $15.0 million at closing in exchange for the right to receive 33% of the future royalties and 10% of the future milestones that we are
entitled to receive from Incyte and Merck, net of certain of our obligations to a third party and excluding the milestone we received from Incyte in the
fourth quarter of 2018. After taking into account our obligations under the XOMA Royalty Purchase Agreement, as of December 31, 2021, we remain
eligible to receive up to $450.0 million and $76.5 million in potential development, regulatory and commercial milestones from Incyte and Merck,
respectively.
We also have a collaboration agreement with Recepta Biopharma SA for the development of our antibodies targeting CTLA-4 and PD-1, which
gives Recepta certain rights to South American countries. We expect to continue exploring additional future collaborations.
VISION
Our broad portfolio hits many facets of the immune system. Getting the right treatments to the right patient at the right time will unlock the true
potential of immunotherapy. VISION is an active learning platform that is intended to use a patient’s tumor, immune system, and health data to predict their
best treatment options. Predictions are strengthened by laboratory experiments that interrogate how our drugs perform under conditions that mimic a
patient’s tumor and immune system. Data from each prediction automatically feed back into the platform enabling exploration of an immense range of
drug-biology interactions not possible via traditional processes. The potential impacts of VISION include faster trials with higher response rates, quicker
validation of drug targets, and faster optimized drug design.
SaponiQx & QS-21 Stimulon™ Adjuvant
QS-21 Stimulon™ is an adjuvant, which is a substance added to a vaccine or other immunotherapy that is intended to enhance an immune response
to the target antigens. QS-21 Stimulon™ is a natural product, a triterpene glycoside, or saponin, purified from the bark of the Chilean soapbark tree,
Quillaja saponaria. QS-21 Stimulon™ has the ability to stimulate an antibody-mediated immune response and has also been shown to activate cellular
immunity. It has become a key component in the development of investigational preventive vaccine formulations across a wide variety of diseases. These
studies have been carried out by academic institutions and pharmaceutical companies in the United States and internationally. A number of these studies
have shown QS-21 Stimulon™ to be
7
significantly more effective in stimulating immune responses than aluminum hydroxide or aluminum phosphate, the adjuvants most commonly used in
approved vaccines in the United States today.
In September 2021, we launched SaponiQx, our subsidiary building an integrated vaccine platform based on scalable and secure manufacturing of
QS-21 Stimulon™ and other saponin-based adjuvants. The need for vaccines offering long-lasting efficacy and efficient production has become amplified
in the COVID-19 pandemic. The durability offered by QS-21 Stimulon™ has been validated by Shingrix, with protection exceeding nine years, but the
supply is limited due to reliance on a complicated and expensive extraction process from a Chilean soap bark tree. To this end, we are working with Phyton
Biotech and Ginkgo Bioworks to optimize the plant cell culture process which we have developed for the purposes of scalable manufacturing QS-21 and
next-generation saponin based adjuvants. In January 2019, we announced that the Bill & Melinda Gates Foundation awarded us a grant to develop the plant
cell culture process for QS-21 Stimulon™. Our goal is to establish a platform for optimized and scalable vaccine formulations to address pandemic threats
and other disease settings.
Partnered QS-21 Stimulon™ Programs
In 2006, we entered into a license agreement and a supply agreement with GSK for the use of QS-21 Stimulon™ (the “GSK License Agreement”
and the “GSK Supply Agreement,” respectively). In 2009, we entered into an Amended and Restated Manufacturing Technology Transfer and Supply
Agreement (the “Amended GSK Supply Agreement”) under which GSK has the right to manufacture all of its requirements of commercial grade QS-21
Stimulon™. GSK is obligated to supply us, or our affiliates, licensees, or customers, certain quantities of commercial grade QS-21 Stimulon™ for a stated
period of time. In March 2012, we entered into a First Right to Negotiate and Amendment Agreement amending the GSK License Agreement and the
Amended GSK Supply Agreement to clarify and include additional rights for the use of QS-21 Stimulon™ (the “GSK First Right to Negotiate
Agreement”). In addition, we granted GSK the first right to negotiate for the purchase of Agenus or certain of our assets, which expired in March 2017. As
consideration for entering into the GSK First Right to Negotiate Agreement, GSK paid us an upfront cash payment of $9.0 million, $2.5 million of which
was creditable toward future royalty payments. We refer to the GSK License Agreement, the Amended GSK Supply Agreement and the GSK First Right to
Negotiate Agreement collectively as the GSK Agreements. In 2017, we received a final milestone payment of $1.0 million from GSK and are no longer
entitled to any additional milestone payments under the GSK Agreements. Under the terms of the Agreement, we are generally entitled to receive a 2%
royalty on net sales of prophylactic vaccines for a period of 10 years after the first commercial sale of a resulting GSK product, which was triggered with
GSK’s first commercial sale of Shingrix in 2017. Notably, we have already monetized and sold this entire royalty stream as discussed in more detail below.
The GSK License and Amended GSK Supply Agreements may be terminated by either party upon a material breach if the breach is not cured within the
time specified in the respective agreement. The termination or expiration of the GSK License Agreement does not relieve either party from any obligation
which accrued prior to the termination or expiration. Among other provisions, the license rights granted to GSK survive expiration of the GSK License
Agreement. The license rights and payment obligations of GSK under the Amended GSK Supply Agreement survive termination or expiration, except that
GSK's license rights and future royalty obligations do not survive if we terminate due to GSK's material breach unless we elect otherwise. We do not incur
clinical development costs for products partnered with GSK.
In September 2015, we monetized a portion of the royalties associated with the GSK License Agreement to an investor group led by Oberland
Capital Management for up to $115.0 million in the form of a non-dilutive royalty transaction. Under the terms of a note purchase agreement with the
investor group (the “Note Purchase Agreement”), we received $100.0 million at closing for which the investors had the right to receive 100% of our
worldwide royalties under the GSK License Agreement on sales of GSK’s Shingrix and malaria (RTS,S) prophylactic vaccine products that contain our
QS-21 Stimulon™ adjuvant to pay down principle and interest. In November 2017, and pursuant to the Note Purchase Agreement, we received an
additional $15.0 million in cash from the investors based on the approval of Shingrix by the FDA. Pursuant to the terms of this transaction, we retained the
right to receive all royalties from GSK after all principal, interest and other obligations were satisfied under the Note Purchase Agreement. The Note
Purchase Agreement also allowed us to buy back the loan and extinguish the notes early under pre-specified terms, which we did in January 2018.
In January 2018, we sold 100% of all royalties we were entitled to receive from GSK to HCR and used the proceeds to extinguish the debt under the
Note Purchase Agreement. HCR paid approximately $190.0 million at closing for the royalty rights, of which approximately $161.9 was used to extinguish
the prior notes, yielding us approximately $28.0 million in net proceeds. We were also entitled to receive up to $40.35 million in milestone payments from
HCR based on sales of GSK’s vaccines as follows: (i) $15.1 million upon reaching $2.0 billion last-twelve-months net sales any time prior to 2024 (the
“First HCR Milestone”) and (ii) $25.25 million upon reaching $2.75 billion last-twelve-months net sales any time prior to 2026. GSK’s net sales of
Shingrix for the twelve months ended December 31, 2019, exceeded $2.0 billion. As a result, we received the First HCR Milestone of $15.1 million in
2020 after GSK’s net sales of Shingrix in 2019 exceeded $2.0 billion.
Manufacturing
8
Manufacturing CPM Antibodies
In December 2015, we acquired an antibody manufacturing pilot plant in Berkeley, CA from XOMA Corporation (“XOMA”), which we refer to as
“Agenus West.” A team of former XOMA employees with valuable chemistry, manufacturing and controls experience joined us and continue to operate the
facility. Since the acquisition of Agenus West, we have made significant improvements in the plant, and added additional headcount increasing both scale
and capacity. Agenus West is currently producing antibody drug substance for certain of our proprietary antibody programs (monospecific and bispecific).
In some cases, we have been able to deliver clinical grade material from research cell banks in approximately six to nine months, which is significantly
faster than the industry average of 12-18 months. Agenus West utilizes cutting-edge technology platforms, enabling us to be self-reliant and giving us the
advantage of drug substance manufacturing speed, cost efficiency, operational flexibility and manufacturing technology transfer to commercial scale
partners—all with desired product quality, and with the goal of benefiting patients. In November 2020, we entered into a long-term lease in Emeryville, CA
for cGMP manufacturing space, which we intend to use for certain of our own commercial manufacturing requirements in the future.
The quality control organization for all of our product candidates in Berkeley and Lexington performs a series of release assays designed to ensure
that our antibody drug substance and vaccine product meets all applicable specifications. Our quality assurance staff also reviews manufacturing and
quality control records prior to batch release in an effort to assure conformance with cGMP as mandated by the FDA and foreign regulatory agencies. Our
manufacturing staff is trained and routinely evaluated for conformance to rigorous manufacturing procedures and quality standards. This oversight is
intended to ensure compliance with FDA and foreign regulations and to provide consistent drug substance and vaccine output. Our quality control and
quality assurance staff are similarly trained and evaluated as part of our effort to ensure consistency in the testing and release of the product, as well as
consistency in materials, equipment and facilities.
QS-21 Stimulon™
Except in the case of GSK, we have retained worldwide manufacturing rights for QS-21 Stimulon™, and we have the right to subcontract
manufacturing for QS-21 Stimulon™. In addition, under the terms of our agreement with GSK, upon request by us, GSK is committed to supply certain
quantities of commercial grade QS-21 Stimulon™ to us and our licensees for a fixed period.
Intellectual Property Portfolio
We seek to protect our technologies through a combination of patents, trade secrets and know-how, and we currently own, co-own or have exclusive
rights to approximately 31 issued United States patents and approximately 78 issued foreign patents. We also own, co-own or have exclusive rights to
approximately 36 pending United States patent applications and approximately 259 pending foreign patent applications. We may not have rights in all
territories where we may pursue regulatory approval for our product candidates.
Through various acquisitions, we own, co-own, or have exclusive rights to a number of patents and patent applications directed to various methods
and compositions, including methods for identifying therapeutic antibodies and product candidates arising out of such entities’ technology platforms. In
particular, we own patents and patent applications relating to our Retrocyte Display technology platform, a high throughput antibody expression platform
for the identification of fully-human and humanized monoclonal antibodies. This patent family is projected to expire between 2029 and 2031. We own, co-
own, or have exclusive rights to patents and patent applications directed to various methods and compositions, including a patent directed to methods for
identifying phosphorylated proteins using mass spectrometry. This patent is projected to expire in 2023. In addition, as we advance our research and
development efforts with our institutional and corporate collaborators, we are seeking patent protection for certain newly identified therapeutic antibodies
and product candidates. We can provide no assurance that any of our patents, including the patents that we acquired or in-licensed, will have commercial
value, or that any of our existing or future patent applications, including the patent applications that were acquired or in-licensed, will result in the issuance
of valid and enforceable patents.
The patent rights for each of our clinical candidates, together with the year in which the basic product patent expires (not including any regulatory
exclusivities such as the six-month pediatric extension and/or the granted patent term extension in the U.S. and Japan and Supplementary Patent Certificate
in Europe), are those for the programs set forth in the table below. Unless otherwise indicated, the years set forth in the table below pertain to the basic
product patent expiration for the respective products. Patent term extensions, supplementary protection certificates and pediatric exclusivity periods are not
reflected in the expiration dates listed in the table below. In some instances, we may obtain later-expiring patents relating to our products directed to
particular forms or compositions, to methods of manufacturing, or to use of the drug in the treatment of particular diseases or conditions. However, in some
cases, such patents may not protect our drug from generic or, as applicable, biosimilar competition after the expiration of the basic patent.
Projected Patent Expiration Year on a Candidate by Candidate Basis
9
Candidate
Balstilimab(1)
Zalifrelimab(2)
Botensilimab(3)
AGEN1423(4)
INCAGN1876(5)
INCAGN1949(6)
INCAGN2390(7)
INCAGN2385(8)
MK-4830(9)
AGEN2373
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
U.S. Basic Product Patent Expiration Year
(Projected)
E.U. Basic Product Patent Expiration Year
(Projected)
2037
2037
2037
2039
2035
2037
2037
2037
2038
2038
2036
2036
2037
2039
2035
2036
2037
2037
2038
2038
Patents co-owned by Agenus and licensed from Ludwig Institute for Cancer Research.
Patents co-owned by Agenus and licensed from Ludwig Institute for Cancer Research.
Patents co-owned by Agenus and licensed from Ludwig Institute for Cancer Research.
Patents owned by Agenus.
Patents co-owned by Agenus, licensed from Ludwig Institute for Cancer Research, and licensed to Incyte.
Patents co-owned by Agenus, licensed from Ludwig Institute for Cancer Research, and licensed to Incyte.
Patents co-owned by Agenus and licensed to Incyte.
Patents co-owned by Agenus and licensed to Incyte.
Co-owned by Agenus and Merck.
Various patents and patent applications have been exclusively licensed to us by the following entities:
Ludwig Institute for Cancer Research
On December 5, 2014, our wholly-owned subsidiary, Agenus Switzerland Inc. (formerly known as 4-Antibody AG) (“4-AB”), entered into a license
agreement with the Ludwig Institute for Cancer Research Ltd. (“Ludwig”), which replaced and superseded a prior agreement entered into between the
parties in May 2011. Pursuant to the terms of the license agreement, Ludwig granted 4-AB an exclusive, worldwide license under certain intellectual
property rights of Ludwig and Memorial Sloan Kettering Cancer Center arising from the prior agreement to further develop and commercialize GITR,
OX40 and TIM-3 antibodies. On January 25, 2016, we and 4-AB entered into a second license agreement with Ludwig, on substantially similar terms, to
develop CTLA-4 and PD-1 antibodies. Pursuant to the December 2014 license agreement, 4-AB made an upfront payment of $1.0 million to Ludwig. The
December 2014 license agreement also obligates 4-AB to make potential milestone payments of up to $20.0 million for events prior to regulatory approval
of licensed GITR, OX40 and TIM-3 products, and potential milestone payments in excess of $80.0 million if such licensed products are approved in
multiple jurisdictions, in more than one indication, and certain sales milestones are achieved. Under the January 2016 license agreement, we are obligated
to make potential milestone payments of up to $12.0 million for events prior to regulatory approval of CTLA-4 and PD-1 licensed products, and potential
milestone payments of up to $32.0 million if certain sales milestones are achieved. Under each of these license agreements, we and/or 4-AB will also be
obligated to pay low to mid-single digit royalties on all net sales of licensed products during the royalty period, and to pay Ludwig a percentage of any
sublicensing income, ranging from a low to mid-double digit percentage depending on various factors. The license agreements may each be terminated as
follows: (i) by either party if the other party commits a material, uncured breach; (ii) by either party if the other party initiates bankruptcy, liquidation or
similar proceedings; or (iii) by 4-AB or us (as applicable) for convenience upon 90 days’ prior written notice. The license agreements also contain
customary representations and warranties, mutual indemnification, confidentiality and arbitration provisions.
Regulatory Compliance
Governmental authorities in the United States and other countries extensively regulate the pre-clinical and clinical testing, manufacturing, labeling,
storage, record keeping, advertising, promotion, export, marketing and distribution, among other things, of our investigational product candidates. In the
United States, the FDA under the Federal Food, Drug, and Cosmetic Act, the Public Health Service Act and other federal statutes and regulations, subject
pharmaceutical products to rigorous review.
In order to obtain approval of a new product from the FDA, we must, among other requirements, submit proof of safety and efficacy as well as
detailed information on the manufacture and composition of the product. In most cases, this proof entails extensive pre-clinical, clinical, and laboratory
tests. Before approving a new drug or marketing application, the FDA may also conduct pre-licensing inspections of the company, its contract research
organizations and/or its clinical trial sites to ensure that clinical, safety,
10
quality control, and other regulated activities are compliant with Good Clinical Practices (“GCP”), or Good Laboratory Practices (“GLP”), for specific non-
clinical toxicology studies. The FDA may also require confirmatory trials, post-marketing testing, and extra surveillance to monitor the effects of approved
products, or place conditions on any approvals that could restrict the commercial applications of these products. Once approved, the labeling, advertising,
promotion, marketing, and distribution of a drug or biologic product must be in compliance with FDA regulatory requirements.
In Phase 1 clinical trials, the sponsor tests the product in a small number of patients or healthy volunteers, primarily for safety at one or more doses.
Phase 1 trials in cancer are often conducted with patients who have end-stage or metastatic cancer. In Phase 2, in addition to safety, the sponsor evaluates
the efficacy of the product in a patient population somewhat larger than Phase 1 trials. Phase 3 trials typically involve additional testing for safety and
clinical efficacy in an expanded population at geographically dispersed test sites. The FDA may order the temporary or permanent discontinuation of a
clinical trial at any time.
The sponsor must submit to the FDA the results of pre-clinical and clinical testing, together with, among other things, detailed information on the
manufacture and composition of the product, in the form of a new drug application (“NDA”), or in the case of biologics, a BLA. In a process that can take a
year or more, the FDA reviews this application and, when and if it decides that adequate data are available to show that the new compound is both safe and
effective for a particular indication and that other applicable requirements have been met, approves the drug or biologic for marketing.
Whether or not we have obtained FDA approval, we must generally obtain approval of a product by comparable regulatory authorities of
international jurisdictions prior to the commencement of marketing the product in those jurisdictions. We are also subject to cGMP, GCP, and GLP
compliance obligations and are subject to inspection by international regulatory authorities. International requirements may in some circumstances be more
rigorous than U.S. requirements and may require additional investment in manufacturing process development, non-clinical studies, clinical studies, and
record-keeping that are not required for U.S. regulatory compliance or approval. The time required to obtain this approval may be longer or shorter than
that required for FDA approval and can also require significant resources in time, money and labor.
Under the laws of the United States, the countries of the European Union and other nations, we and the institutions where we sponsor research are
subject to obligations to ensure the protection of personal information of human subjects participating in our clinical trials. We have instituted procedures
that we believe will enable us to comply with these requirements and the contractual requirements of our data sources. The laws and regulations in this area
are evolving, and further regulation, if adopted, could affect the timing and the cost of future clinical development activities.
We 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. Our research and development activities involve the controlled use
of hazardous materials, chemicals, biological materials, various radioactive compounds, and for some experiments we use recombinant DNA. We believe
that our procedures comply with the standards prescribed by local, state, and federal regulations; however, the risk of injury or accidental contamination
cannot be completely eliminated. We conduct our activities in compliance with the National Institutes of Health Guidelines for Recombinant DNA
Research.
Additionally, the U.S. Foreign Corrupt Practices Act (“FCPA”), prohibits U.S. corporations and their representatives from offering, promising,
authorizing or making payments to any foreign government official, government staff member, political party or political candidate in an attempt to obtain
or retain business abroad. The scope of the FCPA includes interactions with certain healthcare professionals in many countries. Other countries have
enacted similar anti-corruption laws and/or regulations.
Competition
Competition in the pharmaceutical and biotechnology industries is intense. Many pharmaceutical or biotechnology companies have products on the
market and are actively engaged in the research and development of products for the treatment of cancer.
Many competitors have substantially greater financial, manufacturing, marketing, sales, distribution, and technical resources, and more experience
in research and development, clinical trials, and regulatory matters, than we do. Competing companies developing or acquiring rights to more efficacious
therapeutic products for the same diseases we are targeting, or which offer significantly lower costs of treatment, could render our products noncompetitive
or obsolete. See Part I-Item 1A. “Risk Factors-Risks Related to the Commercialization of Our Product Candidates-Our competitors may have superior
products, manufacturing capability, selling and marketing expertise and/or financial and other resources.”
Academic institutions, governmental agencies, and other public and private research institutions conduct significant amounts of research in
biotechnology, medicinal chemistry and pharmacology. These entities have become increasingly active in seeking patent protection and licensing revenues
for their research results. They also compete with us in recruiting and retaining skilled scientific talent.
The CPM drug landscape is crowded with several competitors developing assets against a number of targets. Our development plans are spread out
across various indications and lines of therapy, either alone or in combination with other assets. Our competitors
11
range from small cap to large cap companies, with assets in pre-clinical or clinical stages of development. Therefore, the landscape is dynamic and
constantly evolving. We and our partners have CPM antibody programs, currently in clinical stage development targeting various pathways (as mono- or
multi-specifics) including PD-1, CTLA-4, GITR, OX40, TIM-3, LAG-3, CD73, TGFb, CD137, ILT4 and TIGIT. We are aware of many companies that
have antibody-based products on the market or in clinical development that are directed to the same biological targets as these programs, including, without
limitation, the following: (1) BMS markets ipilimumab, an anti-CTLA-4 antibody, and nivolumab, an anti-PD-1 antibody, and is developing agents
targeting LAG-3, TIM-3, TIGIT, OX40 and TGFb. BMS also has next generation anti-CTLA-4 antibodies in the clinic, which may be competitive to our
next generation anti-CTLA-4 program, (2) Merck has an approved anti-PD-1 antibody, as well as anti-CTLA-4, anti-TIGIT and LAG-3 antagonists
recruiting in clinical trials, (3) Regeneron has an approved anti-PD-1 antibody as well as antibodies targeting LAG-3 and GITR in the clinic, (4)
Roche/Genentech has an approved anti-PD-L1 antibody, a late-stage anti-TIGIT antibody, an anti-TGFb antibody as well as bispecific antibodies targeting
CD137, TIM-3 and LAG-3 in clinical development, (5) AstraZeneca has an approved anti PD-L1 antibody, as well as antibodies targeting CTLA-4 and
CD73 in the clinic, (6) Pfizer has an approved anti-PD-L1 (with Merck KgaA) antibody and (7) GSK has an approved anti PD-1 antibody as well as
antibodies targeting TIM-3 and LAG-3 in the clinic. Besides these PD-1 and PD-L1 antibodies that were approved in the U.S., we are also aware of
competitors with approved PD-1 agents in ex-U.S. geographies such as China. These include Innovent Biologics (Eli Lilly has ex-China rights), Shanghai
Junshi Biosciences (Coherus BioSciences has rights to co-develop in U.S. and Canada), Shanghai HengRui Pharmaceuticals, Beigene (Novartis has ex-
China rights), Gloria Biosciences (Arcus Bioscience has rights in North America, Europe, Japan and certain other territories) and Akeso Bio.
We are also aware of other competitors with clinical-stage PD-1/PD-L1 agents including but not limited to AbbVie, Amgen, Arcus Biosciences,
Biocad Ltd., Boehringer Ingelheim, Checkpoint Therapeutics, CStone Pharmaceuticals (EQRx has ex-China rights), CSPC ZhongQi Pharmaceutical
Technology, Genor Biopharma/ Apollomics, Incyte, ImmuneOncia Therapeutics Inc., Jounce Therapeutics, Janssen Pharmaceuticals, Lee’s
Pharmaceuticals, Mabspace Biosciences, Maxinovel Pharmaceuticals, Novartis, 3D Medicines, Qilu Pharmaceutical Co Ltd, Shanghai Henlius Biotech Co
Ltd, Sinocelltech, Shandong New Time Pharmaceutical Co Ltd, and Taizhou Houdeaoke Technology. In addition, we are also aware of anti-PD-(L)1
monospecific agents that are preclinical in stage. We are also aware of competitors developing bispecifics targeting PD-1 or PD-L1.
We are aware of companies developing “next-generation” anti-CTLA-4 approaches, which may be competitive to our next-generation anti-CTLA-4
program (AGEN1181). For example, BMS has 3 next-generation CTLA-4 programs in the clinic: a non-fucosylated anti CTLA-4 antibody, a peptide-
masked version of ipilimumab and a peptide masked version of the non-fucosylated anti CTLA-4 antibody; the peptide masked versions are designed to
localize activity to the tumor and minimize systemic toxicity associated with parent drug. We are also aware of other next-generation monospecifics
targeting CTLA-4 in the clinic, including those from Harbour BioMed, OncoC4, Adagene, and Xilio Therapeutics. We are also aware of companies
advancing clinical stage, CTLA-4 targeting multispecifics as a next-generation approach, including, but not limited to, Macrogenics, Xencor, AstraZeneca,
Akeso Biopharma, Alphamab, and Alpine Immune Sciences. We are also aware of next-generation assets targeting CTLA-4 preclinically.
We are also aware of competitors with clinical stage drug candidates against CTLA-4, GITR, OX40, LAG-3, TIM-3, CD73, TGFb, and CD137, in
addition to those named earlier in this section. Additionally, AGEN1777, our TIGIT bispecific program licensed to BMS is now in clinical development;
we are aware of clinical stage anti-TIGIT antibodies, including bispecifics, that could compete with this program. As outlined above, some of these include,
but are not limited to AbbVie, Arcus Biosciences, Alligator Biosciences, Beigene, Compass Therapeutics, Compugen, Corvus Pharmaceuticals, CStone
Pharmaaceuticals, GSK, Innovent Biologics, Inhibrx, iTeos Therapeutics, Lyvgen Biopharma, MedPacto, Merck KGaA, Mereo Biopharma, Novartis,
Astellas, Seagen, Servier, Scholar Rock, and Sanofi. There is no guarantee that our antibody product candidates will be able to successfully compete with
our competitors’ antibody products and product candidates.
We are aware that Merck’s PD-1 antagonist, Keytruda, has been fully approved in advanced cervical cancer. Recently, Seagen Inc. and Genmab A/S
received accelerated approval for Tivdak, a drug co-developed by these companies, for use in recurrent/metastatic cervical cancer patients, including in the
second line setting. We are also aware that Lee Pharmaceutical’s NDA recently accepted by the NMPA and that Akeso Bio (anti PD-1/CTLA-4 bispecific)
has received approval in China from the Center to Drug Evaluation (“CDE”) to submit its NDA in this setting. Beyond these developments, we are also
aware of industry sponsored clinical trials, including exploratory studies, that are underway in this setting. Clinical stage competitors include, but are not
limited to, BMS (anti-PD-1 alone or in combination with CTLA-4), Iovance Biotherapeutics (autologous TILs), Merck KgaA (anti-PD-L1/TGFb), Roche
(anti-PD-L1 alone or in combination with anti-TIGIT), Nykode Therapeutics (HPV vaccine in combination with anti-PD-L1), Biocad (anti-PD-1), Genor
Biopharma (anti-PD-1), Gloria Biosciences (Anti-PD-1), Shanghai Henlius Biotech (anti-PD-1 in combination with albumin bound paclitaxel) and
Innovent Biologics (anti-PD-1 alone or in combination with anti-CTLA-4).
In addition, and prior to regulatory approval, if ever, our other product candidates may compete for access to patients with other products in clinical
development, with products approved for use in the indications we are studying, or with off-label use of products in the indications we are studying. We
anticipate that we will face increased competition in the future as new companies enter markets we seek to address and scientific developments surrounding
immunotherapy and other traditional cancer therapies continue to accelerate.
12
SaponiQx is developing QS-21 Stimulon. Several other vaccine adjuvants are in development or in use and could compete with QS-21 Stimulon for
inclusion in vaccines. These adjuvants may include but are not limited to: (1) oligonucleotides, under development by Pfizer, Idera, and Dynavax, (2)
MF59, under development by Novartis, (3) IC31, under development by Intercell (now part of Valneva), (4) MPL, under development by GSK, (5) Matrix-
MTM, under development by Novavax, (6) AS03 and additional AS portfolio members, under development by GSK, and (7) TQL 1055, under
development by Adjuvance Technologies. In the past, we have provided QS-21 Stimulon to other entities under materials transfer arrangements. In at least
one instance, it is possible that this material was used without our permission to develop synthetic formulations and/or derivatives of QS-21. In addition,
other companies and academic institutions are developing saponin adjuvants, including derivatives and synthetic formulations. These sources may be
competitive to our ability to execute future partnering and licensing arrangements involving QS-21 Stimulon. We are also aware of other manufacturers of
QS-21. The existence of products developed by these and other competitors, or other products of which we are not aware, or which other companies may
develop in the future, may adversely affect the marketability of products developed or sold using QS-21 Stimulon.
Even if we obtain regulatory approval to market our product candidates, the availability and price of our competitors’ products could limit the
demand and the price we are able to charge for our product candidates. We may not be able to implement our business plan if the acceptance of our product
candidates is inhibited by price competition or the reluctance of physicians to switch from existing methods of treatment to our product candidates, or if
physicians switch to other new drug or biologic products or choose to reserve our product candidates for use in limited circumstances.
Human Capital Resources and Employees
As of January 31, 2022, we had 441 employees, of whom 85 were PhDs and 24 were MDs. None of our employees are subject to a collective
bargaining agreement. We believe that we have good relations with our employees.
Our human capital resources objectives include, as applicable, identifying, recruiting, retaining, incentivizing, and integrating our existing and
additional employees. We provide compensation and benefit programs to attract and retain employees. In addition to salaries, these programs include
potential annual discretionary bonuses, various stock awards under our equity incentive plans, a 401(k) Plan, healthcare and insurance benefits, flexible
spending accounts, paid time off, family leave, and flexible work schedules, among others.
Corporate History
Antigenics L.L.C. was formed as a Delaware limited liability company in 1994 and was converted to Antigenics Inc., a Delaware corporation, in
February 2000 in conjunction with our initial public offering of common stock. On January 6, 2011, we changed our name from Antigenics Inc. to Agenus
Inc.
Availability of Periodic SEC Reports
Our Internet website address is www.agenusbio.com. We make available free of charge through our website our annual reports on Form 10-K,
quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (“Exchange Act”), as soon as reasonably practicable after we electronically file such material with, or furnish
such material to, the Securities and Exchange Commission (the “SEC”). In addition, we regularly use our website to post information regarding our
business, product development programs and governance, and we encourage investors to use our website, particularly the sections entitled “Publications”,
“Investors” and “Media,” as sources of information about us.
The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file
electronically with the SEC at www.sec.gov.
The contents of the websites referred to above are not incorporated into this filing. Further, our references to the URLs for these websites are
intended to be inactive textual references only.
Item 1A.
Risk Factors
Summary of Risk Factors
Our business is subject to a number of risks and uncertainties. The following is a summary of the principal risk factors described in this section:
Risks Related to our Financial Position and Need for Additional Capital
13
• We have historically incurred net losses and anticipate that we will continue to incur net losses in the future.
•
•
If we fail to obtain additional financing, we will not be able to complete development and commercialization of our product candidates.
Raising additional capital may cause dilution to our existing stockholders, restrict our operations or require us to relinquish rights to our
technologies or product candidates.
Risks Related to the Development of Our Product Candidates
•
•
•
•
Our business is highly dependent on the success of our botensilimab and combination therapy programs.
Preliminary or interim data that we report on our clinical trials could change materially by the time the data is finalized.
Our clinical trials or those of our current and future collaborators may reveal significant adverse events or lack of sufficient efficacy or
durability of response.
If we encounter difficulties enrolling patients in our clinical trials, our clinical development activities could be delayed or otherwise adversely
affected.
• We have limited resources, and the number of product candidates that we are attempting to simultaneously advance creates a significant strain
on these resources and could prevent us from successfully advancing any candidates.
Risks Related to the Commercialization of Our Product Candidates
• We may not be able to commercialize, or may be delayed in commercializing, our product candidates.
• We expect the novel nature of our product candidates to create challenges in obtaining regulatory approval.
•
•
•
Our product candidates may cause undesirable side effects.
Our competitors may have superior products, manufacturing capability, expertise and/or resources.
Even if our product candidates receive marketing approval, such products may not achieve market acceptance or coverage, or may become
subject to unfavorable pricing regulations or third-party reimbursement practices.
The market opportunities for our product candidates may be small, and our estimates of the prevalence of our target patient populations may be
inaccurate.
•
• We have no experience in marketing, selling and distributing products or performing commercial compliance.
Risks Related to Manufacturing and Supply
• Manufacturing challenges could result in having insufficient quantities of our drug candidates or drugs or such quantities at an acceptable cost.
• We own and operate our own clinical scale manufacturing infrastructure, which is costly and time-consuming.
• We are building our own commercial scale manufacturing facticity, which is costly and time-consuming.
Risks Related to Our Reliance on Third Parties
• We are dependent upon third parties to further develop and commercialize certain of our antibody programs.
•
•
Failure to enter into and/or maintain licensing, distribution and/or collaboration agreements may adversely affect our business.
If third parties do not carry out their contractual duties, we may not be able to obtain regulatory approval of or commercialize any potential
product candidates.
Risks Related to Government Regulation
The regulatory approval process for our product candidates is uncertain and will be lengthy.
•
• We may fail to obtain regulatory approval of our product candidates.
•
•
Our relationships with third parties are subject to extensive healthcare laws and regulations.
If we receive regulatory approval of any product candidates or therapies, we will be subject to ongoing regulatory obligations and continued
regulatory review.
Healthcare regulatory reform measures may have an adverse effect on our business.
Laws and regulations governing any international operations may preclude us from developing, manufacturing and selling certain products
outside of the United States and require us to develop and implement costly compliance programs
Risks associated with doing business internationally could negatively affect our business.
Our ability to use net operating losses and tax credits to offset future income may be subject to limitations.
•
•
•
•
14
Risks Related to Our Intellectual Property
Changes in U.S. patent law could diminish the value of patents.
If we fail to comply with our intellectual property licenses, we could lose important license rights.
• We may be unable to obtain and enforce patent protection for our product candidates and related technology.
•
• We may not be able to protect our intellectual property rights throughout the world.
•
• We may be unable to protect the confidentiality of our proprietary information.
•
• We may infringe the patents and other proprietary rights of third parties.
• We may become involved in lawsuits to protect or enforce our patents.
Our employees, consultants or independent contractors could wrongfully use or disclose confidential information.
Risks Related to Business Operations, Employee Matters and Managing Growth
• We may encounter difficulties in managing our recent growth and/or corporate consolidation efforts.
•
•
•
Legal claims against us may reduce demand for our products and/or result in substantial damages.
Information technology security breaches could result in a material disruption in our business and subject us to sanctions and penalties.
Our subsidiary Mink Therapeutics may be unsuccessful at advancing its cell therapy business.
Risks Related to Our Common Stock
Our stock’s trading volume and public trading price has been volatile.
•
• We do not intend to pay cash dividends on our common stock.
•
Anti-takeover provisions under our charter documents and Delaware law could delay or prevent a change of control.
Our future operating results could differ materially from the results described in this Annual Report on Form 10-K due to the risks and uncertainties
described below. You should consider carefully the following information about risks below in evaluating our business. If any of the following risks
actually occur, our business, financial conditions, results of operations and future growth prospects would likely be materially and adversely affected. In
these circumstances, the market price of our common stock would likely decline.
We cannot assure investors that our assumptions and expectations will prove to be correct. Important factors could cause our actual results to differ
materially from those indicated or implied by forward-looking statements. See “Note Regarding Forward-Looking Statements” in this Annual Report on
Form 10-K. Factors that could cause or contribute to such differences include those factors discussed below.
Risks Related to Our Financial Position and Need for Additional Capital
We have incurred net losses in every year since our inception and anticipate that we will continue to incur net losses in the future.
Investment in I-O product development is highly speculative because it entails substantial upfront capital expenditures and significant risk that any
potential product candidate will fail to demonstrate adequate effect or an acceptable safety profile, gain regulatory approval and become commercially
viable. We have no products approved for commercial sale and have not generated any revenue from product sales to date, and we continue to incur
significant research and development and other expenses related to our ongoing operations. As a result, we are not profitable and have incurred losses in
each period since our inception. Our net losses for the years ended December 31, 2021, 2020, and 2019, were $28.7 million, $182.9 million and $111.6
million, respectively. We expect to incur significant losses for the foreseeable future as we continue our research and development efforts, seek regulatory
approvals, and begin commercial readiness efforts for our product candidates. We anticipate that our expenses will increase substantially if, and as, we:
•
•
•
•
•
•
conduct clinical trials for our pipeline of product candidates;
further develop our antibody programs and platforms, our vaccine programs, and our saponin-based vaccine adjuvants;
continue to discover and develop additional product candidates;
maintain, expand and protect our intellectual property portfolio;
hire additional clinical, scientific, manufacturing and commercial personnel;
expand in-house manufacturing capabilities;
15
•
•
•
•
•
establish a commercial manufacturing source and secure supply chain capacity sufficient to provide commercial quantities of any product
candidates for which we may obtain regulatory approval;
acquire or in-license other product candidates and technologies;
seek regulatory approvals for any product candidates that successfully complete clinical trials;
establish a sales, marketing and distribution infrastructure to commercialize any products for which we may obtain regulatory approval; and
add operational, regulatory, financial and management information systems and personnel, including personnel to support our product
development and planned commercialization efforts.
To become profitable, we or any current or potential future licensees and collaboration partners must develop and eventually commercialize
products with significant market potential at an adequate profit margin after cost of goods sold and other expenses. This will require us to be successful in a
range of challenging activities, including completing clinical trials, obtaining marketing approval for product candidates, obtaining adequate reimbursement
for product candidates, manufacturing, marketing and selling products for which we may obtain marketing approval and satisfying any post-marketing
requirements. We may never succeed in any or all of these activities and, even if we do, we may never generate revenue that is significant or large enough
to achieve profitability. If we do achieve profitability, we may not be able to sustain or increase profitability on a quarterly or annual basis. Our failure to
become and remain profitable would decrease the value of our company and could impair our ability to raise capital, maintain our research and
development efforts, expand our business or continue our operations. A decline in the value of our company also could cause our stockholders to lose all or
part of their investment.
Even if we succeed in commercializing one or more of our product candidates, we will continue to incur substantial research and development and
other expenditures to develop and market additional product candidates in our pipeline. We may encounter unforeseen expenses, difficulties, complications,
delays and other unknown factors that may adversely affect our business. The size of our future net losses will depend, in part, on the rate of future growth
of our expenses and our ability to generate revenue. Our prior losses and expected future losses have had and will continue to have an adverse effect on our
stockholders’ equity and working capital.
Furthermore, our ability to generate cash from operations is dependent on the success of our licensees and collaboration partners, as well as the
likelihood and timing of new strategic licensing and partnering relationships and/or successful development and commercialization of product candidates,
including through our antibody programs and platforms, our vaccine programs, and our saponin-based vaccine adjuvants.
We will require additional capital to fund our operations, and if we fail to obtain necessary financing, we will not be able to complete the
development and commercialization of our product candidates.
Our operations have consumed substantial amounts of cash since inception. We expect to continue to spend substantial amounts to conduct further
research and development and preclinical or nonclinical testing and studies and clinical trials of our current and future programs, to build a supply chain, to
seek regulatory approvals for our product candidates and to launch and commercialize any products for which we receive regulatory approval, including
building our own commercial organization. To date, we have financed our operations primarily through the sale of equity, assets, notes, corporate
partnerships and interest income. In order to finance future operations, we will be required to raise additional funds in the capital markets, through
arrangements with collaboration partners or from other sources.
As of December 31, 2021, we had $306.9 million of cash, cash equivalents and short-term investments. Based on our current plans and projections,
we believe that our cash resources as of December 31, 2021, will be sufficient to satisfy our liquidity requirements for more than one year from when the
financial statements included in this Annual Report on Form 10-K were issued. However, our future capital requirements and the period for which our
existing resources will support our operations may vary significantly from what we expect, and we will in any event require additional capital in order to
complete clinical development of our current programs. Our monthly spending levels will vary based on new and ongoing development and corporate
activities. Because the length of time and activities associated with development of our product candidates is highly uncertain, we are unable to estimate the
actual funds we will require for development and any approved marketing and commercialization activities. Our future funding requirements, both near and
long-term, will depend on many factors, including, but not limited to:
•
•
•
the initiation, progress, timing, costs and results of preclinical or nonclinical testing and studies and clinical trials for our product candidates;
the clinical development plans we establish for our product candidates;
the number and characteristics of future product candidates that we develop or may in-license;
16
•
•
•
•
•
•
•
•
•
our ability to establish and maintain strategic partnerships, licensing or other arrangements and the financial terms of such arrangements;
the timing, receipt and amount of sales of, or royalties on, our future products and those of our partners, if any;
the outcome, timing and cost of meeting regulatory requirements established by the FDA, the European Medicines Agency (the “EMA”) and
other comparable foreign regulatory authorities;
the cost of filing, prosecuting, defending and enforcing our patent claims and other intellectual property rights;
the cost of defending intellectual property disputes, including patent infringement actions brought by third parties against us or our product
candidates;
the effect of competing technological and market developments;
the costs of establishing and maintaining a clinical and commercial supply chain for the development and manufacture of our product
candidates;
the cost and timing of establishing, expanding and scaling manufacturing capabilities; and
the cost of establishing sales, marketing and distribution capabilities for any product candidates for which we may receive regulatory approval
in regions where we choose to commercialize our products on our own.
We do not have any committed external source of funds or other support for our development efforts and we cannot be certain that additional
funding will be available on acceptable terms, or at all. Until we can generate sufficient product or royalty revenue to finance our cash requirements, which
we may never do, we expect to finance our future cash needs through a combination of public or private equity offerings, debt financings, collaborations,
strategic alliances, licensing arrangements and other marketing or distribution arrangements. If we are unable to raise additional capital in sufficient
amounts or on terms acceptable to us, we may have to significantly delay, scale back or discontinue the development or commercialization of one or more
of our products or product candidates or one or more of our other research and development initiatives. Any of the above events could significantly harm
our business, prospects, financial condition and results of operations and cause the price of our common stock to decline and we may become insolvent.
From time to time we have issued, and in the future expect to issue, projections regarding our future cash position. Such projections include the
expectation that we will be able to raise additional funds from the aforementioned sources and our ability to do so is subject to the risks described herein.
General economic conditions in the United States and abroad, whether as a result of a public health crisis, such as COVID-19, the policies of the
Biden Administration or otherwise, may have a material adverse effect on our liquidity and financial condition, particularly if our ability to raise additional
funds is impaired.
Raising additional capital may cause dilution to our existing stockholders, restrict our operations or require us to relinquish rights to our
technologies or product candidates.
We may seek additional capital through a combination of public and private equity offerings, debt financings, strategic partnerships and alliances
and licensing arrangements. To the extent that we raise additional capital through the sale of equity or convertible debt securities, our stockholders’
ownership interest will be diluted, and the terms may include liquidation or other preferences that adversely affect their rights as a stockholder. The
incurrence of indebtedness would result in increased fixed payment obligations and could involve certain restrictive covenants, such as limitations on our
ability to incur additional debt, limitations on our ability to acquire or license intellectual property rights and other operating restrictions that could
adversely impact our ability to conduct our business. If we raise additional funds through strategic partnerships and alliances and licensing arrangements
with third parties, we may have to relinquish valuable rights to our technologies or product candidates or grant licenses on terms unfavorable to us. We also
could be required to seek collaborators for one or more of our current or future product candidates at an earlier stage than otherwise would be desirable or
relinquish our rights to product candidates or technologies that we otherwise would seek to develop or commercialize ourselves.
The nature and length of our operating history may make it difficult to evaluate our technology and product development capabilities and
predict our future performance.
We have no products approved for commercial sale and have not generated any revenue from product sales. Our ability to generate product revenue
or profits will depend on the successful development and eventual commercialization of our product candidates, which may never occur. We may never be
able to develop or commercialize a marketable product.
All of our programs require additional pre-clinical or clinical research and development, manufacturing supply, capacity and/or expertise, building
of a commercial organization, substantial investment and/or significant marketing efforts before we generate any revenue from potential product sales.
Other programs of ours require additional discovery research and then preclinical development.
17
In addition, our product candidates must be approved for marketing by the FDA or certain other health regulatory agencies, including the EMA, before we
may commercialize any product.
Our operating history, particularly in light of the rapidly evolving I-O field, may make it difficult to evaluate our technology and industry and
predict our future performance. We will encounter risks and difficulties frequently experienced by clinical stage companies in rapidly evolving fields. If we
do not address these risks successfully, our business will suffer. Similarly, we expect that our financial condition and operating results will fluctuate
significantly from quarter to quarter and year to year due to a variety of factors, many of which are beyond our control. As a result, our stockholders should
not rely upon the results of any quarterly or annual period as an indicator of future operating performance.
In addition, as a clinical stage company, we have encountered unforeseen expenses, difficulties, complications, delays and other known and
unknown circumstances. As we advance our product candidates, we will need to transition from a company with a research and clinical focus to a company
capable of supporting commercial activities. We may not be successful in such a transition.
Unstable market and economic conditions may have serious adverse consequences on our business, financial condition and stock price.
Global credit and financial markets have experienced extreme volatility and disruptions in the past several years, including increased inflation,
severely diminished liquidity and credit availability, declines in consumer confidence, declines in economic growth, increases in unemployment rates and
uncertainty about economic stability, and the volatility of such market and economic conditions have increased as a result of the COVID-19 pandemic. The
scope, duration and long-term impact of the COVID-19 pandemic are unknown at this time, so there can be no assurance how significant any deterioration
in credit and financial markets and confidence in economic conditions will be and how long it may continue. Our general business strategy may be
adversely affected by any such economic downturn, volatile business environment or continued unpredictable and unstable market conditions. If the current
equity and credit markets deteriorate, or do not improve, it may make any necessary debt or equity financing more difficult, more costly, and more dilutive.
Failure to secure any necessary financing in a timely manner and on favorable terms could have a material adverse effect on our growth strategy, financial
performance and stock price and could require us to delay or abandon clinical development plans for some or all of our pipeline candidates. In addition,
there is a risk that one or more of our current service providers, manufacturers and other partners may not survive these difficult economic times, which
could directly affect our ability to attain our operating goals on schedule and on budget.
As of December 31, 2021, we had cash, cash equivalents and short-term investments of $306.9 million. While we are not aware of any downgrades,
material losses, or other significant deterioration in the fair value of our cash equivalents and investments since December 31, 2021, no assurance can be
given that deterioration of the global credit and financial markets would not negatively impact our current portfolio of cash equivalents or our ability to
meet our financing objectives. Furthermore, our stock price may decline due in part to the volatility of the stock market and any general economic
downturn.
Our obligations to the holders of our promissory notes could materially and adversely affect our liquidity.
In February 2015, we issued subordinated promissory notes in the aggregate principal amount of $14.0 million, of which $13.0 million remains
outstanding, with annual interest of 8% (the “2015 Subordinated Notes”). The 2015 Subordinated Notes were previously due February 20, 2020, and in
February 2020, we amended the 2015 Subordinated Notes to extend the maturity date to February 20, 2023. The 2015 Subordinated Notes include default
provisions that allow for the acceleration of the principal payment of the 2015 Subordinated Notes in the event we become involved in certain bankruptcy
proceedings, become insolvent, fail to make a payment of principal or (after a grace period) interest on the 2015 Subordinated Notes, default on other
indebtedness with an aggregate principal balance of $13.0 million or more if such default has the effect of accelerating the maturity of such indebtedness,
or become subject to a legal judgment or similar order for the payment of money in an amount greater than $13.0 million if such amount will not be
covered by third-party insurance. If we default on the 2015 Subordinated Notes and the repayment of such indebtedness is accelerated, our liquidity could
be materially and adversely affected.
If we do not have sufficient cash on hand to service or repay our 2015 Subordinated Notes, we may be required to raise additional capital which
entails the risks described herein.
Risks Related to the Development of Our Product Candidates
Our business is highly dependent on the success of our clinical stage programs, including our botensilimab and related combination therapy
programs, which still require significant additional clinical development.
18
Our business and future success depends in large part on our ability to obtain regulatory approval of, and then successfully launch and
commercialize, our product candidates. Our timelines are aggressive and subject to various factors outside of our control, including regulatory review and
approval. There is no guarantee that our BLA submissions, if any, will be approved, or that we will be able to successfully commercialize these assets. If
our botensilimab programs (including combination therapies with botensilimab) encounter safety, efficacy, supply or manufacturing problems,
developmental delays, regulatory or commercialization issues or other problems, our development plans and business may be significantly harmed.
Even though we have observed positive results to date, they may not necessarily be predictive of the final results of the trials or future clinical trials
or otherwise be sufficient to support an approval. Many companies in the pharmaceutical, biopharmaceutical and biotechnology industries have suffered
significant setbacks in clinical trials after achieving positive results, and we cannot be certain that we will not face similar setbacks.
All of our other product candidates are in earlier stages of development and will require additional nonclinical and/or clinical development,
regulatory review and approval in multiple jurisdictions, substantial investment, access to sufficient commercial manufacturing capacity and significant
marketing efforts before we can generate any revenue from product sales.
The successful development of immune modulating antibodies, including botensilimab, alone and in combination with other therapeutic
candidates, is highly uncertain.
Successful development of immune modulating antibodies, such as botensilimab, is highly uncertain and is dependent on numerous factors, many of
which are beyond our control. Immune modulating antibodies that appear promising in the early phases of development may fail to reach, or remain in, the
market for several reasons, including:
•
•
•
•
•
•
clinical trial results may show our candidates to be less effective than expected (e.g., a clinical trial could fail to meet its primary endpoint(s))
or to have unacceptable side effects, toxicities or other negative consequences;
failure to receive the necessary regulatory approvals or a delay in receiving such approvals. Among other things, such delays may be caused by
slow enrollment in clinical trials, patients dropping out of trials, length of time to achieve trial endpoints, additional time requirements for data
analysis, or BLA preparation, discussions with the FDA, an FDA request for a diagnostic or additional nonclinical or clinical data, or
unexpected safety or manufacturing issues;
manufacturing costs, formulation issues, pricing or reimbursement issues, or other factors that make the candidates uneconomical;
proprietary rights of others and their competing products and technologies that may prevent our candidates from being commercialized; and
failure to initiate or successfully complete confirmation trials for candidates that receive accelerated approval.
The length of time necessary to complete clinical trials and to submit an application for marketing approval for a final decision by a regulatory
authority may be difficult to predict for immune modulating antibodies, including for anti-CTLA-4 and related combination therapies.
Even if we are successful in obtaining marketing approval, commercial success of any approved products will also depend in large part on the
availability of insurance coverage and adequate reimbursement from third-party payors, including government payors, such as the Medicare and Medicaid
programs, and managed care organizations, which may be affected by existing and future healthcare reform measures designed to reduce the cost of
healthcare. Third-party payors may limit the definition of the target treatment population to one smaller than that implied in the label granted by regulatory
authorities, and could require us to conduct additional studies, including post-marketing studies related to the cost-effectiveness of a product, to qualify for
reimbursement, which could be costly and divert our resources. If government and other healthcare payors were not to provide adequate insurance coverage
and reimbursement levels for any one of our products once approved, market acceptance and commercial success would be reduced.
In addition, if any of our products are approved for marketing, we will be subject to significant regulatory obligations regarding the submission of
safety and other post-marketing information and reports and registration, and will need to continue to comply (or ensure that our third-party providers
comply) with cGMPs and good clinical practices GCPs, for any clinical trials that we conduct post-approval. In addition, there is always the risk that we or
a regulatory authority might identify previously unknown problems with a product post-approval, such as adverse events of unanticipated severity or
frequency. Compliance with these requirements is costly and any failure to comply or other issues with our product candidates’ post-approval could have a
material adverse effect on our business, financial condition and results of operations.
Interim top-line and preliminary data from our clinical trials that we announce or publish from time to time may change as more patient data
become available and are subject to audit and verification procedures that could result in material changes in the final data.
19
From time to time, we may publish interim top-line or preliminary data from our clinical trials. Interim data from clinical trials that we may
complete are subject to the risk that one or more of the clinical outcomes may materially change as patient enrollment continues and more patient data
become available and mature over time. Preliminary or top-line data also remain subject to audit and verification procedures that may result in the final
data being materially different from the preliminary data we previously published. As a result, interim and preliminary data should be viewed with caution
until the final data are available. Multiple times last year, and most recently in June 2021, we reported positive interim data from our lead trials of
balstilimab and zalifrelimab. In November 2021, we also reported new clinical responses from a Phase 1/2 trial of botensilimab, and in June 2021, we
reported Phase 1 clinical responses for AGEN2373. Each of these results may not be indicative of the final results from the relevant study, and the final
results may not support a marketing approval for any of these candidates. There is no guarantee that balstilimab, zalifrelimab, or botensilimab (or any of
our earlier stage programs) will receive marketing approval in any jurisdiction, and failure to achieve marketing approval for either of these programs could
have a material adverse impact on our business. Any adverse differences between preliminary or interim data and final data could significantly harm our
business prospects.
Preclinical development is uncertain. Some of our antibody programs are in early stage development that may experience delays or may never
advance to clinical trials, which would adversely affect our ability to obtain regulatory approvals or commercialize these programs on a timely basis or
at all, and which would have an adverse effect on our business.
Several of our proprietary antibody programs are currently in early stage development, and many of our antibody programs are pre-clinical. We
cannot be certain of the timely completion or outcome of our preclinical testing and studies and cannot predict if the FDA or other regulatory authorities
will accept our proposed clinical programs or if the outcome of our preclinical testing and studies will ultimately support the further development of our
programs. As a result, we cannot be sure that we will be able to submit Investigational New Drug applications (“INDs”) or similar applications for our
preclinical programs on the timelines we expect, if at all, and we cannot be sure that submission of INDs or similar applications will result in the FDA or
other regulatory authorities allowing clinical trials to begin.
Our clinical trials or those of our current and future collaborators may reveal significant adverse events not seen in our preclinical or nonclinical
studies and may result in a safety profile that could inhibit regulatory approval or market acceptance of any of our product candidates.
Before obtaining regulatory approvals for the commercial sale of any products, we must demonstrate through potentially lengthy, complex and
expensive preclinical studies and clinical trials that our product candidates are both safe and effective for use in each target indication. Failure can occur at
any time during the clinical trial process.
Product candidates in later stages of clinical trials may fail to show the desired safety and efficacy profile despite having progressed through
nonclinical studies and initial clinical trials. A number of companies in the biopharmaceutical industry have suffered significant setbacks in advanced
clinical trials due to lack of efficacy or unacceptable safety issues, notwithstanding promising results in earlier trials. Most product candidates that
commence clinical trials are never approved as products and there can be no assurance that any of our current or future clinical trials will ultimately be
successful or support further clinical development of any of our product candidates.
We intend to develop our existing antibody candidates, and may develop future product candidates, alone and in combination with one or more
additional cancer therapies. The uncertainty resulting from the use of our product candidates in combination with other cancer therapies may make it
difficult to accurately predict side effects in future clinical trials.
If significant adverse events or other side effects are observed in any of our current or future clinical trials, we may have difficulty recruiting patients
to our clinical trials, patients may drop out of our trials, or we may be required to abandon the trials or our development efforts of one or more product
candidates altogether. We, the FDA or other applicable regulatory authorities, or an institutional review board may suspend clinical trials of a product
candidate at any time for various reasons, including a belief that subjects in such trials are being exposed to unacceptable health risks or adverse side
effects. Some potential therapeutics developed in the biotechnology industry that initially showed therapeutic promise in early-stage trials have later been
found to cause side effects that prevented their further development. Even if the side effects do not preclude the drug from obtaining or maintaining
marketing approval, undesirable side effects may inhibit market acceptance of any approved product due to its tolerability versus other therapies. Any of
these developments could materially harm our business, financial condition and prospects.
Positive results from preclinical and clinical studies of our product candidates are not necessarily predictive of the results of later preclinical
studies and any future clinical trials of our product candidates. If we cannot replicate the positive results from our earlier studies of our product
candidates in our later studies and future clinical trials, we may be unable to successfully develop, obtain regulatory for and commercialize our product
candidates.
20
Any positive results from our preclinical studies of our product candidates may not necessarily be predictive of the results from required later
preclinical studies and clinical trials. Similarly, even if we are able to complete our planned preclinical studies or any future clinical trials of our product
candidates according to our current development timeline, the positive results from such preclinical studies and clinical trials of our product candidates may
not be replicated in subsequent preclinical studies or clinical trial results. Moreover, positive results observed in interim data may not necessarily be
predictive of the results from final, more mature data.
Many companies in the pharmaceutical and biotechnology industries have suffered significant setbacks in late-stage clinical trials after achieving
positive results in early-stage development and we cannot be certain that we will not face similar setbacks. These setbacks have been caused by, among
other things, preclinical and other nonclinical findings made while clinical trials were underway, or safety or efficacy observations made in preclinical
studies and clinical trials, including previously unreported adverse events. Moreover, preclinical, nonclinical and clinical data are often susceptible to
varying interpretations and analyses and many companies that believed their product candidates performed satisfactorily in preclinical studies and clinical
trials nonetheless failed to obtain FDA or EMA approval.
If we encounter difficulties enrolling patients in our clinical trials, our clinical development activities could be delayed or otherwise adversely
affected.
We may experience difficulties in patient enrollment in our clinical trials for a variety of reasons. The timely completion of clinical trials in
accordance with their protocols depends, among other things, on our ability to enroll a sufficient number of patients who remain in the study until its
conclusion. The enrollment of patients depends on many factors, including:
•
•
•
•
•
•
•
•
•
•
•
•
the severity of the disease under investigation;
the patient eligibility and exclusion criteria defined in the protocol;
the size of the patient population required for analysis of the trial’s primary endpoints;
the proximity of patients to trial sites;
the design of the trial;
our ability to recruit clinical trial investigators with the appropriate competencies and experience;
clinicians’ and patients’ perceptions as to the potential advantages and risks of the product candidate being studied in relation to other available
therapies, including any new drugs that may be in clinical development or approved for the indications we are investigating;
the efforts to facilitate timely enrollment in clinical trials;
the patient referral practices of physicians;
the ability to monitor patients adequately during and after treatment;
our ability to obtain and maintain patient consents; and
the risk that patients enrolled in clinical trials will drop out of the trials before completion.
In addition, our clinical trials will compete with other clinical trials for product candidates that are in the same therapeutic areas as our product
candidates, and this competition will reduce the number and types of patients available to us, because some patients who might have opted to enroll in our
trials may instead opt to enroll in a trial being conducted by one of our competitors. Since the number of qualified clinical investigators is limited, we
expect to conduct some of our clinical trials at the same clinical trial sites that some of our competitors use, which will reduce the number of patients who
are available for our clinical trials in such clinical trial site. Moreover, because our product candidates represent a departure from more commonly used
methods for our targeted therapeutic areas, potential patients and their doctors may be inclined to use conventional or newly launched competitive
therapies, rather than enroll patients in any future clinical trial.
Delays in patient enrollment may result in increased costs or may affect the timing or outcome of the planned clinical trials, which could prevent
completion of these trials and adversely affect our ability to advance the development of our product candidates. The COVID-19 pandemic may cause
delays in the patient enrollment in our clinical trials and could prevent the completion and/or timely completion of such trials.
The number of product candidates that we are attempting to simultaneously advance creates a significant strain on our resources and may prevent
us from successfully advancing any product candidates. If, due to our limited resources and access to capital, we prioritize development of certain
product candidates, such decisions may prove to be wrong and may adversely affect our business.
We or our affiliates are currently advancing multiple immune modulating antibodies, vaccines and vaccine adjuvants (SaponiQx subsidiary)).
Simultaneously advancing so many product candidates create a significant strain on our limited human and financial
21
resources. As a result, we may not be able to provide sufficient resources to any single product candidate to permit the successful development and
commercialization of such product candidate, causing material harm to our business.
If, due to our limited resources and access to capital, we prioritize development of certain product candidates that ultimately prove to be
unsuccessful, we may forego or delay pursuit of opportunities with other product candidates or for other indications that later prove to have greater
commercial potential or a greater likelihood of success. Our resource allocation decisions may cause us to fail to capitalize on viable commercial products
or profitable market opportunities.
Risks Related to the Commercialization of Our Product Candidates
If we are not able to obtain, or if there are delays in obtaining, required regulatory approvals for our product candidates, we will not be able to
commercialize, or will be delayed in commercializing, our product candidates, and our ability to generate revenue will be materially impaired.
Our product candidates and the activities associated with their development and commercialization, including their design, testing, manufacture,
safety, efficacy, recordkeeping, labeling, storage, approval, advertising, promotion, sale, distribution, import and export are subject to comprehensive
regulation by the FDA and other regulatory agencies in the United States and by comparable authorities in other countries. Before we can commercialize
any of our product candidates, we must obtain marketing approval. Except for Prophage in Russia, we have not received approval to market any of our
product candidates from regulatory authorities in any jurisdiction and it is possible that none of our product candidates or any product candidates we may
seek to develop in the future will ever obtain regulatory approval. We, as a company, have limited experience in filing and supporting the applications
necessary to gain regulatory approvals and rely in part on third-party contract research organizations (“CROs”) and/or regulatory consultants to assist us in
this process. Securing regulatory approval requires the submission of extensive preclinical and clinical data and supporting information to the various
regulatory authorities for each therapeutic indication to establish the product candidate’s safety and efficacy. Securing regulatory approval also requires the
submission of information about the drug manufacturing process to, and inspection of manufacturing facilities by, the relevant regulatory authority. Our
product candidates may not be effective, may be only moderately effective or may prove to have undesirable or unintended side effects, toxicities or other
characteristics that may preclude our obtaining marketing approval or prevent or limit commercial use.
The process of obtaining regulatory approvals, both in the United States and abroad, is expensive, may take many years if additional clinical trials
are required, if approval is obtained at all, and can vary substantially based upon a variety of factors, including the type, complexity and novelty of the
product candidates involved. Changes in marketing approval policies during the development period, changes in or the enactment of additional statutes or
regulations, or changes in regulatory review for each submitted IND, Premarket Approval, BLA or equivalent application types, may cause delays in the
approval or rejection of an application. The FDA and comparable authorities in other countries have substantial discretion in the approval process and may
refuse to accept any application or may decide that our data are insufficient for approval and require additional preclinical, clinical or other studies. Our
product candidates could be delayed in receiving, or fail to receive, regulatory approval for many reasons, including the following:
•
•
•
•
•
•
•
•
•
the FDA or comparable foreign regulatory authorities may disagree with the design or implementation of our clinical trials;
we may be unable to demonstrate to the satisfaction of the FDA or comparable foreign regulatory authorities that a product candidate is safe
and effective for its proposed indication or a related companion diagnostic is suitable to identify appropriate patient populations;
the results of clinical trials may not meet the level of statistical significance required by the FDA or comparable foreign regulatory authorities
for approval;
we may be unable to demonstrate that a product candidate’s clinical and other benefits outweigh its safety risks;
the FDA or comparable foreign regulatory authorities may disagree with our interpretation of data from preclinical studies or clinical trials;
the regulatory pathway being pursued is eliminated due to the unexpected or early full approval of a competing agent, as recently occurred with
balstilimab;
the data collected from clinical trials of our product candidates may not be sufficient to support the submission of an BLA or other submission
or to obtain regulatory approval in the United States or elsewhere;
the FDA or comparable foreign regulatory authorities may fail to approve our manufacturing processes or facilities or those of our third-party
manufacturers with which we contract for clinical and commercial supplies; and
the approval policies or regulations of the FDA or comparable foreign regulatory authorities may significantly change in a manner rendering
our clinical data insufficient for approval.
Of the large number of drugs in development, only a small percentage successfully complete the FDA or foreign regulatory approval processes and
are commercialized. The lengthy approval process as well as the unpredictability of future clinical trial results
22
may result in our failing to obtain regulatory approval to market our product candidates, which would significantly harm our business, results of operations
and prospects.
We expect the novel nature of our product candidates to create further challenges in obtaining regulatory approval. As a result, our ability to
develop product candidates and obtain regulatory approval may be significantly impacted.
The general approach for FDA approval of a new biologic or drug is for sponsors to seek licensure or approval based on dispositive data from well-
controlled, Phase 3 clinical trials of the relevant product candidate in the relevant patient population. Phase 3 clinical trials typically involve hundreds of
patients, have significant costs and take years to complete. We are utilizing and, in the future, intend to utilize FDA’s accelerated approval program for our
product candidates given the limited alternatives for treatments for certain rare diseases, cancer and autoimmune diseases, but the FDA may not agree with
our plans. Moreover, even if we do receive accelerated approval from the FDA for one or more of our product candidates, there is no guarantee that we will
be able to successfully complete one or more confirmatory trials needed to obtain full approval.
The FDA may also require a panel of experts, referred to as an Advisory Committee, to deliberate on the adequacy of the safety and efficacy data to
support approval. The opinion of the Advisory Committee, although not binding, may have a significant impact on our ability to obtain approval of any
product candidates that we develop based on the completed clinical trials.
Moreover, approval of genetic or biomarker diagnostic tests may be necessary in order to advance some of our product candidates to clinical trials or
potential commercialization. In the future, regulatory agencies may require the development and approval of such tests. Accordingly, the regulatory
approval pathway for such product candidates may be uncertain, complex, expensive and lengthy, and approval may not be obtained.
In addition, even if we were to obtain approval, regulatory authorities may approve any of our product candidates for fewer or more limited
indications than we request, for instance, regulatory authorities may only approve the balstilimab monotherapy to individuals with PD-L1 positive tumors,
may not approve the price we intend to charge for our products, may grant approval contingent on the performance of costly post-marketing clinical trials,
or may approve a product candidate with a label that does not include the labeling claims necessary or desirable for the successful commercialization of
that product candidate. Any of the foregoing scenarios could reduce the size of the potential market for our product candidates and materially harm the
commercial prospects for our product candidates.
If we experience delays in obtaining approval or if we fail to obtain approval of our product candidates, the commercial prospects for our product
candidates may be harmed and our ability to generate revenues will be materially impaired.
Obtaining and maintaining regulatory approval of our product candidates in one jurisdiction does not mean that we will be successful in
obtaining regulatory approval of our product candidates in other jurisdictions.
Obtaining and maintaining regulatory approval of our product candidates in one jurisdiction does not guarantee that we will be able to obtain or
maintain regulatory approval in any other jurisdiction, while a failure or delay in obtaining regulatory approval in one jurisdiction may have a negative
effect on the regulatory approval process in others. For example, even if the FDA grants marketing approval of a product candidate, comparable regulatory
authorities in foreign jurisdictions must also approve the manufacturing, marketing and promotion of the product candidate in those countries. Approval
procedures vary among jurisdictions and can involve requirements and administrative review periods different from, and greater than, those in the United
States, including additional nonclinical studies or clinical trials as clinical trials conducted in one jurisdiction may not be accepted by regulatory authorities
in other jurisdictions. In many jurisdictions outside the United States, a product candidate must be approved for reimbursement before it can be approved
for sale in that jurisdiction. In some cases, the price that we intend to charge for our products is also subject to approval.
We may also submit marketing applications in other countries. Regulatory authorities in jurisdictions outside of the United States have requirements
for approval of product candidates with which we must comply prior to marketing in those jurisdictions. Obtaining foreign regulatory approvals and
compliance with foreign regulatory requirements could result in significant delays, difficulties and costs for us and could delay or prevent the introduction
of our products in certain countries. If we fail to comply with the regulatory requirements in international markets and/or receive applicable marketing
approvals, our target market will be reduced and our ability to realize the full market potential of our product candidates will be harmed.
Our product candidates may cause undesirable side effects that could delay or prevent their regulatory approval, limit the commercial profile of an
approved label, or result in significant negative consequences following marketing approval, if any.
23
Undesirable side effects caused by our product candidates could cause us to interrupt, delay or halt preclinical studies or could cause us or regulatory
authorities to interrupt, delay or halt clinical trials and could result in a more restrictive label or the delay or denial of regulatory approval by the FDA or
other regulatory authorities. As is the case with many treatments for cancer and autoimmune diseases, it is likely that there may be side effects associated
with their use. Results of our trials could reveal a high and unacceptable severity and prevalence of these or other side effects. In such an event, our trials
could be suspended or terminated, and the FDA or comparable foreign regulatory authorities could order us to cease further development of or deny
approval of our product candidates for any or all targeted indications. The treatment-related side effects could affect patient recruitment or the ability of
enrolled patients to complete the trial or result in potential product liability claims. Any of these occurrences may harm our business, financial condition
and prospects significantly.
Further, clinical trials by their nature utilize a sample of the potential patient population. With a limited number of patients and limited duration of
exposure, rare and severe side effects of our product candidates may only be uncovered with a significantly larger number of patients exposed to the
product candidate. If our product candidates receive marketing approval and we or others identify undesirable side effects caused by such product
candidates (or any other similar drugs) after such approval, a number of potentially significant negative consequences could result, including:
•
•
•
•
•
•
•
•
•
regulatory authorities may withdraw or limit their approval of such product candidates;
regulatory authorities may require the addition of labeling statements, such as a “boxed” warning or a contraindication;
we may be required to create a medication guide outlining the risks of such side effects for distribution to patients;
we may be required to change the way such product candidates are distributed or administered, conduct additional clinical trials or change the
labeling of the product candidates;
regulatory authorities may require a Risk Evaluation and Mitigation Strategy(“REMS”), plan to mitigate risks, which could include medication
guides, physician communication plans, or elements to assure safe use, such as restricted distribution methods, patient registries and other risk
minimization tools;
we may be subject to regulatory investigations and government enforcement actions;
we may decide to remove such product candidates from the marketplace;
we could be sued and held liable for injury caused to individuals exposed to or taking our product candidates; and
our reputation may suffer.
We believe that any of these events could prevent us from achieving or maintaining market acceptance of the affected product candidates and could
substantially increase the costs of commercializing our product candidates, if approved, and significantly impact our ability to successfully commercialize
our product candidates and generate revenues.
Our competitors may have superior products, manufacturing capability, selling and marketing expertise and/or financial and other resources.
Our product candidates and the product candidates in development by our collaboration partners may fail because of competition from major
pharmaceutical companies and specialized biotechnology companies that market products, or that are engaged in the development of product candidates
and for the treatment cancer. Many of our competitors, including large pharmaceutical companies, have substantially greater financial, technical and other
resources than we do, such as larger research and development staff, experienced marketing and manufacturing organizations and well-established sales
forces. Our competitors may:
•
•
•
•
•
•
•
develop safer or more effective therapeutic drugs or therapeutic vaccines and other products;
establish superior intellectual property positions;
discover technologies that may result in medical insights or breakthroughs, which render our drugs or vaccines obsolete, possibly before they
generate any revenue, if ever;
adversely affect our ability to recruit patients for our clinical trials;
solidify partnerships or strategic acquisitions that may increase the competitive landscape;
develop or commercialize their product candidates sooner than we commercialize our own, if ever; or
implement more effective approaches to sales, marketing and patient assistance programs and capture some of our potential market share.
Smaller or early-stage companies may also prove to be significant competitors, particularly through collaborative arrangements with large,
established companies. Established pharmaceutical companies may also invest heavily to accelerate discovery and development of novel therapeutics or to
in-license novel therapeutics that could make the product candidates that we develop obsolete. Mergers and acquisitions in the biotechnology and
pharmaceutical industries may result in even more resources being concentrated in our competitors. Competition may increase further as a result of
advances in the commercial applicability of technologies and greater availability of capital for investment in these industries.
24
There is no guarantee that our product candidates will be able to compete with potential future products being developed by our competitors.
The CPM drug landscape is crowded with several competitors developing assets against a number of targets. Our development plans are spread out
across various indications and lines of therapy, either alone or in combination with other assets. Our competitors range from small cap to large cap
companies, with assets in pre-clinical or clinical stages of development. Therefore, the landscape is dynamic and constantly evolving. We and our partners
have CPM antibody programs, currently in clinical stage development targeting various pathways (as mono- or multi-specifics) including PD-1, CTLA-4,
GITR, OX40, TIM-3, LAG-3, CD73, TGFb, CD137, ILT4 and TIGIT. We are aware of many companies that have antibody-based products on the market
or in clinical development that are directed to the same biological targets as these programs, including, without limitation, the following: (1) BMS markets
ipilimumab, an anti-CTLA-4 antibody, and nivolumab, an anti-PD-1 antibody, and is developing agents targeting LAG-3, TIM-3, TIGIT, OX40 and TGFb.
BMS also has next generation anti-CTLA-4 antibodies in the clinic, which may be competitive to our next generation anti-CTLA-4 program, (2) Merck has
an approved anti-PD-1 antibody, as well as anti-CTLA-4, anti-TIGIT and LAG-3 antagonists recruiting in clinical trials, (3) Regeneron has an approved
anti-PD-1 antibody as well as antibodies targeting LAG-3 and GITR in the clinic, (4) Roche/Genentech has an approved anti-PD-L1 antibody, a late-stage
anti-TIGIT antibody, an anti-TGFb antibody as well as bispecific antibodies targeting CD137, TIM-3 and LAG-3 in clinical development, (5) AstraZeneca
has an approved anti PD-L1 antibody, as well as antibodies targeting CTLA-4 and CD73 in the clinic, (6) Pfizer has an approved anti-PD-L1 (with Merck
KgaA) antibody and (7) GSK has an approved anti PD-1 antibody as well as antibodies targeting TIM-3 and LAG-3 in the clinic. Besides these PD-1 and
PD-L1 antibodies that were approved in the U.S., we are also aware of competitors with approved PD-1 agents in ex-U.S. geographies such as China.
These include Innovent Biologics (Eli Lilly has ex-China rights), Shanghai Junshi Biosciences (Coherus BioSciences has rights to co-develop in U.S. and
Canada), Shanghai HengRui Pharmaceuticals, Beigene (Novartis has ex-China rights), Gloria Biosciences (Arcus Bioscience has rights in North America,
Europe, Japan and certain other territories) and Akeso Bio.
We are also aware of other competitors with clinical-stage PD-1/PD-L1 agents including but not limited to AbbVie, Amgen, Arcus Biosciences,
Biocad Ltd., Boehringer Ingelheim, Checkpoint Therapeutics, CStone Pharmaceuticals (EQRx has ex-China rights), CSPC ZhongQi Pharmaceutical
Technology, Genor Biopharma/ Apollomics, Incyte, ImmuneOncia Therapeutics Inc., Jounce Therapeutics, Janssen Pharmaceuticals, Lee’s
Pharmaceuticals, Mabspace Biosciences, Maxinovel Pharmaceuticals, Novartis, 3D Medicines, Qilu Pharmaceutical Co Ltd, Shanghai Henlius Biotech Co
Ltd, Sinocelltech, Shandong New Time Pharmaceutical Co Ltd, and Taizhou Houdeaoke Technology. In addition, we are also aware of anti-PD-(L)1
monospecific agents that are preclinical in stage. We are also aware of competitors developing bispecifics targeting PD-1 or PD-L1.
We are aware of companies developing “next-generation” anti-CTLA-4 approaches, which may be competitive to our next-generation anti-CTLA-4
program (AGEN1181). For example, BMS has 3 next-generation CTLA-4 programs in the clinic: a non-fucosylated anti CTLA-4 antibody, a peptide-
masked version of ipilimumab and a peptide masked version of the non-fucosylated anti CTLA-4 antibody; the peptide masked versions are designed to
localize activity to the tumor and minimize systemic toxicity associated with parent drug. We are also aware of other next-generation monospecifics
targeting CTLA-4 in the clinic, including those from Harbour BioMed, OncoC4, Adagene, and Xilio Therapeutics. We are also aware of companies
advancing clinical stage, CTLA-4 targeting multispecifics as a next-generation approach, including, but not limited to, Macrogenics, Xencor, AstraZeneca,
Akeso Biopharma, Alphamab, and Alpine Immune Sciences. We are also aware of next-generation assets targeting CTLA-4 preclinically.
We are also aware of competitors with clinical stage drug candidates against CTLA-4, GITR, OX40, LAG-3, TIM-3, CD73, TGFb, and CD137, in
addition to those named earlier in this section. Additionally, AGEN1777, our TIGIT bispecific program licensed to BMS is now in clinical development;
we are aware of clinical stage anti-TIGIT antibodies, including bispecifics, that could compete with this program. As outlined above, some of these include,
but are not limited to AbbVie, Arcus Biosciences, Alligator Biosciences, Beigene, Compass Therapeutics, Compugen, Corvus Pharmaceuticals, CStone
Pharmaaceuticals, GSK, Innovent Biologics, Inhibrx, iTeos Therapeutics, Lyvgen Biopharma, MedPacto, Merck KGaA, Mereo Biopharma, Novartis,
Astellas, Seagen, Servier, Scholar Rock, and Sanofi. There is no guarantee that our antibody product candidates will be able to successfully compete with
our competitors’ antibody products and product candidates.
We are aware that Merck’s PD-1 antagonist, Keytruda, has been fully approved in advanced cervical cancer. Recently, Seagen Inc. and Genmab A/S
received accelerated approval for Tivdak, a drug co-developed by these companies, for use in recurrent/metastatic cervical cancer patients, including in the
second line setting. We are also aware that Lee Pharmaceutical’s NDA recently accepted by the NMPA and that Akeso Bio (anti PD-1/CTLA-4 bispecific)
has received approval in China from the CDE to submit its NDA in this setting. Beyond these developments, we are also aware of industry sponsored
clinical trials, including exploratory studies, that are underway in this setting. Clinical stage competitors include, but are not limited to, BMS (anti-PD-1
alone or in combination with CTLA-4), Iovance Biotherapeutics (autologous TILs), Merck KgaA (anti-PD-L1/TGFb), Roche (anti-PD-L1 alone or in
combination with anti-TIGIT), Nykode Therapeutics (HPV vaccine in combination with anti-PD-L1), Biocad (anti-PD-1),
25
Genor Biopharma (anti-PD-1), Gloria Biosciences (Anti-PD-1), Shanghai Henlius Biotech (anti-PD-1 in combination with albumin bound paclitaxel) and
Innovent Biologics (anti-PD-1 alone or in combination with anti-CTLA-4).
In addition, and prior to regulatory approval, if ever, our other product candidates may compete for access to patients with other products in clinical
development, with products approved for use in the indications we are studying, or with off-label use of products in the indications we are studying. We
anticipate that we will face increased competition in the future as new companies enter markets we seek to address and scientific developments surrounding
immunotherapy and other traditional cancer therapies continue to accelerate.
SaponiQx is developing QS-21 Stimulon. Several other vaccine adjuvants are in development or in use and could compete with QS-21 Stimulon for
inclusion in vaccines. These adjuvants may include but are not limited to: (1) oligonucleotides, under development by Pfizer, Idera, and Dynavax, (2)
MF59, under development by Novartis, (3) IC31, under development by Intercell (now part of Valneva), (4) MPL, under development by GSK, (5) Matrix-
MTM, under development by Novavax, (6) AS03 and additional AS portfolio members, under development by GSK, and (7) TQL 1055, under
development by Adjuvance Technologies. In the past, we have provided QS-21 Stimulon to other entities under materials transfer arrangements. In at least
one instance, it is possible that this material was used without our permission to develop synthetic formulations and/or derivatives of QS-21. In addition,
other companies and academic institutions are developing saponin adjuvants, including derivatives and synthetic formulations. These sources may be
competitive to our ability to execute future partnering and licensing arrangements involving QS-21 Stimulon. We are also aware of other manufacturers of
QS-21. The existence of products developed by these and other competitors, or other products of which we are not aware, or which other companies may
develop in the future, may adversely affect the marketability of products developed or sold using QS-21 Stimulon.
Even if we obtain regulatory approval to market our product candidates, the availability and price of our competitors’ products could limit the
demand and the price we are able to charge for our product candidates. We may not be able to implement our business plan if the acceptance of our product
candidates is inhibited by price competition or the reluctance of physicians to switch from existing methods of treatment to our product candidates, or if
physicians switch to other new drug or biologic products or choose to reserve our product candidates for use in limited circumstances.
Even if our product candidates receive marketing approval, we, or others, may subsequently discover that such product is less effective than
previously believed or causes undesirable side effects that were not previously identified and our ability to market such product will be compromised.
Clinical trials of our product candidates are conducted in carefully defined subsets of patients who have agreed to enter into such clinical trials.
Consequently, it is possible that our clinical trials may indicate an apparent positive effect of a product candidate that is greater than the actual positive
effect, if any, or alternatively fail to identify undesirable side effects. If one or more of our product candidates receives regulatory approval, and we, or
others, later discover that they are less effective than previously believed, or cause undesirable side effects, a number of potentially significant negative
consequences could result, including:
•
•
•
•
•
•
•
•
•
•
•
withdrawal or limitation by regulatory authorities of approvals of such product;
seizure of the product by regulatory authorities;
recall of the product;
restrictions on the marketing of the product or the manufacturing process for any component thereof;
requirement by regulatory authorities of additional warnings on the label, such as a “black box” warning or contraindication;
requirement that we implement a risk evaluation and mitigation strategy or create a medication guide outlining the risks of such side effects for
distribution to patients;
commitment to expensive additional safety studies prior to approval or post-marketing studies required by regulatory authorities of such
product;
the product may become less competitive;
initiation of regulatory investigations and government enforcement actions;
initiation of legal action against us to hold us liable for harm caused to patients; and
harm to our reputation and resulting harm to physician or patient acceptance of our products.
Any of these events could prevent us from achieving or maintaining market acceptance of the particular product candidate, if approved, and could
significantly harm our business, financial condition and results of operations.
Even if our product candidates receive marketing approval, such products may fail to achieve the degree of market acceptance by physicians,
patients, third- party payors and others in the medical community necessary for commercial success.
26
If any of our product candidates receive marketing approval, whether as single agents or in combination with other therapies, they may nonetheless
fail to gain sufficient market acceptance by physicians, patients, third-party payors and others in the medical community. For example, current approved
immunotherapies, and other cancer treatments like chemotherapy and radiation therapy, are well established in the medical community, and doctors could
continue to rely on these therapies. If any of our product candidates do not achieve an adequate level of acceptance, we may not generate significant
product revenues and we may not become profitable. The degree of market acceptance of any future products, if approved for commercial sale, will depend
on a number of factors, including:
•
•
•
•
•
•
•
•
efficacy and potential advantages compared to alternative treatments;
the ability to offer our products, if approved, for sale at competitive prices;
convenience and ease of administration compared to alternative treatments;
the willingness of the target patient population to try new therapies and of physicians to prescribe these therapies;
the strength of marketing and distribution support;
sufficient third-party coverage or reimbursement, including of combination therapies;
adoption of a companion diagnostic and/or complementary diagnostic; and
the prevalence and severity of any side effects.
Even if we are able to commercialize any product candidates, such products may not receive coverage or may become subject to unfavorable
pricing regulations, third-party reimbursement practices or healthcare reform initiatives, all of which would harm our business.
The legislation and regulations that govern marketing approvals, pricing and reimbursement for new drug products vary widely from country to
country. Some countries require approval of the sale price of a drug before it can be marketed. In many countries, the pricing review period begins after
marketing or drug licensing approval is granted. In some foreign markets, prescription pharmaceutical pricing remains subject to continuing governmental
control even after initial approval is granted. In the United States, approval and reimbursement decisions are not linked directly, but there is increasing
scrutiny from the Congress and regulatory authorities of the pricing of pharmaceutical products. As a result, we might obtain marketing approval for a
product candidate in a particular country, but then be subject to price regulations that delay our commercial launch of the product candidate, possibly for
lengthy time periods, and negatively impact the revenues we are able to generate from the sale of the product candidate in that country. Adverse pricing
limitations may hinder our ability to recoup our investment in one or more product candidates, even if our product candidates obtain marketing approval.
Significant uncertainty exists as to the coverage and reimbursement status of our product candidates for which we seek regulatory approval. Our
ability to commercialize any drugs successfully will depend, in part, on the extent to which reimbursement for these drugs and related treatments will be
available from government health administration authorities, private health insurers and other organizations. Government authorities and third-party payors,
such as private health insurers and health maintenance organizations, decide which medications they will pay for and establish reimbursement levels.
Obtaining and maintaining adequate reimbursement for our product candidates, if approved, may be difficult. Moreover, the process for determining
whether a third-party payor will provide coverage for a product may be separate from the process for setting the price of a product or for establishing the
reimbursement rate that such a payor will pay for the product. Further, one payor’s determination to provide coverage for a product does not assure that
other payors will also provide coverage and reimbursement for our products, if they are approved, by third-party payors.
A primary trend in the healthcare industry in the United States and elsewhere is cost containment. Government authorities and third-party payors
have attempted to control costs by limiting coverage and the amount of reimbursement for particular medications. Increasingly, third-party payors are
requiring that drug companies provide them with predetermined discounts from list prices and are challenging the prices charged for medical products.
Third-party payors may also seek, with respect to an approved product, additional clinical evidence that goes beyond the data required to obtain marketing
approval. They may require such evidence to demonstrate clinical benefits and value in specific patient populations or they may call for costly
pharmaceutical studies to justify coverage and reimbursement or the level of reimbursement relative to other therapies before covering our products. Third
party payors may manage utilization by implementing a drug formulary, establishing different copays for different drugs or requiring a prescriber to obtain
prior authorization from the relevant third-party payor before a drug will be covered for a particular patient. We expect to experience pricing pressures in
connection with the sale of our product candidates due to the trend toward managed health care and additional legislative, administrative, or regulatory
changes. The downward pressure on healthcare costs in general, particularly prescription drugs, has become intense and new products face increasing
challenges in entering the market successfully. Net prices for drugs may be reduced by mandatory discounts or rebates required by government healthcare
programs in exchange for coverage or private payors and by any future relaxation of laws that presently restrict imports of drugs from countries where they
may be sold. Our ability to commercialize our product candidates successfully may be adversely affected by discounts or rebates that we are required to
provide
27
in order to ensure coverage of our products and compete in the marketplace. Accordingly, we cannot be sure that reimbursement will be available for any
drug that we commercialize and, if reimbursement is available, we cannot be sure as to the level of reimbursement and whether it will be adequate.
Coverage and reimbursement may impact the demand for, or the price of, any product candidate for which we obtain marketing approval. If reimbursement
is not available or is available only at limited levels, we may not be able to successfully commercialize any product candidate for which we obtain
marketing approval.
There may be significant delays in obtaining reimbursement for newly-approved drugs, and coverage may be more limited than the indications for
which the drug is approved by the FDA or comparable regulatory authorities outside of the United States. Moreover, eligibility for reimbursement does not
imply that any drug will be paid for in all cases or at a rate that covers our costs, including research, development, manufacture, sale and distribution.
Interim reimbursement levels for new drugs, if applicable, may also not be sufficient to cover our costs and may not be made permanent. Reimbursement
rates may vary according to the use of the drug and the clinical setting in which it is used, may be based on reimbursement levels already set for lower cost
drugs and may be incorporated into existing payments for other services. Net prices for drugs may be reduced by mandatory discounts or rebates required
by government healthcare programs or private payors and by any future relaxation of laws that presently restrict imports of drugs from countries where
they may be sold at lower prices than in the United States. Third-party payors often rely upon Medicare coverage policy and payment limitations in setting
their own reimbursement policies. Our inability to promptly obtain coverage and profitable payment rates from both government-funded and private payors
for any approved drugs that we develop could have a material adverse effect on our operating results, our ability to raise capital needed to commercialize
drugs and our overall financial condition.
The market opportunities for our product candidates may be limited to those patients who are ineligible for or have failed prior treatments and
may be small, and our estimates of the prevalence of our target patient populations may be inaccurate.
Cancer and autoimmune therapies are sometimes characterized as first-line, second-line, third-line and even fourth-line, and the FDA often approves
new therapies initially only for last-line use. Initial approvals for new cancer and autoimmune therapies are often restricted to later lines of therapy, and in
the case of cancer specifically, for patients with advanced or metastatic disease.
Our projections of both the number of people who have the diseases we are targeting, as well as the subset of people with these diseases in a position
to receive our therapies, if approved, are based on our beliefs and estimates. These estimates have been derived from a variety of sources, including
scientific literature, input from key opinion leaders, patient foundations, or secondary market research databases, and may prove to be incorrect. Further,
new studies may change the estimated incidence or prevalence of these diseases. The number of patients may turn out to be lower than expected.
Additionally, the potentially addressable patient population for our product candidates may be limited or may not be amenable to treatment with our
product candidates. For instance, we expect our product candidates targeting cervical cancer to target the smaller patient populations that suffer from the
respective diseases we seek to treat. Furthermore, regulators and payors may further narrow the therapy-accessible treatment population. Even if we obtain
significant market share for our product candidates, because certain of the potential target populations are small, we may never achieve profitability without
obtaining regulatory approval for additional indications.
We are currently building marketing, sales and commercial compliance functions, and as a company, we have no experience in marketing, selling
and distributing products or performing commercial compliance. If we are unable to establish such capabilities or enter into agreements with third
parties to perform such functions, we may not be able to generate product revenue.
We currently have a small number of employees that are tasked with building our marketing, sales and commercial compliance functions, and we
currently have limited sales, marketing, distribution or commercial compliance capabilities and have no experience as a company performing such tasks.
Developing an in-house marketing team, sales force and commercial compliance function will require significant capital expenditures, management
resources and time and may ultimately prove to be unsuccessful. In the event we develop and deploy these capabilities, we will have to compete with other
pharmaceutical and biotechnology companies to recruit, hire, train and retain personnel qualified to perform these tasks. If we fail to market and sell our
approved products in compliance with applicable laws and regulations, we may be subject to fines or other penalties.
In addition to establishing internal sales, marketing and distribution capabilities, we may pursue collaborative arrangements regarding the sales and
marketing of our products, however, there can be no assurance that we will be able to establish or maintain such collaborative arrangements, or if we are
able to do so, that they will have effective sales forces. Any revenue we receive will depend upon the efforts of such third parties, which may not be
successful. We may have little or no control over the marketing and sales efforts of such third parties and our revenue from product sales may be lower than
if we had commercialized our product candidates ourselves. We also face competition in our search for third parties to assist us with the sales and
marketing efforts of our product candidates.
28
There can be no assurance that we will be able to develop in-house sales and distribution capabilities or establish or maintain relationships with
third-party collaborators to commercialize any product in the United States or overseas.
Risks Related to Manufacturing and Supply
Our product candidates are uniquely manufactured. If we or any of our third-party manufacturers encounter difficulties in manufacturing our
product candidates, our ability to provide supply of our product candidates for clinical trials or our products for patients, if approved, could be delayed
or stopped, or we may be unable to maintain a commercially viable cost structure.
The manufacturing process used to produce certain of our product candidates is complex and novel and has not yet been validated for commercial
production. As a result of these complexities, the cost to manufacture certain of our product candidates is potentially higher than traditional antibodies and
the manufacturing process is less reliable and is more difficult to reproduce. Furthermore, our manufacturing process for certain of our product candidates
has not been scaled up to commercial production. The actual cost to manufacture and process certain of our product candidates could be greater than we
expect and could materially and adversely affect the commercial viability of such product candidates.
Our manufacturing process may be susceptible to logistical issues associated with the collection of materials sourced from various suppliers as well
as shipment of the final product to clinical centers, manufacturing issues associated with interruptions in the manufacturing process, contamination,
equipment or reagent failure, improper installation or operation of equipment, vendor or operator error, inconsistency in production batches, and variability
in product characteristics. Even minor deviations from normal manufacturing processes could result in reduced production yields, lot failures, product
defects, product recalls, product liability claims and other supply disruptions. If microbial, viral, or other contaminations are discovered in our product
candidates or in our manufacturing facilities in which our product candidates are made, production at such manufacturing facilities may be interrupted for
an extended period of time to investigate and remedy the contamination. Further, as we transition from late-stage clinical trials toward approval and
commercialization, it is common that various aspects of the development program, such as manufacturing methods, are altered along the way in an effort to
optimize processes and results. Such changes carry the risk that they will not achieve these intended objectives, and any of these changes could cause our
product candidates to perform differently and affect the results of planned clinical trials or other future clinical trials.
Although we continue to optimize our manufacturing process for our antibody product candidates, doing so is a difficult and uncertain task, and
there are risks associated with scaling to the level required for commercialization, including, among others, cost overruns, potential problems with process
scale-up, process reproducibility, stability issues, lot consistency, and timely availability of reagents and/or raw materials. We ultimately may not be
successful in transferring our in-house clinical scale production system to any commercial scale manufacturing facilities that we establish ourselves or
establish at a contract manufacturing organization (“CMO”). If we are unable to adequately validate or scale-up the manufacturing process for our product
candidates with our contracted CMO, we will need to transfer to another manufacturer and complete the manufacturing validation process, which can be
lengthy. If we are able to adequately validate and scale-up the manufacturing process for our product candidates with a contract manufacturer, we will still
need to negotiate with such contract manufacturer an agreement for commercial supply and it is not certain we will be able to come to agreement on terms
acceptable to us for all product candidates. As a result, we may ultimately be unable to reduce the cost of goods for our product candidates to levels that
will allow for an attractive return on investment if and when those product candidates are commercialized.
In November 2020, we announced a new long-term lease in Emeryville, CA for cGMP manufacturing space, which we intend to use for certain of
our own commercial manufacturing requirements and are in the process of building out. We have never built, owned or operated a commercial
manufacturing building, and there is no guarantee that we will be successful doing so.
The manufacturing process for any products that we may develop is subject to the FDA and foreign regulatory authority approval process. If we or
our CMOs are unable to reliably produce products to specifications acceptable to the FDA or other regulatory authorities, we may not obtain or maintain
the approvals we need to commercialize such products. Even if we obtain regulatory approval for any of our product candidates, there is no assurance that
either we or our CMOs will be able to manufacture the approved product to specifications acceptable to the FDA or other regulatory authorities, to produce
it in sufficient quantities to meet the requirements for the potential launch of the product, or to meet potential future demand. Any of these challenges could
delay completion of clinical trials, require bridging clinical trials or the repetition of one or more clinical trials, increase clinical trial costs, delay approval
of our product candidates, impair commercialization efforts, increase our cost of goods, and have an adverse effect on our business, financial condition,
results of operations and growth prospects. Our future success depends on our ability to manufacture our products on a timely basis with acceptable
manufacturing costs, while at the same time maintaining good quality control and complying with applicable regulatory requirements, and an inability to do
so could have a material adverse effect on our business, financial condition, and results of operations. In addition, we could incur higher manufacturing
costs if manufacturing processes or standards change, and we could need to replace, modify, design, or build and install equipment, all of which would
require additional
29
capital expenditures. Specifically, because our product candidates may have a higher cost of goods than conventional therapies, the risk that coverage and
reimbursement rates may be inadequate for us to achieve profitability may be greater.
We own and operate our own clinical scale manufacturing facility and infrastructure in addition to or in lieu of relying on CMOs for the
manufacture of clinical supplies of our product candidates. This is costly and time-consuming.
We own and operate the manufacturing pilot plant that supplies our antibody drug substance requirements for clinical proof-of-concept studies.
Any performance failure on the part of our existing facility could delay clinical development or marketing approval of our antibody programs.
We own and operate the cGMP manufacturing pilot plant originally used to manufacture our autologous and allogeneic vaccines in Lexington, MA.
Manufacturing of autologous or allogeneic vaccines is complex, and various factors could cause delays or an inability to supply the vaccine.
We have given our corporate QS-21 Stimulon licensee, GSK, manufacturing rights for QS-21 Stimulon for use in their product programs. We have
retained the right to manufacture QS-21 for ourselves and third parties, although no other such programs are anticipated to bring us substantial revenues in
the near future, if ever. Although we have the right to secure certain quantities of QS-21 from GSK and we have some internal supply in-house, we
currently do not have an alternative long-term supply partner for this adjuvant. In January 2019, we announced that the Bill & Melinda Gates Foundation
awarded us a grant to develop an alternative, plant cell culture-based manufacturing process with the goal of ensuring the continuous future supply of QS-
21 Stimulon adjuvant. While we are pursuing this in partnership with Phyton Biotech and Ginkgo Bioworks, there is no guarantee that we will be
successful in these development efforts.
We also may encounter problems hiring and retaining the experienced scientific, quality-control and manufacturing personnel needed to operate our
manufacturing processes, which could result in delays in production or difficulties in maintaining compliance with applicable regulatory requirements.
Any problems in our manufacturing process or facilities, or that of our licensees and suppliers, could make us a less attractive collaborator for
potential partners, including larger pharmaceutical companies and academic research institutions, which could limit our access to additional attractive
development programs.
The FDA, the EMA and other foreign regulatory authorities may require us to submit samples of any lot of any approved product together with the
protocols showing the results of applicable tests at any time. Under some circumstances, the FDA, the EMA or other foreign regulatory authorities may
require that we not distribute a lot until the relevant agency authorizes its release. Slight deviations in the manufacturing process, including those affecting
quality attributes and stability, may result in unacceptable changes in the product that could result in lot failures or product recalls. Lot failures or product
recalls could cause us to delay product launches or clinical trials, which could be costly to us and otherwise harm our business, financial condition, results
of operations and prospects. Problems in our manufacturing process could restrict our ability to meet market demand for our products.
We are dependent on suppliers for some of our components and materials used to manufacture our product candidates.
We currently depend on suppliers for some of the components necessary for our product candidates. We cannot be sure that these suppliers will
remain in business, that they will be able to meet our supply needs, or that they will not be purchased by one of our competitors or another company that is
not interested in continuing to produce these materials for our intended purpose. There are, in general, relatively few alternative sources of supply for these
components. These suppliers may be unable or unwilling to meet our future demands for our clinical trials or commercial sale. Establishing additional or
replacement suppliers for these components could take a substantial amount of time and it may be difficult to establish replacement suppliers who meet
regulatory requirements. Any disruption in supply from a supplier or manufacturing location could lead to supply delays or interruptions which would
damage our business, financial condition, results of operations and prospects. If we are able to find a replacement supplier, the replacement supplier would
need to be qualified and may require additional regulatory authority approval, which could result in further delay. While we seek to maintain adequate
inventory of the materials used to manufacture our products, any interruption or delay in the supply of materials, or our inability to obtain materials from
alternate sources at acceptable prices in a timely manner, could impair our ability to meet the demand of our customers and cause them to cancel orders. In
addition, as part of the FDA’s approval of our product candidates, we will also require FDA approval of the individual components of our process, which
include the manufacturing processes and facilities of our suppliers. Our reliance on these suppliers subjects us to a number of risks that could harm our
business, and financial condition, including, among other things: interruption of product candidate or commercial supply resulting from modifications to or
discontinuation of a supplier’s operations; delays in product shipments resulting from uncorrected defects,
30
reliability issues, or a supplier’s variation in a component; a lack of long-term supply arrangements for key components with our suppliers; inability to
obtain adequate supply in a timely manner, or to obtain adequate supply on commercially reasonable terms; difficulty and cost associated with locating and
qualifying alternative suppliers for our components and precursor cells in a timely manner; production delays related to the evaluation and testing of
products from alternative suppliers, and corresponding regulatory qualifications; delay in delivery due to our suppliers prioritizing other customer orders
over ours; and fluctuation in delivery by our suppliers due to changes in demand from us or their other customers. If any of these risks materialize, our
manufacturing costs could significantly increase and our ability to meet clinical and commercial demand for our products could be impacted.
We rely on third parties for the manufacture of clinical supplies of certain of our product candidates and expect to rely on third parties for
commercial supplies of any approved product candidates. This reliance on third parties increases the risk that we will not have sufficient quantities of
our drug candidates or drugs or such quantities at an acceptable cost, which could delay, prevent or impair our development or commercialization
efforts.
We expect to rely on third-party manufacturers for the manufacture of commercial supplies of our drug candidates. At present, we do not have long-
term supply agreements with all of the vendors needed to produce our product candidates for commercial sale and we may be unable to establish such
agreements with third-party manufacturers or do so on acceptable terms.
The agreements that we do have in place with our third-party manufacturers obligate us to make significant non-refundable deposits to reserve
manufacturing slots prior to the receipt of marketing approval for our product candidates. Additionally, if our product candidates are approved, we will be
required to make minimum purchases and will have limited ability to purchase product in excess of our forecasted needs. As a result, if product sales fall
below our minimum purchase obligations, we will be obligated to purchase more product than we can successfully sell, and if product demand exceeds the
amount that we can purchase from our manufacturers, we will have to forgo some product sales. Either of these events may materially harm our financial
prospects. Finally, reliance on third-party manufacturers entails additional risks, including:
•
•
•
•
•
•
reliance on the third party for regulatory compliance and quality assurance;
the possible breach of the manufacturing agreement by the third party;
the possible failure of the third party to manufacture our drug candidate according to our schedule, or at all, including if the third-party
manufacturer gives greater priority to the supply of other drugs over our drug candidates, or otherwise does not satisfactorily perform according
to the terms of the manufacturing agreement;
equipment malfunctions, power outages, natural or man-made calamities or other general disruptions experienced by our third-party
manufacturers to their respective operations and other general problems with a multi-step manufacturing process;
the possible misappropriation or disclosure by the third party or others of our proprietary information, including our trade secrets and know-
how; and
the possible termination or nonrenewal of the agreement by the third party at a time that is costly or inconvenient for us.
The agreements that we have in place with our third-party suppliers and manufacturers significantly limit the liability of such suppliers and
manufacturers for failing to supply or manufacture, as applicable, our product candidates pursuant to the terms of our agreements, or as required by
applicable regulation or law. As a result, if we suffer losses due to our suppliers or manufacturers failure to perform, we will have limited remedies
available against such suppliers and manufacturers and are unlikely to be able to recover such losses from them.
Third-party manufacturers may not be able to comply with cGMP regulations or similar regulatory requirements outside of the United States.
Facilities used by our third-party manufacturers must be inspected by the FDA before potential approval of the drug candidate. Similar regulations apply to
manufacturers of our drug candidates for use or sale in foreign countries. We will not control the manufacturing process and will be completely dependent
on our third-party manufacturers for compliance with the applicable regulatory requirements for the manufacture of our drug candidates. If our
manufacturers cannot successfully manufacture material that conforms to the strict regulatory requirements of the FDA and any applicable foreign
regulatory authority, they will not be able to secure the applicable approval for their manufacturing facilities. If these facilities are not approved for
commercial manufacture, we may need to find alternative manufacturing facilities, which could result in delays in obtaining approval for the applicable
drug candidate as alternative qualified manufacturing facilities may not be available on a timely basis or at all. In addition, our manufacturers are subject to
ongoing periodic unannounced inspections by the FDA and corresponding state and foreign agencies for compliance with cGMPs and similar regulatory
requirements. Failure by any of our manufacturers to comply with applicable cGMPs or other regulatory requirements could result in sanctions being
imposed on us or the contract manufacturer, including fines, injunctions, civil penalties, delays, suspensions or withdrawals of approvals, operating
restrictions, interruptions in supply and criminal prosecutions, any of which could significantly and adversely affect supplies of our drug candidates and
have a material adverse impact on our business, financial condition and results of operations. Any drugs that we may develop may compete with other
31
drug candidates and drugs for access to manufacturing facilities. There are a limited number of manufacturers that operate under cGMP regulations and that
might be capable of manufacturing for us.
Our anticipated future dependence upon others for the commercial manufacture of our drug candidates or drugs may adversely affect our future
profit margins and our ability to commercialize any drugs that receive marketing approval on a timely and competitive basis.
Risks Related to Our Reliance on Third Parties
We are dependent upon our collaborations with BMS, Gilead, Incyte and Betta Pharmaceuticals Co., Ltd. (“Betta Pharmaceuticals”) to further
develop and commercialize certain of our antibody programs. If we or BMS, Gilead, Incyte or Betta Pharmaceuticals fail to perform as expected, the
potential for us to generate future revenues under such collaborations could be significantly reduced, the development and/or commercialization of
these antibodies may be terminated or substantially delayed, and our business could be adversely affected.
In May 2021, we entered into a License, Development and Commercialization Agreement with BMS to collaborate on the development and
commercialization of our anti-TIGIT bispecific antibody program AGEN1777. Pursuant to the license agreement, we received a non-refundable upfront
cash payment of $200.0 million and are eligible to receive up to $1.36 billion in aggregate development, regulatory and commercial milestone payments
plus the tiered royalties. Additionally, we hold the option to co-fund a minority of the global development costs of products containing AGEN1777 or its
derivatives, in exchange for increased tiered royalties on U.S. net sales of co-funded products. There can be no assurance that any of the development,
regulatory or sales milestones will be achieved, or that we will receive any future milestone or royalty payments under the license agreement. BMS’s
activities will be influenced by, among other things, the efforts and allocation of resources by BMS, which we cannot control. If BMS does not perform in
the manner we expect or fulfill its responsibilities in a timely manner, or at all, the clinical development, manufacturing, regulatory approval, and
commercialization efforts related to the licensed antibodies could be delayed or terminated.
In addition, our license with BMS may be unsuccessful due to other factors, including, without limitation, the following:
•
•
•
BMS may terminate the agreement or any individual program for convenience upon 180 days’ notice;
BMS may change the focus of its development and commercialization efforts or prioritize other programs more highly and, accordingly, reduce
the efforts and resources allocated to our licensed antibodies; and
BMS may choose not to develop and commercialize antibody products, if any, in all relevant markets or for one or more indications, if at all.
In December 2018, we entered into a series of agreements with Gilead to collaborate on the development and commercialization of up to five novel
I-O therapies. Pursuant to the collaboration agreements, Gilead received (i) worldwide exclusive rights to AGEN1423, a bispecific antibody, (ii) the
exclusive option to license exclusively AGEN1223, a bispecific antibody, and AGEN2373, a monospecific antibody, and (iii) the right of first negotiation
for two additional, undisclosed programs. Gilead had the exclusive right to develop and commercialize AGEN1423, and we were eligible to receive
potential development and commercial milestones of up to $552.5 million in the aggregate. In November 2020, Gilead elected to return AGEN1423 to us
and voluntarily terminated the license agreement effective as of February 4, 2021. In October of 2021, Gilead elected to terminate the option to license
AGEN1223. The option agreement for AGEN2373 remains in place, and we are responsible for developing the program up to the option decision point, at
which time Gilead may acquire exclusive rights to each program on option exercise. During the option period, we are eligible to receive milestones of up to
$10.0 million in the aggregate. If Gilead exercises an option for AGEN2373, it would be required to pay an upfront option exercise fee of $50.0 million.
Following any option exercise, we would be eligible to receive additional development and commercial milestones of up to $520.0 million in the aggregate,
as well as tiered royalty payments on aggregate net sales ranging from the high single digit to mid-teen percent, subject to certain reductions under certain
circumstances. We will have the right to opt-in to share Gilead’s development and commercialization costs in the United States for AGEN2373 in exchange
for a profit (loss) share on a 50:50 basis and revised milestone payments. There is no guarantee that we will be able to successfully advance the AGEN2373
option program to the option decision point, and, even if we do, there is no guarantee that Gilead will exercise its option. If Gilead does pursue a licensed
or optioned program, there is no guarantee that we will be able to advance any such program ourselves or with another partner.
In February 2017, we amended the terms of our collaboration agreement with Incyte to, among other things, convert the GITR and OX40 programs
from profit-share programs, where we and Incyte shared all costs and profits on a 50:50 basis, to royalty-bearing programs, where Incyte funds 100% of the
costs and we are eligible for potential milestones and royalties. In addition, the profit-share programs relating to TIGIT and one undisclosed target were
removed from the collaboration, with TIGIT reverting to Agenus and the undisclosed target reverting to Incyte, each with a potential 15% royalty to the
other party on any global net sales. The remaining three royalty-bearing programs in the collaboration targeting TIM-3, LAG-3 and one undisclosed target
remain unchanged, and there are no
32
more profit-share programs under the collaboration. For each program in the collaboration, Incyte has exclusive rights and all decision-making authority for
manufacturing, clinical development and commercialization. Accordingly, the timely and successful completion by Incyte of clinical development and
commercialization activities will significantly affect the timing and amount of any royalties or milestones we may receive under the collaboration
agreement. In addition, in March 2017 we transferred manufacturing responsibilities to Incyte for antibodies under that collaboration. Any delays or
weaknesses in the ability of Incyte to successfully manufacture could have an adverse impact on those programs. Incyte’s activities will be influenced by,
among other things, the efforts and allocation of resources by Incyte, which we cannot control. If Incyte does not perform in the manner we expect or fulfill
its responsibilities in a timely manner, or at all, the clinical development, manufacturing, regulatory approval, and commercialization efforts related to
antibodies under the collaboration could be delayed or terminated. There can be no assurance that any of the development, regulatory or sales milestones
will be achieved, or that we will receive any future milestone or royalty payments under the collaboration agreement. In September 2018, we sold to
XOMA a portion of the royalties and milestones we are entitled to receive from Incyte.
In addition, our collaboration with Incyte may be unsuccessful due to other factors, including, without limitation, the following:
•
•
•
•
•
Incyte may terminate the agreement or any individual program for convenience upon 12 months’ notice;
Incyte has control over the development of assets in the collaboration;
Incyte may change the focus of its development and commercialization efforts or prioritize other programs more highly and, accordingly,
reduce the efforts and resources allocated to our collaboration;
Incyte may choose not to develop and commercialize antibody products, if any, in all relevant markets or for one or more indications, if at all;
and
If Incyte is acquired during the term of our collaboration, the acquirer may have competing programs or different strategic priorities that could
cause it to reduce its commitment to our collaboration.
If Incyte terminates our collaboration agreement, we may need to raise additional capital and may need to identify and come to agreement with
another collaboration partner to advance certain of our antibody programs. Even if we are able to find another partner, this effort could cause delays in our
timelines and/or additional expenses, which could adversely affect our business prospects and the future of our antibody product candidates under the
collaboration.
In June 2020, we entered into a license and collaboration agreement with Betta Pharmaceuticals to collaborate on the development and
commercialization of balstilimab and zalifrelimab in greater China. Pursuant to the license and collaboration agreement, Betta Pharmaceuticals received an
exclusive license to develop, manufacture and commercialize zalifrelimab and balstilimab in all fields (other than intravesical delivery) in greater China.
Under the agreement, Betta Pharmaceuticals is responsible for all of the development, regulatory approval, manufacturing and commercialization costs in
greater China. As part of the collaboration, Betta Pharma made an upfront cash payment of $15.0 million and agreed to make up to $100.0 million in
aggregate milestone payments plus tiered royalties on net sales of zalifrelimab and balstilimab. Royalties range from mid-single digit to low-twenties
percent, subject to certain reductions under certain circumstances. Accordingly, the timely and successful completion by Betta Pharmaceuticals of
development, regulatory approval, manufacturing and commercialization activities will significantly affect the timing and amount of any milestones or
royalties we may receive from Betta Pharmaceuticals. Betta Pharmaceuticals’ activities will be influenced by, among other things, the efforts and allocation
of resources by Betta Pharmaceuticals, which we cannot control.
In addition, our collaboration with Betta Pharmaceuticals may be unsuccessful due to other factors, including, without limitation, that Betta
Pharmaceuticals:
•
•
•
•
may terminate any of the license and collaboration agreement for convenience upon 90 days’ notice;
has control over the development, regulatory approval, manufacturing and commercialization of balstilimab and zalifrelimab in greater China;
may change the focus of its business efforts or prioritize other programs more highly and, accordingly, reduce the efforts and resources
allocated to balstilimab and zalifrelimab; and
may choose not to develop and commercialize balstilimab and zalifrelimab in all markets within greater China or for one or more indications, if
at all.
Additionally, the US-China relationship has deteriorated in recent years and, further deterioration may impact the ability of Agenus and Betta
Pharmaceuticals to successfully collaborate.
Failure to enter into and/or maintain additional significant licensing, distribution and/or collaboration agreements in a timely manner and on
favorable terms to us may hinder or cause us to cease our efforts to develop and commercialize our product candidates, increase our development
timelines, and/or increase our need to rely on partnering or financing mechanisms, such as
33
sales of debt or equity securities, to fund our operations and continue our current and anticipated programs. Even if we enter into and maintain such
agreements, they may not prove successful, and/or we may not receive significant payments from agreements.
Part of our strategy is to develop and commercialize many of our product candidates by continuing or entering into arrangements with academic,
government, or corporate collaborators and licensees. Our success depends on our ability to negotiate such agreements on favorable terms and on the
success of the other parties in performing research, pre-clinical and clinical testing, completing regulatory applications, and commercializing product
candidates. Our research, development, and commercialization efforts with respect to antibody candidates from our technology platforms are, in part,
contingent upon the participation of institutional and corporate collaborators. For example, in February 2015, we began a broad collaboration with Incyte to
pursue the discovery and development of antibodies, in December 2018 we entered into a partnership with Gilead relating to five of our antibody programs
and in May 2021 we entered into a license agreement with BMS relating to our anti-TIGIT bispecific antibody program. Furthermore, we have a
collaboration arrangement with Recepta for balstilimab and zalifrelimab, giving Recepta rights to certain South American countries and requiring us to
agree upon development plans for these product candidates. Disagreements or the failure of either party to perform satisfactorily could have an adverse
impact on these programs.
The Brain Tumor Trials Collaborative, through the NCI, is sponsoring a Phase 2 clinical trial of our Prophage vaccine candidate in combination with
Merck’s pembrolizumab in patients with glioma. When our licensees or third-party collaborators sponsor clinical trials using our product candidates, we
cannot control the timing of enrollment, data readout, or quality of such trials or related activities.
Our ability to advance our antibody programs depends in part on such collaborations. In addition, from time to time we engage in efforts to enter
into licensing, distribution and/or collaboration agreements with one or more pharmaceutical or biotechnology companies to assist us with development
and/or commercialization of our other product candidates. Any licensing, distribution and/or collaborations agreements, we enter into, including those with
BMS, Gilead and Incyte, may pose a number of risks, including the following:
•
•
•
•
•
•
•
•
•
•
•
•
•
collaborators have significant discretion in determining the efforts and resources that they will apply;
collaborators may not perform their obligations as expected;
collaborators may not pursue development and commercialization of any product candidates that achieve regulatory approval or may elect not
to continue or renew development or commercialization programs or license arrangements based on clinical trial results, changes in the
collaborators’ strategic focus or available funding, or external factors, such as a strategic transaction that may divert resources or create
competing priorities;
collaborators may delay clinical trials, provide insufficient funding for a clinical trial program, stop a clinical trial or abandon a product
candidate, repeat or conduct new clinical trials or require a new formulation of a product candidate for clinical testing;
collaborators could independently develop, or develop with third parties, products that compete directly or indirectly with our products and
product candidates if the collaborators believe that the competitive products are more likely to be successfully developed or can be
commercialized under terms that are more economically attractive than ours;
product candidates discovered in collaboration with us may be viewed by our collaborators as competitive with their own product candidates or
products, which may cause collaborators to cease to devote resources to the commercialization of our product candidates;
collaborators may fail to comply with applicable regulatory requirements regarding the development, manufacture, distribution or marketing of
a product candidate or product;
collaborators with marketing and distribution rights to one or more of our product candidates that achieve regulatory approval may not commit
sufficient resources to the marketing and distribution of such product or products;
disagreements with collaborators, including disagreements over proprietary rights, contract interpretation or the preferred course of
development, might cause delays or terminations of the research, development or commercialization of product candidates, might lead to
additional responsibilities for us with respect to product candidates, or might result in litigation or arbitration, any of which would be time-
consuming and expensive;
collaborators may not properly maintain or defend our intellectual property rights or may use our proprietary information in such a way as to
invite litigation that could jeopardize or invalidate our intellectual property or proprietary information or expose us to potential litigation;
collaborators may infringe the intellectual property rights of third parties, which may expose us to litigation and potential liability;
if a collaborator of ours is involved in a business combination, the collaborator might deemphasize or terminate the development or
commercialization of any product candidate licensed to it by us; and
collaborations may be terminated by the collaborator, and, if terminated, we could be required to raise additional capital to pursue further
development or commercialization of the applicable product candidates.
34
If our current or future collaborations do not result in the successful discovery, development and commercialization of products or if one of our
collaborators terminates its agreement with us, we may not receive any future research funding or milestone or royalty payments under the collaboration. If
we do not receive the funding we expect under these agreements, our development of our technology and product candidates could be delayed and we may
need additional resources to develop product candidates and our technology. All of the risks relating to product development, regulatory approval and
commercialization described herein also apply to the activities of our therapeutic collaborators.
On January 24, 2022, Agenus filed a lawsuit against Recepta Biopharma, S.A. alleging that Recepta breached the terms of the companies’ 2016
collaboration agreement concerning development plans and marketing rights for balstilimab and zalifrelimab in South America. It is too early to predict the
outcome of the lawsuit at this time.
Additionally, if one of our collaborators, such as BMS, Incyte or Recepta, terminates its agreement with us, we may find it more difficult to attract
new collaborators and our perception in the business and financial communities could be adversely affected.
Collaborations are complex and time-consuming to negotiate and document. In addition, there have been a significant number of recent business
combinations among large pharmaceutical companies that have resulted in a reduced number of potential future collaborators. We face significant
competition in seeking appropriate collaborators. Our ability to reach a definitive agreement for a collaboration will depend, among other things, upon our
assessment of the collaborator’s resources and expertise, the terms and conditions of the proposed collaboration and the proposed collaborator’s evaluation
of a number of factors.
If we are unable to reach agreements with suitable collaborators on a timely basis, on acceptable terms, or at all, we may have to curtail the
development of a product candidate, reduce or delay its development program or one or more of our other development programs, delay its potential
commercialization or reduce the scope of any sales or marketing activities, or increase our expenditures and undertake development or commercialization
activities at our own expense. If we elect to increase our expenditures to fund development or commercialization activities on our own, we may need to
obtain additional expertise and additional capital, which may not be available to us on acceptable terms, or at all. If we fail to enter into collaborations or do
not have sufficient funds or expertise to undertake the necessary development and commercialization activities, we may not be able to further develop our
product candidates, bring them to market and generate revenue from sales of drugs or continue to develop our technology, and our business may be
materially and adversely affected.
We rely on third parties to conduct our clinical trials. If these third parties do not successfully carry out their contractual duties or meet expected
deadlines or comply with regulatory requirements, we may not be able to obtain regulatory approval of or commercialize any potential product
candidates.
We depend upon third parties, including independent investigators, to conduct our clinical trials under agreements with universities, medical
institutions, CROs, strategic partners and others. Such reliance obligates us to negotiate budgets and contracts with CROs and trial sites, which may result
in delays to our development timelines and increased costs.
We rely heavily on third parties over the course of our clinical trials, and, as a result, have limited control over the clinical investigators and limited
visibility into their day-to-day activities, including with respect to their compliance with the approved clinical protocol. Nevertheless, we are responsible
for ensuring that each of our trials is conducted in accordance with the applicable protocol, legal and regulatory requirements and scientific standards, and
our reliance on third parties does not relieve us of our regulatory responsibilities. We and these third parties are required to comply with GCP requirements,
which are regulations and guidelines enforced by the FDA and comparable foreign regulatory authorities for product candidates in clinical development.
Regulatory authorities enforce these GCP requirements through periodic inspections of trial sponsors, clinical investigators and trial sites. If we or any of
these third parties fail to comply with applicable GCP requirements, the clinical data generated in our clinical trials may be deemed unreliable and the FDA
or comparable foreign regulatory authorities may require us to suspend or terminate these trials or perform additional nonclinical studies or clinical trials
before approving our marketing applications. We cannot be certain that, upon inspection, such regulatory authorities will determine that any of our clinical
trials comply with the GCP requirements. In addition, our clinical trials must be conducted with biologic product produced under cGMP requirements and
may require a large number of patients.
Our failure or any failure by these third parties to comply with these regulations or to recruit a sufficient number of patients may require us to repeat
clinical trials, which would delay the regulatory approval process. Moreover, our business may be implicated if any of these third parties violates federal or
state fraud and abuse or false claims laws and regulations or healthcare privacy and security laws.
35
The persons engaged by third parties conducting our clinical trials are not our employees and, except for remedies that may be available to us under
our agreements with such third parties, we cannot control whether or not such persons devote sufficient time and resources to our ongoing pre-clinical and
clinical programs. These third parties may also have relationships with other commercial entities, including our competitors, for whom they may also be
conducting clinical trials or other product development activities, which could affect their performance on our behalf. If these third parties do not
successfully carry out their contractual duties or obligations or meet expected deadlines, if they need to be replaced or if the quality or accuracy of the
clinical data they obtain is compromised due to the failure to adhere to our clinical protocols or regulatory requirements or for other reasons, our clinical
trials may be extended, delayed or terminated and we may not be able to complete development of, obtain regulatory approval of or successfully
commercialize our product candidates. As a result, our financial results and the commercial prospects for our product candidates would be harmed, our
costs could increase and our ability to generate revenue could be delayed.
If any of our relationships with these third-party CROs or others terminate, we may not be able to enter into arrangements with alternative CROs or
other third parties or to do so on commercially reasonable terms. Switching or adding additional CROs involves additional cost and requires management
time and focus. In addition, there is a natural transition period when a new CRO begins work. As a result, delays may occur, which can materially impact
our ability to meet our desired clinical development timelines. Though we carefully manage our relationships with our CROs, there can be no assurance
that we will not encounter similar challenges or delays in the future or that these delays or challenges will not have a material adverse impact on our
business, financial condition and prospects.
Risks Related to Government Regulations
The regulatory approval process for our product candidates in the United States, European Union and other jurisdictions is currently uncertain
and will be lengthy, time-consuming and inherently unpredictable and we may experience significant delays in the clinical development and regulatory
approval, if any, of our product candidates.
The research, testing, manufacturing, labeling, approval, selling, import, export, marketing and distribution of drug products, including biologics,
are subject to extensive regulation by the FDA in the United States and regulatory authorities in states and other countries. We are not permitted to market
any biological product in the United States for commercial use until we receive a biologics license from the FDA. We have not submitted a BLA for any
product candidate that was approved by the FDA. Even after submission of our BLA, we expect the novel nature of our product candidates to create further
challenges in obtaining regulatory approval. Accordingly, the regulatory approval pathway for our product candidates may be uncertain, complex,
expensive and lengthy, and we may never obtain regulatory approval for our product candidates.
The FDA may also require a panel of experts, referred to as an Advisory Committee, to deliberate on the adequacy of the safety and efficacy data to
support approval. The opinion of the Advisory Committee, although not binding, may have a significant impact on our ability to obtain approval of any
product candidates that we develop based on the completed clinical trials.
The FDA may disagree with our regulatory plan and we may fail to obtain regulatory approval of our product candidates.
Although the regulatory framework for approving immunotherapy products is evolving, the general approach for FDA approval of a new biologic or
drug has historically been to provide dispositive data from two well-controlled, Phase 3 clinical trials of the relevant biologic or drug in the relevant patient
population. Phase 3 clinical trials typically involve hundreds of patients, have significant costs and take years to complete. We intend to utilize an
accelerated approval approach for our product candidates given the limited alternatives for cancer treatments, but the FDA may not agree with our plans.
In addition, our clinical trial results may also not support approval of our product candidates. Our product candidates could fail to receive regulatory
approval for many reasons, including the following:
•
•
•
•
•
the FDA or comparable foreign regulatory authorities may disagree with the design or implementation of our clinical trials;
we may be unable to demonstrate to the satisfaction of the FDA or comparable foreign regulatory authorities that our product candidates are
safe and effective for any of their proposed indications;
the results of clinical trials may not meet the level of statistical significance required by the FDA or comparable foreign regulatory authorities
for approval;
we may be unable to demonstrate that our product candidates’ clinical and other benefits outweigh their safety risks;
the FDA or comparable foreign regulatory authorities may disagree with our interpretation of data from nonclinical studies or clinical trials;
36
•
•
•
the data collected from clinical trials of our product candidates may be deemed by the FDA or comparable foreign regulatory authorities to be
insufficient to support the submission of a BLA or other comparable submission in foreign jurisdictions or to obtain regulatory approval in the
United States or elsewhere;
the FDA or comparable foreign regulatory authorities may fail to approve or find deficiencies with the manufacturing processes and controls or
facilities of third-party manufacturers with which we contract for clinical and commercial supplies or any facilities that we may own in the
future; and
the approval policies or regulations of the FDA or comparable foreign regulatory authorities may significantly change in a manner that could
render our clinical data insufficient for approval.
The FDA, the EMA and other regulatory authorities may implement additional regulations or restrictions on the development and
commercialization of our product candidates, which may be difficult to predict.
The FDA, the EMA and regulatory authorities in other countries have each expressed interest in further regulating biotechnology products, such as
antibodies, vaccines, adjuvants and adoptive cell therapies. Agencies at both the federal and state level in the United States, as well as the U.S.
Congressional committees and other governments or governing agencies, have also expressed interest in further regulating the biotechnology industry. Such
action may delay or prevent commercialization of some or all of our product candidates. Adverse developments in clinical trials of antibodies, vaccines,
adjuvants or adoptive cell therapies products conducted by others may cause the FDA or other oversight bodies to change the requirements for approval of
any of our product candidates. Similarly, the EMA governs the development of antibodies, vaccines, adjuvants and adoptive cell therapies in the European
Union and may issue new guidelines concerning the development and marketing authorization for such products and require that we comply with these
new guidelines. These regulatory review agencies and committees and the new requirements or guidelines they promulgate may lengthen the regulatory
review process, require us to perform additional studies or trials, increase our development costs, lead to changes in regulatory positions and
interpretations, delay or prevent approval and commercialization of our product candidates or lead to significant post-approval limitations or restrictions.
As we advance our product candidates, we will be required to consult with these regulatory agencies and comply with applicable requirements and
guidelines. If we fail to do so, we may be required to delay or discontinue development of such product candidates. These additional processes may result
in a review and approval process that is longer than we otherwise would have expected. Delays as a result of an increased or lengthier regulatory approval
process or further restrictions on the development of our product candidates can be costly and could negatively impact our ability to complete clinical trials
and commercialize our current and future product candidates in a timely manner, if at all.
Breakthrough Therapy Designation or Fast Track Designation by the FDA, even if granted for any of our product candidates, may not lead to a
faster development, regulatory review or approval process, and it does not increase the likelihood that any of our product candidates will receive
marketing approval in the United States.
We may seek a Breakthrough Therapy Designation for some of our product candidates. A breakthrough therapy is defined as a therapy that is
intended, alone or in combination with one or more other therapies, to treat a serious or life-threatening disease or condition, and preliminary clinical
evidence indicates that the therapy may demonstrate substantial improvement over existing therapies on one or more clinically significant endpoints, such
as substantial treatment effects observed early in clinical development. For therapies that have been designated as breakthrough therapies, interaction and
communication between the FDA and the sponsor of the trial can help to identify the most efficient path for clinical development while minimizing the
number of patients placed in ineffective control regimens. Therapies designated as breakthrough therapies by the FDA may also be eligible for priority
review and accelerated approval. Designation as a breakthrough therapy is within the discretion of the FDA. Accordingly, even if we believe one of our
product candidates meets the criteria for designation as a breakthrough therapy, the FDA may disagree and instead determine not to make such designation.
In any event, the receipt of a Breakthrough Therapy Designation for a product candidate may not result in a faster development process, review or approval
compared to therapies considered for approval under conventional FDA procedures and does not assure ultimate approval by the FDA. In addition, even if
one or more of our product candidates qualify as breakthrough therapies, the FDA may later decide that such product candidates no longer meet the
conditions for qualification or decide that the time period for FDA review or approval will not be shortened.
If a therapy is intended for the treatment of a serious or life-threatening condition and the therapy demonstrates the potential to address unmet
medical needs for this condition, the therapy sponsor may apply for Fast Track Designation. The FDA has broad discretion whether or not to grant this
designation, so even if we believe a particular product candidate is eligible for this designation; we cannot assure our stockholders that the FDA would
decide to grant it. We may not experience a faster development process, review or approval compared to conventional FDA procedures for the product
candidate for which we have received, or may receive in the future, Fast Track Designation. The FDA may withdraw Fast Track Designation if it believes
that the designation is no longer supported by data from our clinical development program. Fast Track Designation alone does not guarantee qualification
for the FDA’s priority review procedures.
37
We received Fast Track Designation for investigation of balstilimab in combination with zalifrelimab for the treatment of patients with relapsed or
refractory metastatic cervical cancer and balstilimab alone for the treatment of cervical cancer, and we intend to apply for such designation for our other
product candidates in the future. The FDA subsequently determined it was no longer appropriate to review the BLA for balstilimab (alone) for accelerated
approval in view of its grant of full approval to pembrolizumab and recommended that we withdraw our BLA. We subsequently made a strategic decision
to withdraw our BLA for balstilimab (alone). The decision to withdraw the BLA does not change the development plans for balstilimab combinations,
including plans for balstilimab in combination with one of our anti-CTLA-4 candidates.
We may seek priority review designation for one or more of our other product candidates, but we might not receive such designation, and even if
we do, such designation may not lead to a faster development or regulatory review or approval process.
If the FDA determines that a product candidate offers a treatment for a serious condition and, if approved, the product would provide a significant
improvement in safety or effectiveness, the FDA may designate the product candidate for priority review. A priority review designation means that the goal
for the FDA to review an application is six months, rather than the standard review period of ten months. We may request priority review for our product
candidates. The FDA has broad discretion with respect to whether or not to grant priority review status to a product candidate, so even if we believe a
particular product candidate is eligible for such designation or status, the FDA may decide not to grant it. Moreover, a priority review designation does not
necessarily result in expedited development or regulatory review or approval process or necessarily confer any advantage with respect to approval
compared to conventional FDA procedures. Receiving priority review from the FDA does not guarantee approval within the six-month review cycle or at
all.
We may not be able to obtain or maintain orphan drug designations from the FDA for our current and future product candidates, as applicable.
Our strategy includes filing for orphan drug designation where available for our product candidates, but thus far, our applications for orphan drug
designation with respect to balstilimab and zalifrelimab have been rejected.
Under the Orphan Drug Act, the FDA may grant orphan drug designation to a drug or biologic intended to treat a rare disease or condition, which is
defined as one occurring in a patient population of fewer than 200,000 in the United States, or a patient population greater than 200,000 in the United States
where there is no reasonable expectation that the cost of developing the drug or biologic will be recovered from sales in the United States. In the United
States, orphan drug designation entitles a party to financial incentives, such as opportunities for grant funding toward clinical trial costs, tax advantages and
user-fee waivers. In addition, if a product that has orphan drug designation subsequently receives the first FDA approval for the disease for which it has
such designation, the product is entitled to orphan drug exclusivity, which means that the FDA may not approve any other applications, including a full new
drug application, or NDA, or BLA, to market the same drug or biologic for the same indication for seven years, except in limited circumstances, such as a
showing of clinical superiority to the product with orphan drug exclusivity or where the original manufacturer is unable to assure sufficient product
quantity.
In addition, exclusive marketing rights in the United States may be limited if we seek approval for an indication broader than the orphan-designated
indication or may be lost if the FDA later determines that the request for designation was materially defective or if we are unable to assure sufficient
quantities of the product to meet the needs of patients with the orphan- designated disease or condition. Further, even if we obtain orphan drug exclusivity
for a product, that exclusivity may not effectively protect the product from competition because different drugs with different active moieties may receive
and be approved for the same condition, and only the first applicant to receive approval will receive the benefits of marketing exclusivity. Even after an
orphan-designated product is approved, the FDA can subsequently approve a later drug with the same active moiety for the same condition if the FDA
concludes that the later drug is clinically superior if it is shown to be safer, more effective or makes a major contribution to patient care. Orphan drug
designation neither shortens the development time or regulatory review time of a drug, nor gives the drug any advantage in the regulatory review or
approval process. In addition, while we may again seek orphan drug designation for our product candidates, we may never receive such designations.
Our relationships with healthcare providers and physicians and third-party payors will be subject to applicable anti- kickback, fraud and abuse
and other healthcare laws and regulations, which could expose us to criminal sanctions, civil penalties, contractual damages, reputational harm and
diminished profits and future earnings.
Healthcare providers, physicians and third-party payors in the United States and elsewhere play a primary role in the recommendation and
prescription of pharmaceutical products. Arrangements with third-party payors and customers can expose pharmaceutical manufactures to broadly
applicable fraud and abuse and other healthcare laws and regulations, including, without limitation, the federal Anti-Kickback Statute and the federal False
Claims Act (the “FCA”), which may constrain the business or
38
financial arrangements and relationships through which such companies sell, market and distribute pharmaceutical products. In particular, the promotion,
sales and marketing of healthcare items and services, as well as certain business arrangements in the healthcare industry, are subject to extensive laws
designed to prevent fraud, kickbacks, self- dealing and other abusive practices. These laws and regulations may restrict or prohibit a wide range of pricing,
discounting, marketing and promotion, structuring and commission(s), certain customer incentive programs and other business arrangements generally.
Activities subject to these laws also involve the improper use of information obtained in the course of patient recruitment for clinical trials. The applicable
federal, state and foreign healthcare laws and regulations laws that may affect our ability to operate include, but are not limited to:
•
•
•
•
•
•
•
•
the federal Anti-Kickback Statute, which prohibits, among other things, knowingly and willfully soliciting, receiving, offering or paying any
remuneration (including any kickback, bribe or rebate), directly or indirectly, overtly or covertly, in cash or in kind, to induce, or in return for,
either the referral of an individual, or the purchase, lease, order or recommendation of any good, facility, item or service for which payment
may be made, in whole or in part, under a federal healthcare program, such as the Medicare and Medicaid programs. A person or entity can be
found guilty of violating the statute without actual knowledge of the statute or specific intent to violate it. In addition, 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 FCA. The
Anti-Kickback Statute has been interpreted to apply to arrangements between pharmaceutical manufacturers on the one hand and prescribers,
purchasers, and formulary managers on the other. There are a number of statutory exceptions and regulatory safe harbors protecting some
common activities from prosecution;
federal civil and criminal false claims laws and civil monetary penalty laws, including the FCA, which prohibit, among other things,
individuals or entities from knowingly presenting, or causing to be presented, false or fraudulent claims for payment to, or approval by,
Medicare, Medicaid, or other federal healthcare programs, knowingly making, using or causing to be made or used a false record or statement
material to a false or fraudulent claim or an obligation to pay or transmit money to the federal government, or knowingly concealing or
knowingly and improperly avoiding, decreasing or concealing an obligation to pay money to the federal government. Manufacturers can be
held liable under the FCA even when they do not submit claims directly to government payors if they are deemed to “cause” the submission of
false or fraudulent claims. The FCA also permits a private individual acting as a “whistleblower” to bring actions on behalf of the federal
government alleging violations of the FCA and to share in any monetary recovery;
the federal anti-inducement law, prohibits, among other things, the offering or giving of remuneration, which includes, without limitation, any
transfer of items or services for free or for less than fair market value (with limited exceptions), to a Medicare or Medicaid beneficiary that the
person knows or should know is likely to influence the beneficiary’s selection of a particular supplier of items or services reimbursable by a
federal or state governmental program;
federal laws, including the Medicaid Drug Rebate Program, that require pharmaceutical manufacturers to report certain calculated product
prices to the government or provide certain discounts or rebates to government authorities or private entities, often as a condition of
reimbursement under government healthcare programs;
the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), which created new federal criminal statutes that prohibit
knowingly and willfully executing, or attempting to execute, a scheme to defraud any healthcare benefit program or obtain, by means of false
or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any healthcare
benefit program, regardless of the payor (e.g., public or private) and knowingly and willfully falsifying, concealing or covering up by any trick
or device a material fact or making any materially false statements in connection with the delivery of, or payment for, healthcare benefits, items
or services relating to healthcare matters. Similar to the federal Anti-Kickback Statute, a person or entity can be found guilty of violating
HIPAA without actual knowledge of the statute or specific intent to violate it;
HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”), and their respective
implementing regulations, which impose, among other things, requirements on certain covered healthcare providers, health plans, and
healthcare clearinghouses as well as their respective business associates that perform services for them that involve the use or disclosure of,
individually identifiable health information, relating to the privacy, security and transmission of individually identifiable health information
without appropriate authorization. HITECH also created new tiers of civil monetary penalties, amended HIPAA to make civil and criminal
penalties directly applicable to business associates, and gave state attorneys general new authority to file civil actions for damages or
injunctions in federal courts to enforce the federal HIPAA laws and seek attorneys’ fees and costs associated with pursuing federal civil actions;
the federal Physician Payment Sunshine Act, created under the Patient Protection and Affordable Care Act, and its implementing regulations,
which require manufacturers of drugs, devices, biologicals 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 United States Department of Health and Human
Services (“HHS”), information related to payments or other “transfers of value” made to physicians (defined to include doctors, dentists,
optometrists, podiatrists and chiropractors) and teaching hospitals, and other categories of healthcare providers, as well as ownership and
investment interests held by physicians and their immediate family members;
the U.S. Federal Food, Drug, and Cosmetic Act, which prohibits, among other things, the adulteration or misbranding of drugs, biologics and
medical devices;
39
•
•
federal consumer protection and unfair competition laws, which broadly regulate marketplace activities and activities that potentially harm
consumers; and
analogous state and foreign laws and regulations, such as state anti-kickback and false claims laws, which may apply to sales or marketing
arrangements and claims involving healthcare items or services reimbursed by non-governmental third-party payors, including private insurers,
and may be broader in scope than their federal equivalents; state and foreign laws that require pharmaceutical companies to comply with the
pharmaceutical industry’s voluntary compliance guidelines and the relevant compliance guidance promulgated by the federal government or
otherwise restrict payments that may be made to healthcare providers; state and foreign 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
and foreign laws governing the privacy and security of health information in certain circumstances, many of which differ from each other in
significant ways and often are not preempted by HIPAA, thus complicating compliance efforts.
The distribution of pharmaceutical products is subject to additional requirements and regulations, including extensive record-keeping, licensing,
storage and security requirements intended to prevent the unauthorized sale of pharmaceutical products.
The scope and enforcement of each of these laws is uncertain and subject to rapid change in the current environment of healthcare reform, especially
in light of the lack of applicable precedent and regulations. Federal and state enforcement bodies have recently increased their scrutiny of interactions
between healthcare companies and healthcare providers, which has led to a number of investigations, prosecutions, convictions and settlements in the
healthcare industry. Ensuring business arrangements comply with applicable healthcare laws, as well as responding to possible investigations by
government authorities, can be time- and resource-consuming and can divert a company’s financial resources and management’s attention away from the
business.
On January 31, 2019, the HHS and HHS Office of Inspector General proposed an amendment to one of the existing Anti- Kickback Statute safe
harbors (42 C.F.R. 1001.952(h)) which would prohibit certain pharmaceutical manufacturers from offering rebates to pharmacy benefit managers
(“PBMs”), in the Medicare Part D and Medicaid managed care programs. The proposed amendment would remove protection for “discounts” from Anti-
Kickback enforcement action and would include criminal and civil penalties for knowingly and willfully offering, paying, soliciting, or receiving
remuneration to induce or reward the referral of business reimbursable under federal health care programs. At the same time, HHS also proposed to create a
new safe harbor to protect point-of-sale discounts that drug manufacturers provide directly to patients and adds another safe harbor to protect certain
administrative fees paid by manufacturers to PBMs. The revisions to the federal Anti-Kickback regulations referenced above were initially scheduled to
take effect in 2022 but have now been delayed to 2023 under the Biden Administration.
The failure to comply with any of these laws or regulatory requirements subjects entities to possible legal or regulatory action. Depending on the
circumstances, failure to meet applicable regulatory requirements can result in civil, criminal and administrative penalties, damages, fines, disgorgement,
individual imprisonment, possible exclusion from participation in federal and state funded healthcare programs, contractual damages and the curtailment or
restricting of our operations, as well as additional reporting obligations and oversight if we become subject to a corporate integrity agreement or other
agreement to resolve allegations of non-compliance with these laws. Any action for violation of these laws, even if successfully defended, could cause a
pharmaceutical manufacturer to incur significant legal expenses and divert management’s attention from the operation of the business. Prohibitions or
restrictions on sales or withdrawal of future marketed products could materially affect business in an adverse way.
We have adopted a code of business conduct and ethics, but it is not always possible to identify and deter employee misconduct, and the precautions
we take to detect and prevent inappropriate conduct may not be effective in controlling unknown or unmanaged risks or losses or in protecting us from
governmental investigations or other actions or lawsuits stemming from a failure to be in compliance with such laws or regulations. Efforts to ensure that
our business arrangements will comply with applicable healthcare laws may involve substantial costs. It is possible that governmental and enforcement
authorities will conclude that our business practices may not comply with current or future statutes, regulations or case law interpreting applicable fraud
and abuse or other healthcare laws and regulations. If any such actions are instituted against us, and we are not successful in defending ourselves or
asserting our rights, those actions could have a significant impact on our business, including the imposition of civil, criminal and administrative penalties,
damages, disgorgement, monetary fines, possible exclusion from participation in Medicare, Medicaid and other federal healthcare programs, contractual
damages, reputational harm, diminished profits and future earnings, and curtailment of our operations, any of which could adversely affect our ability to
operate our business and our results of operations. In addition, the approval and commercialization of any of our product candidates outside the United
States will also likely subject us to foreign equivalents of the healthcare laws mentioned above, among other foreign laws.
Even if we receive regulatory approval of any product candidates or therapies, we will be subject to ongoing regulatory obligations and continued
regulatory review, which may result in significant additional expense and we may be subject to penalties if we fail to comply with regulatory
requirements or experience unanticipated problems with our product candidates.
40
If any of our product candidates are approved, they will be subject to ongoing regulatory requirements for manufacturing, labeling, packaging,
storage, advertising, promotion, sampling, record-keeping, export, import, conduct of post-marketing studies and submission of safety, efficacy and other
post-market information, including both federal and state requirements in the United States and requirements of comparable foreign regulatory authorities.
In addition, we will be subject to continued compliance with cGMP and GCP requirements for any clinical trials that we conduct post- approval.
Manufacturers and manufacturers’ facilities are required to comply with extensive FDA, and comparable foreign regulatory authority requirements,
including ensuring that quality control and manufacturing procedures conform to cGMP regulations. As such, we and our contract manufacturers will be
subject to continual review and inspections to assess compliance with cGMP and adherence to commitments made in any BLA, other marketing
application, and previous responses to inspection observations. Accordingly, we and others with whom we work must continue to expend time, money, and
effort in all areas of regulatory compliance, including manufacturing, production and quality control.
Any regulatory approvals that we receive for our product candidates may be subject to limitations on the approved indicated uses for which the
product may be marketed or to the conditions of approval, or contain requirements for potentially costly post-marketing testing, including Phase 4 clinical
trials and surveillance to monitor the safety and efficacy of the product candidate. The FDA may also require a risk evaluation and mitigation strategies, or
REMS, program as a condition of approval of our product candidates, which could entail requirements for long-term patient follow-up, a medication guide,
physician communication plans or additional elements to ensure safe use, such as restricted distribution methods, patient registries and other risk
minimization tools. In addition, if the FDA or a comparable foreign regulatory authority approves our product candidates, we will have to comply with
requirements including submissions of safety and other post-marketing information and reports and registration.
The FDA may impose consent decrees or withdraw approval if compliance with regulatory requirements and standards is not maintained or if
problems occur after the product reaches the market. Later discovery of previously unknown problems with our product candidates, including adverse
events of unanticipated severity or frequency, or with our third-party manufacturers or manufacturing processes, or failure to comply with regulatory
requirements, may result in revisions to the approved labeling to add new safety information; imposition of post-market studies or clinical trials to assess
new safety risks; or imposition of distribution restrictions or other restrictions under a REMS program. Other potential consequences include, among other
things:
•
•
•
•
•
restrictions on the marketing or manufacturing of our products, withdrawal of the product from the market or voluntary or mandatory product
recalls;
fines, warning letters or holds on clinical trials;
refusal by the FDA to approve pending applications or supplements to approved applications filed by us or suspension or revocation of license
approvals;
product seizure or detention or refusal to permit the import or export of our product candidates; and
injunctions or the imposition of civil or criminal penalties.
The FDA strictly regulates marketing, labeling, advertising, and promotion of products that are placed on the market. Products may be promoted
only for the approved indications and in accordance with the provisions of the approved label. The FDA and other agencies actively enforce the laws and
regulations prohibiting the promotion of off-label uses and a company that is found to have improperly promoted off-label uses may be subject to
significant liability. The policies of the FDA and of other regulatory authorities may change and additional government regulations may be enacted that
could prevent, limit or delay regulatory approval of our product candidates. If we are slow or unable to adapt to changes in existing requirements or the
adoption of new requirements or policies, or if we are not able to maintain regulatory compliance, we may lose any marketing approval that we may have
obtained which would adversely affect our business, prospects and ability to achieve or sustain profitability.
We also cannot predict the likelihood, nature or extent of government regulation that may arise from future legislation or administrative or executive
action, either in the United States or abroad. For example, policy changes by the new presidential administration may impact our business and industry. The
previous administration took several executive actions imposing burdens on, or otherwise materially delaying, the FDA’s ability to engage in routine
regulatory and oversight activities, such as implementing statutes through rulemaking, issuance of guidance and review and approval of marketing
applications. While the new administration has revoked a number of the executive orders imposing these burdens or delays, it is difficult to predict what
executive actions the new administration may implement, and the extent to which such action may impact the FDA’s ability to exercise its regulatory
authority. If any executive actions impose constraints on FDA’s ability to engage in oversight and implementation activities in the normal course, our
business may be negatively impacted.
41
Healthcare insurance coverage and reimbursement may be limited or unavailable in certain market segments for our product candidates, if
approved, which could make it difficult for us to sell any product candidates or therapies profitably.
The success of our product candidates, if approved, depends on the availability of adequate coverage and reimbursement from third-party payors. In
addition, because our product candidates represent new approaches to the treatment of the diseases they target, we cannot be sure that coverage and
reimbursement will be available for, or accurately estimate the potential revenue from, our product candidates or assure that coverage and reimbursement
will be available for any product that we may develop.
Patients who are provided medical treatment for their conditions generally rely on third-party payors to reimburse all or part of the costs associated
with their treatment. Adequate coverage and reimbursement from governmental healthcare programs, such as Medicare and Medicaid, and commercial
payors are critical to new product acceptance.
Government authorities and third-party payors, such as private health insurers and health maintenance organizations, decide which drugs and
treatments they will cover and the amount of reimbursement. Coverage and reimbursement by a third-party payor may depend upon a number of factors,
including the third-party payor’s determination that use of a product is:
•
•
•
•
•
a covered benefit under its health plan;
safe, effective and medically necessary;
appropriate for the specific patient;
cost-effective; and
neither experimental nor investigational.
In the United States, no uniform policy of coverage and reimbursement for products exists among third-party payors. As a result, obtaining coverage
and reimbursement approval of a product from a government or other third-party payor is a time- consuming and costly process that could require us to
provide to each payor supporting scientific, clinical and cost- effectiveness data for the use of our products on a payor-by-payor basis, with no assurance
that coverage and adequate reimbursement will be obtained. Even if we obtain coverage for a given product, the resulting reimbursement payment rates
might not be adequate for us to achieve or sustain profitability or may require co-payments that patients find unacceptably high. Further, even if one payor
provides coverage for a given product, other payors may not provide coverage for that product. Additionally, third-party payors may not cover, or provide
adequate reimbursement for, long-term follow-up evaluations required following the use of product candidates. Patients are unlikely to use our product
candidates unless coverage is provided, and reimbursement is adequate to cover a significant portion of the cost of our product candidates. Because our
product candidates may have a higher cost of goods than conventional therapies, and may require long-term follow-up evaluations, the risk that coverage
and reimbursement rates may be inadequate for us to achieve profitability may be greater. There is significant uncertainty related to insurance coverage and
reimbursement of newly approved products. It is difficult to predict at this time what third-party payors will decide with respect to the coverage and
reimbursement for our product candidates.
If we obtain appropriate approval in the future to market any of our current product candidates in the United States, we may be required to provide
discounts or rebates under government healthcare programs or to certain government and private purchasers in order to obtain coverage under federal
healthcare programs such as Medicaid. Participation in such programs may require us to track and report certain drug prices. We may be subject to fines
and other penalties if we fail to report such prices accurately.
Moreover, increasing efforts by governmental and third-party payors in the United States and abroad to cap or reduce healthcare costs may cause
such organizations to limit both coverage and the level of reimbursement for newly approved products and, as a result, they may not cover or provide
adequate payment for our product candidates. There has been increasing legislative and enforcement interest in the United States with respect to specialty
drug pricing practices. Specifically, there have been several recent U.S. Congressional inquiries and proposed federal and state legislation designed to,
among other things, bring more transparency to drug pricing, reduce the cost of prescription drugs under Medicare, review the relationship between pricing
and manufacturer patient support programs, and reform government program reimbursement methodologies for drugs. For example, in October 2017,
California became the first state to pass legislation requiring pharmaceutical manufacturers to announce planned drug price increases. While this legislation
does not directly affect drug prices, it puts further pressure on pharmaceutical manufacturers in setting prices. Oregon has passed a similar law, requiring
pharmaceutical manufacturers to disclose cost components, and other states are likely to follow. At the state level, legislatures are increasingly passing
legislation and implementing regulations designed to control pharmaceutical and biological product pricing, including price or patient reimbursement
constraints, discounts, restrictions on certain product access and marketing cost disclosure and transparency measures, and, in some cases, designed to
encourage importation from other countries and bulk purchasing. We expect to experience pricing pressures in connection with the sale of any of our
product candidates due to the trend toward managed healthcare, the increasing influence of health maintenance organizations, cost containment initiatives
and additional legislative changes.
42
Ongoing healthcare legislative and regulatory reform measures may have a material adverse effect on our business and results of operations.
Changes in regulations, statutes or the interpretation of existing regulations could impact our business in the future by requiring, for example: (i)
changes to our manufacturing arrangements; (ii) additions or modifications to product labeling; (iii) the recall or discontinuation of our products; or (iv)
additional record-keeping requirements. If any such changes were to be imposed, they could adversely affect the operation of our business.
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 (“ACA”), was passed, which substantially changes the way healthcare is financed by both governmental
and private insurers, and significantly impacts the U.S. pharmaceutical industry. The ACA, among other things, subjects biological products to potential
competition by lower-cost biosimilars, 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, establishes annual fees
and taxes on manufacturers of certain branded prescription drugs, and creates a new Medicare Part D coverage gap discount program, in which
manufacturers must agree to offer 50% (increased to 70% pursuant to the Bipartisan Budget Act of 2018, effective as of 2019) point-of-sale discounts off
negotiated prices of applicable brand drugs to eligible beneficiaries during their coverage gap period, as a condition for the manufacturer’s outpatient drugs
to be covered under Medicare Part D.
Since its enactment, there have been numerous executive, administrative, judicial, and legislative challenges to certain aspects of the ACA. Under
the Trump administration, there were ongoing efforts to modify or repeal all or certain provisions of the Healthcare Reform Act. For example, tax reform
legislation was enacted at the end of 2017 that eliminated the tax penalty established under ACA for individuals who do not maintain the mandated health
insurance coverage beginning in 2019. The ACA has also been subject to judicial challenge. The case Texas v. Azar, which challenged the constitutionality
of the ACA, including provisions that are unrelated to healthcare reform but were enacted as part of the ACA, was decided by the Supreme Court in 2021.
Beyond the ACA, there have been ongoing health care reform efforts, including a number of recent actions. Some recent healthcare reform efforts
have sought to address certain issues related to the COVID-19 pandemic, including an expansion of telehealth coverage under Medicare, accelerated or
advanced Medicare payments to healthcare providers and payments to providers for COVID-19-related expenses and lost revenues. Other reform efforts
affect pricing or payment for drug products, which was a focus of the Trump Administration. For example, in May of 2018, President Trump and the
Secretary of the Department of Health and Human Services released a “blueprint” for lowering prescription drug prices and out-of-pocket costs, which
contained proposals to increase manufacturer competition, increase the negotiating power of certain federal healthcare programs, incentivize manufacturers
to lower the list price of their products and reduce the out of pocket costs of product candidates paid by consumers. Subsequent to the ACA, the Medicaid
Drug Rebate Program was subject to statutory and regulatory changes and the discount that manufacturers of Medicare Part D brand name drugs must
provide to Medicare Part D beneficiaries during the coverage gap increased from 50% to 70%. A number of regulations were issued in late 2020 and early
2021, some of which have been and may continue to be subject to scrutiny and legal challenge. For example, courts temporarily enjoined a new “most
favored nation” payment model for select drugs covered under Medicare Part B that was to take effect on January 1, 2021 and would limit payment based
on international drug price and CMS subsequently indicated that the rule would not be implemented without further rulemaking.
The nature and scope of health care reform in the wake of the transition from the Trump administration to the Biden administration remains
uncertain but early actions suggest additional changes as well as challenges to actions taken under the Trump administration. The Department of Justice
under the Biden administration informed the Supreme Court in connection with case Texas v. Azar, that the government no longer takes the position that
the individual mandate is unconstitutional and cannot be severed from the rest of the ACA. President Biden temporarily halted implementation of new rules
issued immediately prior to the transition that had not yet taken effect (which included a number of health care reforms) to allow for review by the new
administration. By Executive Order, President Biden directed federal agencies to reconsider rules and other policies that limit Americans’ access to health
care, and consider actions that will protect and strengthen that access. With respect to prescription drugs specifically, President Biden supported reforms to
lower drug prices during his campaign for the presidency. The American Rescue Plan Act of 2021, comprehensive COVID-19 relief legislation recently
enacted under the Biden administration, includes a number of healthcare-related provisions, such as support to rural health care providers, increased tax
subsidies for health insurance purchased through insurance exchange marketplaces, financial incentives to states to expand Medicaid programs and
elimination of the Medicaid drug rebate cap effective in 2024.
Moreover, on May 30, 2018, the Right to Try Act, was signed into law. The law, among other things, provides a federal framework for certain
patients to access certain investigational new drug products that have completed a Phase I clinical trial and that are undergoing investigation for FDA
approval. Under certain circumstances, eligible patients can seek treatment without enrolling in
43
clinical trials and without obtaining FDA permission under the FDA expanded access program. There is no obligation for a drug manufacturer to make its
drug products available to eligible patients as a result of the Right to Try Act, but the manufacturer must develop an internal policy and respond to patient
requests according to that policy. We expect that additional foreign, federal and state 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 limited coverage and
reimbursement and reduced demand for our products, once approved, or additional pricing pressures.
These laws, and future state and federal healthcare reform measures may be adopted in the future, any of which may result in additional reductions
in Medicare and other healthcare funding and otherwise affect the prices we may obtain for any of our product candidates for which we may obtain
regulatory approval or the frequency with which any such product candidate is prescribed or used.
European Union drug marketing and reimbursement regulations may materially affect our ability to market and receive coverage for our products
in the European member states.
We intend to seek approval to market our product candidates in both the United States and in selected foreign jurisdictions. If we obtain approval in
one or more foreign jurisdictions for our product candidates, we will be subject to rules and regulations in those jurisdictions. In some foreign countries,
particularly those in the European Union, the pricing of pharmaceutical products is subject to governmental control and other market regulations which
could put pressure on the pricing and usage of our product candidates. In these countries, pricing negotiations with governmental authorities can take
considerable time after obtaining marketing approval of a product candidate. In addition, market acceptance and sales of our product candidates will
depend significantly on the availability of adequate coverage and reimbursement from third-party payors for our product candidates and may be affected by
existing and future healthcare reform measures.
Much like the Anti-Kickback Statute prohibition in the United States, the provision of benefits or advantages to physicians to induce or encourage
the prescription, recommendation, endorsement, purchase, supply, order or use of medicinal products is also prohibited in the European Union. The
provision of benefits or advantages to physicians is governed by the national anti-bribery laws of European Union Member States. Infringement of these
laws could result in substantial fines and imprisonment.
Payments made to physicians in certain European Union Member States must be publicly disclosed. Moreover, agreements with physicians often
must be the subject of prior notification and approval by the physician’s employer, his or her competent professional organization and/or the regulatory
authorities of the individual European Union Member States. These requirements are provided in the national laws, industry codes or professional codes of
conduct, applicable in the European Union Member States. Failure to comply with these requirements could result in reputational risk, public reprimands,
administrative penalties, fines or imprisonment.
In addition, in most foreign countries, including the European Economic Area, the proposed pricing for a drug must be approved before it may be
lawfully marketed. The requirements governing drug pricing and reimbursement vary widely from country to country. For example, the European Union
provides options for its member states to restrict the range of medicinal products for which their national health insurance systems provide reimbursement
and to control the prices of medicinal products for human use. Reference pricing used by various European Union member states and parallel distribution,
or arbitrage between low-priced and high-priced member states, can further reduce prices. A member state may approve a specific price for the medicinal
product, or it may instead adopt a system of direct or indirect controls on the profitability of the company placing the medicinal product on the market. In
some countries, we may be required to conduct a clinical trial or other studies that compare the cost-effectiveness of any of our product candidates to other
available therapies in order to obtain or maintain reimbursement or pricing approval. There can be no assurance that any country that has price controls or
reimbursement limitations for pharmaceutical products will allow favorable reimbursement and pricing arrangements for any of our products. Historically,
products launched in the European Union do not follow price structures of the United States and generally prices tend to be significantly lower. Publication
of discounts by third-party payors or authorities may lead to further pressure on the prices or reimbursement levels within the country of publication and
other countries. If pricing is set at unsatisfactory levels or if reimbursement of our products is unavailable or limited in scope or amount, our revenues from
sales by us or our strategic partners and the potential profitability of any of our product candidates in those countries would be negatively affected.
European data collection is governed by restrictive regulations governing the use, processing, and cross-border transfer of personal information.
The collection and use of personal health data in the European Union (“EU”), was previously governed by the provisions of the Data Protection
Directive, which has been replaced by the General Data Protection Regulation 2016/679 (“GDPR”) as of May 2018.
44
The GDPR imposes a broad range of strict requirements on companies subject to the GDPR, such as us, including requirements relating to having
legal bases for processing personal information relating to identifiable individuals and transferring such information outside the European Economic Area,
(“EEA”), including to the United States, providing details to those individuals regarding the processing of their personal information, keeping personal
information secure, having data processing agreements with third parties who process personal information, responding to individuals’ requests to exercise
their rights in respect of their personal information, reporting security breaches involving personal data to the competent national data protection authority
and affected individuals, appointing data protection officers, conducting data protection impact assessments, and record-keeping. The GDPR substantially
increases the penalties to which we could be subject in the event of any non-compliance, including fines of up to 10 million Euros or up to 2% of our total
worldwide annual turnover for certain comparatively minor offenses, or up to 20 million Euros or up to 4% of our total worldwide annual turnover for more
serious offenses. Given the new law, we face uncertainty as to the exact interpretation of the new requirements, and we may be unsuccessful in
implementing all measures required by data protection authorities or courts in interpretation of the new law.
In particular, national laws of member states of the EU are in the process of being adapted to the requirements under the GDPR, thereby
implementing national laws which may partially deviate from the GDPR and impose different obligations from country to country, so that we do not expect
to operate in a uniform legal landscape in the EU. Also, in the field of handling genetic data, the GDPR specifically allows national laws to impose
additional and more specific requirements or restrictions, and European laws have historically differed quite substantially in this field, leading to additional
uncertainty.
With respect to our clinical trials in the EEA, we must also ensure that we maintain adequate safeguards to enable the transfer of personal data
outside of the EEA, in particular to the United States in compliance with European data protection laws including the GDPR. We expect that we will
continue to face uncertainty as to whether our efforts to comply with our obligations under European privacy laws will be sufficient. If we are investigated
by a European data protection authority, we may face fines and other penalties. Any such investigation or charges by European data protection authorities
could have a negative effect on our existing business and on our ability to attract and retain new clients or pharmaceutical partners. We may also experience
hesitancy, reluctance, or refusal by European or multi-national clients or pharmaceutical partners to continue to use our products and solutions due to the
potential risk exposure as a result of the current (and, in particular, future) data protection obligations imposed on them by certain data protection
authorities in interpretation of current law, including the GDPR. Such clients or pharmaceutical partners may also view any alternative approaches to
compliance as being too costly, too burdensome, too legally uncertain, or otherwise objectionable and therefore decide not to do business with us. Any of
the foregoing could materially harm our business, prospects, financial condition and results of operations.
Laws and regulations governing any international operations may preclude us from developing, manufacturing and selling certain products
outside of the United States and require us to develop and implement costly compliance programs.
Because we have operations outside of the United States, we must dedicate additional resources to comply with numerous laws and regulations in
each jurisdiction in which we plan to operate. The FCPA prohibits any U.S. individual or business from paying, offering, authorizing payment or offering
of anything of value, directly or indirectly, to any foreign official, political party or candidate for the purpose of influencing any act or decision of the
foreign entity in order to assist the individual or business in obtaining or retaining business. The FCPA also obligates companies whose securities are listed
in the United States to comply with certain accounting provisions requiring the company to maintain books and records that accurately and fairly reflect all
transactions of the corporation, including international subsidiaries, and to devise and maintain an adequate system of internal accounting controls for
international operations.
Compliance with the FCPA is expensive and difficult, particularly in countries in which corruption is a recognized problem. We, directly or through
our CROs, are conducting clinical trials in countries that Transparency International has identified as “perceived as more corrupt”, including, Brazil, Chile,
Georgia, Russia and Ukraine. In addition, the FCPA presents particular challenges in the pharmaceutical industry, because, in many countries, hospitals are
operated by the government, and doctors and other hospital employees are considered foreign officials. Certain payments to hospitals in connection with
clinical trials and other work have been deemed to be improper payments to government officials and have led to FCPA enforcement actions.
Various laws, regulations and executive orders also restrict the use and dissemination outside of the United States, or the sharing with certain non-
U.S. nationals, of information classified for national security purposes, as well as certain products and technical data relating to those products. If we
expand our presence outside of the United States, it will require us to dedicate additional resources to comply with these laws, and these laws may preclude
us from developing, manufacturing, or selling certain products and product candidates outside of the United States, which could limit our growth potential
and increase our development costs.
45
The failure to comply with laws governing international business practices may result in substantial civil and criminal penalties and suspension or
debarment from government contracting. The SEC also may suspend or bar issuers from trading securities on U.S. exchanges for violations of the FCPA’s
accounting provisions.
We are subject to certain U.S. and foreign anti-corruption, anti-money laundering, export control, sanctions, and other trade laws and
regulations. We can face serious consequences for violations.
Among other matters, U.S. and foreign anti-corruption, anti-money laundering, export control, sanctions, and other trade laws and regulations,
which are collectively referred to as Trade Laws, prohibit companies and their employees, agents, clinical research organizations, legal counsel,
accountants, consultants, contractors, and other partners from authorizing, promising, offering, providing, soliciting, or receiving directly or indirectly,
corrupt or improper payments or anything else of value to or from recipients in the public or private sector. Violations of Trade Laws can result in
substantial criminal fines and civil penalties, imprisonment, the loss of trade privileges, debarment, tax reassessments, breach of contract and fraud
litigation, reputational harm, and other consequences. We have direct or indirect interactions with officials and employees of government agencies or
government-affiliated hospitals, universities, and other organizations. We also expect our non-U.S. activities to increase in time. We plan to engage third
parties for clinical trials and/or to obtain necessary permits, licenses, patent registrations, and other regulatory approvals and we can be held liable for the
corrupt or other illegal activities of our personnel, agents, or partners, even if we do not explicitly authorize or have prior knowledge of such activities.
Inadequate funding for the FDA 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, statutory, regulatory, and policy changes and the impact of crises that hinder its
operations, such as COVID-19. Average review times at the agency have fluctuated in recent years as a result. In addition, government funding of 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 most recently from December 22,
2018 to January 25, 2019, the U.S. government has shut down several times and certain regulatory agencies, such as the FDA, have had to furlough critical
FDA 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.
If we do not comply with environmental laws and regulations, we may incur significant costs and potential disruption to our business.
We use or may use hazardous, infectious, and radioactive materials, and recombinant DNA in our operations, which have the potential of being
harmful to human health and safety or the environment. We store these hazardous (flammable, corrosive, toxic), infectious, and radioactive materials, and
various wastes resulting from their use, at our facilities pending use and ultimate disposal. We are subject to a variety of federal, state, and local laws and
regulations governing use, generation, storage, handling, and disposal of these materials. We may incur significant costs complying with both current and
future environmental health and safety laws and regulations. In particular, we are subject to regulation by the Occupational Safety and Health
Administration, the Environmental Protection Agency, the Drug Enforcement Agency, the Department of Transportation, the Centers for Disease Control
and Prevention, the National Institutes of Health, the International Air Transportation Association, and various state and local agencies. At any time, one or
more of the aforementioned agencies could adopt regulations that may affect our operations. We are also subject to regulation under the Toxic Substances
Control Act and the Resource Conservation Development programs.
Although we believe that our current procedures and programs for handling, storage, and disposal of these materials comply with federal, state, and
local laws and regulations, we cannot eliminate the risk of accidents involving contamination from these materials. Although we have a workers’
compensation liability policy, we could be held liable for resulting damages in the event of an accident or accidental release, and such damages could be
substantially in excess of any available insurance coverage and could substantially disrupt our business.
If we or our employees, independent contractors, consultants, commercial partners and vendors fail to comply with laws or regulations, it could
adversely impact our reputation, business and stock price.
46
We are exposed to the risk of employee fraud or other misconduct our employees, independent contractors, consultants, commercial partners and
vendors. Misconduct by employees could include intentional and/or negligent failures to comply with FDA regulations, to provide accurate information to
the FDA, to comply with manufacturing standards we have established, to comply with federal and state health care fraud and abuse, transparency, and/or
data privacy laws and regulations (including the California Consumer Privacy Act) and security laws and regulations, to report financial information or data
accurately or to disclose unauthorized activities to us. In particular, sales, marketing and business arrangements in the healthcare industry are subject to
extensive laws and regulations intended to prevent fraud, kickbacks, self-dealing and other abusive practices; to promote transparency; and to protect the
privacy and security of patient data. These laws and regulations may restrict or prohibit a wide range of pricing, discounting, marketing and promotion,
sales commission, customer incentive programs and other business arrangements. If we obtain FDA approval of any of our product candidates and begin
commercializing those products in the United States, our potential exposure under such laws will increase significantly, and our costs associated with
compliance with such laws are also likely to increase. These laws may impact, among other things, our current activities with principal investigators and
research patients, as well as proposed and future sales, marketing and education programs.
While we have adopted a corporate compliance program, we may not be able to protect against all potential issues of noncompliance. Efforts to
ensure that our business complies with all applicable healthcare laws and regulations will involve substantial costs. It is possible that governmental
authorities will conclude that our business practices may not comply with current or future statutes, regulations, or case law involving applicable laws and
regulations.
Employee misconduct could also involve the improper use or disclosure of information obtained in the course of clinical trials, which could result in
regulatory sanctions and serious harm to our reputation. In addition, during the course of our operations, our directors, executives and employees may have
access to material, nonpublic information regarding our business, our results of operations or potential transactions we are considering. We may not be able
to prevent a director, executive or employee from trading in our common stock on the basis of, or while having access to, material, nonpublic information.
If a director, executive or employee was to be investigated, or an action was to be brought against a director, executive or employee for insider trading, it
could have a negative impact on our reputation and our stock price. Such a claim, with or without merit, could also result in substantial expenditures of
time and money, and divert the attention of our management team.
Risks associated with doing business internationally could negatively affect our business.
We currently have research and development operations in the United Kingdom (“UK”) and clinical operations in eastern Europe, and we expect to
pursue pathways to develop and commercialize our product candidates in both U.S. and ex-U.S. jurisdictions. Various risks associated with foreign
operations may impact our success. Possible risks of foreign operations include fluctuations in the value of foreign and domestic currencies, requirements
to comply with various jurisdictional requirements such as data privacy regulations, disruptions in the import, export, and transportation of patient tumors
and our products or product candidates, the product and service needs of foreign customers, difficulties in building and managing foreign relationships, the
performance of our licensees or collaborators, geopolitical instability, unexpected regulatory, economic, or political changes in foreign and domestic
markets, including without limitation any resulting from the UK’s withdrawal from the EU or our current political regime, and limitations on the flexibility
of our operations and costs imposed by local labor laws.
The exit of the UK from the European Union may materially affect the regulatory regime that governs our handling of EU personal data and
expose us to legal and business risks under European data privacy and protection law.
As a result of the UK exiting the EU, commonly known as Brexit, since January 1, 2021, any transfers of personal data to the UK are subject to the
requirements of Chapter V of the GDPR and of the Law Enforcement Directive and absent an adequacy finding under GDPR, transfers of personal data
from the EU to the UK, including to our facility in Cambridge, UK, would be illegal without adequate safeguards provided for under EC-approved
mechanisms, such as current standard contractual clauses or, if approved in the future, an EU-UK privacy shield similar to the current framework in place
between the EU and the United States. The extensive authority of UK intelligence and law enforcement agencies, including to conduct surveillance on
personal data flows, could reduce the likelihood that the EC would give the UK an adequacy finding and reduce the likelihood that the EC would approve
an EU-UK privacy shield. Accordingly, we may be exposed to legal risk for any of our EU-UK personal data transfers, including those that involve
sensitive data such as patient and genetic data. Given the uncertainties surrounding the UK’s departure from the EU, it is difficult to precisely identify or
quantify the risks described above.
Additionally, it is possible that, over time, the UK Data Protection Act could become less aligned with the GDPR, which could require us to
implement different compliance measures for the UK and the European Union and result in potentially enhanced compliance obligations for EU personal
data.
47
As a result, Brexit adds legal risk, uncertainty, complexity and cost to our handling of EU personal information and our privacy and data security
compliance programs. If we do not successfully manage such risk, our prospects may be materially harmed.
Our ability to use net operating losses and research and development credits to offset future taxable income may be subject to certain limitations.
As of December 31, 2021, we had U.S. federal and state net operating loss, or Net Operating Losses (“NOLs”), carryforwards of $749.3 million and
$231.6 million, respectively, which may be available to offset future taxable income. The federal NOLs include $596.4 million which expire at various
dates through 2041 and $152.9 million which carryforward indefinitely. The state NOLs expire at various dates through 2041. As of December 31, 2021,
we also had U.S. federal and state research and development tax credit carryforwards of $8.7 million and $2.2 million, respectively, which may be available
to offset future tax liabilities and begin to expire in 2022. In addition, in general, under Sections 382 and 383 of the Code and corresponding provisions of
state law, a corporation that undergoes an “ownership change” is subject to limitations on its ability to utilize its pre-change net operating loss
carryforwards or tax credits, or NOLs or credits, to offset future taxable income or taxes. For these purposes, an ownership change generally occurs where
the aggregate stock ownership of one or more stockholders or groups of stockholders who owns at least 5% of a corporation’s stock increases its ownership
by more than 50 percentage points over its lowest ownership percentage within a specified testing period. Our existing NOLs or credits may be subject to
limitations arising from previous ownership changes, including in connection with our recent private placements, IPO and other transactions. In addition,
future changes in our stock ownership, many of which are outside of our control, could result in an ownership change under Sections 382 and 383 of the
Code and our ability to utilize NOLs or credits may be impaired. Our NOLs or credits may also be impaired under state law. Accordingly, we may not be
able to utilize a material portion of our NOLs or credits. Furthermore, our ability to utilize our NOLs or credits is conditioned upon our attaining
profitability and generating U. S. federal and state taxable income. As described above under “Risk factors—Risks Related to Our Financial Position and
Need for Additional Capital,” we have incurred significant net losses since our inception and anticipate that we will continue to incur significant losses for
the foreseeable future; and therefore, we do not know whether or when we will generate the U.S. federal or state taxable income necessary to utilize our
NOLs or credits that are subject to limitation by Sections 382 and 383 of the Code. The reduction of the corporate tax rate under the TCJA caused a
reduction in the economic benefit of our net operating loss carryforwards and other deferred tax assets available to us. Under the TCJA, net operating loss
carryforwards generated after December 31, 2017 will not be subject to expiration.
Risks Related to Our Intellectual Property
If we are unable to obtain and enforce patent protection for our product candidates and related technology, our business could be materially
harmed.
We rely upon a combination of patents, trade secret protection and confidentiality agreements to protect the intellectual property related to our
product candidates and technology. Any disclosure to or misappropriation by third parties of our confidential proprietary information could enable
competitors to duplicate or surpass our technological achievements, eroding our competitive position in the market. Our patent applications may not result
in issued patents, and, even if issued, the patents may be challenged and invalidated. Moreover, our patents and patent applications may not be sufficiently
broad to prevent others from practicing our technologies or developing competing products. We also face the risk that others may independently develop
similar or alternative technologies or may design around our proprietary property.
Issued patents may be challenged, narrowed, invalidated or circumvented. In addition, court decisions may introduce uncertainty in the
enforceability or scope of patents owned by biotechnology companies. The legal systems of certain countries do not favor the aggressive enforcement of
patents, and the laws of foreign countries may not allow us to protect our inventions with patents to the same extent as the laws of the United States.
Because patent applications in the United States and many foreign jurisdictions are typically not published until 18 months after filing, or in some cases not
at all, and because publications of discoveries in scientific literature lag behind actual discoveries, we cannot be certain that we were the first to make the
inventions claimed in our issued patents or pending patent applications, or that we were the first to file for protection of the inventions set forth in our
patents or patent applications. As a result, we may not be able to obtain or maintain protection for certain inventions. Therefore, the enforceability and
scope of our patents in the United States and in foreign countries cannot be predicted with certainty and, as a result, any patents that we own, or license
may not provide sufficient protection against competitors. We may not be able to obtain or maintain patent protection from our pending patent applications,
from those we may file in the future, or from those we may license from third parties. Moreover, even if we are able to obtain patent protection, such patent
protection may be of insufficient scope to achieve our business objectives.
Patent terms may be inadequate to protect our competitive position on our product candidates for an adequate amount of time. Patents have a limited
lifespan. In the United States, the natural expiration of a patent is generally 20 years after its effective filing
48
date. Various extensions may be available; however, the life of a patent, and the protection it affords, is limited. Without patent protection for our product
candidates, we may be open to competition from biosimilar or generic versions of our product candidates. Furthermore, the product development timeline
for biotechnology products is lengthy and it is possible that our issued patents covering our product candidates in the United States and other jurisdictions
may expire prior to commercial launch. For example, if we encounter delays in our development efforts, including our clinical trials, the period of time
during which we could market our product candidates under patent protection could be reduced.
Our strategy depends on our ability to identify and seek patent protection for our discoveries. This process is expensive and time consuming, and we
and our current or future licensors or licensees may not be able to file and prosecute all necessary or desirable patent applications at a reasonable cost or in
a timely manner or in all jurisdictions where protection may be commercially advantageous. It is also possible that we or our current licensors or licensees,
or any future licensors or licensees, may not identify patentable aspects of inventions made in the course of development and commercialization activities
in time to obtain patent protection on them. Therefore, these and any of our patents and applications may not be prosecuted and enforced in a manner
consistent with the best interests of our business. Defects of form in the preparation or filing of our patents or patent applications may exist, or may arise in
the future, for example with respect to proper priority claims, inventorship, etc. If we or our current licensors or licensees, or any future licensors or
licensees, fail to establish, maintain or protect such patents and other intellectual property rights, such rights may be reduced or eliminated. If our current
licensors or licensees, or any future licensors or licensees, are not fully cooperative or disagree with us as to the prosecution, maintenance or enforcement
of any patent rights, such patent rights could be compromised. If there are material defects in the form or preparation of our patents or patent applications,
such patents or applications may be invalid and unenforceable. Despite our efforts to protect our proprietary rights, unauthorized parties may be able to
obtain and use information that we regard as proprietary. The issuance of a patent does not ensure that it is valid or enforceable, so even if we obtain
patents, they may not be valid or enforceable against third parties. In addition, the issuance of a patent does not give us the right to practice the patented
invention. Third parties may have blocking patents that could prevent us from marketing our own patented product and practicing our own patented
technology. Any of these outcomes could impair our ability to prevent competition from third parties, which may have an adverse impact on our business.
The patent landscapes in the fields of antibody, vaccine, adjuvant and adoptive cell therapy development, manufacture and commercialization are
crowded. For example, we are aware of third-party patents directed to methods for identifying and producing therapeutic products such as antibodies,
vaccines, adjuvants and adoptive cell therapies. We are also aware of third-party patents directed to products targeting numerous antigens for which we also
seek to identify, develop, and commercialize products. For example, some patents claim products based on competitive binding with existing products,
some claim products based on specifying sequence or other structural information, and some claim various methods of discovery, production, or use of
such products.
These or other third-party patents could impact our freedom to operate in relation to our technology platforms, as well as in relation to development
and commercialization of products identified by us as therapeutic candidates. As we discover and develop our candidates, we will continue to conduct
analyses of these third-party patents to determine whether we believe we might infringe them, and if so, whether they would be likely to be deemed valid
and enforceable if challenged. If we determine that a license for a given patent or family of patents is necessary or desirable, there can be no guarantee that
a license would be available on favorable terms, or at all. Inability to obtain a license on favorable terms, should such a license be determined to be
necessary or desirable, could, without limitation, result in increased costs to design around the third-party patents, delay product launch, or result in
cancellation of the affected program or cessation of use of the affected technology.
Third parties may also seek to market biosimilar versions of any approved products. Alternatively, third parties may seek approval to market their
own products similar to or otherwise competitive with our products. In these circumstances, we may need to defend and/or assert our patents, including by
filing lawsuits alleging patent infringement. In any of these types of proceedings, a court or agency with jurisdiction may find our patents invalid and/or
unenforceable. Even if we have valid and enforceable patents, these patents still may not provide protection against competing products or processes
sufficient to achieve our business objectives.
Through our acquisitions of 4-AB, PhosImmune and certain assets of Celexion, we own, co-own, or have exclusive rights to a number of patents
and patent applications directed to various methods and compositions, including methods for identifying therapeutic antibodies and product candidates
arising out of such entities’ technology platforms. In particular, we own patents and patent applications relating to our Retrocyte DisplayTM technology
platform, a high throughput antibody expression platform for the identification of fully-human and humanized monoclonal antibodies. This patent family is
projected to expire between 2029 and 2031. Through our acquisition of PhosImmune, we own, co-own, or have exclusive rights to patents and patent
applications directed to various methods and compositions, including a patent directed to methods for identifying phosphorylated proteins using mass
spectrometry. This patent is projected to expire in 2023. In addition, as we advance our research and development efforts with our institutional and
corporate collaborators, we are seeking patent protection for newly identified therapeutic antibodies and product candidates. We can provide no assurance
that any of our patents, including the patents that we acquired or in-licensed in connection with our acquisitions of 4-AB, PhosImmune and certain assets of
Celexion, will have commercial value, or that any of our existing or
49
future patent applications, including the patent applications that we acquired or in-licensed in connection with our acquisitions of 4-AB, PhosImmune and
certain assets of Celexion, will result in the issuance of valid and enforceable patents.
The patent position of biopharmaceutical, pharmaceutical or biotechnology companies, including ours, is generally uncertain and involves complex
legal and factual considerations. The standards which the USPTO and its foreign counterparts use to grant patents are not always applied predictably or
uniformly and can change. There is also no uniform, worldwide policy regarding the subject matter and scope of claims granted or allowable in
biopharmaceutical, pharmaceutical or biotechnology patents. The laws of some foreign countries do not protect proprietary information to the same extent
as the laws of the United States, and many companies have encountered significant problems and costs in protecting their proprietary information in these
foreign countries. Outside the United States, patent protection must be sought in individual jurisdictions, further adding to the cost and uncertainty of
obtaining adequate patent protection outside of the United States. Accordingly, we cannot predict whether additional patents protecting our technology will
issue in the United States or in foreign jurisdictions, or whether any patents that do issue will have claims of adequate scope to provide competitive
advantage. Moreover, we cannot predict whether third parties will be able to successfully obtain claims or the breadth of such claims. The allowance of
broader claims may increase the incidence and cost of patent interference proceedings, opposition proceedings, post-grant review, inter partes review,
and/or reexamination proceedings, the risk of infringement litigation, and the vulnerability of the claims to challenge. On the other hand, the allowance of
narrower claims does not eliminate the potential for adversarial proceedings and may fail to provide a competitive advantage. Our issued patents may not
contain claims sufficiently broad to protect us against third parties with similar technologies or products or provide us with any competitive advantage.
If any of our owned or in-licensed patent applications do not issue as patents in any jurisdiction, we may not be able to compete effectively.
Changes in either the patent laws or their interpretation in the United States and other countries may diminish our ability to protect our inventions,
obtain, maintain, and enforce our intellectual property rights and, more generally, could affect the value of our intellectual property or narrow the scope of
our owned and licensed patents. With respect to our patent portfolio, as of the date of this filing, we own, co-own or have exclusive rights to approximately
31 issued United States patents and approximately 78 issued foreign patents. We also own, co-own or have exclusive rights to approximately 36 pending
United States patent applications and approximately 259 pending foreign patent applications. Our patent positions, and those of other biopharmaceutical,
pharmaceutical and biotechnology companies, are generally uncertain and involve complex legal, scientific, and factual questions. The standards which the
United States Patent and Trademark Office (“USPTO”) uses to grant patents, and the standards which courts use to interpret patents, are not always applied
predictably or uniformly and can change, particularly as new technologies develop. Consequently, the level of protection, if any, that will be provided by
our patents if we attempt to enforce them and they are challenged, is uncertain. In addition, the type and extent of patent claims that will be issued to us in
the future is uncertain. Any patents that are issued may not contain claims that permit us to stop competitors from using similar technology. With respect to
both in- licensed and owned intellectual property, we cannot predict whether the patent applications we and our licensors are currently pursuing will issue
as patents in any particular jurisdiction or whether the claims of any issued patents will provide sufficient protection from competitors or other third parties.
The patent prosecution process is expensive, time-consuming, and complex, and we may not be able to file, prosecute, maintain, enforce, or license
all necessary or desirable patents and patent applications at a reasonable cost or in a timely manner. It is also possible that we will fail to identify patentable
aspects of our research and development output in time to obtain patent protection. Although we enter into non-disclosure and confidentiality agreements
with parties who have access to confidential or patentable aspects of our research and development output, such as our employees, corporate collaborators,
outside scientific collaborators, contract research organizations, contract manufacturers, consultants, advisors and other third parties, any of these parties
may breach such agreements and disclose such output before a patent application is filed, thereby jeopardizing our ability to seek patent protection. In
addition, our ability to obtain and maintain valid and enforceable patents depends on whether the differences between our inventions and the prior art allow
our inventions to be patentable over the prior art. Furthermore, publications of discoveries in the scientific literature often lag behind the actual discoveries,
and patent applications in the United States and other jurisdictions are typically not published until 18 months after filing, or in some cases not at all.
Therefore, we cannot be certain that we or our licensors were the first to make the inventions claimed in any of our owned or licensed patents or pending
patent applications, or that we or our licensors were the first to file for patent protection of such inventions.
If the scope of any patent protection we obtain is not sufficiently broad, or if we lose any of our patent protection, our ability to prevent our
competitors from commercializing similar or identical technology and product candidates would be adversely affected.
The patent position of biotechnology and pharmaceutical companies generally is highly uncertain, involves complex legal and factual questions, and
has been the subject of much litigation in recent years. As a result, the issuance, scope, validity, enforceability, and commercial value of our patent rights
are highly uncertain. Our approximately 40 pending United States patent applications and
50
approximately 260 pending foreign patent applications may not result in patents being issued which protect our product candidates or patents which
effectively prevent others from commercializing competitive technologies and product candidates.
No consistent policy regarding the scope of claims allowable in patents in the biotechnology field has emerged in the United States. The patent
situation outside of the United States is even more uncertain. Changes in either the patent laws or their interpretation in the United States and other
countries may diminish our ability to protect our inventions and enforce our intellectual property rights, and more generally could affect the value of our
intellectual property. In particular, our ability to stop third parties from making, using, selling, offering to sell, or importing products that infringe our
intellectual property will depend in part on our success in obtaining and enforcing patent claims that cover our technology, inventions and improvements.
With respect to both licensed and company-owned intellectual property, we cannot be sure that patents will be granted with respect to any of our pending
patent applications or with respect to any patent applications filed by us in the future, nor can we be sure that any of our existing patents or any patents that
may be granted to us in the future will be commercially useful in protecting our products and the methods used to manufacture those products. Moreover,
even our issued patents do not guarantee us the right to practice our technology in relation to the commercialization of our products. The area of patent and
other intellectual property rights in biotechnology is an evolving one with many risks and uncertainties, and third parties may have blocking patents that
could be used to prevent us from commercializing our patented product candidates and practicing our proprietary technology. Our issued patent and those
that may issue in the future may be challenged, invalidated, or circumvented, which could limit our ability to stop competitors from marketing related
products or limit the length of the term of patent protection that we may have for our product candidates. In addition, the rights granted under any issued
patents may not provide us with protection or competitive advantages against competitors with similar technology. Furthermore, our competitors may
independently develop similar technologies. For these reasons, we may have competition for our product candidates. Moreover, because of the extensive
time required for development, testing and regulatory review of a potential product, it is possible that, before any particular product candidate can be
commercialized, any related patent may expire or remain in force for only a short period following commercialization, thereby reducing any advantage of
the patent.
Moreover, the coverage claimed in a patent application can be significantly reduced before the patent is issued, and its scope can be reinterpreted
after issuance. Even if patent applications we own or license issue as patents, they may not issue in a form that will provide us with any meaningful
protection, prevent competitors or other third parties from competing with us, or otherwise provide us with any competitive advantage. Any patents that we
own or in-license may be challenged, narrowed, circumvented, or invalidated by third parties. Consequently, we do not know whether our product
candidates will be protectable or remain protected by valid and enforceable patents. Our competitors or other third parties may be able to circumvent our
patents by developing similar or alternative technologies or products in a non-infringing manner which could materially adversely affect our business,
financial condition, results of operations and prospects.
The issuance of a patent is not conclusive as to its inventorship, scope, validity, or enforceability, and patents that we own or license may be
challenged in the courts or patent offices in the United States and abroad. We or our licensors may be subject to a third party preissuance submission of
prior art to the USPTO or to foreign patent authorities or become involved in opposition, derivation, revocation, reexamination, post-grant and inter partes
review, or interference proceedings or other similar proceedings challenging our owned or licensed patent rights. An adverse determination in any such
submission, proceeding or litigation could reduce the scope of, or invalidate or render unenforceable, our owned or in-licensed patent rights, allow third
parties to commercialize our product candidates, and compete directly with us, without payment to us, or result in our inability to manufacture or
commercialize products without infringing third-party patent rights. Moreover, we, or one of our licensors, may have to participate in interference
proceedings declared by the USPTO to determine priority of invention or in post-grant challenge proceedings, such as oppositions in a foreign patent
office, that challenge our or our licensor’s priority of invention or other features of patentability with respect to our owned or in-licensed patents and patent
applications. Such challenges may result in loss of patent rights, loss of exclusivity, or in patent claims being narrowed, invalidated, or held unenforceable,
which could limit our ability to stop others from using or commercializing similar or identical technology and products, or limit the duration of the patent
protection of our product candidates. Such proceedings also may result in substantial cost and require significant time from our scientists and management,
even if the eventual outcome is favorable to us.
In addition, given the amount of time required for the development, testing, and regulatory review of new product candidates, patents protecting
such product candidates might expire before or shortly after such product candidates are commercialized. As a result, our intellectual property may not
provide us with sufficient rights to exclude others from commercializing products similar or identical to ours.
We may in the future co-own patent rights relating to future product candidates with third parties. Some of our in-licensed patent rights are, and may
in the future be, co-owned with third parties. In addition, our licensors may co-own the patent rights we in-license with other third parties with whom we do
not have a direct relationship. Our exclusive rights to certain of these patent rights are dependent, in part, on inter-institutional or other operating
agreements between the joint owners of such patent rights, who are not parties to our license agreements. If our licensors do not have exclusive control of
the grant of licenses under any such third-party co-
51
owners’ interest in such patent rights or we are otherwise unable to secure such exclusive rights, such co-owners may be able to license their rights to other
third parties, including our competitors, and our competitors could market competing products and technology. In addition, we may need the cooperation of
any such co- owners of our patent rights in order to enforce such patent rights against third parties, and such cooperation may not be provided to us. Any of
the foregoing could have a material adverse effect on our competitive position, business, financial conditions, results of operations, and prospects.
If we fail to comply with our obligations under our intellectual property licenses with third parties, we could lose license rights that are important
to our business.
We are currently party to various intellectual property license agreements. These license agreements impose, and we expect that future license
agreements may impose, various diligence, milestone payment, royalty, insurance, prosecution, enforcement and other obligations on us. These licenses
typically include an obligation to pay an upfront payment, yearly maintenance payments and royalties on sales. If we fail to comply with our obligations
under the licenses, the licensors or licensees may have the right to terminate their respective license agreements, in which event we might not be able to
market or obtain royalties or other revenue from any product that is covered by the agreements. Termination of the license agreements or reduction or
elimination of our licensed rights may result in our having to negotiate new or reinstated licenses with less favorable terms, which could adversely affect
our competitive business position and harm our business. In addition, court decisions may introduce uncertainty with respect to terms of a license
agreement such as the impact of a challenge to the validity of a licensed patent on the payment obligations or termination rights of the license.
We may not be able to protect our intellectual property rights throughout the world.
Filing, prosecuting and defending patents on our product candidates in all countries throughout the world would be prohibitively expensive. The
requirements for patentability may differ in certain countries, particularly developing countries. For example, China has a heightened requirement for
patentability, and specifically requires a detailed description of medical uses of a claimed drug. In addition, the laws of some foreign countries do not
protect intellectual property rights to the same extent as laws in the United States. Consequently, we may not be able to prevent third parties from practicing
our inventions in all countries outside the United States. Competitors may use our technologies in jurisdictions where we have not obtained patent
protection to develop their own products and, further, may export otherwise infringing products to territories where we have patent protection, but
enforcement on infringing activities is inadequate. These products may compete with our product candidates, and our patents or other intellectual property
rights may not be effective or sufficient to prevent them from competing.
Many companies have encountered significant problems in protecting and defending intellectual property rights in foreign jurisdictions. The legal
systems of certain countries, particularly certain developing countries, do not favor the enforcement of patents and other intellectual property protection,
particularly those relating to biopharmaceuticals, which could make it difficult for us to stop the infringement of our patents or marketing of competing
products in violation of our proprietary rights generally. Proceedings to enforce our patent rights in foreign jurisdictions could result in substantial costs and
divert our efforts and attention from other aspects of our business, could put our patents at risk of being invalidated or interpreted narrowly and our patent
applications at risk of not issuing, and could provoke third parties to assert claims against us. We may not prevail in any lawsuits that we initiate and the
damages or other remedies awarded, if any, may not be commercially meaningful. In addition, certain countries in Europe and certain developing countries,
including India and China, have compulsory licensing laws under which a patent owner may be compelled to grant licenses to third parties. In those
countries, we may have limited remedies if our patents are infringed or if we are compelled to grant a license to our patents to a third party, which could
materially diminish the value of those patents. This could limit our potential revenue opportunities. Accordingly, our efforts to enforce our intellectual
property rights around the world may be inadequate to obtain a significant commercial advantage from the intellectual property that we own or license.
Finally, our ability to protect and enforce our intellectual property rights may be adversely affected by unforeseen changes in foreign intellectual property
laws.
Obtaining and maintaining our patent protection depends on compliance with various procedural, documentary, fee payment and other
requirements imposed by governmental patent agencies, and our patent protection could be reduced or eliminated for non-compliance with these
requirements.
Periodic maintenance fees, renewal fees, annuity fees and various other governmental fees on patents and/or applications will be due to the USPTO
and various foreign patent offices at various points over the lifetime of our patents and/or applications. We have systems in place to remind us to pay these
fees, and we rely on our outside counsel or service providers to pay these fees when due. Additionally, the USPTO and various foreign patent offices
require compliance with a number of procedural, documentary, fee payment and other similar provisions during the patent application process. We employ
reputable law firms and other professionals to help us comply, and in many cases, an inadvertent lapse can be cured by payment of a late fee or by other
means in accordance with rules applicable to the particular jurisdiction. However, there are situations in which noncompliance can result in abandonment or
lapse of the patent or patent application, resulting in partial or complete loss of patent rights in the relevant jurisdiction. If such an
52
event were to occur, it could have a material adverse effect on our business. In addition, we are responsible for the payment of patent fees for patent rights
that we have licensed from other parties.
If any licensor of these patents does not itself elect to make these payments, and we fail to do so, we may be liable to the licensor for any costs and
consequences of any resulting loss of patent rights.
Changes in U.S. patent law could diminish the value of patents in general, thereby impairing our ability to protect our product candidates.
Obtaining and enforcing patents in the biopharmaceutical industry involves both technological and legal complexity, and therefore, is costly, time-
consuming and inherently uncertain. In addition, the United States has enacted and implemented wide-ranging patent reform legislation. Further, recent
U.S. Supreme Court rulings have either narrowed the scope of patent protection available in certain circumstances or weakened the rights of patent owners
in certain situations. In addition to increasing uncertainty with regard to our ability to obtain patents in the future, this combination of events has created
uncertainty with respect to the value of patents, once obtained.
For our U.S. patent applications containing a claim not entitled to priority before March 16, 2013, there is a greater level of uncertainty in the patent
law. In September 2011, the Leahy-Smith America Invents Act, or the American Invents Act (“AIA”) was signed into law. The AIA includes a number of
significant changes to U.S. patent law, including provisions that affect the way patent applications are prosecuted and also affect patent litigation. The
USPTO has developed regulations and procedures to govern administration of the AIA, and many of the substantive changes to patent law associated with
the AIA. It is not clear what other, if any, impact the AIA will have on the operation of our business. Moreover, the AIA and its implementation could
increase the uncertainties and costs surrounding the prosecution of our patent applications and the enforcement or defense of our issued patents, all of
which could have a material adverse effect on our business and financial condition.
An important change introduced by the AIA is that, as of March 16, 2013, the United States transitioned to a “first-inventor-to- file” system for
deciding which party should be granted a patent when two or more patent applications are filed by different parties claiming the same invention. A third
party that files a patent application in the USPTO after that date but before us could therefore be awarded a patent covering an invention of ours even if we
had made the invention before it was made by the third party. This requires us to be cognizant going forward of the time from invention to filing of a patent
application. Furthermore, our ability to obtain and maintain valid and enforceable patents depends on whether the differences between our technology and
the prior art allow our technology to be patentable over the prior art. Since patent applications in the United States and most other countries are confidential
for a period of time after filing, we cannot be certain that we were the first to either (i) file any patent application related to our product candidates or (ii)
invent any of the inventions claimed in our patents or patent applications.
Among some of the other changes introduced by the AIA are changes that limit where a patentee may file a patent infringement suit and providing
opportunities for third parties to challenge any issued patent in the USPTO. This applies to all of our U.S. patents, even those issued before March 16,
2013. Because of a lower evidentiary standard in USPTO proceedings compared to the evidentiary standard in United States federal court necessary to
invalidate a patent claim, a third party could potentially provide evidence in a USPTO proceeding sufficient for the USPTO to hold a claim invalid even
though the same evidence would be insufficient to invalidate the claim if first presented in a district court action. Accordingly, a third party may attempt to
use the USPTO procedures to invalidate our patent claims that would not have been invalidated if first challenged by the third party as a defendant in a
district court action.
If we are unable to protect the confidentiality of our proprietary information, the value of our technology and products could be adversely
affected.
In addition to patent protection, we also rely on other proprietary rights, including protection of trade secrets, and other proprietary information. To
maintain the confidentiality of trade secrets and proprietary information, we enter into confidentiality agreements with our employees, consultants,
collaborators and others upon the commencement of their relationships with us. These agreements require that all confidential information developed by
the individual or made known to the individual by us during the course of the individual’s relationship with us be kept confidential and not disclosed to
third parties. Our agreements with employees and our personnel policies also provide that any inventions conceived by the individual in the course of
rendering services to us shall be our exclusive property. However, we may not obtain these agreements in all circumstances, and individuals with whom we
have these agreements may not comply with their terms. Thus, despite such agreement, such inventions may become assigned to third parties. In the event
of unauthorized use or disclosure of our trade secrets or proprietary information, these agreements, even if obtained, may not provide meaningful
protection, particularly for our trade secrets or other confidential information. To the extent that our employees, consultants or contractors use technology
or know-how owned by third parties in their work for us, disputes may arise between us and those third parties as to the rights in related inventions. To the
extent that an individual who is not obligated to assign
53
rights in intellectual property to us is rightfully an inventor of intellectual property, we may need to obtain an assignment or a license to that intellectual
property from that individual, or a third party or from that individual’s assignee. Such assignment or license may not be available on commercially
reasonable terms or at all.
Adequate remedies may not exist in the event of unauthorized use or disclosure of our proprietary information. The disclosure of our trade secrets
would impair our competitive position and may materially harm our business, financial condition and results of operations. Costly and time-consuming
litigation could be necessary to enforce and determine the scope of our proprietary rights, and failure to maintain trade secret protection could adversely
affect our competitive business position. In addition, others may independently discover or develop our trade secrets and proprietary information, and the
existence of our own trade secrets affords no protection against such independent discovery.
Depending upon the nature of the product and the specifics of the related FDA marketing approval, data exclusivity under the Biologics Price
Competition and Innovation Act (“BPCIA”) or related laws in the U.S. or certain foreign countries and territories may be available for our products. The
BPCIA provides that FDA shall not approve certain biosimilars from the date of first licensure of a reference product for 12 years, subject to certain
restrictions. However, we may not obtain or be eligible for data exclusivity because of, for example, the nature of the product with respect to other products
on the market, our relationships with our partners (including our licensors and licensees), failing to claim the exclusivity at the appropriate time or
otherwise failing to satisfy applicable requirements. If we are unable to obtain data exclusivity, our competitors may obtain earlier approval of competing
products, and our business, financial condition, results of operations and prospects could be materially harmed.
We may be subject to claims that our employees, consultants or independent contractors have wrongfully used or disclosed confidential
information of third parties.
We may have received confidential and proprietary information from third parties. In addition, we employ individuals who were previously
employed at other biopharmaceutical, biotechnology or pharmaceutical companies. We may be subject to claims that we or our employees, consultants or
independent contractors have inadvertently or otherwise improperly used or disclosed confidential information of these third parties or our employees’
former employers. Further, we may be subject to ownership disputes in the future arising, for example, from conflicting obligations of consultants or others
who are involved in developing our product candidates. We may also be subject to claims that former employees, consultants, independent contractors,
collaborators or other third parties have an ownership interest in our patents or other intellectual property. Litigation may be necessary to defend against
these and other claims challenging our right to and use of confidential and proprietary information. If we fail in defending any such claims, in addition to
paying monetary damages, we may lose our rights therein. Such an outcome could have a material adverse effect on our business. Even if we are successful
in defending against these claims, litigation could result in substantial cost and be a distraction to our management and employees.
Our commercial success depends significantly on our ability to operate without infringing the patents and other proprietary rights of third parties.
Our success will depend in part on our ability to operate without infringing the proprietary rights of third parties. Other entities may have or obtain
patents or proprietary rights that could limit our ability to make, use, sell, offer for sale or import our future approved products or impair our competitive
position. In particular, the patent landscapes around the discovery, development, manufacture and commercial use of our product candidates are crowded.
Third parties may have or obtain valid and enforceable patents or proprietary rights that could block us from developing product candidates using
our technology. Our failure to obtain a license to any technology that we require may materially harm our business, financial condition and results of
operations. Moreover, our failure to maintain a license to any technology that we require may also materially harm our business, financial condition, and
results of operations. Furthermore, we would be exposed to a threat of litigation.
In the biopharmaceutical industry, significant litigation and other proceedings regarding patents, patent applications, trademarks and other
intellectual property rights have become commonplace. The types of situations in which we may become a party to such litigation or proceedings include:
•
•
we or our collaborators may initiate litigation or other proceedings against third parties seeking to invalidate the patents held by those third
parties or to obtain a judgment that our products or processes do not infringe those third parties’ patents;
if our competitors file patent applications that claim technology also claimed by us or our licensors or licensees, we or our licensors or licensees
may be required to participate in interference, derivation or other proceedings to determine the priority of invention, which could jeopardize our
patent rights and potentially provide a third party with a dominant patent position;
54
•
•
if third parties initiate litigation claiming that our processes or products infringe their patent or other intellectual property rights, we and our
collaborators will need to defend against such proceedings; and
if a license to necessary technology is terminated, the licensor may initiate litigation claiming that our processes or products infringe or
misappropriate their patent or other intellectual property rights and/or that we breached our obligations under the license agreement, and we and
our collaborators would need to defend against such proceedings.
These lawsuits would be costly and could affect our results of operations and divert the attention of our management and scientific personnel. There
is a risk that a court would decide that we or our collaborators are infringing the third party’s patents and would order us or our collaborators to stop the
activities covered by the patents. In that event, we or our collaborators may not have a viable alternative to the technology protected by the patent and may
need to halt work on the affected product candidate or cease commercialization of an approved product. In addition, there is a risk that a court will order us
or our collaborators to pay the other party damages. An adverse outcome in any litigation or other proceeding could subject us to significant liabilities to
third parties and require us to cease using the technology that is at issue or to license the technology from third parties. We may not be able to obtain any
required licenses on commercially acceptable terms or at all. Any of these outcomes could have a material adverse effect on our business.
The biopharmaceutical industry has produced a significant number of patents, and it may not always be clear to industry participants, including us,
which patents cover various types of products or methods of use. The coverage of patents is subject to interpretation by the courts, and the interpretation is
not always uniform or predictable. If we are sued for patent infringement, we would need to demonstrate that our products or methods either do not infringe
the patent claims of the relevant patent or that the patent claims are invalid, and we may not be able to do this. Proving invalidity is difficult. For example,
in the United States, proving invalidity requires a showing of clear and convincing evidence to overcome the presumption of validity enjoyed by issued
patents. Even if we are successful in these proceedings, we may incur substantial costs and divert management’s time and attention in pursuing these
proceedings, which could have a material adverse effect on us. If we are unable to avoid infringing the patent rights of others, we may be required to seek a
license, defend an infringement action or challenge the validity of the patents in court. Patent litigation is costly and time consuming. We may not have
sufficient resources to bring these actions to a successful conclusion. In addition, if we do not obtain a license, develop or obtain non-infringing technology,
fail to defend an infringement action successfully or have infringed patents declared invalid, we may incur substantial monetary damages, encounter
significant delays in bringing our product candidates to market and be precluded from manufacturing or selling our product candidates.
The cost of any patent litigation or other proceeding, even if resolved in our favor, could be substantial. Some of our competitors may be able to
sustain the cost of such litigation and proceedings more effectively than we can because of their substantially greater resources. Uncertainties resulting
from the initiation and continuation of patent litigation or other proceedings could have a material adverse effect on our ability to compete in the
marketplace. Patent litigation and other proceedings may also absorb significant management time.
We may not identify relevant third-party patents or may incorrectly interpret the relevance, scope or expiration of a third-party patent which might
adversely affect our ability to develop and market our product candidates.
We cannot guarantee that any of our or our licensors’ patent searches or analyses, including the identification of relevant patents, the scope of patent
claims or the expiration of relevant patents, are complete or thorough, nor can we be certain that we have identified each and every third-party patent and
pending patent application in the United States and abroad that is relevant to or necessary for the commercialization of our product candidates in any
jurisdiction. For example, U.S. patent applications filed before November 29, 2000 and certain U.S. patent applications filed after that date that will not be
filed outside the United States remain confidential until patents issue. Patent applications in the United States and elsewhere are published approximately
18 months after the earliest filing for which priority is claimed, with such earliest filing date being commonly referred to as the priority date. Therefore,
patent applications covering our product candidates could have been filed by third parties without our knowledge. Additionally, pending patent applications
that have been published can, subject to certain limitations, be later amended in a manner that could cover our product candidates or the use of our product
candidates. The scope of a patent claim is determined by an interpretation of the law, the written disclosure in a patent and the patent’s prosecution history.
Our interpretation of the relevance or the scope of a patent or a pending application may be incorrect, which may negatively impact our ability to market
our product candidates. We may incorrectly determine that our product candidates are not covered by a third-party patent or may incorrectly predict
whether a third party’s pending application will issue with claims of relevant scope. Our determination of the expiration date of any patent in the United
States or abroad that we consider relevant may be incorrect, which may negatively impact our ability to develop and market our product candidates. Our
failure to identify and correctly interpret relevant patents may negatively impact our ability to develop and market our product candidates.
If we fail to identify and correctly interpret relevant patents, we may be subject to infringement claims. We cannot guarantee that we will be able to
successfully settle or otherwise resolve such infringement claims. If we fail in any such dispute, in addition to
55
being forced to pay damages, which may be significant, we may be temporarily or permanently prohibited from commercializing any of our product
candidates that are held to be infringing. We might, if possible, also be forced to redesign product candidates so that we no longer infringe the third-party
intellectual property rights. Any of these events, even if we were ultimately to prevail, could require us to divert substantial financial and management
resources that we would otherwise be able to devote to our business and could adversely affect our business, financial condition, results of operations and
prospects.
We may become involved in lawsuits to protect or enforce our patents, which could be expensive, time consuming and unsuccessful.
Third parties may infringe or misappropriate our intellectual property, including our existing patents, patents that may issue to us in the future, or the
patents of our licensors or licensees to which we have a license. As a result, we may be required to file infringement claims to stop third-party infringement
or unauthorized use. Further, we may not be able to prevent, alone or with our licensors or licensees, misappropriation of our intellectual property rights,
particularly in countries where the laws may not protect those rights as fully as in the United States.
If we or one of our licensors or licensees were to initiate legal proceedings against a third party to enforce a patent covering our product candidates,
the defendant could counterclaim that the patent covering our product candidates is invalid and/or unenforceable. In patent litigation in the United States,
defendant counterclaims alleging invalidity and/or unenforceability are commonplace, and there are numerous grounds upon which a third party can assert
invalidity or unenforceability of a patent.
In addition, within and outside of the United States, there has been a substantial amount of litigation and administrative proceedings, including
interference and reexamination proceedings before the USPTO or oppositions and other comparable proceedings in various foreign jurisdictions, regarding
patent and other intellectual property rights in the biopharmaceutical industry. Notably, the AIA, introduced new procedures, including inter partes review
and post grant review. These procedures may be used by competitors to challenge the scope and/or validity of our patents, including those patents perceived
by our competitors as blocking entry into the market for their products, and the outcome of such challenges.
Even after they have been issued, our patents and any patents which we license may be challenged, narrowed, invalidated or circumvented. If our
patents are invalidated or otherwise limited or will expire prior to the commercialization of our product candidates, other companies may be better able to
develop products that compete with ours, which could adversely affect our competitive business position, business prospects and financial condition.
The following are non-exclusive examples of litigation and other adversarial proceedings or disputes that we could become a party to involving our
patents or patents licensed to us:
•
•
•
•
•
•
we or our collaborators may initiate litigation or other proceedings against third parties to enforce our patent rights;
third parties may initiate litigation or other proceedings seeking to invalidate patents owned by or licensed to us or to obtain a declaratory
judgment that their product or technology does not infringe our patents or patents licensed to us;
third parties may initiate opposition proceedings, post-grant review, inter partes review, or reexamination proceedings challenging the validity
or scope of our patent rights, requiring us or our collaborators and/or licensors or licensees to participate in such proceedings to defend the
validity and scope of our patents;
there may be a challenge or dispute regarding inventorship or ownership of patents currently identified as being owned by or licensed to us;
the USPTO may initiate an interference or derivation proceeding between patents or patent applications owned by or licensed to us and those of
our competitors, requiring us or our collaborators and/or licensors or licensees to participate in an interference or derivation proceeding to
determine the priority of invention, which could jeopardize our patent rights; or
third parties may seek approval to market biosimilar versions of our future approved products prior to expiration of relevant patents owned by
or licensed to us, requiring us to defend our patents, including by filing lawsuits alleging patent infringement.
These lawsuits and proceedings would be costly and could affect our results of operations and divert the attention of our managerial and scientific
personnel. There is a risk that a court or administrative body could decide that our patents are invalid or not infringed by a third party’s activities, or that the
scope of certain issued claims must be further limited. An adverse outcome in a litigation or proceeding involving our own patents could limit our ability to
assert our patents against these or other competitors, affect our ability to receive royalties or other licensing consideration from our licensees, and may
curtail or preclude our ability to exclude third parties from making, using and selling similar or competitive products. An adverse outcome may also put our
pending patent applications at risk of not issuing, or issuing with limited and potentially inadequate scope to cover our product candidates. The outcome
following legal assertions of invalidity and unenforceability is unpredictable. With respect to the validity question, for
56
example, we cannot be certain that there is no invalidating prior art, of which we and the patent examiner were unaware during prosecution. Additionally, it
is also possible that prior art of which we are aware, but which we do not believe affects the validity or enforceability of a claim, may, nonetheless,
ultimately be found by a court of law or an administrative panel to affect the validity or enforceability of a claim, for example, if a priority claim is found to
be improper. If a defendant were to prevail on a legal assertion of invalidity and/or unenforceability, we could lose at least part, and perhaps all, of the
patent protection on our relevant product candidates. Such a loss of patent protection could have a material adverse impact on our business.
Furthermore, because of the substantial amount of discovery required in connection with intellectual property litigation or administrative
proceedings, there is a risk that some of our confidential information could be compromised by disclosure. In addition, during the course of litigation or
administrative proceedings, there could be public announcements of the results of hearings, motions or other interim proceedings or developments or public
access to related documents. If investors perceive these results to be negative, the market price for our common stock could be significantly harmed. Any of
these occurrences could adversely affect our competitive business position, business prospects, and financial condition.
Intellectual property rights do not necessarily address all potential threats to our competitive advantage. The degree of future protection for our
proprietary rights is uncertain because legal means afford only limited protection and may not adequately protect our rights or permit us to gain or keep our
competitive advantage. For example:
•
•
•
•
•
•
others may be able to develop a platform that is similar to, or better than, ours in a way that is not covered by the claims of our patents;
others may be able to make compounds that are similar to our product candidates but that are not covered by the claims of our patents;
we might not have been the first to make the inventions covered by patents or pending patent applications;
we might not have been the first to file patent applications for these inventions;
any patents that we obtain may not provide us with any competitive advantages or may ultimately be found invalid or unenforceable; or
we may not develop additional proprietary technologies that are patentable.
If we do not obtain patent term extension and/or data exclusivity for any product candidates we may develop, our business may be materially
harmed.
Depending upon the timing, duration and specifics of any FDA marketing approval of any product candidates we may develop, one or more of our
owned or in-licensed U.S. patents may be eligible for limited patent term extension under the Hatch-Waxman Act. The Hatch-Waxman Act permits a patent
term extension of up to five years as compensation for patent term lost during the FDA regulatory review process. A patent term extension cannot extend
the remaining term of a patent beyond a total of 14 years from the date of product approval, only one patent may be extended and only those claims
covering the approved drug, a method for using it, or a method for manufacturing it may be extended. Similar extensions as compensation for patent term
lost during regulatory review processes are also available in certain foreign countries and territories, such as in Europe under a Supplementary Patent
Certificate. However, we may not be granted an extension in the United States and/or foreign countries and territories because of, for example, failing to
exercise due diligence during the testing phase or regulatory review process, failing to apply within applicable deadlines, failing to apply prior to expiration
of relevant patents, or otherwise failing to satisfy applicable requirements. Moreover, the applicable time period or the scope of patent protection afforded
could be less than we request. If we are unable to obtain patent term extension or the term of any such extension is shorter than what we request, our
competitors may obtain approval of competing products following our patent expiration, and our business, financial condition, results of operations and
prospects could be materially harmed.
We may be subject to claims challenging the inventorship of our patents and other intellectual property.
We or our licensors may be subject to claims that former employees, collaborators or other third parties have an interest in our owned or in-licensed
patent rights, trade secrets, or other intellectual property as an inventor or co-inventor. For example, we or our licensors may have inventorship disputes
arise from conflicting obligations of employees, consultants or others who are involved in developing our product candidates. Litigation may be necessary
to defend against these and other claims challenging inventorship or our licensors’ ownership of our owned or in-licensed patent rights, trade secrets or
other intellectual property. If we or our licensors fail in defending any such claims, in addition to paying monetary damages, we may lose valuable
intellectual property rights, such as exclusive ownership of, or right to use, intellectual property that is important to our product candidates. Even if we are
successful in defending against such claims, litigation could result in substantial costs and be a distraction to management and other employees. Any of the
foregoing could have a material adverse effect on our business, financial condition, results of operations and prospects.
57
If our trademarks and trade names are not adequately protected, then we may not be able to build name recognition in our markets of interest and
our business may be adversely affected.
Our registered or unregistered trademarks or trade names may be challenged, infringed, circumvented or declared generic or determined to be
infringing on other marks. We may not be able to protect our rights to these trademarks and trade names, which we need to build name recognition among
potential partners or customers in our markets of interest. At times, competitors or other third parties may adopt trade names or trademarks similar to ours,
thereby impeding our ability to build brand identity and possibly leading to market confusion. We also have partners who may market or refer to our
trademarks or trade names and may use the trademarks or trade names is ways that impair our branding strategy. Recepta and Betta Pharmaceuticals have
rights to balstilimab and zalifrelimab in certain South American countries and greater China, respectively, and each may adopt a marketing strategy,
including use or registration of trademarks and tradenames, that could impair our brand identity or strategy and possibly cause market confusion. If we
assert trademark infringement claims, a court may determine that the marks we have asserted are invalid or unenforceable, or that the party against whom
we have asserted trademark infringement has superior rights to the marks in question. In this case, we could ultimately be forced to cease use of such
trademarks. In addition, there could be potential trade name or trademark infringement claims brought by owners of other registered trademarks or
trademarks that incorporate variations of our registered or unregistered trademarks or trade names. Over the long term, if we are unable to establish name
recognition based on our trademarks and trade names, then we may not be able to compete effectively and our business may be adversely affected. Our
efforts to enforce or protect our proprietary rights related to trademarks, trade secrets, domain names, copyrights or other intellectual property may be
ineffective and could result in substantial costs and diversion of resources and could adversely affect our business, financial condition, results of operations
and prospects.
Intellectual property rights do not necessarily address all potential threats.
The degree of future protection afforded by our intellectual property rights is uncertain because intellectual property rights have limitations and may
not adequately protect our business or permit us to maintain our competitive advantage. For example:
•
•
•
•
•
•
•
•
•
•
others may be able to make products that are similar to our product candidates or utilize similar technology but that are not covered by the
claims of the patents that we license or may own;
we, or our current or future licensors or collaborators, might not have been the first to make the inventions covered by the issued patent or
pending patent application that we license or own now or in the future;
we, or our current or future licensors or collaborators, might not have been the first to file patent applications covering certain of our or their
inventions;
others may independently develop similar or alternative technologies or duplicate any of our technologies without infringing our owned or
licensed intellectual property rights;
it is possible that our current or future pending owned or licensed patent applications will not lead to issued patents;
issued patents that we hold rights to may be held invalid or unenforceable, including as a result of legal challenges by our competitors or other
third parties;
our competitors or other third parties might conduct research and development activities in countries where we do not have patent rights and
then use the information learned from such activities to develop competitive products for sale in our major commercial markets;
we may not develop additional proprietary technologies that are patentable;
the patents of others may harm our business; and
we may choose not to file a patent in order to maintain certain trade secrets or know-how, and a third party may subsequently file a patent
covering such intellectual property.
Should any of these events occur, they could have a material adverse effect on our business, financial condition, results of operations and prospects.
Risks Related to Business Operations, Employee Matters and Managing Growth
We have undergone significant growth across multiple locations over the past few years and are focusing on further enhancing core areas and
capabilities as we move toward commercialization. In addition, we have consolidated certain sites while expanding others to focus on our core priorities
and future needs. We may encounter difficulties in managing these growth and/or consolidation efforts, either of which could disrupt our operations.
Over the past several years, we have expanded our headcount through various acquisitions and the expansion of our research, development and
manufacturing infrastructure and activities both nationally and internationally. To manage these organizational changes, we must continue to implement
and improve our managerial, operational and financial systems and continue to recruit, train
58
and retain qualified personnel. If our management is unable to effectively manage our growth, our expenses may increase more than expected, our
timelines may be delayed, our ability to generate revenue could be reduced, and we may not be able to implement our business strategy.
As part of our efforts to optimize efficiency across our organization, we previously closed offices in Germany and Switzerland and consolidated
these operations in the UK. In January 2020, our subsidiary MiNK closed its Waterloo, Belgium office and consolidated those operations in our Lexington,
MA facility. In March 2020, as a result of the COVID-19 pandemic, we completed a company-wide reduction in force. If these transition efforts prove to be
unsuccessful, or if we identify management or operational gaps in connection with our changes, it could cause delays in discovery timelines and increased
costs for certain of our internal and partnered programs, which also could have an adverse effect on our business, financial condition and results of
operations. We are still in the process of liquidating 4-AB and transferring intellectual property rights from Switzerland to the United States or elsewhere.
There could be adverse tax consequences resulting from this migration of intellectual property rights, which could have an adverse effect on our business
and operations.
Product liability and other claims against us may reduce demand for our products and/or result in substantial damages.
We face an inherent risk of product liability exposure related to testing our product candidates in human clinical trials and manufacturing antibodies
in our Berkeley, CA facility and may face even greater risks if we ever sell products commercially. An individual may bring a product liability claim
against us if one of our product candidates causes, or merely appears to have caused, an injury. Product liability claims may result in:
•
•
•
•
•
•
regulatory investigations;
injury to our reputation;
withdrawal of clinical trial volunteers;
costs of related litigation;
substantial monetary awards to plaintiffs; and
decreased demand for any future products.
We have limited product liability coverage for use of our product candidates. Our product liability policy provides $10.0 million aggregate coverage
and $10.0 million per occurrence coverage. This limited insurance coverage may be insufficient to fully cover us for future claims.
We are also subject to laws generally applicable to businesses, including but not limited to, federal, state and local wage and hour, employee
classification, mandatory healthcare benefits, unlawful workplace discrimination and whistle-blowing. Any actual or alleged failure to comply with any
regulation applicable to our business or any whistle-blowing claim, even if without merit, could result in costly litigation, regulatory action or otherwise
harm our business, results of operations, financial condition, cash flow and future prospects.
We are highly reliant on certain members of our management team. In addition, we have limited internal resources and if we fail to recruit and/or
retain the services of key employees and external consultants as needed, we may not be able to achieve our strategic and operational objectives.
Garo H. Armen, Ph.D., the Chairman of our Board of Directors and our Chief Executive Officer who co-founded the Company in 1994 is integral to
building our company and developing our technology. Jennifer Buell, Ph.D., a consultant and member of Agenus' Executive Council is also a key member
of our management team. If either Dr. Armen or Dr. Buell is unable or unwilling to continue his or her relationship with Agenus, our business may be
adversely impacted. We have an employment agreement with Dr. Armen. Dr. Armen plays an important role in our day-to-day activities, and we do not
carry key employee insurance policies for Dr. Armen or any other employee. The loss of the services of Dr. Armen or Dr. Buell, other key employees, and
other scientific and medical advisors, and our inability to find suitable replacements could result in delays in product development and harm our business.
Dr. Buell also serves as Chief Executive Officer for MiNK Therapeutics, and Dr. Armen is Chairman of the Board of Directors of MiNK Therapeutics.
The bulk of our operations are conducted at our facilities in Cambridge, UK, Lexington, MA and Berkeley, CA. The Cambridge, New England and
Northern California regions are headquarters to many other biopharmaceutical companies and many academic and research institutions. Competition for
skilled personnel in our market is intense and may limit our ability to hire and retain highly qualified personnel on acceptable terms or at all.
59
Our future growth success depends to a significant extent on the skills, experience and efforts of our executive officers and key members of our
clinical and scientific staff. We face intense competition for qualified individuals from other pharmaceutical, biopharmaceutical and biotechnology
companies, as well as academic and other research institutions. To attract and retain employees at our company, in addition to salary and cash incentives,
we have provided stock options that vest over time. The value to employees of stock options that vest over time may be significantly affected by
movements in our stock price that are beyond our control, and may at any time be insufficient to counteract more lucrative offers from other companies.
Despite our efforts to retain valuable employees, members of our management, scientific and development teams may terminate their employment with us
on short notice. Employment of our key employees is at-will, which means that any of our employees could leave our employment at any time, with or
without notice. We may be unable to retain our current personnel or attract or assimilate other highly qualified management and clinical personnel in the
future on acceptable terms. The loss of any or all of these individuals could harm our business and could impair our ability to support our collaboration
partners or our growth generally.
Our internal computer systems, or those of our third-party CROs, CMOs, licensees, collaborators or other contractors or consultants, may fail or
suffer security breaches, which could result in a material disruption in our business and operations or could subject us to sanctions and penalties that
could have a material adverse effect on our reputation or financial condition.
Despite the implementation of security measures, our internal computer systems and those of our current and future CROs, CMOs, licensees,
collaborators and other contractors and consultants are vulnerable to damage from computer viruses, unauthorized access, natural disasters, terrorism, war
and telecommunication and electrical failures. Potential vulnerabilities can also be exploited from inadvertent or intentional actions of our employees,
third-party vendors, business partners, or by malicious third parties. Attacks of this nature are increasing in their frequency, levels of persistence,
sophistication and intensity, and are being conducted by sophisticated and organized groups and individuals with a wide range of motives (including, but
not limited to, industrial espionage) and expertise, including organized criminal groups, “hacktivists,” nation states and others. In July 2020, the United
States Government charged a pair of Chinese hackers working on behalf of China’s intelligence service in relation to the hacking of U.S. based
biotechnology companies researching COVID-19 vaccines. In addition to the extraction of sensitive information, such attacks could include the
deployment of harmful malware, ransomware, denial-of-service attacks, social engineering and other means to affect service reliability and threaten the
confidentiality, integrity and availability of information. In addition, the prevalent use of mobile devices increases the risk of data security incidents. While
we are not aware of any such material system failure, accident or security breach to date, if such an event were to occur and cause interruptions in our
operations, it could result in a material disruption of our development programs and our business operations. For example, the loss of clinical trial data
from completed, on-going or future clinical trials could result in delays in our regulatory approval efforts and significant costs to recover or reproduce the
data. Likewise, we rely on third parties to manufacture certain of our drug candidates and conduct clinical trials, and similar events relating to their
computer systems could also have a material adverse effect on our business. To the extent that any disruption or security breach were to result in a loss of,
or damage to, our data or applications, or inappropriate disclosure of confidential or proprietary information, we could incur liabilities and the further
development and commercialization of our product candidates could be delayed. We do not maintain cyber liability insurance and would therefore have no
coverage for any losses resulting from any data security incident.
We use and store customer, vendor, employee and business partner and, in certain instances patient, personally identifiable information in the
ordinary course of our business. We are subject to various domestic and international privacy and security regulations, including but not limited to the
HIPAA, which mandates, among other things, the adoption of uniform standards for the electronic exchange of information in common healthcare
transactions, as well as standards relating to the privacy and security of individually identifiable health information, which require the adoption of
administrative, physical and technical safeguards to protect such information. In addition, many states have enacted comparable laws addressing the
privacy and security of health information, some of which are more stringent than HIPAA. Failure to comply with these standards, or a computer security
breach or cyber-attack that affects our systems or results in the unauthorized release of proprietary or personally identifiable information, could subject us
to criminal penalties and civil sanctions, and our reputation could be materially damaged, and our operations could be impaired. We may also be exposed to
a risk of loss or litigation and potential liability, which could have a material adverse effect on our business, results of operations and financial condition.
Natural or man-made calamities, or public health crises, could disrupt our business and materially adversely affect our operations and those of
our strategic partners.
Our operations, and those of our CROs, CMOs, and other contractors and consultants together with regulatory agencies such as the FDA or EMA,
could be subject to earthquakes, power shortages, telecommunications failures, water shortages, floods, hurricanes, typhoons, fires, extreme weather
conditions, medical epidemics and other natural or man-made disasters or business interruptions. The occurrence of any of these business disruptions could
prevent us, or our collaborators and business partners or regulators, from using all or a significant portion of our, or their, facilities or disrupt our supply
chain, and, it may be difficult or, in certain cases, impossible for us to continue certain activities, such as for example our manufacturing capabilities, for a
substantial period of time. The disaster recovery and business continuity plans we have in place currently are limited and are unlikely to prove adequate in
the event of a
60
serious disaster or similar event. We may incur substantial expenses and delays as a result of the limited nature of our disaster recovery and business
continuity plans, which could have a material adverse effect on our business. We rely in part on third-party manufacturers to produce and process some of
our product candidates. Our ability to obtain some of our clinical supplies of our product candidates could be disrupted if the operations of these suppliers
are affected by a man-made or natural disaster or other business interruption.
We own an antibody pilot plant manufacturing facility and lease additional office space in Berkeley, CA. This location is in an area of seismic
activity near active earthquake faults and active wildfire activity. In October 2019, Pacific Gas and Electric Company (“PG&E”), the utility supplier for our
Berkeley, CA facility provided notice to all residents and businesses in Almeda County (where Berkeley, CA is located) that it would shut off power to the
county for a multiday period due to the risk of wildfires. The emergency backup generators located at our Berkeley, CA facility are not able to power the
entire facility and only have enough fuel capacity to provide emergency power for a few hours. We have plans in place to maintain the fuel supply of our
generators in the event of an extended power interruption, but there is no guarantee that such plans will be adequate to maintain emergency power at our
Berkeley, CA facility. In addition, many of our employees reside in Alameda County and may be unable to leave home for the duration of any power shut
off. While PG&E did not shut off power to our facility in October 2019, PG&E may do so in the future on short notice. We do not maintain earthquake
insurance coverage for our owned and leased properties in Berkeley, CA.
In March 2020, we put in place a number of protective measures in response to the COVID-19 pandemic. These measures include cancelling all
commercial business travel, requesting employees to limit non-essential personal travel, asking some employees to self-quarantine at home, adjusting our
facilities janitorial and sanitary policies, encouraging employees to work from home to the extent their job function enables them to do so, staggering the
working hours of employees that are unable to perform their duties remotely and reconfiguring our facilities for physical distancing. We are revisiting these
measures on a regular basis as the pandemic evolves, and we are likely to take additional action as we learn more and as instruction is provided by national,
state and local governmental agencies. These measures have resulted, and any future actions are likely to result, in a disruption to our business. Our
employees are also impacted by the closures of their children’s schools for lengthy periods of time. For instance, in both California and Massachusetts, all
public and private elementary and secondary schools were closed for the duration of the 2019-2020 academic year, leaving many of our employees with no
choice but to work from home while also caring for their children, which caused a loss in employee productivity. We expect this state of affairs to continue
for the duration of the pandemic. In addition, in March 2020, the United States government announced that it would suspend air travel between the United
States and parts of Europe for a 30-day period and subsequently revised this suspension to include the UK, where we have an office and employees.
Starting in July 2020, the European Union banned entry by travelers from the US. In the event the governments in Massachusetts, California or the UK
further extend their shelter in place orders, travel bans, or otherwise prohibit employees from going to work for a longer period of time, our business will be
disrupted and our programs and timelines are likely to be delayed, depending on the ultimate length and severity of the mandate. Not all of our employees
are able to perform their duties or function remotely.
The operations of our strategic partners could also be impacted by calamities or public health crises, which could materially and adversely affect our
cash resources and operations. For instance, at the beginning of 2020, we projected receipt of approximately $60.0 million of cash milestone payments
from existing partners in 2020. Although we did receive $25.1 million of this in 2020, as a result of the impact of COVID-19 on our partner’s programs and
trials, the remaining $35.0 million was delayed and not received in 2020, which impacts our cash runway and ability to fund our operations. Additional
delays resulting from COVID-19 or other crises are likely to materially adversely affect our business.
Failure to realize the anticipated benefits of our strategic acquisitions and licensing transactions could adversely affect our business, operations
and financial condition.
An important part of our business strategy has been to identify and advance a pipeline of product candidates by acquiring and in-licensing product
candidates, technologies and businesses that we believe are a strategic fit with our existing business. Since we acquired 4-AB in 2014, we have completed
numerous additional strategic acquisitions and licensing transactions. The ultimate success of these strategic transactions entails numerous operational and
financial risks, including:
•
•
•
•
•
•
higher than expected development and integration costs;
difficulty in combining the technologies, operations and personnel of acquired businesses with our technologies, operations and personnel;
exposure to unknown liabilities;
difficulty or inability to form a unified corporate culture across multiple office sites both nationally and internationally;
inability to retain key employees of acquired businesses;
disruption of our business and diversion of our management’s time and attention; and
61
•
difficulty or inability to secure financing to fund development activities for such acquired or in-licensed product candidates, technologies or
businesses.
We have limited resources to integrate acquired and in-licensed product candidates, technologies and businesses into our current infrastructure, and
we may fail to realize the anticipated benefits of our strategic transactions. Any such failure could have an adverse effect on our business, operations and
financial condition.
Our subsidiary, MiNK Therapeutics, successfully closed an IPO in October 2021. We have made substantial investments in MiNK Therapeutics.
There is no guarantee that it will be able to continue to attract funding from other sources, and, even if the business receives such funding, there is no
guarantee that it will be successful.
MiNK Therapeutics, a subsidiary of Agenus, closed an IPO in October 2021. We own 26,332,958 shares, representing 78.7% of MiNK
Therapeutics’ Common Stock. There is no guarantee that MiNK will be able to attract external funding in the future. If funding is available, there is no
guarantee that it will be on attractive or acceptable terms, or that it will be adequate to advance the business to an inflection point for additional funding.
Similarly, there is no guarantee that partnership opportunities will be available on attractive terms, if at all. Even if adequate funding and partnership
opportunities are available, there is no guarantee that MiNK Therapeutics will be successful in advancing one or more product candidates through clinical
development.
We have previously disclosed our interest in potentially issuing a tax-free dividend to Agenus’ stockholders in the form of stock of MiNK
Therapeutics. There is no guarantee that any such dividend will be tax-free or that it will be issued at all, or the timing thereof. If we issue a dividend in the
form of stock, there could be adverse tax consequences for certain of our stockholders.
Risks Related to our Common Stock
The trading volume and public trading price of our common stock has been volatile.
During the period from our initial public offering on February 4, 2000 to December 31, 2021, and the year ended December 31, 2021, the closing
price of our common stock has fluctuated between $1.59 (or $0.27 pre-reverse stock split) and $315.78 (or $52.63 pre-reverse stock split) per share and
$2.56 and $6.63 per share, respectively. The average daily trading volume for the year ended December 31, 2021 was approximately 4,175,480 shares,
while the average daily trading volume for the year ended December 31, 2020 was approximately 2,557,223 shares. The market may experience significant
price and volume fluctuations that are often unrelated to the operating performance of individual companies. In addition to general market volatility, many
factors may have a significant adverse effect on the market price of our stock, including:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
continuing operating losses, which we expect over the next several years if we are able to transition to a commercial organization;
announcements of decisions made by public officials or delays in any such announcements;
results of our pre-clinical studies and clinical trials or delays in anticipated timing;
delays in our regulatory filings or those of our partners;
announcements of new collaboration agreements with strategic partners or developments by our existing collaboration partners;
announcements of acquisitions;
announcements of technological innovations, new commercial products, failures of products, or progress toward commercialization by our
competitors or peers;
failure to realize the anticipated benefits of acquisitions;
developments concerning proprietary rights, including patent and litigation matters;
publicity regarding actual or potential results with respect to product candidates under development;
quarterly fluctuations in our financial results, including our average monthly cash used in operating activities;
variations in the level of expenses related to any of our product candidates or clinical development programs;
additions or departures of key management or scientific personnel;
conditions or trends in the biopharmaceutical, biotechnology and pharmaceutical industries generally;
other events or factors, including those resulting from war, incidents of terrorism, natural disasters or responses to these events;
changes in accounting principles;
general economic and market conditions and other factors that may be unrelated to our operating performance or the operating performance of
our competitors, including changes in market valuations of similar companies; and
sales of common stock by us or our stockholders in the future, as well as the overall trading volume of our common stock.
62
In the past, securities class action litigation has often been brought against a company following a significant decline in the market price of its
securities. This risk is especially relevant for us because many biopharmaceutical, biotechnology and pharmaceutical companies experience significant
stock price volatility.
The trading market for our common stock will depend in part on the research and reports that securities or industry analysts publish about us or our
business. If one or more of the analysts who covers us downgrades our stock, or publishes inaccurate or unfavorable research about our business, our stock
price would likely decline. If one or more of these analysts ceases coverage of us or fails to publish reports on us regularly, demand for our stock could
decrease, which could cause our stock price and trading volume to decline.
We do not intend to pay cash dividends on our common stock and, consequently your ability to obtain a return on your investment will depend on
appreciation in the price of our common stock.
We have never declared or paid any cash dividend on our common stock and do not intend to do so in the foreseeable future. We currently anticipate
that we will retain future earnings for the development, operation and expansion of our business. Therefore, the success of an investment in shares of our
common stock will depend upon any future appreciation in their value. There is no guarantee that shares of our common stock will appreciate in value or
maintain their current value.
Failure to maintain effective internal controls in accordance with Section 404 of the Sarbanes-Oxley Act of 2002 and to comply with changing
regulation of corporate governance and public disclosure could have a material adverse effect on our operating results and the price of our common
stock.
The Sarbanes-Oxley Act of 2002 and rules adopted by the SEC and Nasdaq have resulted in significant costs to us. In particular, our efforts to
comply with Section 404 of the Sarbanes-Oxley Act of 2002 and related regulations regarding the required assessment of our internal control over financial
reporting, and our independent registered public accounting firm’s audit of internal control over financial reporting, have required commitments of
significant management time. We expect these commitments to continue.
Our internal control over financial reporting (as defined in Rules 13a-15 of the Exchange Act) is a process designed to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of our consolidated financial statements for external purposes in accordance with U.S.
GAAP. Because of its inherent limitations, internal control over financial reporting may not prevent or detect all deficiencies or weaknesses in our financial
reporting. While our management has concluded that there were no material weaknesses in our internal control over financial reporting as of December 31,
2021, our procedures are subject to the risk that our controls may become inadequate because of changes in conditions or as a result of a deterioration in
compliance with such procedures. No assurance is given that our procedures and processes for detecting weaknesses in our internal control over financial
reporting will be effective.
Changing laws, regulations and standards relating to corporate governance and public disclosure, are creating uncertainty for companies. Laws,
regulations and standards are subject to varying interpretations in some cases due to their lack of specificity, and as a result, their application in practice
may evolve over time as new guidance is provided, which could result in continuing uncertainty regarding compliance matters and higher costs caused by
ongoing revisions to disclosure and governance practices. If we fail to comply with these laws, regulations and standards, our reputation may be harmed,
and we might be subject to sanctions or investigation by regulatory authorities, such as the SEC. Any such action could adversely affect our operating
results and the market price of our common stock.
The sale of a significant number of shares could cause the market price of our stock to decline.
The sale by us or the resale by stockholders of a significant number of shares of our common stock could cause the market price of our common
stock to decline. As of January 31, 2022, we had 257,153,860, shares of common stock outstanding. Certain of these shares are subject to sales volume and
other limitations. We have filed registration statements to permit the sale of approximately 36,000,000 shares of common stock under our equity incentive
plans, and to permit the sale of 1,500,000 shares of common stock under our 2015 Inducement Equity Plan. We have also filed registration statements to
permit the sale of approximately 667,000 shares of common stock under our Employee Stock Purchase Plan, to permit the sale of 425,000 shares of
common stock under our Directors’ Deferred Compensation Plan, to permit the sale of approximately 31,100,319 shares of common stock pursuant to
various private placement agreements and to permit the sale of up to 100,000,000 shares of our common stock pursuant to our At Market Issuance Sales
Agreement. As of January 31, 2022, an aggregate of approximately 71,276,806 of these shares remained available for sale. In October 2018, we completed
a private placement of 18,459 shares of Series C-1 convertible preferred stock, convertible into 18,459,000 shares of common stock. The resale of all
18,459,000 shares of common stock underlying the 18,459 shares of Series C-1 convertible preferred stock was registered with the SEC pursuant to a
Registration Statement on Form S-3 filed with the SEC on November 8, 2018 and declared effective on December 10, 2018. As part of our collaboration
with Betta Pharmaceuticals, we
63
completed a private placement of 4,962,779 shares of common stock in July 2020. As part of our collaboration with Gilead, we completed a private
placement of 11,111,111 shares of common stock in January 2019, and on October 25, 2019, we filed a Registration Statement on Form S-3 to register the
resale of these shares by Gilead, as required under our agreement. In connection with our acquisition of PhosImmune in December 2015, we issued
1,631,521 shares of our common stock to the shareholders of PhosImmune and other third parties having a fair market value of approximately $7.4 million
at closing. In addition, we may be obligated in the future to pay certain contingent milestones payments, payable at our election in cash or shares of our
common stock of up to $30.0 million in the aggregate. If we elect to pay any of these contingent milestones in shares, we are obligated to file registration
statements covering any such shares. The market price of our common stock may decrease based on the expectation of such sales.
As of December 31, 2021, warrants to purchase approximately 1,980,000 shares of our common stock with a weighted average exercise price per
share of $4.89 were outstanding.
As of December 31, 2021, options to purchase 32,764,087 shares of our common stock with a weighted average exercise price per share of $3.66
were outstanding. These options are subject to vesting that occurs over a period of up to four years following the date of grant. As of December 31, 2021,
we had 17,509,054 vested options and 1,018,051 non-vested shares outstanding.
As of December 31, 2021, our outstanding shares of Series A-1 Convertible Preferred Stock were convertible into 333,333 shares of our common
stock.
We may issue additional common stock, preferred stock, restricted stock units, or securities convertible into or exchangeable for our common stock.
Furthermore, substantially all shares of common stock for which our outstanding stock options or warrants are exercisable are, once they have been
purchased, eligible for immediate sale in the public market. The issuance of additional common stock, preferred stock, restricted stock units, or securities
convertible into or exchangeable for our common stock or the exercise of stock options or warrants would dilute existing investors and could adversely
affect the price of our securities. In addition, such securities may have rights senior to the rights of securities held by existing investors.
Anti-takeover provisions under our charter documents and Delaware law could delay or prevent a change of control which could limit the market
price of our common stock and may prevent or frustrate attempts by our stockholders to replace or remove our current management.
Our certificate of incorporation and bylaws contain provisions that could make it more difficult for a third party to acquire us without the consent of
our Board of Directors. Our certificate of incorporation provides for a staggered board and removal of directors only for cause. Accordingly, stockholders
may elect only a minority of our Board at any annual meeting, which may have the effect of delaying or preventing changes in management. In addition,
under our certificate of incorporation, our Board of Directors may issue additional shares of preferred stock and determine the terms of those shares of
stock without any further action by our stockholders. Our issuance of additional preferred stock could make it more difficult for a third party to acquire a
majority of our outstanding voting stock and thereby effect a change in the composition of our Board of Directors. Our certificate of incorporation also
provides that our stockholders may not take action by written consent. Our bylaws require advance notice of stockholder proposals and director
nominations and permit only our president or a majority of the Board of Directors to call a special stockholder meeting. These provisions may have the
effect of preventing or hindering attempts by our stockholders to replace our current management. In addition, Delaware law prohibits a corporation from
engaging in a business combination with any holder of 15% or more of its capital stock until the holder has held the stock for three years unless, among
other possibilities, the board of directors approves the transaction. Our Board of Directors may use this provision to prevent changes in our management.
Also, under applicable Delaware law, our Board of Directors may adopt additional anti-takeover measures in the future.
These anti-takeover provisions and other provisions in our certificate of incorporation and bylaws could make it more difficult for stockholders or
potential acquirers to obtain control of our board of directors or initiate actions that are opposed by the then-current board of directors and could also delay
or impede a merger, tender offer or proxy contest involving our company. These provisions could also discourage proxy contests and make it more difficult
for our stockholders and other stockholders to elect directors of their choosing or cause us to take other corporate actions they desire. Any delay or
prevention of a change of control transaction or changes in our board of directors could cause the market price of our common stock to decline.
We have broad discretion in the use of our existing cash, cash equivalents and investments and may not use them effectively.
Our management has broad discretion in the application of our cash, cash equivalents and investments. Because of the number and variability of
factors that will determine our use of our cash, cash equivalents and investments, their ultimate use may vary substantially from their currently intended
use. Our management might not apply our cash, cash equivalents and investments in ways that ultimately increase the value of our stockholders investment.
The failure by our management to apply these funds effectively
64
could harm our business. Pending their use, we may invest our cash in short-term, investment- grade, interest-bearing securities. These investments may
not yield a favorable return to our stockholders. If we do not use our resources in ways that enhance stockholder value, we may fail to achieve expected
financial results, which could cause our stock price to decline.
If securities or industry analysts do not continue to publish research or publish inaccurate or unfavorable research about our business, our stock
price and trading volume could decline.
The trading market for our common stock depends in part on the research and reports that securities or industry analysts publish about us or our
business. If one or more of the analysts who covers us downgrades our stock or publishes inaccurate or unfavorable research about our business, our stock
price may decline. If one or more of these analysts ceases coverage of our company or fails to publish reports on us regularly, demand for our stock could
decrease, which might cause our stock price and trading volume to decline.
Item 1B.
Unresolved Staff Comments
None.
Item 2.
Properties
We lease our main research and development, manufacturing and corporate offices in Lexington, Massachusetts occupying approximately 82,000
square feet. This lease agreement terminates in August 2023 with an option to renew for one additional ten-year period.
We own a manufacturing facility of approximately 24,000 square feet in Berkeley, California that is used in the production and manufacture of
antibody product candidates.
In November 2020, we entered into a lease for a building containing approximately 84,000 square feet in Emeryville, California for cGMP
manufacturing space expected to support our anticipated commercial antibody manufacturing requirements in 2023, as well as laboratory and office space.
This lease terminates in December 2036 with the option to renew for two additional ten-year terms.
We also lease research and office facilities in Cambridge, United Kingdom. This lease terminates in November 2025.
We believe substantially all of our property and equipment is in good condition and that we have sufficient capacity to meet our current operational
needs. We do not anticipate experiencing significant difficulty in retaining occupancy of any of our research and development, manufacturing or office
facilities and will do so through lease renewals prior to expiration or through replacing them with equivalent facilities.
Item 3.
Legal Proceedings
We are not party to any material legal proceedings.
Item 4.
Mine Safety Disclosures
Not applicable.
65
PART II
Item 5.
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Our common stock is currently listed on The Nasdaq Capital Market under the symbol “AGEN.” As of February 15, 2022, there were 512 holders of
record and 43,447 beneficial holders of our common stock.
We have never paid cash dividends on our common stock, and we do not anticipate paying any cash dividends in the foreseeable future. We
currently intend to retain future earnings, if any, for the future operation and expansion of our business. Any future payment of dividends on our common
stock will be at the discretion of our Board of Directors and will depend upon, among other things, our earnings, financial condition, capital requirements,
level of indebtedness, and other factors that our Board of Directors deem relevant.
Stock Performance
The following graph shows the cumulative total stockholder return on our common stock over the period spanning December 31, 2016 to December
31, 2021, as compared with that of the Nasdaq Stock Market (U.S. Companies) Index and the Nasdaq Biotechnology Index, based on an initial investment
of $100 in each on December 31, 2016. Total stockholder return is measured by dividing share price change plus dividends, if any, for each period by the
share price at the beginning of the respective period and assumes reinvestment of dividends.
This stock performance graph shall not be deemed “filed” with the SEC or subject to Section 18 of the Exchange Act, nor shall it be deemed
incorporated by reference in any of our filings under the Securities Act of 1933, as amended (the “Securities Act”).
COMPARISON OF CUMULATIVE TOTAL RETURN OF AGENUS INC.,
NASDAQ STOCK MARKET (U.S. COMPANIES) INDEX
AND NASDAQ BIOTECHNOLOGY INDEX
Agenus Inc.
Nasdaq Stock Market (U.S. Companies) Index
Nasdaq Biotechnology Index
12/31/2016
100.00
100.00
100.00
12/31/2017
79.13
128.24
121.06
12/31/2018
57.77
123.26
109.77
12/31/2019
98.79
166.68
136.56
12/31/2020
77.18
239.42
171.64
12/31/2021
78.16
290.63
170.55
66
Item 6.
[Reserved]
67
Item 7.
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Overview
Agenus Inc. (including its subsidiaries, collectively referred to as “Agenus,” the “Company,” “we,” “us,” and “our”) is a clinical-stage immuno-
oncology (“I-O”) company advancing an extensive pipeline of immune checkpoint antibodies, adoptive cell therapies and neoantigen vaccines, to fight
cancer and infections. Our business is designed to drive success in I-O through speed, innovation and effective combination therapies. We believe that
combination therapies and a deep understanding of each patient’s cancer will drive substantial expansion of the patient population benefiting from current
I-O therapies. In addition to a diverse pipeline, we have assembled fully integrated end-to-end capabilities including novel target discovery, antibody
generation, cell line development and current good manufacturing practice manufacturing. We believe that these fully integrated capabilities enable us to
produce novel candidates on timelines that are shorter than the industry standard. Leveraging our science and capabilities, we have forged important
partnerships to advance our innovation.
We are developing a comprehensive I-O portfolio driven by the following platforms and programs, which we intend to utilize individually and in
combination:
•
•
•
•
our multiple antibody discovery platforms, including our proprietary display technologies, designed to drive the discovery of future CPM
antibody candidates;
our antibody candidate programs, including our CPM programs;
our saponin-based vaccine adjuvant platform under our subsidiary, SaponiQx, Inc. (“SaponiQx”), principally including our QS-21
Stimulon™ adjuvant (“QS-21 Stimulon”); and
our subsidiary, MiNK Therapeutics, Inc. (“MiNK Therapeutics”), which has a pipeline of novel allogeneic invariant natural killer T cell
(“iNKT”) therapies to treat cancer and other immune-mediated diseases.
We assess development, commercialization and partnering strategies for each of our product candidates periodically based on several factors,
including pre-clinical and clinical trial results, competitive positioning and funding requirements and resources. Our lead program, botensilimab
(AGEN1181), is advancing in multiple clinical programs which we have designed to support regulatory pathways for accelerated development with
botensilimab as a monotherapy and in combination with balstilimab.
In October 2021, we announced the withdrawal of our biologics license application (“BLA”) for balstilimab monotherapy to treat second-line
cervical cancer. Our decision came at the recommendation of the United States Food and Drug Administration (“FDA”) following the full approval of
pembrolizumab, four months earlier than the FDA goal date. The BLA submission for balstilimab received Fast Track and Priority Review designation
from the FDA, with a target action date of December 16, 2021. As part of the BLA review process, we successfully completed three FDA inspections, with
no cited issues, concerns, or Form-483s. Based on this change to the treatment landscape, we are no longer pursuing U.S. registration for the combination
of balstilimab and zalifrelimab in second-line cervical cancer.
We have formed collaborations with companies such as Bristol-Myers Squibb Company (“BMS”), Betta Pharmaceuticals Co., Ltd. (“Betta”), Gilead
Sciences, Inc. (“Gilead”), Incyte Corporation (“Incyte”), Merck Sharpe & Dohme (“Merck”) and Recepta Biopharma SA (“Recepta”). Through these
alliances, as well as our own internal programs, we currently have more than a dozen antibody programs in pre-clinical or clinical development.
Pursuant to our collaboration agreement with Incyte, we have exclusively licensed to Incyte monospecific antibodies targeting GITR, OX40, TIM-3
and LAG-3, which Incyte is currently advancing in various clinical trials, as well as an additional undisclosed target that Incyte is advancing in preclinical
studies. Under the terms of our agreement, Incyte is responsible for all future development expenses, and we are eligible to receive up to an additional
$500.0 million in potential milestone payments plus royalties on any future sales. Pursuant to our collaboration and license agreement with Merck, we
exclusively licensed to Merck a monospecific antibody targeting ILT4, which Merck is advancing in a Phase 2 clinical trial. Under the terms of our
agreement, Merck is responsible for all future development expenses, and we are eligible to receive up to an additional $85.0 million in potential milestone
payments plus royalties on any future sales. In September 2018, we, through our wholly-owned subsidiary, Agenus Royalty Fund, LLC, entered into a
royalty purchase agreement (the “XOMA Royalty Purchase Agreement”) with XOMA (US) LLC (“XOMA”). Pursuant to the terms of the XOMA Royalty
Purchase Agreement, XOMA purchased 33% of all future royalties and 10% of all future milestone payments that we are entitled to receive from Incyte
and Merck, net of certain of our obligations to a third party. After taking into account our obligations under the XOMA Royalty Purchase Agreement, as of
December 31, 2021, we remain eligible to receive up to $450.0 million and $76.5 million in potential development, regulatory and commercial milestones
from Incyte and Merck, respectively.
68
In December 2018, we entered into a series of agreements with Gilead to collaborate on the development and commercialization of up to five novel
I-O therapies (the “Gilead Collaboration Agreements”). Pursuant to the Gilead Collaboration Agreements, Gilead received worldwide exclusive rights to
our bispecific antibody, AGEN1423, as well as the exclusive option to exclusively license AGEN1223, a bispecific antibody, and AGEN2373, a
monospecific antibody. All three assets have entered clinical development. In November 2020, Gilead elected to return AGEN1423 to us and to voluntarily
terminate the license agreement effective as of February 4, 2021. In the third quarter of 2021, we ceased development of AGEN1223 and in October 2021
the AGEN1223 option and license agreement was formally terminated. The AGEN2373 option agreement remains in place, and we are responsible for
developing the program up to the option decision point, at which time Gilead may acquire exclusive rights to the program on option exercise. We have the
right to opt-in to share Gilead’s development and commercialization costs in the United States in exchange for a profit (loss) share on a 50:50 basis and
revised milestone payments. Pursuant to the terms of the AGEN2373 option agreement, we remain eligible to receive up to $10.0 million in aggregate
milestone payments prior to option exercise, a $50.0 million option exercise fee and, if exercised, up to an additional $520.0 million in aggregate milestone
payments, as well as royalties on any future sales.
In June 2020, we entered into a license and collaboration agreement (the “Betta License Agreement”) with Betta, pursuant to which we granted
Betta an exclusive license to develop, manufacture and commercialize balstilimab and zalifrelimab in Republic of China, Hong Kong, Macau and Taiwan
(“Greater China”). Under the terms of the Betta License Agreement, we received $15.0 million upfront and are eligible to receive up to $100.0 million in
milestone payments plus royalties on any future sales in Greater China.
In May 2021, we entered into a License, Development and Commercialization Agreement (“BMS License Agreement”) with BMS to collaborate on
the development and commercialization of our pre-clinical proprietary anti-TIGIT bispecific antibody program AGEN1777. Under the BMS License
Agreement, we granted BMS an exclusive worldwide license under certain of our intellectual property rights to develop, manufacture and commercialize
AGEN1777 and its derivatives in all fields; provided, we retained an option to access the licensed antibodies for use in clinical studies in combination with
certain of our other pipeline assets subject to certain restrictions. Pursuant to the BMS License Agreement, we received a non-refundable upfront cash
payment of $200.0 million in July 2021 and are eligible to receive up to $1.36 billion in aggregate development, regulatory and commercial milestone
payments plus tiered royalties. In exchange, BMS is responsible for all of the development, regulatory approval, manufacturing and commercialization
costs with respect to products containing AGEN1777. We have the option, but not the obligation, to co-fund a minority of the global development costs of
products containing AGEN1777 or its derivatives, in exchange for increased tiered royalties. Finally, we also have the option to co-promote AGEN1777 in
the U.S. In October 2021, we announced that the first patient was dosed in the AGEN1777 Phase 1 clinical trial, triggering the achievement of a $20.0
million milestone.
In September 2021, we announced the launch of SaponiQx to spearhead innovation in novel adjuvant discovery and vaccine design, including in
relation to our saponin-based adjuvants. We also announced our partnership with Ginkgo Bioworks, Inc. to develop SaponiQx’s novel saponin products
from sustainably sourced raw materials, with a goal to meet the current demands placed on the vaccine industry for pandemic vaccines. Our QS-21
Stimulon adjuvant is partnered with GlaxoSmithKline (“GSK”) and is a key component in multiple GSK vaccine programs. These programs are in various
stages, with the most advanced being GSK’s shingles vaccine, Shingrix. In October 2017, GSK’s shingles vaccine was approved in the United States by the
FDA. In January 2018, we entered into a Royalty Purchase Agreement with Healthcare Royalty Partners III, L.P. and certain of its affiliates (together,
“HCR”), pursuant to which HCR purchased 100% of our worldwide rights to receive royalties from GSK on GSK’s sales of vaccines containing our QS-21
Stimulon adjuvant. We do not incur clinical development costs for products partnered with GSK. We were also entitled to receive up to $40.35 million in
milestone payments from HCR based on sales of GSK’s vaccines as follows: (i) $15.1 million upon reaching $2.0 billion last-twelve-months net sales any
time prior to 2024 (the “First HCR Milestone”) and (ii) $25.25 million upon reaching $2.75 billion last-twelve-months net sales any time prior to 2026 (the
“Second HCR Milestone”). We received the First HCR Milestone after GSK’s net sales of Shingrix for the twelve months ended December 31, 2019
exceeded $2.0 billion, and we remain eligible to receive the Second HCR Milestone.
Our business activities include product research and development, intellectual property prosecution, manufacturing, regulatory and clinical affairs,
corporate finance and development activities, and support of our collaborations. Our product candidates require clinical trials and approvals from
regulatory agencies, as well as acceptance in the marketplace. Part of our strategy is to develop and commercialize some of our product candidates by
continuing our existing arrangements with academic and corporate collaborators and licensees and by entering into new collaborations.
MiNK Therapeutics is focused on the development of unmodified iNKT cell therapies for the treatment of cancer and other life-threatening
immune-mediated diseases. In October 2021, the FDA cleared the Investigational New Drug application (IND) for AGENT-797, an allogeneic iNKT
therapy, for the treatment of patients with solid tumor cancers with AGENT-797 alone and in combination with approved checkpoint antibodies. AGENT-
797 is in ongoing clinical trials in hematological malignancies, including multiple myeloma and B cell lymphoma, and viral Acute Respiratory Distress
(ARDS) secondary to COVID-19 and influenza with early data readouts in 2021. In October 2021, MiNK Therapeutics completed an initial public offering
of 3,333,334 shares of its common stock, trading on the Nasdaq Global Market under the ticker symbol “INKT”, at a public offering price of $12.00 per
share.
69
The gross proceeds from the offering, before deducting underwriting discounts and commissions and other offering expenses, were approximately $40.0
million. Subsequently, the underwriters in the initial public offering exercised their option to acquire an additional 500,000 shares at the public offering
price and such shares were delivered on November 3, 2021. MiNK Therapeutics has licensed the INKT technology from Agenus and retains the rights to
develop and expand a proprietary pipeline of engineered CAR-INKTs, TCRs, and INKT bispecific engagers. MiNK has a dedicated leadership and
operational team and independent operating governance.
Our common stock is currently listed on The Nasdaq Capital Market under the symbol “AGEN.”
Our research and development expenses for the years ended December 31, 2021, 2020, and 2019, were $178.6 million, $142.6 million, and $168.3
million, respectively. We have incurred significant losses since our inception. As of December 31, 2021, we had an accumulated deficit of $1.49 billion. We
are likely to continue to incur losses until we become a commercial company generating profits.
During the past five years, we have successfully financed our operations through income and revenues generated from corporate partnerships,
advance royalty sales and issuance of equity. Based on our current plans and projections, we believe our year end cash resources of $306.9 million as of
December 31, 2021, will be sufficient to satisfy our liquidity requirements for more than one year from when these financial statements were issued.
Management continues to address the Company’s liquidity position and has the flexibility to adjust spending as needed in order to preserve liquidity. In
March 2020, in response to the COVID-19 pandemic, we streamlined our organization, which included a headcount reduction, and our CEO, Dr. Garo
Armen, elected to receive his base salary in stock rather than cash through the end of 2020 and the first half of 2021. We continuously evaluate the
likelihood of success of our programs. As such, our decisions to continue to fund or eliminate funding of each of our programs are predicated on these
determinations, on an ongoing basis. We are prepared to discontinue funding of any activities that do not impact our core priorities if they do not prove to
be feasible, and to restrict capital expenditures and/or reduce the scale of our operations. We expect our potential sources of funding to include: (1)
collaborations, out-licensing and/or partnering opportunities for our portfolio programs and product candidates with multiple parties, (2) milestone
payments from our existing partnerships, (3) consummating additional third-party agreements, (4) selling assets, (5) securing project financing and/or (6)
selling equity securities.
Historical Results of Operations
The comparison of 2020 to 2019 results has been omitted from this Form 10-K but can be found in our Form 10-K for the year ended December 31,
2020 – “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations” filed on March 16, 2021.
Year Ended December 31, 2021 Compared to the Year Ended December 31, 2020
Research and development revenue
We recognized research and development (“R&D”) revenue of approximately $244.4 million and $35.9 million during the years ended December
31, 2021 and 2020, respectively. R&D revenues for the year ended December 31, 2021, primarily consisted of $220.0 million related to a non-refundable
upfront license fee and milestone earned under our BMS License Agreement and $22.4 million related to the recognition of deferred revenue earned under
our Gilead Collaboration Agreements. R&D revenues for the year ended December 31, 2020, primarily consisted of $12.3 million related to the recognition
of deferred revenue earned under our Gilead Collaboration Agreements, $13.9 million related to the recognition of an upfront fee under our Betta License
Agreement and $9.0 million related to the recognition of a milestone under the Merck Agreement.
Non-cash royalty revenue related to the sale of future royalties
In January 2018, we sold 100% of our worldwide rights to receive royalties from GSK on sales of GSK’s vaccines containing our QS-21 Stimulon
adjuvant to HCR. As described in Note 19 to our Consolidated Financial Statements, this transaction has been recorded as a liability that amortizes over the
estimated life of our Royalty Purchase Agreement with HCR. As a result of this liability accounting, even though the royalties are remitted directly to
HCR, we record these royalties from GSK as revenue. During the years ended December 31, 2021 and 2020, we recognized approximately $44.4 million
and $46.5 million in non-cash royalty revenue, respectively, related to our agreement with GSK.
Research and development expense
R&D expense include the costs associated with our internal research and development activities, including compensation and benefits, occupancy
costs, clinical manufacturing costs, contract research organization costs, costs of consultants, and related
70
administrative costs. R&D expense increased 25% to $178.6 million for the year ended December 31, 2021 from $142.6 million for the year ended
December 31, 2020. Increased expenses in the year ended December 31, 2021 primarily relate to a $21.9 million increase in third-party services and other
expenses related to the advancement of our antibody programs, a $5.5 million increase in personnel related expenses, primarily due to increased headcount,
and a $9.1 million increase in expenses attributable to the activities of our subsidiaries. These increases were partially offset by a $0.6 million decrease in
other research and development expenses.
General and administrative expense
General and administrative (“G&A”) expense consists primarily of personnel costs, facility expenses, and professional fees. G&A expense increased
29% to $76.4 million for the year ended December 31, 2021 from $59.2 million for the year ended December 31, 2020. Increased general and
administrative expense expenses in the year ended December 31, 2021 primarily relate to a $5.3 million increase in professional fees, primarily due to
increased expenses related to commercial readiness activities, a $11.3 million increase in personnel related expenses, primarily due to both increased share-
based compensation expense and increased headcount, and a $0.7 million increase in other general and administrative expenses.
Contingent purchase price consideration fair value adjustment
Contingent purchase price consideration fair value adjustment represents the change in the fair value of our contingent purchase price consideration
during the year ended December 31, 2021, which mainly resulted from changes in our market capitalization and share price and changes in the credit
spread since each reporting period end. The fair value of our contingent purchase price considerations is mainly based on estimates from a Monte Carlo
simulation of our market capitalization and share price.
In the year ended December 31, 2021, the two remaining contingent milestones were achieved pursuant to the terms of the Share Exchange
Agreement dated January 10, 2014, by and among us, 4-Antibody AG (“4-AB”), the former shareholders of 4-AB and Vischer AG, as Representative (the
"Share Exchange Agreement"), triggering a $20.0 million payment.
Non-operating income (expense)
Non-operating income increased $6.9 million for the year ended December 31, 2021, from expense of $1.9 million for the year ended December 31,
2020, to income of $5.1 million for the year ended December 31, 2021, primarily due to the recognition of a $3.3 million gain on the sale of property, plant
and equipment in the year ended December 31, 2021, and our increased foreign currency exchange gains in 2021 compared to losses in 2020.
Interest expense, net
Interest expense, net increased to $65.7 million for the year ended December 31, 2021 from $61.1 million for the year ended December 31, 2020,
due to increased non-cash interest recorded in connection with our Royalty Purchase Agreement with HCR.
Inflation
We believe that inflation has not had a material adverse effect on our business, results of operations, or financial condition to date.
Research and Development Programs
For the year ended December 31, 2021, our R&D programs consisted largely of our CPM antibody programs as indicated in the following table (in
thousands).
Research and
Development Program
Antibody programs*
Vaccine adjuvant
Cell therapies
Other research and development programs
Total research and development expenses
Product
Various
QS-21
Stimulon
Various
Various
For the Year Ended December 31,
2021
141,266
$
2020
118,200
$
2019
126,400
$
$
Prior to
2019
353,299
Total
739,165
$
5,912
15,507
15,923
178,608
$
304
11,022
13,091
142,617
$
872
20,131
20,936
168,339
$
14,309
14,469
427,141
809,218
21,397
61,129
477,091
1,298,782
$
*
Prior to 2014, costs were incurred by 4-AB, which we acquired in February 2014.
71
Research and development program costs include compensation and other direct costs plus an allocation of indirect costs, based on certain
assumptions and our review of the status of each program. Our product candidates are in various stages of development and significant additional
expenditures will be required if we start new clinical trials, encounter delays in our programs, apply for regulatory approvals, continue development of our
technologies, expand our operations, and/or bring our product candidates to market. The total cost of any particular clinical trial is dependent on a number
of factors such as trial design, length of the trial, number of clinical sites, number of patients, and trial sponsorship. The process of obtaining and
maintaining regulatory approvals for new therapeutic products is lengthy, expensive, and uncertain. Because of the current stage of our product candidates,
among other factors, we are unable to reliably estimate the cost of completing our research and development programs or the timing for bringing such
programs to various markets or substantial partnering or out-licensing arrangements, and, therefore, when, if ever, material cash inflows are likely to
commence.
Product Development Portfolio
Antibody Discovery Platforms and CPM Programs
Checkpoint antibodies regulate immune response against pathogens that invade the body and are achieving positive outcomes in a number of
cancers that were untreatable only a few years ago. Two classes of checkpoint targets include:
1.
inhibitory checkpoints that help suppress an immune response in order to prevent excessive immune reaction resulting in
undesired inflammation and/or auto-immunity, and
2.
stimulatory checkpoints that can enhance or amplify an antigen-specific immune response.
We possess a suite of antibody discovery platforms that are designed to drive the discovery of future CPM antibody candidates. We are planning to
employ a variety of techniques to identify and optimize monospecific and multispecific antibody candidates, internally.
We and our partners currently have more than fifteen antibody programs in pre-clinical or clinical development, which include our next generation
anti-CTLA-4 antibody, botensilimab, an IgG1 anti-CTLA-4 antagonist, our anti-CTLA-4, zalifrelimab, and anti-PD-1, balstilimab, programs (both
partnered with Recepta for certain South America territories and Betta in Greater China), our anti-CD137 (AGEN2373), which Gilead has an exclusive
option to license exclusively, an anti-TIGIT bispecific antibody, AGEN1777, exclusively licensed to BMS and the following antibody programs all
partnered with Incyte: anti-GITR (INCAGN1876), anti-OX40 (INCAGN1949), anti-LAG3 (INCAGN2385) and anti-TIM3 (INCAGN2390). For additional
information regarding our antibody discovery platforms and checkpoint antibody program, please read Part I-Item 1. “Business” of this Annual Report on
Form 10-K.
QS-21 Stimulon Adjuvant
QS-21 Stimulon is an adjuvant, which is a substance added to a vaccine or other immunotherapy that is intended to enhance an immune response to
the target antigens. QS-21 Stimulon is a natural product, a triterpene glycoside, or saponin, purified from the bark of the Chilean soapbark tree, Quillaja
saponaria. QS-21 Stimulon has the ability to stimulate an antibody-mediated immune response and has also been shown to activate cellular immunity. It has
become a key component in the development of investigational preventive vaccine formulations across a wide variety of diseases. These studies have been
carried out by academic institutions and pharmaceutical companies in the United States and internationally. A number of these studies have shown QS-21
Stimulon to be significantly more effective in stimulating immune responses than aluminum hydroxide or aluminum phosphate, the adjuvants most
commonly used in approved vaccines in the United States today. In January 2019, we announced that the Bill & Melinda Gates Foundation awarded us a
grant to develop an alternative, plant cell culture-based manufacturing process to ensure the continuous future supply of QS-21 Stimulon adjuvant, which
we are pursuing in partnership with Phyton Biotech and Ginkgo Bioworks. For additional information regarding QS-21 Stimulon, please read Part I-Item 1.
“Business” of this Annual Report on Form 10-K.
Cell Therapies
Our majority owned subsidiary, MiNK, is a focused on developing allogeneic invariant natural killer T (“iNKT”) cell therapies to treat cancer and
other life-threatening immune diseases. iNKTs have a dual-mechanism of action with an internal targeting and homing device that modulates both arms of
immunity, innate and adaptive. iNKTs combine the killing features of natural killer cells with the durable memory response of T cells. iNKT cells have
been demonstrated to be highly effective in treating solid tumor cancers in their native form and MiNK has demonstrated that these cells can be further
engineered or edited for super-targeting. For additional information regarding iNKT cell therapies, please read Part I-Item 1. “Business” of this Annual
Report on Form 10-K.
72
Liquidity and Capital Resources
We have incurred annual operating losses since inception, and we had an accumulated deficit of $1.49 billion as of December 31, 2021. We expect
to incur significant losses over the next several years as we continue development of our technologies and product candidates, manage our regulatory
processes, initiate and continue clinical trials, and prepare for potential commercialization of products. To date, we have financed our operations primarily
through corporate partnerships, advance royalty sales and the issuance of equity. From our inception through December 31, 2021, we have raised aggregate
net proceeds of approximately $1.64 billion through the sale of common and preferred stock, the exercise of stock options and warrants, proceeds from our
Employee Stock Purchase Plan, royalty monetization transactions, and the issuance of convertible and other notes.
We maintain an effective registration statement (the “Registration Statement”), covering an unlimited amount of common stock, preferred stock,
warrants, debt securities and units. The Registration Statement includes prospectuses covering the offer, issuance and sale of up to 100 million shares of our
common stock from time to time in “at-the-market offerings” pursuant to an At Market Issuance Sales Agreement (the “Sales Agreement”) with B. Riley
FBR, Inc. as our sales agent. We sold approximately 44.2 million shares of our common stock pursuant to the Sales Agreement during the year ended
December 31, 2021 and received aggregate net proceeds of $197.6 million. As of January 31, 2022, approximately 38.1 million shares remained available
for sale under the Sales Agreement.
As of December 31, 2021, we had debt outstanding of $13.8 million in principal. In February 2020, we amended $13.5 million of the 2015
Subordinated Notes, extending the due date by three years to February 2023. The remaining $0.5 million of the 2015 Subordinated Notes were repaid in
February 2020. In April 2020, we repaid an additional $0.5 million of the 2015 Subordinated Notes, leaving $13.0 million outstanding.
Our cash, cash equivalents and short-term investments at December 31, 2021 were $306.9 million, an increase of $207.1 million from December 31,
2020.
During the past five years, we have successfully financed our operations through income and revenues generated from corporate partnerships,
advance royalty sales and issuance of equity. Based on our current plans and projections, we believe our year end cash resources of $306.9 million as of
December 31, 2021, will be sufficient to satisfy our liquidity requirements for more than one year from when the financial statements included in this
Annual Report on Form 10-K were issued.
Management continues to address the Company’s liquidity position and has the flexibility to adjust spending as needed in order to preserve liquidity.
In March 2020, in response to the COVID-19 pandemic, we streamlined our organization, which included a headcount reduction, and our CEO, Dr. Garo
Armen, elected to receive his base salary in stock rather than cash through the end of 2020 and the first half of 2021. We continuously evaluate the
likelihood of success of our programs. As such, our decisions to continue to fund or eliminate funding of each of our programs are predicated on these
determinations, on an ongoing basis. We are prepared to discontinue funding of any activities that do not impact our core priorities if they do not prove to
be feasible, and to restrict capital expenditures and/or reduce the scale of our operations. We expect our potential sources of funding to include: (1)
collaborations, out-licensing and/or partnering opportunities for our portfolio programs and product candidates with multiple parties, (2) milestone
payments from our existing partnerships, (3) consummating additional third-party agreements, (4) selling assets, (5) securing project financing and/or (6)
selling equity securities.
Our future cash requirements include, but are not limited to, supporting clinical trial and regulatory efforts and continuing our other research and
development programs. Since inception, we have entered into various agreements with contract manufacturers, institutions, and clinical research
organizations (collectively "third party providers") to perform pre-clinical activities and to conduct and monitor our clinical studies. Under these
agreements, subject to the enrollment of patients and performance by the applicable third-party provider, we have estimated our total payments to be $486.8
million over the term of the related activities. Through December 31, 2021, we have expensed $391.5 million as research and development expenses and
$372.5 million has been paid under these agreements. The timing of expense recognition and future payments related to these agreements is subject to the
enrollment of patients and performance by the applicable third-party provider. We plan to enter into additional agreements with third party providers and
we anticipate significant additional expenditures will be required to initiate and advance our various programs.
Part of our strategy is to develop and commercialize some of our product candidates by continuing our existing collaboration arrangements with
academic and collaboration partners and licensees and by entering into new collaborations. As a result of our collaboration agreements, we will not
completely control the efforts to attempt to bring those product candidates to market. For example, our collaboration with Incyte for the development,
manufacture and commercialization of CPM antibodies against certain targets is managed by a joint steering committee, which is controlled by Incyte.
73
Net cash provided by (used in) operating activities for the years ended December 31, 2021 and 2020 was $10.1 million and ($139.1) million,
respectively. Our future ability to generate cash from operations will depend on achieving regulatory approval and market acceptance of our product
candidates, achieving benchmarks as defined in existing collaboration agreements, and our ability to enter into new collaborations. Please see the “Note
Regarding Forward-Looking Statements” of this Annual Report on Form 10-K and the risks highlighted under Part I-Item 1A. “Risk Factors” of this
Annual Report on Form 10-K.
The table below summarizes our material cash requirements from known contractual and other obligations as of December 31, 2021 (in thousands).
Long-term debt (1)
Operating leases (2)
Finance leases (3)
Total
Total
14,966
119,423
23,065
157,454
$
$
$
$
Less than
1 Year
Payments by Period
1-3 Years
3-5 Years
More than
5 Years
1,824
7,317
4,099
13,240
$
$
13,142
17,925
15,240
46,307
$
$
—
16,763
3,726
20,489
$
$
—
77,418
—
77,418
(1)
(2)
(3)
Includes fixed interest payments. See Note 18 of the notes to our consolidated financial statements contained elsewhere in this Annual Report on
Form 10-K for further description of our debt.
The leases and subleases for our properties expire at various times between 2023 and 2036.
The amounts include payments for a lease that was signed but had not yet commenced as of December 31, 2021. See Note 17 of the notes to our
consolidated financial statements contained elsewhere in this Annual Report on Form 10-K for further description of our leases.
Critical Accounting Policies and Estimates
The SEC defines “critical accounting policies” as those that require the application of management’s most difficult, subjective, or complex
judgments, often as a result of the need to make estimates about the effect of matters that are inherently uncertain and may change in subsequent periods.
The preparation of consolidated financial statements in conformity with U.S. generally accepted accounting principles requires us to make estimates
and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the reporting period. We base those estimates on historical experience and on various
assumptions that are believed to be reasonable under the circumstances. Actual results could differ from those estimates.
The following listing is not intended to be a comprehensive list of all of our accounting policies. Our significant accounting policies are described in
Note 2 of the notes to our consolidated financial statements contained elsewhere in this Annual Report on Form 10-K. In many cases, the accounting
treatment of a particular transaction is dictated by U.S. generally accepted accounting principles, with no need for our judgment in its application. There are
also areas in which our judgment in selecting an available alternative would not produce a materially different result. We have identified the following as
our critical accounting policies.
Revenue Recognition
In accordance with ASC 606, revenue is recognized when a customer obtains control of promised goods or services. The amount of revenue
recognized reflects the consideration to which we expect to be entitled to receive in exchange for these goods and services. Refer to Note 2 to our
consolidated financial statements included within Item 8 of this Annual Report on Form 10-K for a more detailed description of our application of ASC
606.
Non-cash Interest Expense on Liability Related to Sale of Future Royalties
In January 2018 we entered into the HCR Royalty Purchase Agreement with HCR. Pursuant to the terms of the HCR Royalty Purchase Agreement,
we sold to HCR 100% of our worldwide rights to receive royalties from GSK on sales of GSK’s vaccines containing our QS-21 Stimulon adjuvant.
Although we sold all of our rights to receive royalties on sales of GSK’s vaccines containing QS-21, as a result of our obligation to HCR, we recorded the
proceeds from this transaction as a liability on our consolidated balance sheet that will be amortized using the interest method over the estimated life of the
HCR Royalty Purchase Agreement. As a result, we impute interest on the transaction and record non-cash interest expense at the estimated interest rate.
Our estimate of the interest rate under the agreement is based on the amount of royalty payments to be received by HCR over the life of the arrangement.
We
74
periodically assess the expected royalty payments to HCR from GSK using a combination of historical results and forecasts from market data sources. To
the extent such payments are greater or less than our initial estimates or the timing of such payments is materially different than our original estimates, we
will prospectively adjust the amortization of the liability. There are a number of factors that could materially affect the amount and timing of royalty
payments from GSK, all of which are not within our control. Such factors include, but are not limited to, changing standards of care, the introduction of
competing products, manufacturing or other delays, biosimilar competition, patent protection, adverse events that result in governmental health authority
imposed restrictions on the use of the drug products, significant changes in foreign exchange rates, and other events or circumstances that could result in
reduced royalty payments from GSK, all of which would result in a reduction of non-cash royalty revenues and the non-cash interest expense over the life
of the HCR Royalty Purchase Agreement. Conversely, if sales of GSK’s vaccines containing QS-21 are more than expected, the non-cash royalty revenues
and the non-cash interest expense recorded by us would be greater over the life of the HCR Royalty Purchase Agreement.
Recent Accounting Pronouncements
Refer to Note 2 to our consolidated financial statements included within Item 8 of this Annual Report on Form 10-K for a description of recent
accounting pronouncements applicable to our business.
75
Item 7A.
Quantitative and Qualitative Disclosures About Market Risk
Our primary market risk exposure is foreign currency exchange rate risk. International revenues and expenses are generally transacted by our
foreign subsidiary and are denominated in local currency. Less than 0.1% and approximately 0.3% of our cash used in operations for the years ended
December 31, 2021 and 2020, respectively, was from a foreign subsidiary. Additionally, in the normal course of business, we are exposed to fluctuations in
interest rates as we seek debt financing and invest excess cash. We are also exposed to foreign currency exchange rate fluctuation risk related to our
transactions denominated in foreign currencies. We do not currently employ specific strategies, such as the use of derivative instruments or hedging, to
manage these exposures. Our currency exposures vary but are primarily concentrated in the Euro, Swiss Franc and British Pound, in large part due to our
subsidiaries, AgenTus Therapeutics SA, a company formerly with operations in Belgium, Agenus Switzerland a company formerly with operations in
Switzerland and both Agenus UK Limited and AgenTus Therapeutics Limited, with operations in England. During the year ended December 31, 2021,
there has been no material change with respect to our approach toward those exposures.
We had cash, cash equivalents and short-term investments at December 31, 2021 of $306.9 million, which are exposed to the impact of interest and
foreign currency exchange rate changes, and our interest income fluctuates as interest rates change. Due to the short-term nature of our investments in
money market funds and U.S. Treasury Bills, our carrying value approximates the fair value of these investments at December 31, 2021, however, we are
subject to investment risk.
We invest our cash, cash equivalents and short-term investments in accordance with our investment policy. The primary objectives of our investment
policy are to preserve principal, maintain proper liquidity to meet operating needs, and maximize yields. We review our investment policy annually and
amend it as deemed necessary. Currently, the investment policy prohibits investing in any structured investment vehicles and asset-backed commercial
paper. Although our investments are subject to credit risk, our investment policy specifies credit quality standards for our investments and limits the
amount of credit exposure from any single issue, issuer, or type of investment. We do not invest in derivative financial instruments. Accordingly, we do not
believe that there is currently any material market risk exposure with respect to derivatives or other financial instruments that would require disclosure
under this item.
76
Item 8.
Financial Statements and Supplementary Data
INDEX TO FINANCIAL STATEMENTS
Report of Independent Registered Public Accounting Firm
Consolidated Balance Sheets
Consolidated Statements of Operations and Comprehensive Loss
Consolidated Statements of Convertible Preferred Stock and Stockholders’ Equity (Deficit)
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
77
78
80
81
82
85
86
Report of Independent Registered Public Accounting Firm
To the Stockholders and Board of Directors
Agenus Inc.:
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of Agenus Inc. and subsidiaries (the Company) as of December 31, 2021 and 2020, the
related consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit, and cash flows for each of the
years in the three-year period ended December 31, 2021, and the related notes (collectively, 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, 2021 and 2020, and the
results of its operations and its cash flows for each of the years in the three-year period ended December 31, 2021, in conformity with U.S. generally
accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company’s
internal control over financial reporting as of December 31, 2021, 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 March 1, 2022 expressed an unqualified opinion on the
effectiveness of the Company’s internal control over financial reporting.
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 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.
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current period audit of the consolidated financial statements that was
communicated or required to be communicated to the audit committee and that: (1) relates to accounts or disclosures that are material to the consolidated
financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of a critical audit matter does not
alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter below,
providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
Going concern analysis
As discussed in Note 1 to the consolidated financial statements, the Company has incurred significant losses since its inception. As of December 31, 2021,
the Company had an accumulated deficit of $1.49 billion. The Company finances its operations through income and revenues generated from corporate
partnerships, advance royalty sales and issuance of equity. Management has concluded that, based on its current plans and projections, the Company will be
able to satisfy its liquidity requirements for more than one year from when these financial statements were issued. The Company continuously evaluates the
likelihood of success of its programs. As such, its decisions to continue to fund or eliminate funding of each of its programs are predicated on these
determinations, on an ongoing basis. The Company is prepared to discontinue funding of any activities that do not impact core priorities if they do not
prove to be feasible, among other actions.
78
We identified the assessment of liquidity and the Company’s ability to continue as a going concern as a critical audit matter. A high degree of subjective
auditor judgment was required to evaluate the Company’s forecasted cash flows used in its liquidity analysis due to uncertainty in certain assumptions used
to estimate the cash flows. Specifically, auditor judgment was required to evaluate management’s plans to control spending.
The following are the primary procedures we performed to address this critical audit matter. We evaluated the design and tested the operating effectiveness
of certain internal controls related to the Company’s going concern assessment. These included controls related to the inputs and assumptions used to
forecast cash flows in the liquidity analysis. We compared the Company’s historical forecasted cash flows to actual results to assess the Company’s ability
to accurately forecast. We evaluated the Company’s liquidity analysis by assessing the feasibility of management’s spending plans. We also evaluated
whether the information used in management’s analysis was consistent with information presented to the Board of Directors and other public information
disseminated by the Company.
We have served as the Company’s auditor since 1997.
Boston, Massachusetts
March 1, 2022
/s/ KPMG LLP
79
AGENUS INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands, except share and per share amounts)
ASSETS
December 31,
2021
December 31,
2020
$
$
$
Cash and cash equivalents
Short-term investments
Accounts Receivable
Prepaid expenses
Other current assets
Total current assets
Property, plant and equipment, net of accumulated amortization and depreciation of
$50,539 and $47,201 at December 31, 2021 and 2020, respectively
Operating lease right-of-use assets
Goodwill
Acquired intangible assets, net of accumulated amortization of $13,955 and
$11,841 at December 31, 2021 and 2020, respectively
Other long-term assets
Total assets
LIABILITIES, CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ EQUITY (DEFICIT)
Current portion, long-term debt
Current portion, liability related to sale of future royalties and milestones
Current portion, deferred revenue
Current portion, operating lease liabilities
Accounts payable
Accrued liabilities
Other current liabilities
Total current liabilities
Long-term debt, net of current portion
Liability related to sale of future royalties and milestones, net of current portion
Deferred revenue, net of current portion
Operating lease liabilities, net of current portion
Contingent purchase price consideration
Other long-term liabilities
Commitments and contingencies (Note 21)
CONVERTIBLE PREFERRED STOCK
Preferred stock, par value $0.01 per share; 5,000,000 shares authorized:
Series C-1 convertible preferred stock; no and 12,459 shares designated, issued,
and outstanding at December 31, 2021 and 2020, respectively
STOCKHOLDERS’ EQUITY (DEFICIT)
Series A-1 convertible preferred stock; 31,620 shares designated, issued, and
outstanding at December 31, 2021 and 2020; liquidation value
of $33,460 and $33,250 at December 31, 2021, and 2020, respectively
Common stock, par value $0.01 per share; 400,000,000 shares authorized;
256,897,910 shares and 196,090,980 shares issued at December 31, 2021 and 2020, respectively
Additional paid-in capital
Accumulated other comprehensive income
Accumulated deficit
Total stockholders’ equity (deficit) attributable to Agenus Inc.
Non-controlling interest
Total stockholders’ equity (deficit)
Total liabilities, convertible preferred stock and stockholders’ equity (deficit)
$
See accompanying notes to consolidated financial statements.
80
291,931 $
14,992
1,518
20,362
3,171
331,974
60,029
31,054
24,876
8,488
9,537
465,958 $
728 $
62,040
12,425
2,627
30,486
42,091
6,546
156,943
12,823
191,708
11,200
42,109
1,689
1,577
99,871
—
1,157
10,746
2,009
113,783
26,790
33,480
25,452
10,886
4,123
214,514
833
57,362
17,186
1,950
17,015
29,057
6,481
129,884
18,879
176,263
28,282
34,065
10,208
1,514
—
26,917
0
0
2,569
1,520,212
1,492
(1,489,833)
34,440
13,469
47,909
465,958 $
1,961
1,257,502
2,772
(1,465,907)
(203,672)
(7,826)
(211,498)
214,514
AGENUS INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
For the Years Ended December 31, 2021, 2020, and 2019
(Amounts in thousands, except per share amounts)
Revenue:
Research and development
Service revenue
Royalty sales milestone
Other revenue
Non-cash revenue related to the sale of future royalties and milestones
Total revenues
Operating expenses:
Cost of service revenue
Research and development
General and administrative
Contingent purchase price consideration fair value adjustment
Operating income (loss)
Other income (expense):
Gain on extinguishment of debt
Loss on modification of debt
Non-operating income (expense)
Interest expense, net
Net loss
Dividends on Series A-1 convertible preferred stock
Less: net loss attributable to non-controlling interest
Net loss attributable to Agenus Inc. common stockholders
Per common share data:
Basic and diluted net loss attributable to Agenus Inc. common stockholders
Weighted average number of Agenus Inc. common shares outstanding:
Basic and diluted
Other comprehensive income (loss):
Foreign currency translation gain (loss)
Other comprehensive income (loss)
Comprehensive loss
2021
2020
2019
244,422
6,704
—
184
44,355
295,665
(3,470)
(178,608)
(76,359)
(11,481)
25,747
6,197
—
5,051
(65,719)
(28,724)
(211)
(4,798)
(24,137)
$
$
$
35,915
4,619
—
91
47,545
88,170
(2,349)
(142,617)
(59,218)
(1,221)
(117,235)
—
(2,720)
(1,858)
(61,078)
(182,891)
(209)
(1,977)
(181,123)
$
99,845
—
15,100
4,679
30,424
150,048
—
(168,339)
(46,041)
(5,805)
(70,137)
—
—
28
(41,451)
(111,560)
(208)
(3,903)
(107,865)
(0.11)
$
(1.05)
$
(0.80)
228,919
172,504
134,982
(1,280)
(1,280)
(25,417)
$
$
4,096
4,096
(177,027)
$
$
215
215
(107,650)
$
$
$
$
$
See accompanying notes to consolidated financial statements.
81
AGENUS INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ EQUITY (DEFICIT)
For the Years Ended December 31, 2021, 2020, and 2019
(Amounts in thousands)
Series C-1
Series A-1
Convertible
Preferred Stock
Convertible
Preferred Stock
Common Stock
Treasury Stock
Number of
Shares
Amount
Number of
Shares
Par
Value
Number
of
Shares
Par
Value
Additional
Paid-In
Capital
Number
of
Shares Amount
Accumulated
Other
Comprehensive
Income (Loss)
Non-
controlling
Interest
Accumulated
Deficit
Total
Balance at December 31,
2018
Net loss
Other comprehensive
income
Adoption of ASC 842
Share-based compensation
Vesting of nonvested
shares
Shares sold under stock
purchase agreement
Conversion of Series C-1
convertible preferred stock
Issuance of shares for
services
Exercise of stock options
and employee share
purchases
Balance at December 31,
2019
18 $ 39,879
32 $
0 119,997 $ 1,200 $ 1,005,183
— $ — $
(1,539) $ (2,078) $ (1,177,311) $ (174,545)
—
—
—
—
—
—
—
—
—
—
— —
— —
—
— —
— —
— —
—
— —
— —
— —
— —
— —
—
9,892
— —
— —
— —
130
1
(1) — —
—
—
— — 11,111
111
29,889
— —
(6) (12,962)
— —
6,000
60
12,902
— —
—
—
— —
29 —
81
— —
—
—
— —
552
6
1,637
— —
—
215
—
—
—
—
—
—
—
(3,903)
(107,657) (111,560)
—
—
—
—
—
—
—
—
—
(25)
—
—
—
—
—
—
215
(25)
9,892
—
30,000
12,962
81
1,643
12 $ 26,917
32 $
0 137,819 $ 1,378 $ 1,059,583
— $ — $
(1,324) $ (5,981) $ (1,284,993) $ (231,337)
See accompanying notes to consolidated financial statements.
82
AGENUS INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ EQUITY (DEFICIT)
(Continued)
For the Years Ended December 31, 2021, 2020, and 2019
(Amounts in thousands)
Series C-1
Series A-1
Convertible
Preferred Stock
Convertible
Preferred Stock
Common Stock
Treasury Stock
Number of
Shares
Amount
—
— $
Number of
Shares
Par
Value
— $ —
Number
of
Shares
Par
Value
Additional
Paid-In
Capital
— $ — $
—
Number
of
Shares Amount
— $ — $
Accumulated
Other
Comprehensive
Income (Loss)
Non-
controlling
Interest
— $ (1,977) $
Accumulated
Deficit
(180,914) $ (182,891)
Total
Net loss
Other comprehensive
income
Share-based compensation
Vesting of nonvested shares
Shares sold at the market
Shares sold under stock
purchase agreement
Issuance of subsidiary
shares to noncontrolling
interest
Issuance of shares for
business acquisition
Amendment of 2015
warrants and issuance of
2020 warrants
Payment of CEO payroll in
shares
Issuance of shares for
services
Exercise of stock options
and employee share
purchases
Balance at December 31,
2020
—
—
—
—
—
—
—
—
—
—
— —
— —
—
— —
4,096
— —
— —
2
— —
166
509
— — 50,947
10,121
— —
(2) — —
— —
155,912
— —
4,963
50
19,950
— —
—
—
—
—
—
—
—
—
—
—
—
— —
— —
2,242
— —
—
132
—
—
— —
405
4
896
— —
—
—
— —
— —
3,145
— —
—
—
— —
86
—
—
— —
208
1
2
295
— —
906
— —
—
—
— —
1,499
15
4,454
— —
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
4,096
10,121
—
156,421
20,000
2,374
900
3,145
296
908
4,469
12 $ 26,917
32 $
0 196,093 $ 1,961 $ 1,257,502
— $ — $
2,772 $ (7,826) $ (1,465,907) $ (211,498)
See accompanying notes to consolidated financial statements.
83
AGENUS INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ EQUITY (DEFICIT)
(Continued)
For the Years Ended December 31, 2021, 2020, and 2019
(Amounts in thousands)
Series C-1
Series A-1
Convertible
Preferred Stock
Convertible
Preferred Stock
Common Stock
Treasury Stock
Number of
Shares
Amount
—
—
—
— $
—
—
Number of
Shares
Par
Value
— $ —
— —
— —
Number
of
Shares
Par
Value
Additional
Paid-In
Capital
Number
of
— $ — $
— —
— —
Shares Amount
— — $ —
—
— —
—
17,514 —
Accumulated
Other
Comprehensive
Income (Loss)
—
(1,280)
—
$
Non-
controlling
Interest
$ (4,798) $
—
—
—
—
— —
246
2
(2) —
— — 44,234
442
197,206 —
(12) (26,917)
— — 12,459
125
26,792 —
—
—
—
—
—
— —
— —
6,757 —
—
—
—
—
—
—
—
— —
— —
1,767 —
— —
— —
70 —
— —
46
1
1
170 —
215 —
—
—
— —
47
—
—
—
—
—
—
— —
2,744
27
9,105 —
—
—
—
— —
1,580
16
3,116
(550) (1,654)
—
—
— —
(550)
(6)
—
550 1,654
—
—
—
—
—
—
—
—
—
—
—
Accumulated
Deficit
Total
(23,926) $ (28,724)
(1,280)
19,134
—
—
—
—
—
197,648
—
26,917
—
1,620
—
—
—
3,243
—
10,000
21,230
—
—
—
—
—
—
—
—
—
—
—
—
—
22,997
70
171
216
9,132
1,478
1,648
Net loss
Other comprehensive loss
Share-based compensation
Vesting of nonvested
shares
Shares sold at the market
Conversion of series C-1
convertible preferred stock
Issuance of subsidiary
shares to noncontrolling
interest
Sale of subsidiary shares in
an initial public offering
Issuance of warrants
Payment of CEO payroll in
shares
Issuance of shares for
services
Exercise of stock options
and employee share
purchases
Issuance of shares for
employee bonuses
Retirement of treasury
shares
Balance at December 31,
2021
— $
—
32 $
0 256,899 $ 2,569 $ 1,520,212 — $ —
$
1,492
$ 13,469
$ (1,489,833) $ 47,909
See accompanying notes to consolidated financial statements.
84
AGENUS INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Years Ended December 31, 2021, 2020, and 2019
(Amounts in thousands, except per share amounts)
Cash flows from operating activities:
Net loss
Adjustments to reconcile net loss to net cash used in operating activities:
2021
2020
2019
$
(28,724)
$
(182,891)
$
(111,560)
Depreciation and amortization
Share-based compensation
Non-cash royalty and milestone revenue
Non-cash interest expense
Donation of assets
(Gain) loss on sale or disposal of assets
Change in fair value of contingent obligations
Loss on modification of debt
Gain on extinguishment of debt
Changes in operating assets and liabilities:
Accounts receivable
Inventories
Prepaid expenses
Accounts payable
Deferred revenue
Accrued liabilities and other current liabilities
Other operating assets and liabilities
Net cash provided by (used in) operating activities
Cash flows from investing activities:
Proceeds from sale of property, plant and equipment
Purchases of property, plant and equipment
Purchases of available-for-sale securities
Cash paid for business acquisition, net
Net cash used in investing activities
Cash flows from financing activities:
Net proceeds from sale of equity
Net proceeds from sale of subsidiary shares in an initial public offering
Proceeds from employee stock purchases and option exercises
Purchase of treasury shares to satisfy tax withholdings
Proceeds from issuance of long-term debt
Payment of contingent purchase price consideration
Repayments of debt
Payment of finance lease obligation
Net cash provided by financing activities
Effect of exchange rate changes on cash
Net increase in cash, cash equivalents and restricted cash
Cash, cash equivalents and restricted cash, beginning of period
Cash, cash equivalents and restricted cash, end of period
Supplemental cash flow information:
Cash paid for interest
Supplemental disclosures - non-cash activities:
Purchases of plant and equipment in accounts payable and
accrued liabilities
Conversion of series C-1 convertible preferred stock to common stock, $0.01 par value
Issuance of common stock, $0.01 par value, for payment of certain employee bonuses
Issuance of common stock, $0.01 par value, in connection with payment for services
Issuance of common stock, $0.01 par value, in connection with business acquisition
Contingent purchase price consideration in connection with business acquisition
Issuance of subsidiary shares to noncontrolling interest
Insurance financing agreements
Lease right-of-use assets obtained in exchange for new operating lease liabilities
Lease right-of-use assets obtained in exchange for new finance lease liabilities
$
$
$
See accompanying notes to consolidated financial statements.
85
6,788
19,577
(44,355)
64,619
—
(3,301)
11,481
—
(6,197)
(394)
—
(5,129)
10,824
(21,832)
(1,062)
7,850
10,145
5,656
(33,814)
(14,992)
—
(43,150)
197,648
22,997
9,132
(1,654)
—
(1,542)
(462)
(855)
225,264
(164)
192,095
102,505
294,600
$
7,179
10,417
(47,545)
60,029
622
198
1,221
2,720
—
16,187
—
(187)
2,767
(11,464)
3,826
(2,175)
(139,096)
—
(3,466)
—
(975)
(4,441)
176,421
—
4,469
—
6,197
—
(1,462)
(1,770)
183,855
379
40,697
61,808
102,505
$
1,152
$
1,176
$
$
5,363
26,917
3,126
216
—
—
10,000
1,630
1,649
762
$
289
—
—
908
900
144
2,374
—
28,184
2,434
6,662
9,892
(30,424)
42,201
—
58
5,805
—
—
(15,355)
55
11,792
(234)
53,900
7,097
1,429
(18,682)
—
(4,657)
—
—
(4,657)
30,000
—
1,643
—
—
—
—
(320)
31,323
770
8,754
53,054
61,808
1,224
1,242
12,962
—
81
—
—
—
—
3,017
—
AGENUS INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(1) Description of Business
Agenus Inc. (including its subsidiaries, collectively referred to as “Agenus,” the “Company,” “we,” “us,” and “our”) is a clinical-stage immuno-
oncology (“I-O”) company advancing an extensive pipeline of immune checkpoint antibodies, adoptive cell therapies and neoantigen vaccines, to fight
cancer and infections. Our business is designed to drive success in I-O through speed, innovation and effective combination therapies. We believe that
combination therapies and a deep understanding of each patient’s cancer will drive substantial expansion of the patient population benefiting from current
I-O therapies. In addition to a diverse pipeline, we have assembled fully integrated end-to-end capabilities including novel target discovery, antibody
generation, cell line development and current good manufacturing practice manufacturing. We believe that these fully integrated capabilities enable us to
produce novel candidates on timelines that are shorter than the industry standard. Leveraging our science and capabilities, we have forged important
partnerships to advance our innovation.
We are developing a comprehensive I-O portfolio driven by the following platforms and programs, which we intend to utilize individually and in
combination:
•
•
•
•
our multiple antibody discovery platforms, including our proprietary display technologies, designed to drive the discovery of future CPM
antibody candidates;
our antibody candidate programs, including our CPM programs;
our saponin-based vaccine adjuvant platform under our subsidiary, SaponiQx, Inc. (“SaponiQx”), principally including our QS-21 Stimulon™
adjuvant (“QS-21 Stimulon”); and
our subsidiary, MiNK Therapeutics, Inc. (“MiNK Therapeutics”), which has a pipeline of novel allogeneic invariant natural killer T cell
(“iNKT”) therapies to treat cancer and other immune-mediated diseases.
Our business activities include product research and development, intellectual property prosecution, manufacturing, regulatory and clinical affairs,
corporate finance and development activities, and support of our collaborations. Our product candidates require clinical trials and approvals from
regulatory agencies, as well as acceptance in the marketplace. Part of our strategy is to develop and commercialize some of our product candidates by
continuing our existing arrangements with academic and corporate collaborators and licensees and by entering into new collaborations.
Our cash, cash equivalents and short-term investments at December 31, 2021 were $306.9 million, an increase of $207.1 million from December 31,
2020.
We have incurred significant losses since our inception. As of December 31, 2021, we had an accumulated deficit of $1.49 billion.
During the past five years, we have successfully financed our operations through income and revenues generated from corporate partnerships, advance
royalty sales and issuance of equity. Based on our current plans and projections, we believe our year end cash resources of $306.9 million at December 31,
2021, will be sufficient to satisfy our liquidity requirements for more than one year from when these financial statements were issued.
Management continues to address the Company’s liquidity position and has the flexibility to adjust spending as needed in order to preserve liquidity.
In March 2020, in response to the COVID-19 pandemic, we streamlined our organization, which included a headcount reduction, and our CEO, Dr. Garo
Armen, elected to receive his base salary in stock rather than cash through the end of 2020 and the first half of 2021. We continuously evaluate the
likelihood of success of our programs. As such, our decisions to continue to fund or eliminate funding of each of our programs are predicated on these
determinations, on an ongoing basis. We are prepared to discontinue funding of any activities that do not impact our core priorities if they do not prove to
be feasible, and to restrict capital expenditures and/or reduce the scale of our operations. We expect our potential sources of funding to include: (1)
collaborations, out-licensing and/or partnering opportunities for our portfolio programs and product candidates with multiple parties, (2) milestone
payments from our existing partnerships, (3) consummating additional third-party agreements, (4) selling assets, (5) securing project financing and/or (6)
selling equity securities.
Research and development program costs include compensation and other direct costs plus an allocation of indirect costs, based on certain
assumptions, and our review of the status of each program. Our product candidates are in various stages of development and significant additional
expenditures will be required if we start new trials, encounter delays in our programs, apply for regulatory approvals, continue development of our
technologies, expand our operations, and/or bring our product candidates to market. The eventual total cost of each clinical trial is dependent on a number
of factors such as trial design, length of the trial, number of clinical
86
sites, and number of patients. The process of obtaining and maintaining regulatory approvals for new therapeutic products is lengthy, expensive, and
uncertain. Because many of our antibody and neoantigen vaccine programs are early stage, and because any further development of HSP-based vaccines is
dependent on clinical trial results, among other factors, we are unable to reliably estimate the cost of completing our research and development programs or
the timing for bringing such programs to various markets or substantial partnering or out-licensing arrangements, and, therefore, when, if ever, material
cash inflows are likely to commence. We will continue to adjust our spending as needed in order to preserve liquidity.
(2) Summary of Significant Accounting Policies
(a) Basis of Presentation and Principles of Consolidation
The consolidated financial statements have been prepared in accordance with U.S. generally accepted accounting principles and include the accounts
of Agenus and our subsidiaries. All significant intercompany transactions and accounts have been eliminated in consolidation. Non-controlling interest in
the consolidated financial statements represents the portion of two of our subsidiaries not 100% owned by Agenus. Refer to Note 12 for additional detail.
(b) Segment Information
We are managed and currently operate as two segments. However, we have concluded that our two operating segments meet all three criteria required
by Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 280, Segment Reporting to be aggregated into one
reportable segment. The aggregation of our two operating segments into one reportable segment is consistent with the objectives and basic principles of
ASC 280. Our two operating segments have similar economic characteristics and are both similar with respect to the five qualitative characteristics
specified in ASC 280. Accordingly, we do not have separately reportable segments as defined by ASC 280.
(c) Use of Estimates
The preparation of consolidated financial statements in conformity with U.S. generally accepted accounting principles requires us to make estimates
and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the consolidated
financial statements and the reported amounts of revenues and expenses during the reporting period. We base those estimates on historical experience and
on various assumptions that are believed to be reasonable under the circumstances. Actual results could differ from those estimates.
(d) Cash and Cash Equivalents
We consider all highly liquid investments purchased with maturities at acquisition of three months or less to be cash equivalents. Cash equivalents
consist primarily of money market funds and U.S. Treasury Bills.
(e) Concentrations of Credit Risk
Financial instruments that potentially subject us to concentrations of credit risk are primarily cash equivalents, investments, and accounts receivable.
We invest our cash, cash equivalents and short-term investments in accordance with our investment policy, which specifies high credit quality standards
and limits the amount of credit exposure from any single issue, issuer, or type of investment. We carry balances in excess of federally insured levels;
however, we have not experienced any losses to date from this practice.
(f) Accounts Receivable
Accounts receivable are amounts due from our collaboration partners and customers as a result of research and development and other services
provided, as well as milestones achieved. We considered the need for an allowance for doubtful accounts and have concluded that no allowance was needed
as of December 31, 2021 and 2020, as the estimated risk of loss on our accounts receivable was determined to be minimal.
87
(g) Property, Plant and Equipment
Property, plant and equipment, including software developed for internal use, are carried at cost. Depreciation is computed using the straight-line
method over the estimated useful lives of the assets. Amortization of leasehold improvements is computed over the shorter of the lease term or estimated
useful life of the asset. Additions and improvements are capitalized, while repairs and maintenance are charged to expense as incurred. Amortization and
depreciation of plant and equipment was $4.6 million, $5.1 million, and $4.8 million, for the years ended December 31, 2021, 2020, and 2019, respectively.
(h) Fair Value of Financial Instruments
The estimated fair values of all our financial instruments approximate their carrying amounts in the consolidated balance sheets. The fair value of our
outstanding debt is based on a present value methodology. The outstanding principal amount of our debt, including the current portion, was $13.8 million
and $20.0 million at December 31, 2021 and 2020, respectively.
(i) Revenue Recognition
We account for revenue in accordance with ASC 606, Revenue from Contracts with Customers (“ASC 606”).
For the years ended December 31, 2021, 2020 and 2019, 74%, 16% and 60%, respectively, of our revenue was earned from one collaboration partner.
In accordance with ASC 606, revenue is recognized when a customer obtains control of promised goods or services. The amount of revenue
recognized reflects the consideration to which we expect to be entitled to receive in exchange for these goods and services. To achieve this core principle,
we apply the following five steps:
1) Identify the contract with the customer
A contract with a customer exists when (i) the Company enters into an enforceable contract with a customer that defines each party’s rights regarding
the goods or services to be transferred and identifies the related payment terms, (ii) the contract has commercial substance, and (iii) the Company
determines that collection of substantially all consideration for goods and services that are transferred is probable based on the customer’s intent and ability
to pay the promised consideration. The Company applies judgment in determining the customer’s intent and ability to pay, which is based on a variety of
factors including the customer’s historical payment experience, or in the case of a new customer, published credit and financial information pertaining to
the customer.
2) Identify the performance obligations in the contract
Performance obligations promised in a contract are identified based on the goods and services that will be transferred to the customer that are both
capable of being distinct, whereby the customer can benefit from the good or service either on its own or together with other available resources, and are
distinct in the context of the contract, whereby the transfer of the good or service is separately identifiable from other promises in the contract. To the extent
a contract includes multiple promised goods and services, the Company must apply judgment to determine whether promised goods and services are
capable of being distinct and are distinct in the context of the contract. If these criteria are not met, the promised goods and services are accounted for as a
combined performance obligation.
3) Determine the transaction price
The transaction price is determined based on the consideration to which the Company will be entitled in exchange for transferring goods and services
to the customer. 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 utilizing either the expected value method or the most likely amount method depending on the nature of the variable
consideration. Variable consideration is included in the transaction price if, in the Company’s judgment, it is probable that a significant future reversal of
cumulative revenue under the contract will not occur. Any estimates, including the effect of the constraint on variable consideration, are evaluated at each
reporting period for any changes. Determining the transaction price requires significant judgment, which is discussed in further detail for each of the
Company’s contracts with customers in Note 15.
4) Allocate the transaction price to performance obligations in the contract
If the contract contains a single performance obligation, the entire transaction price is allocated to the single performance obligation. Contracts that
contain multiple performance obligations require an allocation of the transaction price to each performance
88
obligation on a relative stand-alone selling price basis unless the transaction price is variable and meets the criteria to be allocated entirely to a performance
obligation or to a distinct service that forms part of a single performance obligation. The consideration to be received is allocated among the separate
performance obligations based on relative stand-alone selling prices. Determining the amount of the transaction price to allocate to each separate
performance obligation requires significant judgement, which is discussed in further detail for each of the Company’s contracts with customers in Note 15.
5) Recognize revenue when or as the Company satisfies a performance obligation
The Company satisfies performance obligations either over time or at a point in time. Revenue is recognized over time if either 1) the customer
simultaneously receives and consumes the benefits provided by the entity’s performance, 2) the entity’s performance creates or enhances an asset that the
customer controls as the asset is created or enhanced, or 3) the entity’s performance does not create an asset with an alternative use to the entity and the
entity has an enforceable right to payment for performance completed to date. If the entity does not satisfy a performance obligation over time, the related
performance obligation is satisfied at a point in time by transferring the control of a promised good or service to a customer. Examples of control are using
the asset to produce goods or services, enhance the value of other assets, settle liabilities, and holding or selling the asset. ASC 606 requires the Company
to select a single revenue recognition method for the performance obligation that faithfully depicts the Company’s performance in transferring control of
the goods and services. The guidance allows entities to choose between two methods to measure progress toward complete satisfaction of a performance
obligation:
1. Output methods - recognize revenue on the basis of direct measurements of the value to the customer of the goods or services transferred to date
relative to the remaining goods or services promised under the contract (e.g. surveys of performance completed to date, appraisals of results
achieved, milestones reached, time elapsed, and units of produced or units delivered); and
2.
Input methods - recognize revenue on the basis of the entity’s efforts or inputs to the satisfaction of a performance obligation (e.g., resources
consumed, labor hours expended, costs incurred, or time elapsed) relative to the total expected inputs to the satisfaction of that performance
obligation.
Licenses of intellectual property: If the license to the Company’s intellectual property is determined to be distinct from the other performance
obligations identified in the arrangement, the Company recognizes revenue from non-refundable, up-front fees allocated to the license when the license is
transferred to the customer and the customer is able to use and benefit from the license. For licenses that are bundled with other promises, the Company
utilizes judgment to assess the nature of the combined performance obligation to determine whether the combined performance obligation is satisfied over
time or at a point in time and, if over time, the appropriate method of measuring progress for purposes of recognizing revenue from non-refundable, up-
front fees. The Company evaluates the measure of progress each reporting period and, if necessary, adjusts the measure of performance and related revenue
recognition.
Milestone payments: At the inception of each arrangement that includes development, regulatory or commercial milestone payments, the Company
evaluates whether the milestones are considered probable of being reached and estimates the amount to be included in the transaction price. ASC 606
suggests two alternatives to use when estimating the amount of variable consideration: the expected value method and the most likely amount method.
Under the expected value method, an entity considers the sum of probability-weighted amounts in a range of possible consideration amounts. Under the
most likely amount method, an entity considers the single most likely amount in a range of possible consideration amounts. Whichever method is used, it
should be consistently applied throughout the life of the contract; however, it is not necessary for the Company to use the same approach for all contracts.
The Company uses the most likely amount method for development and regulatory milestone payments. If it is probable that a significant revenue reversal
would not occur, the associated milestone value is included in the transaction price. The transaction price is then allocated to each performance obligation
on a relative stand-alone selling price basis. The Company recognizes revenue as or when the performance obligations under the contract are satisfied. At
the end of each subsequent reporting period, the Company re-evaluates the probability or achievement of each such milestone and any related constraint,
and if necessary, adjusts its estimates of the overall transaction price. Any such adjustments are recorded on a cumulative catch-up basis, which would
affect revenues and earnings in the period of adjustment.
Royalties: For arrangements that include sales-based royalties, including milestone payments based on the level of sales, and the license is deemed to
be the predominant item to which the royalties relate, the Company recognizes revenue at the later of (i) when the related sales occur, or (ii) when the
performance obligation to which some or all of the royalty has been allocated has been satisfied (or partially satisfied).
Up-front Fees: Depending on the nature of the agreement, up-front payments and fees may be recorded as deferred revenue upon receipt or when due
and may require deferral of revenue recognition to a future period until the Company performs its obligations under these arrangements. Amounts payable
to the Company are recorded as accounts receivable when the Company’s right to consideration is unconditional. The Company does not assess whether a
contract has a significant financing component if the
89
expectation at contract inception is such that the period between payment by the customer and the transfer of the promised goods or services to the
customer will be one year or less.
(j) Foreign Currency Transactions
Gains and losses from our foreign currency-based accounts and transactions, such as those resulting from the translation and settlement of receivables
and payables denominated in foreign currencies, are included in the consolidated statements of operations within other income (expense). We do not
currently use derivative financial instruments to manage the risks associated with foreign currency fluctuations. We recorded a foreign currency gain of
$1.0 million for the year ended December 31, 2021, a foreign currency loss of $3.1 million for the year ended December 31, 2020, and a foreign currency
gain of $0.1 million for the year ended December 31, 2019.
(k) Research and Development
Research and development expenses include the costs associated with our internal research and development activities, including salaries and benefits,
share-based compensation, occupancy costs, clinical manufacturing costs, related administrative costs, and research and development conducted for us by
outside advisors, such as sponsored university-based research partners and clinical study partners. We account for our internally managed clinical study
costs by estimating the total cost to treat a patient in each clinical trial and recognizing this cost based on estimates of when the patient receives treatment,
beginning when the patient enrolls in the trial. Research and development expenses also include the cost of clinical trial materials shipped to our research
partners. Research and development costs are expensed as incurred.
(l) Share-Based Compensation
We account for share-based compensation in accordance with the provisions of ASC 718, Compensation—Stock Compensation. Share-based
compensation expense is recognized based on the estimated grant date fair value. Compensation cost is recognized on a straight-line basis over the requisite
service period of the award. Forfeitures are recognized as they occur. See Note 13 for a further discussion on share-based compensation.
(m) Income Taxes
Income taxes are accounted for under the asset and liability method with deferred tax assets and liabilities recognized for the future tax consequences
attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax basis and net operating
loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in
which such items are expected to be reversed or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in the
consolidated statement of operations in the period that includes the enactment date. Deferred tax assets are recognized when they are more likely than not
expected to be realized.
(n) Net Loss Per Share
Basic income and loss per common share are calculated by dividing the net loss attributable to common stockholders by the weighted average number
of common shares outstanding (including common shares issuable under our Directors’ Deferred Compensation Plan). Diluted income per common share
is calculated by dividing net income attributable to common stockholders by the weighted average number of common shares outstanding (including
common shares issuable under our Directors’ Deferred Compensation Plan) plus the dilutive effect of outstanding instruments such as warrants, stock
options, non-vested shares, convertible preferred stock, and convertible notes. Because we reported a net loss attributable to common stockholders for all
periods presented, diluted loss per common share is the same as basic loss per common share, as the effect of utilizing the fully diluted share count would
have reduced the net loss per common share. Therefore, the following potentially dilutive securities have been excluded from the computation of diluted
weighted average shares outstanding as of December 31, 2021, 2020, and 2019, as they would be anti-dilutive:
Warrants
Stock options
Nonvested shares
Series A-1 convertible preferred stock
Series C-1 convertible preferred stock
2021
Year Ended
2020
1,980
32,764
1,018
333
—
1,950
28,916
887
333
12,459
2019
1,400
27,164
2,120
333
12,459
90
(o) Goodwill
Goodwill represents the excess of cost over the fair value of net assets of businesses acquired. Goodwill is not amortized, but instead tested for
impairment at least annually. Annually we assess whether there is an indication that goodwill is impaired, or more frequently if events and circumstances
indicate that the asset might be impaired during the year. We perform our annual impairment test as of October 31 of each year. The first step of our
impairment analysis compares the fair value of our reporting units to their net book value to determine if there is an indicator of impairment. We operate as
three reporting units. ASC 350, Intangibles, Goodwill and Other states that if the carrying value of a reporting unit is negative, the second step of the
impairment test shall be performed to measure the amount of impairment loss, if any, if qualitative factors indicate that it is more likely than not that a
goodwill impairment exists. No goodwill impairment has been recognized for the periods presented.
(p) Long-lived Assets
If required based on certain events and circumstances, recoverability of assets to be held and used, other than goodwill and intangible assets not being
amortized, is measured by a comparison of the carrying amount of an asset to the undiscounted future net cash flows expected to be generated by the asset
or asset group. If the carrying amount of an asset exceeds its estimated future undiscounted cash flows, an impairment charge is recognized for the amount
by which the carrying amount of the asset exceeds the fair value of the asset. Authoritative guidance requires companies to separately report discontinued
operations and extends that reporting to a component of an entity that either has been disposed of (by sale, abandonment, or in a distribution to owners) or
is classified as held for sale. Assets to be disposed of are reported at the lower of the carrying amount or fair value less costs to sell.
(q) Leases
In February 2016, the Financial Accounting Standards Board (“FASB”) issued ASU 2016-02, Leases (Topic 842) (“ASC 842”) which supersedes
Topic 840, Leases (“ASC 840”). We adopted ASC 842 on January 1, 2019 using the alternative transition method and recorded a cumulative effect
adjustment to beginning retained earnings without restating prior periods. We elected the package of practical expedients, which allowed us to carry
forward our historical lease classification, our assessment of whether a contract is or contains a lease and our initial direct costs for any leases that existed
prior to adoption of the new standard.
At the inception of an agreement, we determine whether the contract contains a lease. If a lease is identified in such arrangement, we recognize a
right-of-use asset and liability on our consolidated balance sheet and determine whether the lease should be classified as a finance or operating lease. We
have elected not to recognize assets or liabilities for leases with lease terms of 12 months or less.
A lease qualifies as a finance lease if any of the following criteria are met at the inception of the lease: (i) there is a transfer of ownership of the
leased asset by the end of the lease term, (ii) we hold an option to purchase the leased asset that we are reasonably certain to exercise, (iii) the lease term is
for a major part of the remaining economic life of the leased asset, (iv) the present value of the sum of lease payments equals or exceeds substantially all of
the fair value of the leased asset, or (v) the nature of the leased asset is specialized to the point that it is expected to provide the lessor no alternative use at
the end of the lease term. All other leases are recorded as operating leases.
Our leases commence when the lessor makes the asset available for our use. Finance and operating lease right-of-use assets and liabilities are
recognized at the lease commencement date. Lease liabilities are recognized as the present value of the lease payments over the lease term, net of any
future lease incentives to be received, using the discount rate implicit in the lease. If the implicit rate is not readily determinable, as is the case with all our
current leases, we utilize our incremental borrowing rate at the lease commencement date. Right-of-use assets are recognized based on the amount of the
lease liability, adjusted for any advance lease payments paid, initial direct costs incurred, or lease incentives received prior to commencement. Right-of-use
assets are subject to evaluation for impairment or disposal on a basis consistent with other long-lived assets.
Operating lease payments are expensed using the straight-line method as an operating expense over the lease term, unless the right-of-use asset
reflects impairment. We will then recognize the amortization of the right-of-use asset on a straight-line basis over the remaining lease term with rent
expense still included in operating expense in our consolidated statement of operations.
Finance lease assets are amortized to depreciation expense using the straight-line method over the shorter of the useful life of the related asset or the
lease term, unless the lease includes a provision that either (i) results in the transfer of ownership of the underlying asset at the end of the lease term or (ii)
includes a purchase option whose exercise is reasonably certain. In either of these instances, the right-of-use asset is amortized over the useful life of the
underlying asset. Finance lease payments are bifurcated into (i) a portion that is recorded as imputed interest expense and (ii) a portion that reduces the
finance lease liability.
91
We do not separate lease and non-lease components for any of our current asset classes when determining which lease payments to include in the
calculation of its lease assets and liabilities. Variable lease payments are expensed in the period incurred. If a lease includes an option to extend or terminate
the lease, we reflect the option in the lease term if it is reasonably certain the option will be exercised. Our right of use assets and lease liabilities generally
exclude periods covered by renewal options and include periods covered by early termination options (based on our conclusion that it is not reasonably
certain that we will exercise such options).
We account for the sublease of space in our main Lexington, Massachusetts facility from the perspective of a lessor. Our sublease is classified as an
operating lease. We record sublease income as a reduction of operating expense.
Operating leases are recorded in “Operating lease right-of-use assets”, “Current portion, operating lease liabilities” and “Operating lease liabilities,
net of current portion”, while finance leases are recorded in “Property, plant and equipment, net”, “Other current liabilities” and “Other long-term
liabilities” on our consolidated balance sheets.
(r) Recent Accounting Pronouncements
Recently Issued and Adopted
In December 2019, the Financial Accounting Standards Board (“FASB”) issued ASU No. 2019-12, Income Taxes (Topic 740): Simplifying the
Accounting for Income Taxes (“ASU 2019-12”). ASU 2019-12 enhances and simplifies multiple aspects of the income tax accounting guidance in ASC
740. We adopted the standard on January 1, 2021. The adoption did not have a material impact on our consolidated financial statements.
Recently Issued, Not Yet Adopted
In January 2017, the FASB issued ASU 2017-04, Intangibles – Goodwill and Other (Topic 350) that will eliminate the requirement to calculate the
implied fair value of goodwill to measure a goodwill impairment charge. Instead, an impairment charge will be based on the excess of a reporting unit’s
carrying amount over its fair value. The guidance is effective for the Company in the first quarter of fiscal 2023. Early adoption is permitted. We do not
anticipate the adoption of this guidance to have a material impact on our consolidated financial statements, absent any goodwill impairment.
No other new accounting pronouncement issued or effective during the year ended December 31, 2021 had or is expected to have a material impact on
our consolidated financial statements or disclosures.
(3) Business Acquisitions
4-Antibody
On January 10, 2014, we entered into a Share Exchange Agreement (the “Share Exchange Agreement”) providing for our acquisition of all of the
outstanding capital stock of Agenus Switzerland Inc. (formerly known as 4-Antibody AG) (“4-AB”), from the shareholders of 4-AB (the “4-AB
Shareholders”). Contingent milestone payments of up to $40.0 million (the “contingent purchase price consideration”), payable in cash or shares of our
common stock at our option, are due to the 4-AB Shareholders as follows: (i) $20.0 million upon our market capitalization exceeding $300.0 million for 10
consecutive trading days prior to the earliest of (a) the fifth anniversary of the Closing Date (b) the sale of the 4-AB or (c) the sale of Agenus; (ii) $10.0
million upon our market capitalization exceeding $750.0 million for 30 consecutive trading days prior to the earliest of (a) the tenth anniversary of the
Closing Date (b) the sale of 4-AB, or (c) the sale of Agenus, and (iii) $10.0 million upon our market capitalization exceeding $1.0 billion for 30
consecutive trading days prior to the earliest of (a) the tenth anniversary of the Closing Date, (b) the sale of 4-AB, or (c) the sale of Agenus. During January
2015, the first milestone noted above was achieved and, during 2021, the remaining two milestones were achieved.
PhosImmune Inc.
On December 23, 2015 (the “PhosImmune Closing Date”), we entered into a Purchase Agreement with PhosImmune Inc., a privately-held Virginia
corporation (“PhosImmune”), the securityholders of PhosImmune (the “PhosImmune Securityholders”) and Fanelli Haag PLLC, as representative of the
PhosImmune Securityholders providing for the acquisition of all outstanding securities of PhosImmune. Contingent milestone payments up to $35.0
million payable in cash and/or stock at our option are due as follows: (i) $5.0 million upon the closing trading price of our common stock equals or exceeds
$8.00 for 60 consecutive trading days prior to the earlier of (a) the fifth anniversary of the PhosImmune Closing Date (this milestone expired unachieved on
December 23, 2020) or (b) the sale of Agenus; (ii) $15.0 million if the closing trading price of our common stock equals or exceeds $13.00 for 60
consecutive
92
trading days prior to the earlier of (a) the tenth anniversary of the PhosImmune Closing Date or (b) the sale of Agenus; and (iii) $15.0 million if the closing
trading price of our common stock equals or exceeds $19.00 for 60 consecutive trading days prior to the earlier of (a) the tenth anniversary of the
PhosImmune Closing Date or (b) the sale of Agenus.
(4) Goodwill and Acquired Intangible Assets
The following table sets forth the changes in the carrying amount of goodwill for year ended December 31, 2021 (in thousands):
Balance, December 31, 2020
Effect of foreign currency
Balance, December 31, 2021
$
$
25,452
(576)
24,876
Acquired intangible assets consisted of the following at December 31, 2021 and 2020 (in thousands):
Intellectual Property
Trademarks
Other
In-process research and development
Total
Intellectual Property
Trademarks
Other
In-process research and development
Total
Amortization
period
(years)
7-15 years
4-4.5 years
2-7 years
Indefinite
Amortization
period
(years)
7-15 years
4.5 years
2-6 years
Indefinite
As of December 31, 2021
Gross carrying
amount
Accumulated
amortization
Net carrying
amount
$
$
16,850 $
1,277
2,255
2,061
22,443 $
(11,927) $
(1,047)
(981)
—
(13,955) $
4,923
230
1,274
2,061
8,488
As of December 31, 2020
Gross carrying
amount
Accumulated
amortization
Net carrying
amount
$
$
17,013 $
1,310
2,272
2,132
22,727 $
(10,112) $
(980)
(749)
—
(11,841) $
6,901
330
1,523
2,132
10,886
The weighted average amortization period of our finite-lived intangible assets is approximately 9 years. Amortization expense for the years ended
December 31, 2021, 2020, and 2019 was $2.1 million, $2.4 million and $2.0 million, respectively. Amortization expense related to acquired intangibles is
estimated at $2.2 million for 2022, $1.7 million for 2023 and $0.6 million for each of 2024, 2025 and 2026.
The acquired IPR&D asset relates to the six pre-clinical antibody programs acquired in the Agenus Switzerland transaction. IPR&D acquired in a
business combination is capitalized at fair value until the underlying project is completed and is subject to impairment testing. Once the project is
completed, the carrying value of IPR&D is amortized over the estimated useful life of the asset. Post-acquisition research and development expenses
related to the acquired IPR&D are expensed as incurred.
(5) Investments
Cash Equivalents and Short-term Investments
Cash equivalents and short-term investments consisted of the following as of December 31, 2021 and 2020 (in thousands):
Institutional Money Market Funds
U.S. Treasury Bills
Total
December 31, 2021
December 31, 2020
Cost
219,903 $
34,989
254,892 $
$
$
Estimated
Fair Value
219,903 $
34,989
254,892 $
Cost
64,256 $
20,000
84,256 $
Estimated
Fair Value
64,256
20,000
84,256
93
As a result of the short-term nature of our investments, there were minimal unrealized holding gains or losses for the years ended December 31, 2021,
2020 and 2019.
Of the investments listed above, $239.9 million were classified as cash equivalents and $15.0 million as short-term investments on our consolidated
balance sheets as of December 31, 2021. All were classified as cash equivalents as of December 31, 2020.
(6) Restricted Cash
As of December 31, 2021 and 2020, we maintained non-current restricted cash of $2.7 million and $2.6 million, respectively. These amounts are
included within “Other long-term assets” in our consolidated balance sheets and are comprised of letters of credit required under two of our facility leases.
We did not maintain restricted cash as of December 31, 2019.
The following table provides a reconciliation of cash, cash equivalents and restricted cash that agrees to the total of the aforementioned amounts
shown in our consolidated statements of cash flows as of December 31, 2021, 2020 and 2019, respectively (in thousands):
Cash and cash equivalents
Restricted cash
Cash, cash equivalents and restricted cash
2021
2020
2019
$
$
291,931
2,669
294,600
$
$
99,871
2,634
102,505
$
$
61,808
—
61,808
(7) Property, Plant and Equipment
Property, plant and equipment, net as of December 31, 2021 and 2020 consist of the following (in thousands):
2021
2020
Land
Building and building improvements
Furniture, Fixtures, and other
Laboratory, manufacturing and transportation equipment
Leasehold improvements
Software and computer equipment
Less accumulated depreciation and amortization
Total
$
$
$
17,969
5,630
4,874
27,095
45,496
9,504
110,568
(50,539)
$
60,029
2,230
5,630
5,866
22,855
28,390
9,020
73,991
(47,201)
26,790
Estimated
Depreciable
Lives
Indefinite
35 years
3 to 10 years
4 to 10 years
2 to 12 years
3 years
(8) Income Taxes
We are subject to taxation in the U.S. and in various state, local, and foreign jurisdictions. We remain subject to examination by U.S. Federal, state,
local, and foreign tax authorities for tax years 2018 through 2021. With a few exceptions, we are no longer subject to U.S. Federal, state, local, and foreign
examinations by tax authorities for the tax year 2017 and prior. However, net operating losses from the tax year 2017 and prior would be subject to
examination if and when used in a future tax return to offset taxable income. Our policy is to recognize income tax related penalties and interest, if any, in
our provision for income taxes and, to the extent applicable, in the corresponding income tax assets and liabilities, including any amounts for uncertain tax
positions.
As of December 31, 2021, we had available net operating loss carryforwards of $749.3 million and $231.6 million for Federal and state income tax
purposes, respectively, which are available to offset future Federal and state taxable income, if any, $152.9 million of these Federal net operating loss
carryforwards do not expire, while the remaining net operating loss carryforwards expire between 2022 and 2041. Our ability to use these net operating
losses may be limited by change of control provisions under Internal Revenue Code Section 382 and may expire unused. In addition, we have $8.7 million
and $2.2 million of Federal and state research and development credits, respectively, available to offset future taxable income. These Federal and state
research and development credits expire between 2022 and 2033 and 2022 and 2029, respectively. Additionally, we have $211,000 of state investment tax
credits, available to offset future taxable income and expire between 2022 and 2025. We also have foreign net operating loss carryforwards, which do not
expire, available to offset future foreign taxable income of $11.5 million in the United Kingdom, $11.7 million in Belgium, $685,000 in Ireland, and
$289,000 in Hong Kong. The potential impacts of such provisions are among the items considered and reflected in management’s assessment of our
valuation allowance requirements.
94
The tax effect of temporary differences and net operating loss and tax credit carryforwards that give rise to significant portions of the deferred tax
assets and deferred tax liabilities as of December 31, 2021 and 2020 are presented below (in thousands).
Deferred tax assets:
U.S. Federal and State net operating loss carryforwards
Foreign net operating loss carryforwards
Research and development tax credits
Share-based compensation
Intangible Assets
Interest expense carryforward
Deferred Revenue
Lease Liability
Other
Total deferred tax assets
Less: valuation allowance
Net deferred tax assets
Foreign intangible assets
Right of use asset
Other
Deferred tax liabilities
Net deferred tax liability
2021
2020
$
$
$
171,848
6,608
10,577
5,383
33,511
11,319
51,256
9,945
5,285
305,732
(297,831)
7,901
(940)
(6,946)
(1,017)
(8,903)
(1,002) $
168,786
5,302
14,314
4,846
39,477
7,114
58,796
8,389
4,768
311,792
(303,747)
8,045
(1,052)
(7,852)
(192)
(9,096)
(1,051)
In assessing the realizability of deferred tax assets, we consider whether it is more likely than not that some portion or all of the deferred tax assets
will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which
the net operating loss and tax credit carryforwards can be utilized or the temporary differences become deductible. We consider projected future taxable
income and tax planning strategies in making this assessment. In order to fully realize the deferred tax asset, we will need to generate future taxable income
sufficient to utilize net operating losses prior to their expiration. Based upon our history of not generating taxable income due to our business activities
focused on product development, we believe that it is more likely than not that deferred tax assets will not be realized through future earnings. Accordingly,
a valuation allowance has been established for deferred tax assets which will not be offset by the reversal of deferred tax liabilities. The valuation
allowance on the deferred tax assets decreased by $5.9 million and increased by $41.5 million during the years ended December 31, 2021 and 2020,
respectively.
Income tax benefit was nil for the years ended December 31, 2021, 2020 and 2019. Income taxes recorded differed from the amounts computed by
applying the U.S. Federal income tax rate of 21% to loss before income taxes as a result of the following (in thousands).
Computed “expected” Federal tax benefit
(Increase) reduction in income taxes benefit resulting from:
Change in valuation allowance
(Decrease) increase due to uncertain tax positions
Foreign income inclusion
Loan forgiveness
State and local income benefit, net of Federal income tax
benefit
Equity based compensation
Foreign rate differential
Change in fair value contingent consideration
Other, net
Income tax benefit
2021
2020
2019
$
(5,976) $
(38,706) $
(23,413)
(5,916)
1,674
—
(1,301)
9,242
2,290
(277)
2,343
(2,079)
— $
41,519
(764)
3,570
—
(4,675)
1,883
629
287
(3,743)
— $
7,913
(64)
—
—
4,144
1,367
(564)
1,219
9,398
—
$
A reconciliation of the beginning and ending amount of gross unrecognized tax benefits is as follows (in thousands):
Balance, January 1
Increase (decrease) related to current year
positions
Increase (decrease) related to previously
recognized positions
Balance, December 31
2021
2020
2019
$
3,614 $
4,292 $
4,356
(484)
88
122
18
3,148 $
(766)
3,614 $
(186)
4,292
$
95
These unrecognized tax benefits would all impact the effective tax rate if recognized. There are no positions which we anticipate could change within
the next twelve months.
(9) Accrued Liabilities
Accrued liabilities consist of the following as of December 31, 2021 and 2020 (in thousands):
Payroll
Professional fees
Contract manufacturing costs
Research services
Other
Total
December 31,
2021
December 31,
2020
$
$
14,206 $
6,433
5,824
8,550
7,078
42,091 $
7,643
4,457
6,274
4,649
6,034
29,057
(10) Equity
Effective June 19, 2019, our certificate of incorporation was amended to increase the number of authorized shares of common stock from 240,000,000
to 400,000,000.
Under the terms and conditions of the Certificate of Designation creating the Series A-1 Preferred Stock, this stock is convertible by the holder at any
time into our common stock, is non-voting, has an initial conversion price of $94.86 per common share, subject to adjustment, and is redeemable by us at
its face amount ($31.6 million), plus any accrued and unpaid dividends. The Certificate of Designation does not contemplate a sinking fund. The Series A-1
Preferred Stock ranks senior to both our Series C-1 Convertible Preferred Stock and our common stock. In a liquidation, dissolution, or winding up of the
Company, the Series A-1 Preferred Stock’s liquidation preference must be fully satisfied before any distribution could be made to the holders of the
common stock. Other than in such a liquidation, no terms of the Series A-1 Preferred Stock affect our ability to declare or pay dividends on our common
stock as long as the Series A-1 Preferred Stock’s dividends are accruing. The liquidation value of this Series A-1 Preferred stock is equal to $1,000 per
share outstanding plus any accrued unpaid dividends. Dividends in arrears with respect to the Series A-1 Preferred Stock were approximately $1.8 million
or $58.21 per share, and $1.6 million, or $51.54 per share, at December 31, 2021 and 2020, respectively.
On July 22, 2020, we filed an Automatic Shelf Registration Statement on Form S-3ASR (file no. 333-240006) (the “Registration Statement”). The
Registration Statement included both a base prospectus that covered the potential offering, issuance and sale from time to time of common stock, preferred
stock, warrants, debt securities and units of Agenus and a prospectus covering the offering, issuance and sale of up to 100 million shares of our common
stock from time to time in “at-the-market offerings” pursuant to a new At Market Issuance Sales Agreement (the “Sales Agreement”) entered into with B.
Riley on July 22, 2020. Pursuant to the Sales Agreement, sales will be made only upon instructions by us to B. Riley.
During the year ended December 31, 2021, we received net proceeds of approximately $197.6 million from the sale of approximately 44.2 million
shares of our common stock at an average price per share of approximately $4.61, in at-the-market offerings under the Sales Agreement.
In June 2020, in connection with the Betta License Agreement, we entered into a stock purchase agreement with Betta and Betta HK, pursuant to
which we agreed to sell to Betta HK approximately 5.0 million shares of our common stock for an aggregate purchase price of approximately
$20.0 million, or $4.03 per share. The closing under the stock purchase agreement occurred in July 2020. Betta HK owned approximately 2.8% of the
outstanding shares of our common stock after such purchase. Under the stock purchase agreement, Betta HK has agreed not to dispose of any of the shares
for a period of 12 months and to vote the shares in accordance with the recommendations of our board of directors for a period of 12 months.
(11) Series C-1 Convertible Preferred Stock
In October 2018, we entered into a Stock Purchase Agreement with certain institutional investors (the “Purchasers”), pursuant to which we issued and
sold an aggregate of 18,459 shares of Series C-1 Convertible Preferred Stock (the “C-1 Preferred Shares”), at a purchase price of $2,167 per share. Each C-
1 Preferred Share is convertible into 1,000 shares of our common stock at an initial conversion price of $2.167 per share of common stock, which
represents a 10% premium over the prior day’s closing price on Nasdaq. The aggregate purchase price paid by the Purchasers C-1 Preferred Shares was
approximately $40,000,000. We received net proceeds of $39.9 million after offering expenses.
96
The C-1 Preferred Shares were classified as temporary or mezzanine equity on our Consolidated Balance Sheets in accordance with U.S. GAAP as the
C-1 Convertible Preferred Shares contained deemed liquidation rights that were a contingent redemption feature not solely in the Company’s control.
Conversion
The C-1 Preferred Shares were convertible at the option of the stockholder into the number of shares of Common Stock determined by dividing the
stated value of the C-1 Preferred Shares being converted by the conversion price of $2.167, subject to adjustment for stock splits, reverse stock splits and
similar recapitalization events.
In the years ended December 31, 2021 and 2019 holders of shares of Series C-1 Preferred Stock converted such shares into 12.5 million shares and
6.0 million shares, respectively, of our common stock. As of December 31, 2021, no shares of Series C-1 Convertible Preferred Stock remained
outstanding.
(12) Non-controlling Interest
Non-controlling interest recorded in our consolidated financial statements for the years ended December 31, 2021, 2020 and 2019, relates to the
following approximate interests in certain consolidated subsidiaries, which we do not own.
MiNK Therapeutics, Inc.
SaponiQx, Inc.
2021
2020
2019
21%
27%
19%
6%
19%
0%
Changes in non-controlling interest for the years ended December 31, 2021, 2020 and 2019 were as follows (in thousands):
Beginning balance
2021
2020
2019
$
(7,826)
$
(5,981)
$
(2,078)
Net loss attributable to non-controlling interest
(4,798)
(1,977)
(3,903)
Other items:
Sale of subsidiary shares in an initial public offering
Issuance of subsidiary shares to non-controlling interest
Subsidiary share-based compensation
Total other items
Ending balance
21,230
3,243
1,620
26,093
—
132
—
132
—
—
—
—
$
13,469
$
(7,826)
$
(5,981)
Sale of Subsidiary Shares in an Initial Public Offering
In the fourth quarter of 2021, the MiNK Therapeutics initial public offering was completed, resulting in an increase to non-controlling interest of
$21.2 million as of December 31, 2021.
Issuance of Subsidiary Shares to Non-controlling Interest
Shares of SaponiQx were issued in exchange for future services, resulting in an increase to non-controlling interest of $3.2 million and $0.1 million as
of December 31, 2021 and 2020, respectively.
Subsidiary Share-based Compensation
Subsidiary share-based compensation attributed to non-controlling interest represents share-based compensation expense for awards issued by MiNK
Therapeutics.
97
(13) Share-based Compensation Plans
On March 12, 2009, our Board of Directors adopted, and on June 10, 2009, our stockholders approved, our 2009 Equity Incentive Plan (the “2009
EIP”). The 2009 EIP provides for the grant of incentive stock options intended to qualify under Section 422 of the Code, nonstatutory stock options,
restricted stock, unrestricted stock and other equity-based awards, such as stock appreciation rights, phantom stock awards, and restricted stock units, for
up to 29.2 million shares of our common stock (subject to adjustment in the event of stock splits and other similar events). As of December 31, 2021, no
shares remain available for issuance under the 2009 EIP.
On April 10, 2019, our Board of Directors adopted, and on June 19, 2019, our stockholders approved, our 2019 Equity Incentive Plan (the “2019
EIP”). On June 15, 2021, our stockholders approved an amendment to the 2019 EIP, increasing the number of shares available for issuance. The 2019 EIP
provides for the grant of incentive stock options intended to qualify under Section 422 of the Code, nonstatutory stock options, restricted stock, unrestricted
stock and other equity-based awards, such as stock appreciation rights, phantom stock awards, and restricted stock units, which we refer to collectively as
Awards, for up to 55.2 million shares of our common stock (subject to adjustment in the event of stock splits and other similar events).
The Board of Directors appointed the Compensation Committee to administer the 2009 EIP and the 2019 EIP. No awards will be granted under the
2019 EIP after June 19, 2029.
On March 12, 2009, our Board of Directors adopted, and on June 10, 2009, our stockholders approved, the 2009 Employee Stock Purchase Plan (the
“2009 ESPP”) to provide eligible employees the opportunity to acquire our common stock in a program designed to comply with Section 423 of the Code.
There were 166,666 shares of common stock reserved for issuance under the 2009 ESPP. Rights to purchase common stock under the 2009 ESPP were
granted at the discretion of the Compensation Committee, which determined the frequency and duration of individual offerings under the plan and the dates
when stock may have been purchased. Eligible employees participated voluntarily and may have withdrawn from any offering at any time before the stock
is purchased. Participation terminated automatically upon termination of employment. The purchase price per share of common stock in an offering was
85% of the lesser of its fair value at the beginning of the offering period or on the applicable exercise date and may have been paid through payroll
deductions, periodic lump sum payments, the delivery of our common stock, or a combination thereof. Unless otherwise permitted by the Board of
Directors, no participant may have acquired more than 3,333 shares of stock in any offering period. No participant was allowed to purchase shares under
the 2009 ESPP if such employee would own or would have been deemed to own stock possessing 5% or more of the total combined voting power or value
of the Company. The 2009 ESPP plan terminated on June 10, 2019.
In the second quarter of 2019, our Board of Directors adopted, and on June 16, 2020, our stockholders approved the 2019 Employee Stock Purchase
Plan (the “2019 ESPP”) to provide eligible employees the opportunity to acquire our common stock in a program designed to comply with Section 423 of
the Code. On June 15, 2021, our stockholders approved an amendment to the 2019 ESPP, increasing the number of shares available for issuance. There are
1.0 million shares reserved for issuance under the 2019 ESPP.
Our Directors’ Deferred Compensation Plan, as amended, permits each outside director to defer all, or a portion of, their cash compensation until their
service as a director ends or until a specified date into a cash account or a stock account. There are 575,000 shares of our common stock reserved for
issuance under this plan. As of December 31, 2021, 72,081 shares had been issued. Amounts deferred to a cash account will earn interest at the rate paid on
one-year Treasury bills with interest added to the account annually. Amounts deferred to a stock account will be converted on a quarterly basis into a
number of units representing shares of our common stock equal to the amount of compensation which the participant has elected to defer to the stock
account divided by the applicable price for our common stock. The applicable price for our common stock has been defined as the average of the closing
price of our common stock for all trading days during the calendar quarter preceding the conversion date as reported by The Nasdaq Capital Market.
Pursuant to this plan, a total of 538,871 units, each representing a share of our common stock at a weighted average common stock price of $4.35, had been
credited to participants’ stock accounts as of December 31, 2021. The compensation charges for this plan were immaterial for all periods presented.
On November 4, 2015, our Board of Directors adopted and approved our 2015 Inducement Equity Plan (the “2015 IEP”) in compliance with and in
reliance on NASDAQ Listing Rule 5635(c)(4), which exempts inducement grants from the general requirement of the NASDAQ Listing Rules that equity-
based compensation plans and arrangements be approved by stockholders. There are 1,500,000 shares of our common stock reserved for issuance under the
2015 IEP.
We primarily use the Black-Scholes option pricing model to value options granted to employees and non-employees, as well as options granted to
members of our Board of Directors. All stock option grants have 10-year terms and generally vest ratably over a 3 or 4-year period.
98
The fair value of each option granted during the periods was estimated on the date of grant using the following weighted average assumptions:
Expected volatility
Expected term in years
Risk-free interest rate
Dividend yield
2021
2020
2019
49%
4
0.8%
0%
66%
6
0.8%
0%
64%
5
1.8%
0%
Expected volatility is based exclusively on historical volatility data of our common stock. The expected term of stock options granted is based on
historical data and other factors and represents the period of time that stock options are expected to be outstanding prior to exercise. The risk-free interest
rate is based on U.S. Treasury strips with maturities that match the expected term on the date of grant.
A summary of option activity for 2021 is presented below:
Outstanding at December 31, 2020
Granted
Exercised
Forfeited
Expired
Outstanding at December 31, 2021
Vested or expected to vest at December 31, 2021
Exercisable at December 31, 2021
Weighted
Average
Exercise
Price
Weighted
Average
Remaining
Contractual
Term
(in years)
Aggregate
Intrinsic
Value
3.70
3.58
3.40
3.29
5.17
3.66
3.66
3.84
7.25
7.25
6.19
$
$
$
6,309,552
6,309,552
3,832,406
$
Options
28,966,901
9,005,010
(2,502,716)
(1,837,019)
(868,089)
32,764,087
32,764,087
17,509,054
$
The weighted average grant-date fair values of options granted during the years ended December 31, 2021, 2020, and 2019, was $2.81, $2.04, and
$1.77, respectively.
The aggregate intrinsic value in the table above represents the difference between our closing stock price on the last trading day of fiscal 2021 and the
exercise price, multiplied by the number of in-the-money options that would have been received by the option holders had all option holders exercised their
options on December 31, 2021 (the intrinsic value is considered to be zero if the exercise price is greater than the closing stock price). This amount changes
based on the fair market value of our stock. The total intrinsic value of options exercised during the years ended December 31, 2021, 2020, and 2019,
determined on the dates of exercise, was $4.2 million, $1.2 million, and $385,000, respectively.
During 2021, 2020, and 2019, all options were granted with exercise prices equal to the market value of the underlying shares of common stock on the
grant date other than certain awards dated December 31, 2018, December 24, 2019, December 17, 2020 and December 31, 2020. In December 2018, our
Board of Directors approved certain awards subject to forfeiture in the event stockholder approval was not obtained for our 2019 EIP. This approval was
obtained in June 2019. Accordingly, these awards have a grant date of June 2019, with an exercise price as of the date the Board of Director's approved the
awards in December 2018. In December 2019, our Board of Directors approved certain awards. However, the awards were not communicated until
February 2020. Accordingly, these awards have a grant date of February 2020 with an exercise price as of the date the Board of Director's approved the
awards in December 2019. On December 17, 2020 our Board of Directors approved certain awards. However, the awards were not communicated until
March 2021. Accordingly, these awards have a grant date of March 2021 with an exercise price as of the date the Board of Director's approved the awards
in December 2020. On December 31, 2020, our Board of Directors approved certain awards subject to forfeiture in the event stockholder approval was not
obtained for an increase in shares available for issuance under our 2019 EIP. This approval was obtained in June 2021. Accordingly, these awards have a
grant date of June 2021, with an exercise price as of the date the Board of Director's approved the awards in December 2020.
As of December 31, 2021, there was $32.0 million of unrecognized share-based compensation expense related to these stock options and stock
options granted under a subsidiary plan which, if all milestones are achieved, will be recognized over a weighted average period of 2.5 years.
99
Certain employees and consultants have been granted non-vested stock. The fair value of non-vested market-based awards is calculated based on a
Monte Carlo simulation as of the date of issuance. The fair value of other non-vested stock is calculated based on the closing sale price of our common
stock on the date of issuance.
A summary of non-vested stock activity for 2021 is presented below:
Nonvested
Shares
Weighted
Average
Grant Date
Fair Value
Outstanding at December 31, 2020
Granted
Vested
Forfeited
Outstanding at December 31, 2021
$
886,816
2,025,701
(1,826,132)
(68,334)
$
1,018,051
2.14
3.28
3.17
3.79
2.39
As of December 31, 2021, there was $2.8 million of unrecognized share-based compensation expense related to these non-vested shares and non-
vested shares granted under a subsidiary plan which, if all milestones are achieved, will be recognized over a weighted average period of 1.8 years. The
total intrinsic value of shares vested during the years ended December 31, 2021, 2020, and 2019, was $5.8 million, $621,000, and $357,000, respectively.
Cash received from option exercises and purchases under our 2009 and 2019 ESPP for the years ended December 31, 2021, 2020, and 2019, was $9.1
million, $4.5 million, and $1.6 million, respectively.
We issue new shares upon option exercises, purchases under our 2009 and 2019 ESPP, vesting of non-vested stock and under the Directors’ Deferred
Compensation Plan. During the years ended December 31, 2021, 2020, and 2019, 2,502,716 shares, 1,161,757 shares, and 466,940 shares, respectively,
were issued as a result of stock option exercises. During the years ended December 31, 2021, 2020, and 2019, 241,507 shares, 236,855 shares, and 84,703
shares, were issued under 2009 ESPP and 2019 ESPP, respectively. During the years ended December 31, 2021, 2020, and 2019, 246,481 shares, 165,632
shares, and 129,675 shares, respectively, were issued as a result of the vesting of non-vested stock. Additionally, during the year ended December 31, 2021,
1,579,651 shares were issued as payment for certain employee bonuses, with 550,087 of those shares being withheld to cover taxes, resulting in a net share
issuance of 1,029,564.
The impact on our results of operations from share-based compensation for the years ended December 31, 2021, 2020, and 2019, was as follows (in
thousands).
Research and development
General and administrative
Total share-based compensation expense
(14) License, Research, and Other Agreements
2021
4,528
14,606
19,134
$
$
$
$
Year Ended
2020
3,758
6,363
10,121
$
$
2019
3,873
6,019
9,892
On December 5, 2014, Agenus Switzerland, entered into a license agreement with the Ludwig Institute for Cancer Research Ltd., or Ludwig, which
replaced and superseded a prior agreement entered into between the parties in May 2011. Pursuant to the terms of the license agreement, Ludwig granted
Agenus Switzerland an exclusive, worldwide license under certain intellectual property rights of Ludwig and Memorial Sloan Kettering Cancer Center
arising from the prior agreement to further develop and commercialize GITR, OX40 and TIM-3 antibodies. On January 25, 2016, we and Agenus
Switzerland entered into a second license agreement with Ludwig, on substantially similar terms, to develop CTLA-4 and PD-1 antibodies. Pursuant to the
December 2014 license agreement, Agenus Switzerland made an upfront payment of $1.0 million to Ludwig. The December 2014 license agreement also
obligates Agenus Switzerland to make potential milestone payments of up to $20.0 million for events prior to regulatory approval of licensed GITR, OX40
and TIM-3 products, and potential milestone payments in excess of $80.0 million if such licensed products are approved in multiple jurisdictions, in more
than one indication, and certain sales milestones are achieved. Under the January 2016 license agreement, we are obligated to make potential milestone
payments of up to $12.0 million for events prior to regulatory approval of CTLA-4 and PD-1 licensed products, and potential milestone payments of up to
$32.0 million if certain sales milestones are achieved. Under each of these license agreements, we and/or Agenus Switzerland will also be obligated to pay
low to mid-single digit royalties on all net sales of licensed products during the royalty period, and to pay Ludwig a percentage of any sublicensing income,
ranging from a low to mid-double digit percentage depending on various factors. The license agreements may each be terminated as follows:
100
(i) by either party if the other party commits a material, uncured breach; (ii) by either party if the other party initiates bankruptcy, liquidation or similar
proceedings; or (iii) by Agenus Switzerland or us (as applicable) for convenience upon 90 days’ prior written notice. The license agreements also contain
customary representations and warranties, mutual indemnification, confidentiality and arbitration provisions.
We have entered into various agreements with contract manufacturers, institutions, and clinical research organizations (collectively "third party
providers") to perform pre-clinical activities and to conduct and monitor our clinical studies. Under these agreements, subject to the enrollment of patients
and performance by the applicable third-party provider, we have estimated our total payments to be $486.8 million over the term of the studies. For the
years ended December 31, 2021, 2020, and 2019, $72.8 million, $64.7 million, and $87.7 million, respectively, have been expensed in the accompanying
consolidated statements of operations related to these third-party providers. Through December 31, 2021, we have expensed $391.5 million as research and
development expenses and $372.5 million of this amount has been paid. The timing of expense recognition and future payments related to these agreements
is subject to the enrollment of patients and performance by the applicable third-party provider.
(15) Revenue from Contracts with Customers
Bristol Myers Squibb Company License Agreement
On May 17, 2021, we entered into a License, Development and Commercialization Agreement (“BMS License Agreement”) with Bristol Myers
Squibb Company (“BMS”) to collaborate on the development and commercialization of our proprietary anti-TIGIT bispecific antibody program
AGEN1777. Pursuant to the BMS License Agreement, we received a non-refundable upfront cash payment of $200.0 million and are eligible to receive up
to $1.36 billion in aggregate development, regulatory and commercial milestone payments plus the tiered royalties described below. In July 2021, the BMS
License Agreement closed, and we received the $200.0 million upfront payment.
In October 2021, we announced that the first patient was dosed in the AGEN1777 Phase 1 clinical trial, triggering the achievement of a $20.0 million
milestone. We received this milestone in December 2021 and as of December 31, 2021, remain eligible to receive up to an additional $1.34 billion in
aggregate development, regulatory and commercial milestone payments.
Under the BMS License Agreement, we granted BMS an exclusive worldwide license under certain of our intellectual property rights to develop,
manufacture and commercialize AGEN1777 and its derivatives in all fields; provided, we retained an option to access the licensed antibodies for use in
clinical studies in combination with certain of our other pipeline assets subject to certain restrictions. In exchange, BMS is responsible for all of the
development, regulatory approval, manufacturing and commercialization costs with respect to products containing AGEN1777. In addition to the upfront
and potential milestone payments described above, we will receive tiered double-digit royalties on worldwide net sales of products containing AGEN1777
ranging from the low double-digit to mid-teens percent. Additionally, we have the option, but not the obligation, to co-fund a minority of the global
development costs of products containing AGEN1777 or its derivatives, in exchange for increased tiered royalties on U.S. net sales of co-funded products
ranging from the mid-teens to low twenties percent and ex-U.S. net sales of co-funded products ranging from the low double digits to mid-teens percent.
All royalties are subject to certain reductions under certain circumstances as described in the BMS License Agreement. Finally, we also have the option to
co-promote AGEN1777 in the U.S.
The royalty term shall terminate on a product-by-product and country-by-country basis on the latest of (i) 10 year anniversary of the first commercial
sale of such product in such country, (ii) the expiration of any regulatory exclusivity period that covers such product in such country, and (iii) the expiration
of the last-to-expire licensed patent that covers such product in such country.
The BMS License Agreement includes customary representations and warranties, covenants, indemnification obligations for a transaction of this
nature. Under the terms of the BMS License Agreement, we and BMS each have the right to terminate the agreement for material breach by, or insolvency
of, the other party following notice, and if applicable, a cure period. BMS may also terminate the BMS License Agreement in its entirety, or on a product-
by-product or country-by-country basis, for convenience upon 180 days’ notice.
License Revenue
We identified a single performance obligation under the BMS License Agreement, the license of AGEN1777 (“AGEN1777 License”). All other
promised goods/services were deemed immaterial in the context of the contract. We determined that the AGEN1777 License was both capable of being
distinct and distinct within the context of the contract as the AGEN1777 License has significant stand-alone functionality as of contract inception and BMS
can begin deriving benefit from the AGEN1777 License without consideration of the immaterial services.
We determined that there were no significant financing components, noncash consideration, or amounts that may be refunded to the customer, and as
such the total upfront fixed consideration of the AGEN1777 License totaling $200.0 million would be included in the total transaction price. We concluded
that the standalone selling price of the AGEN1777 License approximated the $200.0
101
million upfront fee and as such the full amount would be recognized at a point-in-time, upon delivery of the AGEN1777 License to BMS at contract
inception.
For the year ended December 31, 2021, under the BMS License Agreement, we recognized $200.0 million in research and development revenue
related to the transfer of the AGEN1777 License and $20.0 million in research and development revenue related to the achievement of a milestone.
Betta License Agreement
In June 2020, we entered into a license and collaboration agreement (the “Betta License Agreement”) with Betta Pharmaceuticals Co., Ltd. (“Betta”),
pursuant to which we granted Betta an exclusive license to develop, manufacture and commercialize balstilimab and zalifrelimab in Greater China. Under
the terms of the Betta License Agreement, we received $15.0 million upfront in July 2020 and are eligible to receive up to $100.0 million in milestone
payments plus royalties on any future sales in Greater China.
We also entered into a stock purchase agreement with Betta and a wholly-owned subsidiary of Betta (“Betta HK”). Refer to Note 10 – Equity for
additional detail.
We identified the following performance obligations under the Betta License Agreement: (1) the license of balstilimab and zalifrelimab and (2) our
obligation to complete manufacturing technology transfer activities to Betta (the “Technology Transfer”) for balistilimab and zalifrelimab.
We determined that the license of balstilimab and zalifrelimab was both capable of being distinct and distinct within the context of the contract as the
license has significant stand-alone functionality as of contract inception based on the advanced development stage of balstilimab and zalifrelimab. Betta
can begin deriving benefit from the license prior to the Technology Transfer being completed. The Technology Transfer is completed over time and is
separate from the transfer of the balstilimab and zalifrelimab license, which occurred at contract inception. As a result, we concluded that the balstilimab
and zalifrelimab license and Technology Transfer are separate performance obligations.
We determined that there were no significant financing components, noncash consideration, or amounts that may be refunded to the customer, and as
such the total upfront fixed consideration of $15.0 million would be included in the total transaction price and be allocated to the identified performance
obligations using the relative standalone selling price method.
We determined the estimated standalone selling price of the balstilimab and zalifrelimab license by applying a risk adjusted, net present value,
estimate of future cash flow approach. We determined the estimated standalone selling price of the Technology Transfer by using the estimated costs of
satisfying the performance obligation, plus an appropriate margin for such services.
Revenue attributable to the balstilimab and zalifrelimab license was recognized at a point-in-time, upon delivery of the license to Betta at contract
inception. The Technology Transfer is satisfied over time and revenue attributable to this performance obligation will be recognized as the related services
are being performed using the input of costs incurred over total costs expected to be incurred. We believe this is the best measure of progress because other
measures do not reflect how we transfer the performance obligation to Betta.
For the years ended December 31, 2021 and 2020, we recognized $0.6 million and $13.9 million, respectively, of research and development revenue
related to the Betta License Agreement.
UroGen License Agreement
In November 2019, we entered into a License Agreement with UroGen Pharma Ltd. (the “UroGen License Agreement”) in which we granted a
license of AGEN1884 for use with UroGen's sustained release technology for intravesical delivery in patients with urinary tract cancers. Pursuant to the
terms of the UroGen License Agreement, we received an upfront cash payment from UroGen of $10.0 million. We are eligible to receive up to $200.0
million in potential development, regulatory and commercial milestones, as well as 14-20% royalties on net sales of the products containing AGEN1884.
We identified the following performance obligations under the UroGen License Agreement: (1) the license of AGEN1884 that we granted UroGen,
and (2) the clinical supply of AGEN1884 that we agreed to supply to UroGen. We determined that the license of AGEN1884 was both capable of being
distinct and distinct within the context of the contract as the license has significant stand-alone functionality as of contract inception based on the advanced
development stage of AGEN1884. We also determined that the clinical supply of AGEN1884 was both capable of being distinct and distinct within the
context of the contract as it was considered a readily available resource in the market.
We determined that there were no significant financing components, noncash consideration, or amounts that may be refunded to the customer, and as
such the total upfront fixed consideration of the license totaling $10.0 million would be included in the total
102
transaction price. We concluded that the combined standalone selling price of the license approximated the $10.0 million upfront fee and as such the full
amount will be recognized at a point-in-time, upon delivery of the license to UroGen at contract inception. We will not estimate the transaction price in
order to recognize the revenue related to the AGEN1884 supply due to the “as invoiced” practical expedient.
For the years ended December 31, 2021 and 2020, we recognized approximately $0.3 million and $63,000, respectively, of research and development
revenue related to the UroGen License Agreement. For the year ended December 31, 2019, we recognized $10.0 million of research and development
revenue related to the UroGen License Agreement.
Gilead Collaboration Agreement
On December 20, 2018, we entered into a series of agreements with Gilead focused on the development and commercialization of up to five novel
immuno-oncology therapies. Pursuant to the terms of the license agreement, the option and license agreements and the stock purchase agreement we
entered into with Gilead (collectively, the “Gilead Collaboration Agreements”), at the closing of the transaction on January 23, 2019 (the “Effective Date”),
we received an upfront cash payment from Gilead of $120.0 million and Gilead made a $30.0 million equity investment in Agenus.
License Agreement
Pursuant to the terms of a license agreement between the parties (the “License Agreement”), we granted Gilead an exclusive, worldwide license
under certain of our intellectual property rights to develop, manufacture and commercialize our preclinical bispecific antibody, AGEN1423, in all fields of
use. We filed an investigational new drug (“IND”) application for AGEN1423 in February 2019, and the IND was accepted by the FDA in March 2019. On
November 6, 2020, we received notice from Gilead that it would return AGEN1423 back to us and voluntarily terminate the License Agreement, effective
as of February 4, 2021.
Option and License Agreements
Pursuant to the terms of two separate option and license agreements between the parties (each, an “Option and License Agreement” and together, the
“Option and License Agreements”), we granted Gilead exclusive options to license exclusively (“License Option”) our bispecific antibody, AGEN1223,
and our monospecific antibody, AGEN2373 (together, the “Option Programs”), during the respective Option Periods (defined below). Pursuant to the terms
of the Option and License Agreements, we agreed to grant Gilead an exclusive, worldwide license under our intellectual property rights to develop,
manufacture and commercialize AGEN1223 or AGEN2373, as applicable, in all fields of use upon Gilead’s exercise of the applicable License Option.
Gilead is entitled to exercise its License Option for either or both Option Programs at any time up until ninety (90) days following Gilead’s receipt of a data
package with respect to the first complete Phase 1b clinical trial for each Option Program (the “Option Period”). During the Option Period, we are
responsible for the costs and expenses related to the development of the Option Programs. After Gilead’s exercise of a License Option, if at all, Gilead
would be responsible for all development, manufacturing and commercialization activities relating to the relevant Option Program at Gilead’s cost and
expense. In the third quarter of 2021 we ceased development of AGEN1223 and in October 2021 the AGEN1223 option and license agreement was
formally terminated. The AGEN2373 Option and License Agreement and the Stock Purchase Agreement remain in full force and effect.
During the Option Period, we are eligible to receive milestones of up to $10.0 million in the aggregate. If Gilead exercises the AGEN2373 License
Option, it would be required to pay an upfront license exercise fee of $50.0 million. Following the exercise of the AGEN2373 License Option, we would be
eligible to receive additional development and commercial milestones of up to $520.0 million in the aggregate, as well as tiered royalty payments on
aggregate net sales. We will have the right to opt-in to share Gilead’s development and commercialization costs in the United States for the AGEN2373
Option Program in exchange for a profit (loss) share on a 50:50 basis and revised milestone payments. We filed an IND AGEN2373 in 2019, and it is now
in clinical development.
Unless earlier terminated, the AGEN2373 Option and License Agreement will continue until the earlier of (i) the expiration of the Option Period,
without Gilead’s exercise of the License Option; and (ii) the date all of Gilead’s applicable payment obligations under the Option and License Agreement
have been performed or have expired. Under the terms of the AGEN2373 Option and License Agreement, we and Gilead each have the right to terminate
the agreement for material breach by, or insolvency of, the other party. Gilead may also terminate the AGEN2373 Option License Agreement in its entirety,
or on a product-by-product or country-by-country basis for convenience upon ninety (90) days’ notice.
Collaboration Revenue
For the years ended December 31, 2021 and 2020, we recognized $22.4 million and $12.3 million, respectively, of research and development revenue
related to the Gilead Collaboration Agreements based on the partial satisfaction of the over time performance obligations as of period end. For the year
ended December 31, 2021, the amount also includes deferred revenue recognized in connection with the termination of AGEN1223 development. For the
year ended December 31, 2019, we recognized $86.1 million of research and development revenue related to the Gilead Collaboration Agreements. This
amount included $20.6 million of the transaction price recognized based on the partial satisfaction of the over time performance obligations as of period
end.
103
We expect to recognize deferred research and development revenue of $11.7 million and $10.1 million in 2022 and 2023, respectively, related to
performance obligations that are unsatisfied or partially unsatisfied as of December 31, 2021.
Incyte Collaboration Agreement
On January 9, 2015 and effective February 19, 2015, we entered into a global license, development and commercialization agreement (the
“Collaboration Agreement”) with Incyte pursuant to which the parties plan to develop and commercialize novel immuno-therapeutics using our antibody
discovery platforms. The Collaboration Agreement was initially focused on four checkpoint modulator programs directed at GITR, OX40, LAG-3 and
TIM-3. In addition to the four identified antibody programs, the parties have an option to jointly nominate and pursue the development and
commercialization of antibodies against additional targets during a five-year discovery period which, upon mutual agreement of the parties for no
additional consideration, can be extended for an additional three years. In November 2015, we and Incyte jointly nominated and agreed to pursue the
development and commercialization of three additional CPM targets. In February 2017, we amended the Collaboration Agreement by entering into a First
Amendment to License, Development and Commercialization Agreement (the “First Amendment”). In October 2019, we further amended the
Collaboration Agreement by entering into a Second Amendment to License, Development and Commercialization Agreement (the “Second Amendment”).
See “Amendments” section below.
Pursuant to the XOMA Royalty Purchase Agreement, we sold to XOMA 33% of the future royalties and 10% of the future milestones that we were
entitled to receive from Incyte, excluding the $5.0 million milestone that we recognized in the three months ended September 30, 2018. As of December
31, 2021, we remain eligible to receive up to $450.0 million in future potential development, regulatory and commercial milestones across all programs in
the collaboration, as well as 67% of all future royalties on worldwide product sales.
Agreement Structure
Under the terms of the Collaboration Agreement, we received non-creditable, nonrefundable upfront payments totaling $25.0 million. In addition,
until the Amendment, the parties shared all costs and profits for the GITR, OX40 and two of the additional antibody programs on a 50:50 basis (profit-
share products), and we were eligible to receive up to $20.0 million in future contingent development milestones under these programs. Incyte is obligated
to reimburse us for all development costs that we incur in connection with the TIM-3, LAG-3 and one of the additional antibody programs (royalty-bearing
products) and we are eligible to receive (i) up to $155.0 million in future contingent development, regulatory, and commercialization milestone payments
and (ii) tiered royalties on global net sales at rates generally ranging from 6% to 12%. For each royalty-bearing product, we will also have the right to elect
to co-fund 30% of development costs incurred following initiation of pivotal clinical trials in return for an increase in royalty rates. Additionally, we had
the option to retain co-promotion participation rights in the United States on any profit-share product. Through the direction of a joint steering committee,
until the Amendment, the parties anticipated that, for each program, we would serve as the lead for pre-clinical development activities through
investigational new drug (“IND”) application filing, and Incyte would serve as the lead for clinical development activities. The parties initiated the first
clinical trials of antibodies arising from these programs in 2016. For each additional program beyond GITR, OX40, TIM-3 and LAG-3 that the parties elect
to bring into the collaboration, we will have the option to designate it as a profit-share product or a royalty-bearing product.
The Collaboration Agreement will continue as long as (i) any product is being developed or commercialized or (ii) the discovery period remains in
effect. Incyte may terminate the Collaboration Agreement or any individual program for convenience upon 12 months’ notice. The Collaboration
Agreement may also be terminated by either party upon the occurrence of an uncured material breach of the other party or by us if Incyte challenges patent
rights controlled by us. In addition, either party may terminate the Collaboration Agreement as to any program if the other party is acquired and the
acquiring party controls a competing program.
Amendments
Pursuant to the terms of the First Amendment, the GITR and OX40 programs immediately converted from profit-share programs to royalty-bearing
programs and we became eligible to receive a flat 15% royalty on global net sales should any candidates from either of these two programs be approved.
Incyte is now responsible for global development and commercialization and all associated costs for these programs. In addition, the profit-share programs
relating to TIGIT and one undisclosed target were removed from the collaboration, with the undisclosed target reverting to Incyte and TIGIT to Agenus.
Should any of those programs be successfully developed by a party, the other party will be eligible to receive the same milestone payments as the royalty-
bearing programs and royalties at a 15% rate on global net sales. The terms for the remaining three royalty-bearing programs targeting TIM-3, LAG-3 and
one undisclosed target remain unchanged, with Incyte being responsible for global development and commercialization and all associated costs. The
Amendment gives Incyte exclusive rights and all decision-making authority for manufacturing, development, and commercialization with respect to all
royalty-bearing programs.
In connection with the First Amendment, Incyte paid us $20.0 million in accelerated milestones related to the clinical development of the antibody
candidates targeting GITR and OX40.
Pursuant to the terms of the Second Amendment, we transitioned preclinical development and IND preparation of the undisclosed target to Incyte.
104
Collaboration Revenue
For the years ended December 31, 2021 and 2020, we recognized approximately $1.2 million and $0.7 million, respectively, of research and
development revenue for research and development services provided. For the year ended December 31, 2019, we recognized approximately $3.7 million
of research and development revenue. This amount included $2.0 million of the transaction price for the Incyte Collaboration Agreement recognized based
on proportional performance and $1.7 million for research and development services.
Merck Collaboration and License Agreement
During the quarter ended June 30, 2014, we entered into a collaboration and license agreement with Merck to discover and optimize fully-human
antibodies against two undisclosed cancer targets using the Retrocyte Display®. Under this agreement, Merck is responsible for the clinical development
and commercialization of antibodies generated under the collaboration. There are no unsatisfied performance obligations relating to this contract. Pursuant
to the XOMA Royalty Purchase Agreement (see Note 19), we sold to XOMA 33% of the future royalties and 10% of the future milestones that we are
entitled to receive from Merck, and we remain eligible to receive from Merck approximately $76.5 million in potential payments associated with the
completion of certain clinical, regulatory and commercial milestones, as well as 67% of all future royalties on worldwide product sales.
For the year ended December 31, 2021, no revenue was recognized. For the year ended December 31, 2020, we recognized $9.0 million in research
and development revenue and $1.0 million in non-cash milestone revenue related to the achievement of a milestone. For the year ended December 31,
2019, no revenue was recognized.
GSK License and Amended GSK Supply Agreements
In July 2006, we entered into a license agreement and a supply agreement with GSK for the use of QS-21 Stimulon (the “GSK License Agreement”
and the “GSK Supply Agreement”, respectively). In January 2009, we entered into an Amended and Restated Manufacturing Technology Transfer and
Supply Agreement (the “Amended GSK Supply Agreement”) under which GSK has the right to manufacture all of its requirements of commercial grade
QS-21 Stimulon. GSK is obligated to supply us (or our affiliates, licensees, or customers) certain quantities of commercial grade QS-21 Stimulon for a
stated period of time. Under these agreements, GSK paid an upfront license fee of $3.0 million and agreed to pay aggregate milestones of $5.0 million. In
July 2007, the Amended GSK Supply Agreement was further amended, and we were paid an additional fixed fee of $7.3 million. In March 2012 we
entered into a First Right to Negotiate and Amendment Agreement amending the GSK License Agreement and the Amended GSK Supply Agreement to
clarify and include additional rights for the use of our QS-21 Stimulon (the “GSK First Right to Negotiate Agreement”). In addition, we granted GSK the
first right to negotiate for the purchase of the Company or certain of our assets, which such rights expired in March 2017. As consideration for entering into
the GSK First Right to Negotiate Agreement, GSK paid us an upfront, non-refundable payment of $9.0 million, $2.5 million of which is creditable toward
future royalty payments. As of December 31, 2017, we had received all of the potential $24.3 million in upfront and milestone payments related to the GSK
Agreements. We were also generally entitled to receive 2% royalties on net sales of prophylactic vaccines for a period of 10 years after the first commercial
sale of a resulting GSK product, but we sold these royalty rights to HCR in January 2018 pursuant to the HCR Royalty Purchase Agreement (See Note 19).
The GSK License and Amended GSK Supply Agreements may be terminated by either party upon a material breach if the breach is not cured within the
time specified in the respective agreement. The termination or expiration of the GSK License Agreement does not relieve either party from any obligation
which accrued prior to the termination or expiration. Among other provisions, the license rights granted to GSK survive expiration of the GSK License
Agreement. The license rights and payment obligations of GSK under the Amended GSK Supply Agreement survive termination or expiration, except that
GSK's license rights and future royalty obligations do not survive if we terminate due to GSK's material breach unless we elect otherwise.
For the years ended December 31, 2021 and 2020, we recognized $44.4 million and $46.5 million, respectively, in non-cash royalty revenue. For the
year ended December 31, 2019, we recognized $15.1 million in royalty sales milestone revenue and $30.4 million in non-cash royalty revenue.
Disaggregation of Revenue
The following table presents revenue (in thousands) for years ended December 31, 2021, 2020 and 2019, disaggregated by geographic region and
revenue type. Revenue by geographic region is allocated based on the domicile of our respective business operations.
105
Revenue Type
License fees and milestones
Clinical product revenue
Research and development services
Other services
Recognition of deferred research and development
revenue
Recognition of deferred grant revenue
Non-cash royalties
Revenue Type
License fees and milestones
Research and development services
Other services
Recognition of deferred research and development
revenue
Recognition of deferred grant revenue
Non-cash royalties and milestones
Revenue Type
License fees and milestones
Research and development services
Royalty sales milestone
Manufacturing services
Recognition of deferred research and development
revenue
Recognition of deferred grant revenue
Non-cash royalties
United States
Year ended December 31, 2021
Rest of World
Total
$
$
$
$
$
$
220,000 $
587
1,476
—
22,359
184
44,355
288,961 $
— $
—
—
6,704
—
—
—
6,704 $
Year ended December 31, 2020
22,857 $
754
—
12,304
91
47,545
83,551 $
— $
—
4,619
—
—
—
4,619 $
Year ended December 31, 2019
75,500 $
1,707
15,100
3,337
22,638
652
30,424
149,358 $
— $
—
—
—
—
690
—
690 $
220,000
587
1,476
6,704
22,359
184
44,355
295,665
22,857
754
4,619
12,304
91
47,545
88,170
75,500
1,707
15,100
3,337
22,638
1,342
30,424
150,048
Contract Balances
Contract assets primarily relate to our rights to consideration for work completed in relation to our research and development services performed but
not billed at the reporting date. Contract assets are transferred to receivables when the rights become unconditional. Currently, we do not have any contract
assets which have not transferred to a receivable. We had no asset impairment charges related to contract assets in the period. Contract liabilities primarily
relate to contracts where we received payments but have not yet satisfied the related performance obligations. The advance consideration received from
customers for research and development services or licenses bundled with other promises is a contract liability until the underlying performance obligations
are transferred to the customer.
The following table provides information about contract liabilities from contracts with customers (in thousands):
Year ended December 31, 2021
Contract liabilities:
Deferred revenue
Balance at
beginning of
period
Additions
Deductions
Balance at end of
period
$
45,284
$
761 $
(22,420) $
23,625
The change in contract liabilities is primarily related to the recognition of $22.4 million of revenue related to the Gilead Collaboration Agreements
during the year ended December 31, 2021. Deferred revenue related to the Gilead Collaboration Agreements of $21.8 million as of December 31, 2021,
which was comprised of the $142.5 million initial transaction price, less $120.7 million of research and development revenue recognized from the effective
date of the contract, will be recognized as the combined performance obligation is satisfied.
We also recorded a $1.5 million receivable as of December 31, 2021 for research and development and other services provided.
106
In the year ended December 31, 2021, we did not recognize any revenue from amounts included in the contract asset or the contract liability balances
from performance obligations satisfied in previous periods. None of the costs to obtain or fulfill a contract were capitalized.
(16) Related Party Transactions
Our Audit and Finance Committee approved a charitable contribution to the Children of Armenia Fund (“COAF”) of up to $125,000 for 2021.
Dr. Garo H. Armen, our CEO, is the founder and chairman of COAF. The 2021 charitable contribution was comprised of a cash component and a non-cash
component. The cash component was $68,000, which we paid in quarterly installments. The non-cash component was $50,000, which was the estimated
value of a portion of office space made available to COAF employees.
During the year ended December 31, 2021, our Audit and Finance Committee approved the performance of research and development manufacturing
services totaling $291,000 for Protagenic Therapeutics, Inc. We will be reimbursed for these services on an actual time and materials basis. Dr. Garo H.
Armen, our CEO, is Executive Chairman of and has a greater than 10% equity interest in Protagenic Therapeutics, Inc.
(17) Leases
The majority of our operating lease agreements are for the office, research and development and manufacturing space we use to conduct our
operations.
We lease space in Lexington, Massachusetts for our manufacturing, research and development, and corporate offices, office space in New York, New
York for use as corporate offices, facilities in Berkeley, California, for manufacturing and corporate offices, a facility in Emeryville, California for the
development of a cGMP manufacturing facility and a facility in Cambridge, United Kingdom for research and development and corporate offices. We have
subleased a small portion of the space in our main Lexington facility for part of the associated head lease. These agreements expire at various times
between 2023 and 2036, with options to extend certain of the leases.
We also have finance lease agreements for equipment that expire at various times between 2022 and 2024.
The components of lease cost recorded in our consolidated statement of operations were as follows (in thousands):
Year ended December 31,
2021
2020
2019
Operating lease cost
Finance lease cost
Variable lease cost
Sublease income
Net lease cost
$
$
8,878 $
407
1,826
(595)
10,516 $
4,698 $
375
1,887
(578)
6,382 $
2,551
221
1,414
(561)
3,625
Variable lease cost for the years ended December 31, 2021, 2020 and 2019, primarily related to common area maintenance, taxes, utilities and
insurance associated with our operating leases. Short-term lease cost for the years ended December 31, 2021, 2020 and 2019 was immaterial.
Cash paid for amounts included in the measurement of operating lease liabilities for the years ended December 31, 2021, 2020 and 2019 was
approximately $2.1 million, $1.6 million and $1.4 million, respectively. Cash paid for amounts included in the measurement of finance lease liabilities for
the years ended December 31, 2021 and 2020 was approximately $0.9 million and $1.8 million, respectively.
107
The following table presents supplemental balance sheet information related to our leases as of December 31, 2021 and 2020 (in thousands):
Operating Leases
Operating lease right-of-use assets
Total operating lease right-of-use
assets
Current portion, operating lease liabilities
Operating lease liabilities, net of current
portion
Total operating lease liabilities
Finance Leases
Property, plant and equipment, net
Total finance lease right-of-use assets
Other current liabilities
Other long-term liabilities
Total finance lease liabilities
$
As of December
31, 2021
As of December
31, 2020
$
31,054 $
33,480
31,054
33,480
2,627
1,950
42,109
44,736
34,065
36,015
2,663
2,663
335
318
653 $
2,231
2,231
746
66
812
Maturities of our operating lease liabilities as of December 31, 2021 were as follows (in thousands):
Operating Leases
$
(7,209) $
9,568
8,357
8,544
8,219
77,418
Year
2022
2023
2024
2025
2026
Thereafter
Total
Less imputed interest
Present value of lease
liabilities
$
104,897 $
(60,161)
709 $
(56)
(613) $
$
44,736 $
653
Finance leases
Expected sublease
receipts
Net future lease
commitments
(613) $
$
373
248
88
(7,449)
9,816
8,445
8,544
8,219
77,418
104,993
In the above table, expected operating lease payments for the year ending December 31, 2022 include $14.5 million in lease incentives expected to be
received from the lessor of our Emeryville, CA facility related to the construction of tenant improvements.
Total future lease payments of approximately $22.4 million for a finance lease that had not yet commenced as of December 31, 2021, as we did not
control the underlying assets, are not included in these consolidated financial statements. We expect this lease to commence in 2022 with a term of 3 years.
The weighted-average remaining lease terms and discount rates related to our leases were as follows:
December 31, 2021
Operating
Finance
Weighted average remaining lease term (in
years)
Weighted average discount rate
12.0
11.6%
2.0
8.4%
108
(18) Debt
Debt obligations consisted of the following as of December 31, 2021 and 2020 (in thousands):
Debt instrument
Current Portion:
Debentures
Other
Long-term Portion:
2015 Subordinated Notes
Total
Debt instrument
Current Portion:
Debentures
Other
Long-term Portion:
2015 Subordinated Notes
Other
Total
Balance at
December 31,
2021
Balance at
December 31,
2020
146
582
12,823
13,551
146
687
12,682
6,197
19,712
$
$
$
$
As of December 31, 2021, and 2020, the principal amount of our outstanding debt balance was $13.8 million and $20.0 million, respectively.
Subordinated Notes
On February 20, 2015, we, certain existing investors and certain additional investors entered into an Amended and Restated Note Purchase
Agreement, pursuant to which we (i) canceled our senior subordinated promissory notes issued in April 2013 (the “2013 Notes”) in exchange for new
senior subordinated promissory notes (the “2015 Subordinated Notes”) in the aggregate principal amount of $5.0 million, (ii) issued additional 2015
Subordinated Notes in the aggregate principal amount of $9.0 million and (iii) issued five year warrants (the “2015 Warrants”) to purchase 1,400,000
shares of our common stock at an exercise price of $5.10 per share. Warrants to purchase 500,000 shares of the Company’s common stock issued in
connection with the 2013 Notes (the “2013 Warrants”) had an exercise price of $4.41 per share; and expired on April 15, 2019.
The 2015 Subordinated Notes bear interest at a rate of 8% per annum, payable in cash on the first day of each month in arrears. Among other default
and acceleration terms customary for indebtedness of this type, the 2015 Subordinated Notes include default provisions which allow for the noteholders to
accelerate the principal payment of the 2015 Subordinated Notes in the event we become involved in certain bankruptcy proceedings, become insolvent,
fail to make a payment of principal or (after a grace period) interest on the 2015 Subordinated Notes, default on other indebtedness with an aggregate
principal balance of $13.5 million or more if such default has the effect of accelerating the maturity of such indebtedness, or become subject to a legal
judgment or similar order for the payment of money in an amount greater than $13.5 million if such amount will not be covered by third-party insurance.
On February 18, 2020, we entered into an amendment to the 2015 Subordinated Notes (the “Amendment”) pursuant to which we:
•
•
•
•
extended the maturity date of $13.5 million of the 2015 Subordinated Notes by three years from February 20, 2020 to February 20, 2023;
repaid $0.5 million of the 2015 Subordinated Notes;
extended the exercise period of the warrants to purchase 1,350,000 shares of the Company’s common stock previously issued in 2015 by three years
from February 20, 2020 to February 20, 2023; and
issued new warrants to purchase 675,000 shares of the Company’s common stock with a term of five years and an exercise price of $4.48 per share,
which represented a 20% premium over the 30-day average trailing closing price of the Company’s common stock as of the date of the Amendment.
The amended 2015 Subordinated Notes are not convertible into shares of our common stock and are set to mature on February 23, 2023, at which
point we would be required to repay the full outstanding balance in cash. We may prepay the amended 2015 Subordinated Notes at any time, in part or in
full, without premium or penalty.
109
The Amendment was accounted for as a debt extinguishment under the guidance of ASU 470: Debt. For the year ended December 31, 2020, we
recorded a loss of approximately $2.7 million in other expense in our consolidated statements of operations and comprehensive loss, which primarily
represents the fair value of the new and extended warrants. The amended 2015 Subordinated Notes were recorded at fair value. In April 2020, we repaid
$0.5 million of the outstanding amended 2015 Subordinated Notes and cancelled the related warrants.
Payroll Protection Program
In May 2020, we entered into promissory notes with Bank of America, NA for aggregate loan proceeds of approximately $6.2 million (collectively,
the “Loan”) under the Small Business Administration Paycheck Protection Program of the Coronavirus Aid, Relief and Economic Security Act of 2020. In
September 2021, we received notification that our forgiveness applications were approved. As such, the Loan was extinguished, and for the year ended
December 31, 2021, a $6.2 million gain was recorded in our consolidated statements of operations and comprehensive loss.
(19) Liability Related to the Sale of Future Royalties and Milestones
The following table shows the activity within the liability account in the year ended December 31, 2021 and for the period from the inception of the
royalty transactions to December 31, 2021 (in thousands):
Year ended
December 31,
2021
Period from
inception to
December 31,
2021
Liability related to sale of future royalties and milestones
- beginning balance
$
Proceeds from sale of future royalties and milestones
Non-cash royalty and milestone revenue
Non-cash interest expense recognized
Liability related to sale of future royalties and
milestones - ending balance
Less: unamortized transaction costs
$
234,041
—
(44,355)
64,419
—
205,000
(139,634)
188,739
254,105
(357)
254,105
(357)
Liability related to sale of future royalties and milestones,
net
$
253,748
$
253,748
Healthcare Royalty Partners
On January 6, 2018, we, through Antigenics, entered into the HCR Royalty Purchase Agreement with HCR, which closed on January 19, 2018.
Pursuant to the terms of the HCR Royalty Purchase Agreement, we sold to HCR 100% of Antigenics’ worldwide rights to receive royalties GSK on sales
of GSK’s vaccines containing our QS-21 Stimulon adjuvant. At closing, we received gross proceeds of $190.0 million from HCR. As part of the
transaction, we reimbursed HCR for transaction costs of $100,000 and incurred approximately $500,000 in transaction costs of our own, which are
presented net of the liability in the consolidated balance sheet and will be amortized to interest expense over the estimated life of the HCR Royalty
Purchase Agreement. Although we sold all of our rights to receive royalties on sales of GSK’s vaccines containing QS-21, we are required to account for
these royalties as revenue when earned, and we recorded the $190.0 million in proceeds from this transaction as a liability on our consolidated balance
sheet that will be amortized using the interest method over the estimated life of the HCR Royalty Purchase Agreement. The liability is classified between
the current and non-current portion of liability related to sale of future royalties and milestones in the consolidated balance sheets based on the estimated
recognition of the royalty payments to be received by HCR in the next 12 months from the financial statement reporting date.
In the years ended December 31, 2021, 2020 and 2019, we recognized $44.4 million, $46.5 million and $30.4 million, respectively, of non-cash
royalty revenue and we recorded $64.4, $59.7 million and $41.5 million, respectively, of related non-cash interest expense related to the HCR Royalty
Purchase Agreement.
As royalties are remitted to HCR from GSK, the balance of the recorded liability will be effectively repaid over the life of the HCR Royalty Purchase
Agreement. To determine the amortization of the recorded liability, we are required to estimate the total amount of future royalty payments to be received
by HCR. The sum of these amounts less the $190.0 million proceeds we received
110
will be recorded as interest expense over the life of the HCR Royalty Purchase Agreement. Periodically, we assess the estimated royalty payments to be
paid to HCR from GSK, and to the extent the amount or timing of the payments is materially different from our original estimates, we will prospectively
adjust the amortization of the liability. Since the inception of the HCR Royalty Purchase Agreement our estimate of the effective annual interest rate over
the life of the agreement increased to 26.6%, which results in a retrospective interest rate of 23.0%.
There are a number of factors that could materially affect the amount and timing of royalty payments from GSK, all of which are not within our
control. Such factors include, but are not limited to, changing standards of care, the introduction of competing products, manufacturing or other delays,
biosimilar competition, patent protection, adverse events that result in governmental health authority imposed restrictions on the use of the drug products,
significant changes in foreign exchange rates, and other events or circumstances that could result in reduced royalty payments from GSK, all of which
would result in a reduction of non-cash royalty revenues and the non-cash interest expense over the life of the HCR Royalty Purchase Agreement.
Conversely, if sales of GSK’s vaccines containing QS-21 are more than expected, the non-cash royalty revenues and the non-cash interest expense recorded
by us would be greater over the life of the HCR Royalty Purchase Agreement.
Pursuant to the HCR Royalty Purchase Agreement, we were also entitled to receive up to $40.4 million in milestone payments from HCR (through the
royalty payments from GSK) based on sales of GSK’s vaccines as follows: (i) $15.1 million upon reaching $2.0 billion last-twelve-months net sales any
time prior to 2024 and (ii) $25.3 million upon reaching $2.75 billion last-twelve-months net sales any time prior to 2026. In the fourth quarter of 2019, the
$15.1 million milestone was achieved, as sales for the year ended December 31, 2019 exceeded $2.0 billion. As such, we recognized $15.1 million in
royalty sales milestone revenue in the year ended December 31, 2019. We remain eligible to receive the $25.3 million milestone.
In June 2021, we entered into an amendment to the HCR Royalty Purchase Agreement in which HCR was granted the option to directly pay us the
final $25.3 million milestone, if achieved. Under the terms of the original agreement, the milestone, if achieved, was to be paid through royalties received
from GSK.
Additionally, pursuant to the HCR Royalty Purchase Agreement, we were obligated to pay HCR approximately $25.9 million in 2021 (the “Rebate
Payment”) if neither of the following sales milestones are achieved: (i) 2019 sales exceed $1.0 billion or (ii) 2020 sales exceed $1.75 billion. However, we
were released from this obligation in the fourth quarter of 2019 when GSK announced that Shingrix sales for the first nine months of 2019 reached 1.28
billion pounds (or approximately $1.6 billion).
XOMA
On September 20, 2018, we, through our wholly-owned subsidiary, Agenus Royalty Fund, LLC, entered into a Royalty Purchase Agreement (the
“XOMA Royalty Purchase Agreement”) with XOMA (US) LLC (“XOMA”). Pursuant to the terms of the XOMA Royalty Purchase Agreement, XOMA
paid us $15.0 million at closing in exchange for the right to receive 33% of the future royalties and 10% of the future milestones that we are entitled to
receive from Incyte Corporation (“Incyte”) and Merck Sharpe & Dohme (“Merck”) under our agreements with each party (see Note 15), net of certain of
our obligations to a third party and excluding the $5.0 million milestone from Incyte that we recognized in the quarter ended September 30, 2018. We
retained 90% of the future milestones and 67% of the future royalties under our agreements with Incyte and Merck. Although we sold our rights to receive
33% of future royalties and 10% of future milestones, as a result of our significant continued involvement in the generation of the potential royalties and
milestones, we are required to account for the full amount of these royalties and milestones as revenue when earned, and we recorded the $15.0 million in
proceeds from this transaction as a liability on our consolidated balance sheet. Under the terms of the XOMA Royalty Purchase Agreement, should the
percentage of milestones and royalties ultimately received by XOMA fail to repay the amount received by us at closing we would have no further
obligation to XOMA.
In the fourth quarter of 2020, we achieved a $10.0 million milestone under the Merck agreement. As such, we recorded $1.0 million in non-cash
milestone revenue related to the XOMA Royalty Purchase Agreement for the year ended December 31, 2020 and reduced the XOMA liability by $1.0
million.
111
(20) Fair Value Measurements
We measure our contingent purchase price consideration at fair value. The fair values of our PhosImmune and other contingent purchase price
consideration of $1.4 million and $0.3 million, respectively, are based on significant inputs not observable in the market, which require them to be reported
as Level 3 liabilities within the fair value hierarchy. The valuation of these liabilities use assumptions we believe would be made by a market participant
and are mainly based on estimates from a Monte Carlo simulation of our market capitalization and share price, as well as other factors impacting the
probability of triggering the milestone payments. Market capitalization and share price were evolved using a geometric Brownian motion, calculated daily
for the life of the contingent purchase price considerations.
The significant unobservable inputs include the anticipated timelines to achieve the contingent purchase milestones and our estimated credit spread,
the weighted average values of which (weighted based on the value of each contingent liability), as of December 31, 2021 and 2020, are shown in the table
below.
Period of time to achieve milestones (in years)
Credit spread
Liabilities measured at fair value are summarized below (in thousands):
December 31,
2021
December 31,
2020
2.5
5.4%
1.3
5.5%
Description
Liabilities:
Contingent purchase price consideration
Total
Description
Liabilities:
Contingent purchase price consideration
Total
Quoted Prices in
Active
Markets for
Identical Assets
(Level 1)
Significant
Other
Observable
Inputs
(Level 2)
Significant
Unobservable
Inputs
(Level 3)
December 31,
2021
1,689
1,689
$
$
—
—
$
—
—
$
1,689
1,689
Quoted Prices in
Active
Markets for
Identical Assets
(Level 1)
Significant
Other
Observable
Inputs
(Level 2)
Significant
Unobservable
Inputs
(Level 3)
December 31,
2020
10,208
10,208
$
$
—
—
$
—
—
$
10,208
10,208
The following table presents our liabilities measured at fair value using significant unobservable inputs (Level 3), as of December 31, 2021 (amounts
in thousands):
Balance, December 31, 2020
Change in fair value of contingent purchase price consideration
during the period
Achievement of 4-AB contingent milestones
Balance, December 31, 2021
$
10,208
11,481
(20,000)
1,689
$
There were no changes in the valuation techniques during the period and there were no transfers into or out of Levels 1 and 2.
In June 2021, the second contingent milestone was achieved pursuant to the terms of the Share Exchange Agreement dated January 10, 2014, by and
among us, 4-Antibody AG (“4-AB”), the former shareholders of 4-AB and Vischer AG, as Representative (the "Share Exchange Agreement"), triggering a
$10.0 million payment. In July 2021, the third contingent milestone was achieved pursuant to the terms of the Share Exchange Agreement, triggering an
additional $10.0 million payment.
The fair value of our outstanding debt balance at December 31, 2021 and 2020 was $13.6 million and $19.9 million, respectively, based on the Level
2 valuation hierarchy of the fair value measurements standard using a present value methodology which was derived by evaluating the nature and terms of
each note and considering the prevailing economic and market conditions at
112
the balance sheet date. The principal amount of our outstanding debt balance at December 31, 2021 and 2020 was $13.8 million and $20.0, respectively.
(21) Contingencies
We may currently be, or may become, a party to legal proceedings. While we currently believe that the ultimate outcome of any of these proceedings
will not have a material adverse effect on our financial position, results of operations, or liquidity, litigation is subject to inherent uncertainty. Furthermore,
litigation consumes both cash and management attention.
(22) Benefit Plans
We sponsor a defined contribution 401(k) Savings Plan in the US and a defined contribution Group Personal Pension Plan in the UK (the “Plans”) for
all eligible employees, as defined in the Plans. Participants may contribute a portion of their compensation, subject to a maximum annual amount, as
established by the applicable taxing authority. Each participant is fully vested in his or her contributions and related earnings and losses. During the years
ended December 31, 2021, 2020, and 2019 we made discretionary contributions to the Plans of $1.1 million, $1.1 million, and $922,000, respectively. For
the years ended December 31, 2021, 2020, and 2019, we expensed $1.1 million, $1.1 million, and $922,000, respectively, related to the discretionary
contribution to the Plans.
(23) Geographic Information
The following is geographical information regarding our revenues for the years ended December 31, 2021, 2020 and 2019 and our long-lived assets as
of December 31, 2021 and 2020 (in thousands):
Revenue:
United States
Rest of world
2021
2020
2019
$
$
288,961
6,704
295,665
$
$
83,551
4,619
88,170
$
$
149,358
690
150,048
In the table above, revenue by geographic region is allocated based on the domicile of our respective business operations.
Long-lived Assets:
United States
Rest of world
Total
2021
2020
$
$
66,225 $
3,341
69,566 $
27,611
3,302
30,913
In the table above, long-lived assets include “Property, plant and equipment, net” and “Other long-term assets” from the consolidated balance sheets,
by the geographic location where the asset resides.
113
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Not applicable.
Item 9A. Controls and Procedures
Conclusion Regarding the Effectiveness of Disclosure Controls and Procedures
Under the supervision and with the participation of our management, including our Chief Executive Officer and Principal Financial Officer, we
conducted an evaluation of the effectiveness of our disclosure controls and procedures, as such term is defined under Rule 13a-15(e) promulgated under the
Exchange Act. Based on this evaluation, our Chief Executive Officer and our Principal Financial Officer concluded that our disclosure controls and
procedures were functioning effectively as of the end of the period covered by this Annual Report on Form 10-K to provide reasonable assurance that the
Company can meet its disclosure obligations.
Management’s Annual Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in
Exchange Act Rule 13a-15(f). Under the supervision and with the participation of our management, including our Chief Executive Officer and Principal
Financial Officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal
Control—Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on our evaluation
under the framework, our management concluded that our internal control over financial reporting was effective as of December 31, 2021.
KPMG LLP, our independent registered public accounting firm, has issued their report, included herein, on the effectiveness of our internal control
over financial reporting.
Changes in Internal Control Over Financial Reporting
There was no change in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that
occurred during the fourth quarter 2021 that have materially affected, or are reasonably likely to materially affect, our internal control over financial
reporting.
114
Report of Independent Registered Public Accounting Firm
To the Stockholders and Board of Directors
Agenus Inc.:
Opinion on Internal Control Over Financial Reporting
We have audited Agenus Inc. and subsidiaries' (the Company) internal control over financial reporting as of December 31, 2021, based on criteria
established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. In our
opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2021, based on criteria
established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated
balance sheets of the Company as of December 31, 2021 and 2020, the related consolidated statements of operations and comprehensive loss, convertible
preferred stock and stockholders’ deficit, and cash flows for each of the years in the three-year period ended December 31, 2021, and the related notes
(collectively, the consolidated financial statements), and our report dated March 1, 2022 expressed an unqualified opinion on those consolidated financial
statements.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of
internal control over financial reporting, included in the accompanying Management's Annual 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 of internal control over
financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and
testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included 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.
Boston, Massachusetts
March 1, 2022
/s/ KPMG LLP
115
Item 9B. Other Information
None.
116
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
Not applicable.
117
Item 10. Directors, Executive Officers and Corporate Governance
PART III
The information required by this Item is incorporated herein by reference to the information that will be contained in our proxy statement related to
the 2022 Annual Meeting of Stockholders, which we intend to file with the Securities and Exchange Commission within 120 days of the end of our fiscal
year pursuant to General Instruction G(3) of Form 10-K.
Item 11. Executive Compensation
The information required by this Item is incorporated herein by reference to the information that will be contained in our proxy statement related to
the 2022 Annual Meeting of Stockholders, which we intend to file with the Securities and Exchange Commission within 120 days of the end of our fiscal
year pursuant to General Instruction G(3) of Form 10-K.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required by this Item is incorporated herein by reference to the information that will be contained in our proxy statement related to
the 2022 Annual Meeting of Stockholders, which we intend to file with the Securities and Exchange Commission within 120 days of the end of our fiscal
year pursuant to General Instruction G(3) of Form 10-K.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by this Item is incorporated herein by reference to the information that will be contained in our proxy statement related to
the 2022 Annual Meeting of Stockholders, which we intend to file with the Securities and Exchange Commission within 120 days of the end of our fiscal
year pursuant to General Instruction G(3) of Form 10-K.
Item 14. Principal Accounting Fees and Services
Our independent registered public accounting firm is KPMG LLP, Boston, Massachusetts, Auditor Firm ID: 185.
All other information required by this Item is incorporated herein by reference to the information that will be contained in our proxy statement related
to the 2022 Annual Meeting of Stockholders, which we intend to file with the Securities and Exchange Commission within 120 days of the end of our fiscal
year pursuant to General Instruction G(3) of Form 10-K.
118
PART IV
Item 15. Exhibits and Financial Statement Schedules
(a) 1. Consolidated Financial Statements
The consolidated financial statements are listed under Item 8 of this Annual Report on Form 10-K.
2. Financial Statement Schedules
The financial statement schedules required under this Item and Item 8 are omitted because they are not applicable, or the required information is
shown in the consolidated financial statements or the footnotes thereto.
3. Exhibits
The exhibits are listed below under Part IV Item 15(b).
(b) Exhibits
Exhibit No.
Description
3.1
3.1.1
3.1.2
3.1.3
3.1.4
3.1.5
3.1.6
3.1.7
3.2
3.3
3.4
4.1
Amended and Restated Certificate of Incorporation of Antigenics Inc. Filed as Exhibit 3.1 to our Current Report on Form 8-K (File No.
0-29089) filed on June 10, 2002 and incorporated herein by reference.
Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Antigenics Inc. Filed as Exhibit 3.1 to our
Current Report on Form 8-K (File No. 0-29089) filed on June 11, 2007 and incorporated herein by reference.
Certificate of Ownership and Merger changing the name of the corporation to Agenus Inc. Filed as Exhibit 3.1 to our Current Report on
Form 8-K (File No. 0-29089) filed on January 6, 2011 and incorporated herein by reference.
Certificate of Second Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Exhibit 3.1 to our
Current Report on Form 8-K (File No. 0-29089) filed on September 30, 2011 and incorporated herein by reference.
Certificate of Third Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Exhibit 3.1.4 to our
Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended June 30, 2012 and incorporated herein by reference.
Certificate of Fourth Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Exhibit 3.1 to our
Current Report on Form 8-K (File No. 0-29089) filed on April 25, 2014 and incorporated herein by reference.
Certificate of Fifth Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Exhibit 3.1 to our
Current Report on Form 8-K (File No. 0-29089) filed on June 16, 2016 and incorporated herein by reference.
Certificate of Sixth Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Exhibit 3.1 to our
Current Report on Form 8-K (File No. 0-29089) filed on June 24, 2019 and incorporated herein by reference.
Fifth Amended and Restated By-laws of Agenus Inc. Filed as Exhibit 3.2 to our Current Report on Form 8-K (File No. 0-29089) filed on
January 6, 2011 and incorporated herein by reference.
Certificate of Designations, Preferences and Rights of the Series A-1 Convertible Preferred Stock of Agenus Inc. Filed as Exhibit 3.1 to
our Current Report on Form 8-K (File No. 0-29089) filed on February 5. 2013 and incorporated herein by reference.
Form of Certificate of Designation of Preferences, Rights and Limitations of Series C-1 Convertible Preferred Stock. Filed as Exhibit 3.1
to our Current Report on Form 8-K (File No. 0-29089) filed on October 11, 2018 and incorporated herein by reference.
Form of Common Stock Certificate. Filed as Exhibit 4.1 to our Current Report on Form 8-K (File No. 0-29089) filed on January 6, 2011
and incorporated herein by reference.
119
Exhibit No.
Description
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
4.10
4.10.1
4.11
4.12
10.1*
10.1.1*
10.1.2*
10.1.3*
Securities Exchange Agreement dated as of February 4, 2013 by and between Agenus Inc., and Mr. Brad Kelley. Filed as Exhibit 10.1 to
our Current Report on Form 8-K (File No. 0-29089) filed on February 5, 2013 and incorporated herein by reference.
Amended and Restated Note Purchase Agreement dated as of February 20, 2015, as amended, by and between Agenus Inc. and the
Purchasers listed on Schedule 1.1 thereto. Filed as Exhibit 4.2 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter
ended March 31, 2015 and incorporated herein by reference.
Form of Senior Subordinated Note under the Amended and Restated Note Purchase Agreement dated as of February 20, 2015, as
amended, by and between Agenus Inc. and the Purchasers listed on Schedule 1.1 thereto. Filed as Exhibit 4.3 to our Quarterly Report on
Form 10-Q (File No. 0-29089) for the quarter ended March 31, 2015 and incorporated herein by reference.
Form of Warrant under the Amended and Restated Note Purchase Agreement dated as of February 20, 2015, as amended, by and
between Agenus Inc. and the Purchasers listed on Schedule 1.1 thereto. Filed as Exhibit 4.4 to our Quarterly Report on Form 10-Q (File
No. 0-29089) for the quarter ended March 31, 2015 and incorporated herein by reference.
Amendment to Notes and Warrants dated as of March 15, 2017 by and among Agenus Inc. and the Investors listed therein. Filed as
Exhibit 4.27 to our Annual Report on Form 10-K (File No. 0-29089) for the year ended December 31, 2016 and incorporated herein by
reference.
Amendment to Notes and Warrants dated as of February 18, 2020 by and among Agenus Inc. and the Investors listed therein. Filed as
Exhibit 4.7 to our Annual Report on form 10-K (File No. 0-29089) for the year ended December 31, 2019 and incorporated herein by
reference.
Form of Warrant under the Amended and Restated Note Purchase Agreement dated as of February 18, 2020. Filed as Exhibit 4.8 to our
Annual Report on form 10-K (File No. 0-29089) for the year ended December 31, 2019 and incorporated herein by reference.
Form of Indenture. Filed as Exhibit 4.1 to our Registration Statement on Form S-3 (File No. 333-221008) and incorporated herein by
reference.
Royalty Purchase Agreement dated January 6, 2018, by and among Antigenics LLC, Healthcare Royalty Partners III, L.P. and certain of
its affiliates. Filed as Exhibit 4.1 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended March 31, 2018 and
incorporated herein by reference.
Amendment No. 1 to Royalty Purchase Agreement, dated June 22, 2021, by and among Antigenics LLC, Healthcare Royalty Partners
III, L.P. and certain of its affiliates. Filed as Exhibit 10.2 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended
June 30, 2021 and incorporated herein by reference.
Royalty Purchase Agreement dated September 20, 2018, by and among Agenus Inc., Agenus Royalty Fund, LLC and XOMA (US) LLC.
Filed as Exhibit 4.1 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended September 30, 2018 and
incorporated herein by reference.
Description of Securities. Filed as Exhibit 4.12 to our Annual Report on form 10-K (File No. 0-29089) for the year ended December 31,
2019 and incorporated herein by reference.
Employment Agreements and Compensation Plans
Agenus Inc. Amended and Restated 2009 Equity Incentive Plan. Filed as Exhibit 10.1 to our Current Report on Form 8-K (File No. 0-
29089) filed on June 16, 2016 and incorporated herein by reference.
Form of Restricted Stock Award Agreement for the Agenus Inc. Amended and Restated 2009 Equity Incentive Plan. Filed as Exhibit
10.2 to our Current Report on Form 8-K (File No. 0-29089) filed on June 15, 2009 and incorporated herein by reference.
Form of Restricted Stock Unit Agreement for the Agenus Inc. Amended and Restated 2009 Equity Incentive Plan. Filed as Exhibit 10.2
to our Current Report on Form 8-K (File No. 0-29089) filed on June 30, 2015 and incorporated herein by reference.
Form of Stock Option Agreement for the Agenus Inc. Amended and Restated 2009 Equity Incentive Plan. Filed as Exhibit 10.3 to our
Current Report on Form 8-K (File No. 0-29089) filed on June 15, 2009 and incorporated herein by reference.
120
Exhibit No.
Description
10.2
10.2.1
10.3*
10.3.1*
10.4*
10.4.1*
10.5*
10.5.1*
10.5.2*
10.6*
10.6.1*
10.6.2*
10.6.3*
10.7*
10.9
10.9.1
10.10*
Agenus Inc. Amended and Restated Directors' Deferred Compensation Plan. Filed as Appendix B to our Definitive Proxy Statement on
Schedule 14A filed on April 26, 2018 and incorporated herein by reference.
Amendment to Agenus Amended and Restated Directors' Deferred Compensation Plan. Filed as Appendix A to our Definitive Proxy
Statement on Schedule 14A filed on April 28, 2020 and incorporated herein by reference.
Amended and Restated Executive Change-in-Control Plan applicable to Christine M. Klaskin. Filed as Exhibit 10.1 to our Current
Report on Form 8-K (File No. 0-29089) filed on November 3, 2010 and incorporated herein by reference.
Modification of Rights in the Event of a Change of Control, dated as of June 14, 2012, by and between Agenus Inc. and Christine
Klaskin. Filed as Exhibit 10.1 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended June 30, 2012 and
incorporated herein by reference.
2004 Executive Incentive Plan, as amended. Filed as Exhibit 10.1 to our Current Report on Form 8-K (File No. 0-29089) filed on
January 27, 2011 and incorporated herein by reference.
Agenus Inc. 2016 Executive Incentive Plan. Filed as Exhibit 10.2 to our Current Report on Form 8-K (File No. 0-29089) filed on June
16, 2016 and incorporated herein by reference.
Employment Agreement dated December 1, 2005 between Agenus Inc. and Garo Armen. Filed as Exhibit 10.1 to our Current Report on
Form 8-K (File No. 0-29089) filed on December 7, 2005 and incorporated herein by reference.
First Amendment to Employment Agreement dated July 2, 2009 between Agenus Inc. and Garo Armen. Filed as Exhibit 10.1 to our
Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended September 30, 2009 and incorporated herein by reference.
Second Amendment to Employment Agreement dated December 15, 2010 between Agenus Inc. and Garo Armen. Filed as Exhibit
10.12.2 to our Annual Report on Form 10-K (File No. 0-29089) for the year ended December 31, 2010 and incorporated herein by
reference.
Agenus Inc. 2015 Inducement Equity Plan. Filed as Exhibit 4.14 to our Registration Statement on Form S-8 (File No. 333-209074) filed
on January 21, 2016 and incorporated herein by reference.
Form of Stock Option Agreement for the Agenus Inc. 2015 Inducement Equity Plan. Filed as Exhibit 4.15 to our Registration Statement
on Form S-8 (File No. 333-209074) filed on January 21, 2016 and incorporated herein by reference.
Form of Restricted Stock Award Agreement for the Agenus Inc. 2015 Inducement Equity Plan. Filed as Exhibit 4.16 to our Registration
Statement on Form S-8 (File No. 333-209074) filed on January 21, 2016 and incorporated herein by reference.
Form of Restricted Stock Unit Agreement for the Agenus Inc. 2015 Inducement Equity Plan. Filed as Exhibit 4.17 to our Registration
Statement on Form S-8 (File No. 333-209074) filed on January 21, 2016 and incorporated herein by reference.
Executive Employment Agreement dated August 8, 2019 between Agenus Inc. and Jennifer Buell. Filed as Exhibit 10.2 to our Quarterly
Report on Form 10-Q (File No. 0-29089) filed on August 9, 2019 and incorporated herein by reference.
Agenus Inc. 2019 Employee Stock Purchase Plan. Filed as Exhibit 4.11 to our Registration Statement on Form S-8 (File No. 333-233100)
filed on August 7, 2019 and incorporated herein by reference.
Amendment to the Agenus Inc. 2019 Employee Stock Purchase Plan. Filed as Appendix B to our Definitive Proxy Statement on Schedule
14A filed on April 30, 2021 and incorporated herein by reference.
Agenus Inc. 2019 Equity Incentive Plan. Filed as Appendix B to our Definitive Proxy Statement on Schedule 14A filed on April 26, 2019
and incorporated herein by reference.
10.10.1*
Amendment to the Agenus Inc. 2019 Equity Incentive Plan. Filed as Appendix A to our Definitive Proxy Statement on Schedule 14A
filed on April 30, 2021 and incorporated herein by reference.
10.10.2*
Amendment to the Agenus Inc. 2019 Equity Incentive Plan, dated February 2, 2022. Filed herewith.
10.10.3*
Form of Incentive Stock Option Agreement for the Agenus Inc. 2019 Equity Incentive Plan. Filed as Exhibit 10.10.1 to our Annual
Report on form 10-K (File No. 0-29089) for the year ended December 31, 2019 and incorporated herein by reference.
121
Exhibit No.
Description
10.10.4*
10.10.5*
10.11
Form of Non-Qualified Stock Option Agreement for the Agenus Inc. 2019 Equity Incentive Plan. Filed as Exhibit 10.10.2 to our Annual
Report on form 10-K (File No. 0-29089) for the year ended December 31, 2019 and incorporated herein by reference.
Form of Restricted Stock Unit Award Agreement for the Agenus Inc. 2019 Equity Incentive Plan. Filed as Exhibit 10.10.3 to our Annual
Report on form 10-K (File No. 0-29089) for the year ended December 31, 2019 and incorporated herein by reference.
Consulting Agreement dated January 1, 2020 between Agenus Inc. and Brian Corvese. Filed as Exhibit 4.2 to our Quarterly Report on
Form 10-Q (File No. 0-29089) for the quarter ended March 31, 2020 and incorporated herein by reference.
10.11.1
Amendment to Consulting Agreement between Agenus Inc. and Brian Corvese, dated January 1, 2022. Filed herewith.
10.12
Consulting Agreement dated April 30, 2021 between Agenus Inc. and Evan Kearns. Filed herewith.
10.12.1
Amendment to Consulting Agreement between Agenus Inc. and Evan Kearns, dated January 31, 2022. Filed herewith.
License and Collaboration Agreements
10.13(1)
10.14(1)
10.15(1)
10.16(1)
10.17.1(1)
License Agreement by and between Agenus Inc. and GlaxoSmithKline Biologicals SA dated July 6, 2006. Filed as Exhibit 10.1 to our
Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended June 30, 2006 and incorporated herein by reference.
Amended and Restated Manufacturing Technology Transfer and Supply Agreement by and between Agenus Inc. and GlaxoSmithKline
Biologicals SA dated January 19, 2009. Filed as Exhibit 10.1 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter
ended March 31, 2009 and incorporated herein by reference.
First Right to Negotiate and Amendment Agreement between Agenus Inc., Antigenics LLC and GlaxoSmithKline Biologicals SA, dated
March 2, 2012. Filed as Exhibit 10.1 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended March 31, 2012
and incorporated herein by reference.
License Agreement dated as of December 5, 2014 by and between 4-Antibody AG, a limited liability company organized under the laws
of Switzerland (and wholly-owned subsidiary of Agenus Inc.) and Ludwig Institute for Cancer Research Ltd. Filed as Exhibit 10.21 to
our Annual Report on Form 10-K (File No. 0-29089) for the year ended December 31, 2014 and incorporated herein by reference.
License, Development and Commercialization Agreement dated as of January 9, 2015 by and among Agenus Inc., 4-Antibody AG, a
limited liability company organized under the laws of Switzerland (and wholly-owned subsidiary of Agenus Inc.), Incyte Corporation
and Incyte Europe Sarl, a Swiss limited liability company (and wholly-owned subsidiary of Incyte Corporation). Filed as Exhibit 10.22
to our Annual Report on Form 10-K (File No. 0-29089) for the year ended December 31, 2014 and incorporated herein by reference.
10.17.2(1)
First Amendment to License, Development and Commercialization Agreement dated as of February 14, 2017 by and among Agenus
Inc., Agenus Switzerland Inc. (f/k/a 4-Antibody AG) and Incyte Europe Sarl. Filed as Exhibit 10.1 to our Quarterly Report on Form 10-
Q (File No. 0-29089) for the quarter ended March 31, 2017 and incorporated herein by reference.
10.18(1)
10.19(1)
10.20(1)
License Agreement dated March 19, 2013, as amended, by and between the University of Virginia Patent Foundation d/b/a University of
Virginia Licensing and Ventures Group and Agenus Inc. (as successor by merger to PhosImmune Inc.). Filed as Exhibit 10.24 to our
Annual Report on Form 10-K (File No. 0-29089) for the year ended December 31, 2015 and incorporated herein by reference.
License Agreement dated as of January 25, 2016 by and among Agenus Inc., 4-Antibody AG, a limited liability company organized
under the laws of Switzerland (and wholly-owned subsidiary of Agenus Inc.), and Ludwig Institute for Cancer Research Ltd. Filed as
Exhibit 10.25 to our Annual Report on Form 10-K (File No. 0-29089) for the year ended December 31, 2015 and incorporated herein by
reference.
Development and Manufacturing Services Agreement dated April 14, 2017 by and between Agenus Inc. and CMC ICOS Biologics, Inc.
Filed as Exhibit 10.1 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended June 30, 2017 and incorporated
herein by reference.
10.21(1)
License Agreement dated December 20, 2018, by and between Agenus Inc. and Gilead Sciences, Inc. Filed as Exhibit 10.25 to our
Annual Report on Form 10-K (File No. 0-29089) for the year ended December 31, 2018 and incorporated herein by reference.
122
Exhibit No.
Description
10.22(1)
10.23(1)
10.24(1)
10.25(1)
10.26
10.26.1
10.26.2
10.26.3
10.26.4
10.26.5
10.27
10.28
21.1
23.1
31.1
31.2
32.1
Option and License Agreement (AGEN1223) dated December 20, 2018, by and between Agenus Inc. and Gilead Sciences, Inc. Filed as
Exhibit 10.26 to our Annual Report on Form 10-K (File No. 0-29089) for the year ended December 31, 2018 and incorporated herein by
reference.
Option and License Agreement (AGEN2373) dated December 20, 2018, by and between Agenus Inc. and Gilead Sciences, Inc. Filed as
Exhibit 10.27 to our Annual Report on Form 10-K (File No. 0-29089) for the year ended December 31, 2018 and incorporated herein by
reference.
License and Collaboration Agreement, dated as of June 20, 2020, by and between Agenus Inc. and Betta Pharmaceuticals Co., Ltd. Filed
as Exhibit 10.1 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended June 30, 2020 and incorporated herein by
reference.
License, Development and Commercialization Agreement, dated May 17, 2021, by and among Agenus Inc. and Bristol Myers Squibb
Company. Filed as Exhibit 10.1 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended June 30, 2021 and
incorporated herein by reference.
Real Estate Leases
Lease of Premises at 3 Forbes Road, Lexington, Massachusetts dated as of December 6, 2002 from BHX, LLC, as Trustee of 3 Forbes
Realty Trust, to Agenus Inc. Filed as Exhibit 10.1 to our Current Report on Form 8-K (File No. 0-29089) filed on January 8, 2003 and
incorporated herein by reference.
First Amendment of Lease dated as of August 15, 2003 from BHX, LLC, as trustee of 3 Forbes Road Realty, to Agenus Inc. Filed as
Exhibit 10.1 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended March 31, 2004 and incorporated herein by
reference.
Second Amendment of Lease dated as of March 7, 2007 from BHX, LLC as trustee of 3 Forbes Road Realty, to Agenus Inc. Filed as
Exhibit 10.1 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended March 31, 2007 and incorporated herein by
reference.
Third Amendment to Lease dated April 23, 2008 between TBCI, LLC, as successor to BHX, LLC, as Trustee of 3 Forbes Road Realty
Trust, and Agenus Inc. Filed as Exhibit 10.2 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended June 30,
2008 and incorporated herein by reference.
Fourth Amendment to Lease dated September 30, 2008 between TBCI, LLC, as successor to BHX, LLC, as Trustee of 3 Forbes Road
Realty Trust, and Agenus Inc. Filed as Exhibit 10.2 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended
September 30, 2008 and incorporated herein by reference.
Fifth Amendment to Lease dated April 11, 2011 between TBCI, LLC, as successor to BHX, LLC, as Trustee of 3 Forbes Road Realty
Trust, and Agenus Inc. Filed as Exhibit 10.3 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended March 31,
2011 and incorporated herein by reference.
Office Lease by and between Bay Center Investor LLC and Agenus Inc. dated November 25, 2020. Filed as Exhibit 10.1 to our Current
Report on Form 8-K (File No. 0-29089) filed on November 25, 2020 and incorporated herein by reference.
At Market Issuance Sales Agreement dated July 22, 2020 by and between Agenus Inc. and B. Riley FBR, Inc. Filed as Exhibit 1.2 to our
Registration Statement on Form S-3ASR (File No. 333-240006) on July 22, 2020 and incorporated herein by reference.
Sales Agreement
Subsidiaries of Agenus Inc. Filed herewith.
Consent of KPMG LLP, independent registered public accounting firm. Filed herewith.
Certification of Chief Executive Officer pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as
amended. Filed herewith.
Certification of Principal Financial Officer pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as
amended. Filed herewith.
Certification of Chief Executive Officer and Principal Financial Officer pursuant to 18 U.S.C. Section 1350 as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002. Submitted herewith.
123
Exhibit No.
Description
101.INS
XBRL Instance Document (the instance document does not appear in the Interactive Data File because its XBRL tags are embedded
within the Inline XBRL document)
101.SCH
Inline XBRL Taxonomy Extension Schema Document
101.CAL
Inline XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF
Inline XBRL Taxonomy Extension Definition Linkbase Document
101.LAB
Inline XBRL Taxonomy Extension Label Linkbase Document
101.PRE
Inline XBRL Taxonomy Extension Presentation Linkbase Document
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
Indicates a management contract or compensatory plan.
*
(1) Certain confidential material contained in the document has been omitted and filed separately with the Securities and Exchange Commission pursuant
to Rule 406 of the Securities Act or Rule 24b-2 of the Securities Exchange Act.
Item 16. Form 10-K Summary
None.
124
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.
SIGNATURES
AGENUS INC.
By:
/s/ GARO H. ARMEN, PH.D.
Garo H. Armen, Ph.D.
Chief Executive Officer and
Chairman of the Board
Dated: March 1, 2022
Pursuant 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 and on the dates indicated.
Signature
Title
/S/ GARO H. ARMEN, PH.D.
Garo H. Armen, Ph.D.
/S/ CHRISTINE M. KLASKIN
Christine M. Klaskin
/S/ BRIAN CORVESE
Brian Corvese
/S/ SUSAN HIRSCH
Susan Hirsch
/S/ ALLISON JEYNES-ELLIS
Allison Jeynes-Ellis
/S/ WADIH JORDAN
Wadih Jordan
/S/ ULF WIINBERG
Ulf Wiinberg
/S/ TIMOTHY R. WRIGHT
Timothy R. Wright
Chief Executive Officer and Chairman of the
Board of Directors
(Principal Executive Officer)
Vice President Finance
(Principal Financial and Accounting Officer)
Director
Director
Director
Director
Director
Director
125
Date
March 1, 2022
March 1, 2022
March 1, 2022
March 1, 2022
March 1, 2022
March 1, 2022
March 1, 2022
March 1, 2022
FIRST AMENDMENT TO THE
AGENUS INC.
2019 EQUITY INCENTIVE PLAN
Exhibit 10.10.2
This First Amendment (this “Amendment”) to the Agenus Inc. Incentive Award Plan (as amended to date, the “Plan”), dated as of
February 2, 2022, is made and adopted by Agenus Inc. (the “Company”), a Delaware corporation. Defined terms used herein without
definition shall have the meanings given to such terms in the Plan.
1.
Section 6(a)(4) of the Plan is hereby amended to read as follows:
(4) Vesting, etc. The Administrator shall determine the time or times at which an Award vests or becomes exercisable
and the terms on which a Stock Option or SAR remains exercisable. Notwithstanding the foregoing, no Award may be scheduled to
vest, in whole or in part, prior to the date that is one year following the date the Award is granted; provided, however, that (i)
Awards that result in the issuance (as determined in accordance with the rules set forth in Section 4(a)) of an aggregate of up to five
percent of the Share Pool may be granted without regard to such one-year minimum scheduled vesting period, and (ii) this one-year
minimum scheduled vesting period shall not apply to any Awards granted to a Participant in lieu of or settlement of fully-vested
cash awards or payments otherwise payable to such Participant). Unless the Administrator expressly provides otherwise, the
following rules will apply if a Participant’s Employment ceases:
(A) Except as provided in (B) and (C) below, immediately upon the cessation of the Participant’s Employment each
Stock Option and SAR (or portion thereof) that is then held by the Participant or by the Participant’s permitted transferees, if any,
will cease to be exercisable and will terminate, and each other Award that is then held by the Participant or by the Participant’s
permitted transferees, if any, to the extent not then vested, will be forfeited.
(B) Subject to (C) and (D) below, each vested and unexercised Stock Option and SAR (or portion thereof) held by the
Participant or the Participant’s permitted transferees, if any, immediately prior to the cessation of the Participant’s Employment, to
the extent then exercisable, will remain exercisable for the lesser of (i) a period of three months following such cessation of
Employment or (ii) the period ending on the latest date on which such Stock Option or SAR could have been exercised without
regard to this Section 6(a)(4), and will thereupon immediately terminate.
(C) Subject to (D) below, each vested and unexercised Stock Option and SAR (or portion thereof) held by a Participant
or the Participant’s permitted transferees, if any, immediately prior to the cessation of the Participant’s Employment due to his or
her death or Disability, to the extent then exercisable, will remain exercisable for the lesser of (i) the one-year period ending on the
first anniversary of such cessation of employment or (ii) the period ending on the latest date on which such Stock Option or SAR
could have been exercised without regard to this Section 6(a)(4), and will thereupon immediately terminate.
(D) All Awards (whether or not vested or exercisable) held by a Participant or the Participant’s permitted transferees, if
any, immediately prior to the cessation of the Participant’s Employment will immediately terminate upon such cessation of
Employment if the termination is for Cause or occurs in circumstances that in the determination of the Administrator would have
constituted grounds for the Participant’s Employment to be terminated for Cause (in each case, without regard to the lapsing of any
required notice or cure periods in connection therewith).
Exhibit 10.10.2
This Amendment shall be and is hereby incorporated in and forms a part of the Plan. All other terms and provisions of
the Plan shall remain unchanged except as specifically modified herein. The Plan, as amended by this Amendment, is hereby ratified and
confirmed.
2.
I hereby certify that the foregoing Amendment was duly adopted by the Compensation Committee of the Board of Directors of the
Company on February 2, 2022.
* * * * * * * *
AGENUS INC.
By: /s/ Christine M. Klaskin
Name: Christine Klaskin
Its: Corporate Secretary
AMENDMENT NO. 2 TO
CONSULTING AGREEMENT
Exhibit 10.11.1
This AMENDMENT NO. 1 TO CONSULTING AGREEMENT (this “Amendment 2”) is entered into as of January 1,
2022 (hereinafter the “Amendment 2 Effective Date”), by and between Agenus Inc., a Delaware corporation having an address at
3 Forbes Road, Lexington, MA 02421, USA (the “Company”), and Brian Corvese (the “Consultant”) (each a “Party” and
together the “Parties”). Capitalized terms used in this Amendment 2 and not otherwise defined herein shall have those meanings
attributed to them in the Agreement (as defined below).
WHEREAS, the Company and the Consultant are parties to that certain Consulting Agreement effective January 1,
2020, as amended from time to time, pursuant to which the Company engaged Consultant to perform certain services for the
Company (the “Agreement”); and
WHEREAS, the Parties now wish to amend the Agreement to extend the term of the Agreement as set forth herein.
NOW, THEREFORE, the Parties agree as follows:
1.
In accordance with Section 3.1 of the Agreement, the Term of the Agreement is hereby extended through
December 31, 2022 (“Revised Expiration Date”), unless terminated in accordance with the Agreement or further extended by
mutual written agreement of the Parties.
2.
The Parties acknowledge and agree that compensation for Services performed during the period from the
Amendment 2 Effective Date until the Revised Expiration Date shall not exceed $120,000.00 during this period of time without
the prior written consent of the Company.
3.
Except as set forth in this Amendment, the Agreement shall remain unchanged and shall continue, and shall
be deemed to have continued, in full force and effect without interruption from the Effective Date.
4.
This Amendment may be executed in counterparts, which, when taken together, shall constitute one
agreement. If any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with
the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment 2 to Consulting Agreement as of the
Exhibit 10.11.1
Amendment 2 Effective Date:
AGENUS
INC.:
/s/ Garo Armen
Brian Corvese
Name: Garo
Armen
CEO
Title: Chairman &
CONSULTANT:
/s/
Name: Brian Corvese
CONSULTING AGREEMENT
Exhibit 10.12
This Consulting Agreement (this “Agreement”), effective as of April 30, 2021 (the “Effective Date”), is made by and between
Agenus Inc., a Delaware corporation having an address at 3 Forbes Road, Lexington, MA 02421 (“Agenus”), and Evan D.
Kearns, an individual having an address at 71 Emerson Road, Needham, MA 02492 (the “Consultant”) (each a “Party” and
collectively the “Parties”).
WHEREAS, Consultant and Agenus are parties to an Employment Agreement originally dated as of November 6, 2020 (the
“Employment Agreement”), and Consultant voluntarily ended his employment with Agenus effective as of the Effective Date;
and
WHEREAS, Agenus desires to retain Consultant’s services following the termination of Consultant’s employment with Agenus,
and Consultant desires to perform certain services for Agenus.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, Agenus and Consultant hereby agree as follows:
1.
Services.
1.1 Description of Services. Subject to the terms and conditions of this Agreement, Agenus hereby retains Consultant to
provide up to ten (10) hours per month of general advice, counsel, and mentoring to facilitate legal department transition
activities as may be requested by Agenus’ Chief Legal Officer (or his designees) from time to time (the “Services”). Consultant
shall perform the Services in compliance with the provisions of this Agreement and all applicable laws, rules and regulations. As
used in this Agreement “Affiliate” means any corporation, firm, partnership or other entity, which controls, is controlled by or is
under common control with a Party. As used in this Agreement, “control” means direct or indirect ownership of fifty percent
(50%) or more of the outstanding stock or other voting rights entitled to elect directors thereof or the ability to otherwise control
the management of the corporation, firm, partnership or other entity.
1.2 Third Party Obligations. Consultant represents and warrants to Agenus that none of his current obligations conflict with
this Agreement or the Services to be provided hereunder. Consultant covenants not to enter into any such conflicting agreement
or incur any such conflicting obligation without the prior written consent of Agenus. Consultant further covenants that the
performance of the Services will not breach any agreement or obligation with any third party, including without limitation any
obligation to refrain from engaging in activities that may compete with such party. For the avoidance of doubt, Consultant shall
be entitled to serve on one or more boards of directors of other companies in the same industry as the Company (including
without limitation other immuno-oncology companies) without being in violation of this Section 1.3; provided, however, that
Consultant shall not share or otherwise use (directly or indirectly) any Confidential Information (as defined below) in any such
role. 1.3 No Disparagement. Consultant agrees that during the Term and thereafter, Consultant shall not disparage Agenus or
any of its Affiliates, or their respective directors, officers, employees, consultants, or agents, or otherwise make any statement or
take any actions that would be materially harmful to the business, interests or reputation of Agenus or any of its Affiliates, or
their respective directors, officers, employees, consultants, or agents.
Exhibit 10.12
2. Compensation.
2.1 Compensation. In exchange for the timely completion of Services during the Term (as defined below), Consultant shall
be entitled to continuation of vesting during the Term with respect to all equity incentive awards held by Consultant. Unless
otherwise agreed between the Parties, no other compensation will be paid for the performance of Services by Consultant under
this Agreement.
2.2 Reimbursement of Expenses. Agenus shall reimburse Consultant for all reasonable travel and other out-of-pocket
expenses that are incurred by Consultant in performance of the Services and in accordance with Agenus’s reimbursement
policies, as they may be amended from time to time by Agenus, provided that Consultant shall have submitted to Agenus written
expense statements and other supporting documentation in a form that is reasonably satisfactory to Agenus. Agenus shall provide
Consultant with a check for any amounts due under this Section 0 within forty-five (45) days after Agenus receives satisfactory
documentation.
2.3 Independent Contractor. Consultant is an independent contractor of Agenus and Consultant acknowledges and agrees
that Agenus will not provide Consultant with any employment benefits. Consultant is also responsible for the payment and the
withholding of any applicable taxes, levies and/or duties applicable to any compensation or reimbursements paid to Consultant
hereunder in accordance with all applicable laws, rules and regulations.
3.
Term and Termination.
3.1 Term. This Agreement shall commence on the Effective Date and shall remain in effect for a period of three (3) months,
unless extended by mutual written agreement of the Parties, or earlier terminated in accordance with the provisions of this Article
3. 3.2 Termination for Material Breach. In the event that either Party commits a material breach of its obligations under this
Agreement, the other Party may terminate this Agreement upon fifteen (15) days prior written notice, unless the breach is cured
within such fifteen (15) day notice period. 3.3 Survival. The following provisions shall survive the expiration or termination of
this Agreement: Articles 4, 5 and 6; Sections 1.3, 7.3 through 7.10, and this Section 3.3.
4. Confidential Information.
4.1 Definition of Confidential Information. Confidential Information shall mean any technical or business information
furnished by or on behalf of Agenus to Consultant in connection with this Agreement or developed by Consultant in the course of
performing the Services, regardless of whether such Confidential Information is in oral, electronic or written form. Such
Confidential Information may include, without limitation, trade secrets, know-how, inventions, technical data or specifications,
testing methods, business or financial information,
research and development activities, product and marketing plans, and customer and supplier information.
Exhibit 10.12
4.2 Obligations. Consultant shall
(a) maintain all Confidential Information in strict confidence; and
(b) use all Confidential Information solely for the purpose of providing the Services as requested by Agenus; and
(c) reproduce the Confidential Information only to the extent necessary for providing the Services as requested by
Agenus, with all such reproductions being considered Confidential Information;
(d) disclose the Confidential Information only as expressly permitted in order to perform the Services; and
(e) not disclose or publish any Confidential Information to any third party without the express prior written consent of
Agenus, in each case in Agenus’s sole discretion.
4.3 Exceptions. The obligations of Consultant under Section 4.2 shall not apply to the extent that Consultant can
demonstrate that certain information:
(a) was in the public domain prior to the time of its disclosure or development under this Agreement;
(b) entered the public domain after the time of its disclosure or development under this Agreement other than due to an
act or omission by Consultant;
(c) was independently developed by Consultant prior to the time of its disclosure or development under this Agreement
and without access to Confidential Information; or
(d) is or was disclosed to Consultant at any time prior to its disclosure or development under this Agreement, without
restriction, by a third party having no fiduciary relationship with Agenus and having no obligation of confidentiality with respect
to such Confidential Information.
4.4 Required Disclosures. In addition Consultant may disclose Confidential Information to the extent necessary to comply
with applicable laws or regulations, or with a court or administrative order, provided that Consultant (i) gives Agenus prompt
written notice of such requirement, (ii) takes all reasonable and lawful actions to obtain confidential treatment for such disclosure
and, if possible, to minimize the extent of such disclosure, and (iii) discloses only the Confidential Information strictly required to
comply with such legal obligation.
4.5 Return of Confidential Information; Survival of Obligations. Upon the termination of this Agreement, or earlier at the
request of Agenus, Consultant shall return to Agenus all originals,
copies, and summaries of documents, materials, and other tangible manifestations of Confidential Information in the possession
or control of Consultant. The obligations set forth in this Article 4 shall remain in effect for a period of five (5) years after
termination of this Agreement, except that the obligations of Consultant to return Confidential Information shall survive until
fulfilled. Consultant acknowledges and agrees that the Confidential Information is of extreme value to Agenus, and any use or
disclosure thereof other than as expressly allowed under this Agreement would cause irreparable harm to Agenus for which
Agenus could obtain relief as contemplated in Section 7.9 of this Agreement, and that such unauthorized disclosure may
represent Consultant’s violation of U.S. securities laws.
Exhibit 10.12
5. Developments; Third Party IP; Avoidance of Claims.
5.1 Developments. “Developments” shall mean any and all inventions, developments, data, discoveries, improvements,
ideas, or concepts, and related documentation, and any other works of invention or authorship (whether or not patentable or
copyrightable) which Consultant has conceived, discovered, developed, or reduced to practice or tangible medium in the direct
course of providing the Services, or which arise from access to and/or use of Confidential Information, and any and all
intellectual property rights in any of the foregoing. Consultant shall promptly disclose to Agenus any and all Developments.
Consultant acknowledges and agrees that all Confidential Information and Developments is and shall remain the exclusive
property of Agenus or the third party entrusting any Confidential Information to Agenus. Consultant shall and hereby assigns,
conveys, and grants to Agenus, all of his right, title, and interest in and to any and all Developments.
5.2 Third-Party Intellectual Property. Consultant acknowledges that Agenus does not desire to acquire any trade secrets,
know-how, confidential information, or other intellectual property that Consultant may have acquired from or developed for any
third party (“Third-Party IP”). Consultant agrees that in the course of providing the Services, Consultant shall not improperly use
or disclose any Third-Party IP.
5.3 Avoidance of Claims by Third-Parties. Unless covered by an appropriate agreement between any third party and Agenus,
Consultant shall not engage in any activities or use any facilities, funds or equipment, in the course of providing Services, which
could result in claims of ownership to any Developments by such third party.
6. U.S. Foreign Corrupt Practices Act Compliance. Consultant understands that Agenus is an issuer of securities in the United
States and is subject to the provisions of the U. S. Foreign Corrupt Practices Act, 15 U.S.C. §§ 78m, 78dd-1 through 78dd-3
(“FCPA”). This law prohibits making, promising or offering to make corrupt payments to foreign officials, political parties or
candidates, or making payments to other persons who will offer or make payments to any of the aforementioned parties in order
to obtain business, retain business or gain an improper advantage. Consultant represents and warrants to Agenus that Consultant
is familiar with and understands the FCPA, and Consultant further represents and warrants to Agenus that throughout the period
in which Consultant provides Services to Agenus, neither Consultant, nor any person performing Services on behalf of
Consultant will engage in any activity that could cause a violation of any provision of the FCPA by Agenus.
7. Miscellaneous.
Exhibit 10.12
7.1 Counterparts. This Agreement may be executed in counterparts, which, when taken together, shall constitute one
agreement. If any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with
the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
7.2 Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party,
except that Agenus may assign this Agreement to an affiliate or in connection with the merger, consolidation, or sale of all or
substantially all of its business or assets relating to this Agreement. This Agreement shall inure to the benefit of and be binding
upon the Parties and their respective lawful successors, assigns, heirs, and personal representatives.
7.3 Insider Trading. Consultant acknowledges that Consultant may receive material, non-public information about Agenus
and its business in the course of providing the Services, that this information must be maintained in strict confidence, and that the
U.S. securities laws restrict trading on the basis of such information or providing such information to third parties who may trade
on such information.
7.4 Publicity. Consultant consents to use by Agenus of Consultant’s name and likeness in written materials or oral
presentations to current or prospective customers, investors or others, provided that such materials or presentations accurately
describe the nature of Consultant’s relationship with or contribution to Agenus.
7.5 Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be deemed
given (a) when delivered personally, (b) upon confirmation of delivery by email if sent during normal business hours, and
otherwise on the next business day, (c) on the next business day after timely delivery to an overnight courier (postage prepaid), or
(d) on the third business day after deposit in the United States mail (certified or registered mail return receipt requested, postage
prepaid), to the addresses of the Parties set forth in the first paragraph of this Agreement, and in the case of correspondence to
Agenus, with a copy to “Legal Department” at the same address. Either Party may change its designated address by notice to the
other Party in the manner provided in this Section 7.5.
7.6 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the Parties with respect to the
subject matter hereof and supersedes any and all prior or contemporaneous oral and prior written agreements and understandings,
with the exception of Employment Agreement (to the extent the provisions thereof survive its termination). In the event of a
discrepancy between this Agreement and the surviving provisions of the Employment Agreement, the Employment Agreement
shall govern. This Agreement may be modified, amended, or supplemented only by means of a written instrument signed by both
Parties. Any waiver of any rights or failure to act in a specific instance shall relate only to such instance and shall not be
construed as an agreement to waive any rights or fail to act in any other instance, whether or not similar.
7.7 Governing Law. This Agreement has been drafted in the English Language and the English language shall govern its
interpretation. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts irrespective of any conflict of laws principles.
Exhibit 10.12
7.8 Severability. In the event that any provision of this Agreement shall, for any reason, be held to be invalid or
unenforceable in any respect, such invalidity or unenforceability shall not affect any other provision hereof, and this Agreement
shall be construed as if such invalid or unenforceable provision had not been included herein. If any provision hereof shall, for
any reason, be held by a court to be excessively broad as to duration, geographical scope, activity, or subject matter, it shall be
construed by limiting and reducing it to make it enforceable to the extent compatible with applicable law as then in effect. To the
extent this Agreement may be construed in accordance with the laws of any state that limits the assignability to Agenus of certain
Developments, the provisions of this Agreement shall be modified to conform to such state limitation while most closely
effectuating the original intention of the Parties (e.g., by providing for fully paid up license rights, or the like).
7.9 Equitable Relief. Consultant acknowledges that the restrictions contained in this Agreement are necessary for the
protection of the business and goodwill of Agenus and are reasonable for such purpose. Consultant agrees that any breach or
threatened breach of his obligations under this Agreement will cause irreparable harm to Agenus. Therefore, in addition to any
other remedies that may be available to Agenus, Agenus may apply for and obtain immediate injunctive relief in any court of
competent jurisdiction to restrain the breach or threatened breach of, or otherwise to specifically enforce, any obligations of
Consultant under this Agreement.
7.10 Massachusetts Information Security Regulations Compliance. Massachusetts Information Security Regulations, 201
Code of Mass. Regs. 17.00 et seq. (the “IS Regulations”) mandate procedures to safeguard the “Personal Information,” as defined
in the IS Regulations, of Massachusetts residents. Because Consultant may have access to the Personal Information of Agenus’s
employees, contractors, business associates, or customers who are Massachusetts residents (“Protected Information”), the IS
Regulations require Consultant to certify compliance with the IS Regulations. Accordingly, Consultant agrees that, as long as
Consultant has access to or maintains copies of Protected Information Consultant will: (a) comply with the IS Regulations with
respect to the Protected Information, (b) promptly notify Agenus of any suspected or actual data breach involving Protected
Information, and (c) cooperate with Agenus to investigate and remediate any suspected or actual data breach involving Protected
Information.
7.11 Whistleblower Notice. Pursuant to 18 USC § 1833(b), an individual may not be held criminally or civilly liable under
any federal or state trade secret law for disclosure of any trade secret: (i) made in confidence to a government official, either
directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; and/or (ii)
in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Accordingly, the Parties
to this Agreement have the right to disclose in confidence trade secrets to Federal, State, and local government officials, or to an
attorney, for the sole purpose of reporting or investigating a suspected violation of law. The Parties also have the right
to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and
protected from public disclosure.
Exhibit 10.12
IN WITNESS WHEREOF, the Parties each have caused this Agreement to be executed by their duly respective authorized
representative as of the Effective Date.
AGENUS INC.
/s/ Garo H. Armen
Name: Garo H. Armen
Title: Chairman and CEO
CONSULTANT
/s/ Evan D. Kearns
Evan D. Kearns
AMENDMENT NO. 3 TO
CONSULTING AGREEMENT
Exhibit 10.12.1
Ex
This AMENDMENT NO. 3 TO CONSULTING AGREEMENT (this “Amendment”) is entered into as of January 31,
2022 (the “Amendment Effective Date”), by and between Agenus Inc., a Delaware corporation having an address at 3 Forbes
Road, Lexington, MA 02421 (“Agenus”), and Evan D. Kearns, an individual with an address at 40 Edgewater Lane, Needham,
MA 02492 (“Consultant”) (each a “Party” and together the “Parties”). Capitalized terms used in this Amendment and not
otherwise defined herein shall have those meanings attributed to them in the Agreement (as defined below).
WHEREAS, Agenus and Consultant are parties to that certain Consulting Agreement effective as of April 30, 2021 (the
“Agreement”); and
WITNESSETH
WHEREAS, the Parties now wish to amend the Agreement to extend the term thereof.
NOW, THEREFORE, the Parties agree as follows:
1.
In accordance with Sections 3.1 and 7.6 of the Agreement, the term of the Agreement is hereby extended
through April 30, 2022, unless further extended or earlier terminated pursuant to the terms of the Agreement.
2.
Except as set forth in this Amendment, the Agreement shall remain in full force and effect.
3.
This Amendment may be executed in counterparts, which, when taken together, shall constitute one
agreement. If any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with
the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
4.
This Amendment shall be governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts, without giving effect to the conflict of laws principles of such Commonwealth.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the Amendment Effective Date.
Exhibit 10.12.1
Ex
AGENUS INC.
By: /s/ Garo Armen
Name: Garo Armen
Title: Chairman & CEO
CONSULTANT
/s/ Evan D. Kearns
Evan D. Kearns
EXHIBIT 21.1
Antigenics LLC., a Delaware limited liability company and a wholly-owned subsidiary of Agenus Inc.
Agenus Royalty Fund, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Agenus Inc.
SUBSIDIARIES OF AGENUS INC.
Agenus Switzerland Inc., a joint stock company organized under the laws of Switzerland formerly known as 4-Antibody AG, and a wholly-owned
subsidiary of Agenus Inc.
Agenus West, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Agenus Inc.
Agenus UK Limited, a private limited company organized under the laws of England and Wales and a wholly-owned subsidiary of Agenus Inc.
SaponiQx, Inc., a Delaware corporation and a majority-owned subsidiary of Agenus Inc.
MiNK Therapeutics, Inc., a Delaware corporation and a majority-owned subsidiary of Agenus Inc.
AgenTus Therapeutics Limited, a private limited company organized under the laws of England and Wales and a wholly-owned subsidiary of MiNK
Therapeutics, Inc.
AgenTus Therapeutics SA, a company organized under the laws of Belgium and a wholly-owned subsidiary of AgenTus Therapeutics, Inc.
Consent of Independent Registered Public Accounting Firm
Exhibit 23.1
The Board of Directors
Agenus Inc.:
We consent to the incorporation by reference in the registration statements (Nos. 333 40440, 333-40442, 333-50434, 333-69580, 333-106072, 333-115984,
333-143807, 333-143808, 333-151745, 333-160084, 333-160087, 333-160088, 333-176609, 333-183066, 333-183067, 333-189926, 333-195851, 333-
209074, 333-212889, 333-228271, 333-233097, and 333-233100) on Form S-8 and (Nos. 333-163221, 333-189534, 333-195852, 333-203807, 333-
206513, 333-208135, 333-208890, 333-209749, 333-209941, 333-215640, 333-221465, 333-222670, 333-228273, 333-234333,333-240006 and 333-
261032) on Form S-3 of Agenus Inc. of our reports dated March 1, 2022, with respect to the consolidated balance sheets of Agenus Inc. and subsidiaries
(the Company) as of December 31, 2021 and 2020, the related consolidated statements of operations and comprehensive loss, convertible preferred stock
and stockholders’ deficit, and cash flows for each of the years in the three-year period ended December 31, 2021, and the related notes and the
effectiveness of internal control over financial reporting as of December 31, 2021, which reports appear in the December 31, 2021 annual report on Form
10-K of the Company.
/s/ KPMG LLP
Boston, Massachusetts
March 1, 2022
Certification Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as amended
I, Garo H. Armen, certify that:
Exhibit 31.1
1.
2.
3.
4.
I have reviewed this Annual Report on Form 10-K of Agenus Inc.;
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period
covered by this report;
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;
The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the Registrant and have:
a.
b.
c.
d.
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in which this report is being prepared;
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed
under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with U.S. generally accepted accounting principles;
evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about
the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such
evaluation; and
disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s
most recent fiscal quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is
reasonably likely to materially affect, the Registrant’s internal control over financial reporting; and
5.
The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial
reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent
function):
a.
b.
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and
any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s
internal control over financial reporting.
Date:
March 1, 2022
/s/ GARO H. ARMEN, PH.D.
Garo H. Armen, Ph.D.
Chief Executive Officer and Principal Executive Officer
Certification Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as amended
I, Christine M. Klaskin, certify that:
Exhibit 31.2
1.
2.
3.
4.
I have reviewed this Annual Report on Form 10-K of Agenus Inc.;
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period
covered by this report;
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;
The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the Registrant and have:
a.
b.
c.
d.
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in which this report is being prepared;
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed
under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with U.S. generally accepted accounting principles;
evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about
the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such
evaluation; and
disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s
most recent fiscal quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is
reasonably likely to materially affect, the Registrant’s internal control over financial reporting; and
5.
The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial
reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent
function):
a.
b.
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and
any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s
internal control over financial reporting.
Date:
March 1, 2022
/s/ CHRISTINE M. KLASKIN
Christine M. Klaskin
VP, Finance and Principal Financial Officer
Certification
Pursuant to 18 U.S.C. Section 1350,
As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
Exhibit 32.1
In connection with the Annual Report on Form 10-K of Agenus Inc. (the “Company”) for the year ended December 31, 2021 as filed with the
Securities and Exchange Commission on the date hereof (the “Report”), each of the undersigned to his/her knowledge hereby certifies, pursuant to 18
U.S.C. Section 1350, that:
(i)
(ii)
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the
Company.
/s/ GARO H. ARMEN, PH.D.
Garo H. Armen, Ph.D.
Chief Executive Officer and Principal Executive Officer
/s/ CHRISTINE M. KLASKIN
Christine M. Klaskin
VP, Finance and Principal Financial Officer
Date: March 1, 2022
A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and
furnished to the Securities and Exchange Commission or its staff upon request.
The foregoing certification is being furnished to the Securities and Exchange Commission as an exhibit to the Annual Report on Form 10-K for the
year ended December 31, 2021 and should not be considered filed as part of the Annual Report on Form 10-K.