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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2023.
OR
For the transition period from to
Commission file number 001-38944
Akero Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
81-5266573
(I.R.S. Employer Identification No.)
601 Gateway Boulevard, Suite 350
South San Francisco, CA
(Address of Principal Executive Offices)
94080
(Zip Code)
Registrant’s telephone number, including area code (650) 487‑6488
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Common Stock, par value $0.0001 per share
Trading Symbol(s)
AKRO
Name of each exchange on which registered
The Nasdaq Global Select Market
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 ☒
Securities registered pursuant to Section 12(g) of the Act: None
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 and posted pursuant to Rule 405 of Regulation S-T (§ 232.405
of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit 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 ☒
Accelerated Filer ☐
Non-accelerated Filer ☐
Smaller reporting company ☐
Emerging growth 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. ☒
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to
previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers
during the relevant recovery period pursuant to §240.10D-1(b). ☐
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 the registrant’s common stock held by non-affiliates of the registrant was $2,517,511,353 as of June 30, 2023 (based on a closing price of $46.69 per share as quoted
by the Nasdaq Global Select Market as of such date). In determining the market value of non-affiliate common stock, shares of the registrant’s common stock beneficially owned by officers, directors and
affiliates have been excluded. This determination of affiliate status is not necessarily a conclusive determination for other purposes.
As of February 23, 2024, the total number of shares outstanding of the registrant’s Common Stock was 56,297,528 shares.
Documents Incorporated by Reference:
Part III of this Annual Report on Form 10-K incorporates by reference certain information from the registrant’s definitive Proxy Statement for its 2024 annual meeting of shareholders, which the
registrant intends to file pursuant to Regulation 14A with the Securities and Exchange Commission not later than 120 days after the registrant’s fiscal year end of December 31, 2023. Except with respect to
information specifically incorporated by reference in this Form 10-K, the Proxy Statement is not deemed to be filed as part of this Form 10-K.
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SUMMARY OF THE MATERIAL RISKS ASSOCIATED WITH OUR BUSINESS
Our business is subject to numerous risks and uncertainties, including those described in Part II, Item 1A. “Risk Factors” in this Annual Report
on Form 10-K. The principal risks and uncertainties affecting our business includes:
•
Enrollment and retention of patients in clinical trials is an expensive and time-consuming process and could be made more difficult or rendered
impossible by multiple factors outside our control, including difficulties in identifying patients with metabolic dysfunction-associated
steatohepatitis (“MASH,” formerly known as nonalcoholic steatohepatitis, or NASH), significant competition for recruiting such patients in
clinical trials, and restrictions on patients and investigators related to outbreaks of infectious diseases or public health crises.
• We face substantial competition, which may result in others discovering, developing or commercializing products before or more successfully
than us.
•
•
Failures or delays in the commencement or completion of, or ambiguous or negative results from our planned clinical trials of our product
candidates, could result in increased costs to us and could delay, prevent, or limit our ability to generate revenue and continue our business.
Clinical development is uncertain and our clinical trials for efruxifermin (“EFX”) and any future product candidates may experience delays,
which would adversely affect our ability to obtain regulatory approvals or commercialize these programs on a timely basis or at all, which would
have an adverse effect on our business.
• We rely and will continue to 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.
•
The manufacture of our product candidates is complex and we may encounter difficulties in production. If we or any of our third-party
manufacturers encounter such difficulties, or fail to meet rigorously enforced regulatory standards, 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.
• We are heavily dependent on the success of EFX, our only product candidate.
•
If we fail to develop and successfully commercialize other product candidates, our business and future prospects may be harmed and our business
will be more vulnerable to any problems that we encounter in developing and commercializing our product candidate.
• We may develop EFX, and potentially future product candidates, in combination with other therapies, which exposes us to additional risks.
•
If we are not successful in discovering, developing, receiving regulatory approval for and commercializing EFX and any future product
candidates, our ability to expand our business and achieve our strategic objectives would be impaired.
• We may be required to make significant payments under our license agreement for EFX.
•
•
•
The regulatory approval processes of the U.S. Food and Drug Administration (the “FDA”) and comparable foreign regulatory authorities are
lengthy, time-consuming and inherently unpredictable. Our inability to obtain regulatory approval for EFX or any future product candidate would
substantially harm our business.
Even if we are able to obtain regulatory approvals for our product candidate or any future product candidates, if they exhibit harmful side effects
after approval, our regulatory approvals could be revoked or otherwise negatively impacted, and we could be subject to costly and damaging
product liability claims.
Our relationships with customers and third-party payors will be subject to applicable anti-kickback, fraud and abuse, transparency and other
healthcare laws and regulations, which, if violated, could expose us to criminal sanctions, civil penalties, contractual damages, reputational harm,
administrative burdens and diminished profits and future earnings.
• We have incurred significant losses since our inception and we expect to incur losses for the foreseeable future.
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• We currently have a limited operating history, have not generated any revenue to date, and may never become profitable.
• We will require additional capital to finance our operations, which may not be available to us on acceptable terms, or at all. As a result, we may
not complete the development and commercialization of our product candidate or develop any future product candidates.
•
Business interruptions resulting from public health crises, as well as from geopolitical and military conflicts such as the ongoing Russia-Ukraine
and Israel-Hamas conflicts, could cause disruption of the development of our product candidates and adversely impact our business.
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Business
Risk Factors
Unresolved Staff Comments
Cybersecurity
Properties
Legal Proceedings
Mine Safety Disclosures
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PART I
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
PART III
Directors, Executive Officers and Corporate Governance
Executive Compensation
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Certain Relationships and Related Transactions, and Director Independence
Principal Accounting Fees and Services
Item 1.
Item 1A.
Item 1B.
Item 1C.
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.
Item 13.
Item 14.
Item 15.
Item 16
Exhibits, Financial Statement Schedules
Form 10-K Summary
PART IV
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K contains forward-looking statements which are made pursuant to the safe harbor provisions of Section 27A of
the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). These statements
involve risks, uncertainties, and other factors that may cause actual results, levels of activity, performance, or achievements to be materially different from
the information expressed or implied by these forward-looking statements. All statements, other than statements of historical facts, contained in this Annual
Report on Form 10-K, including statements regarding our strategy, future operations, future financial position, future revenue, projected costs, prospects,
plans and objectives of management and expected market growth are forward-looking statements. The words “anticipate,” “believe,” “continue,” “could,”
“estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “should,” “target,” “would” and similar expressions are intended to identify
forward-looking statements, although not all forward-looking statements contain these identifying words.
These forward-looking statements include, among other things, statements about:
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•
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•
•
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the success, cost and timing of our product development activities and clinical trials, including statements regarding the timing of initiation and
completion of studies or trials and related preparatory work, the period during which the results of the trials will become available, and our
research and development programs;
our ability to successfully initiate, enroll, conduct and complete three parallel, randomized, placebo-controlled, global clinical trials of our Phase
3 SYNCHRONY program, including our ability to reach agreement with FDA and other regulatory authorities on clinical trial designs and the
enrollment of patients and activation of the first clinical trial sites in Israel and Turkey amidst the ongoing armed conflict in Israel and the Gaza
Strip;
our ability to maintain our expected timeline for reporting week 96 results of the Phase 2b clinical trial of EFX in patients with MASH who have
F2 or F3 fibrosis, known as the HARMONY study;
our ability to successfully conduct and complete our ongoing 96-week Phase 2b clinical trial of EFX in patients with compensated cirrhosis due
to MASH (F4), known as the SYMMETRY study, including the ability to obtain data and maintain our expected timelines;
the potential for another pandemic, epidemic or outbreak of an infectious disease, such as COVID-19, to disrupt our business plans, product
development activities, ongoing clinical trials, including the timing and enrollment of patients, the health of our employees and the strength of
our supply chain;
our ability to advance any product candidate into or successfully complete any clinical trial;
our ability to successfully manufacture our product candidates for future clinical trials or for commercial use, if approved;
the potential for our identified research priorities to advance our technologies;
our ability to obtain and maintain regulatory approval, if obtained, of EFX or any future product candidates, and any related restrictions,
limitations and/or warnings in the label of an approved product candidate;
the ability to license additional intellectual property relating to any future product candidates and to comply with our existing license agreement;
our ability to commercialize our products in light of the intellectual property rights of others;
the success of competing therapies that are or become available;
our ability to obtain funding for our operations, including funding necessary to complete further development and commercialization of our
product candidates;
the commercialization of our product candidates, if approved;
our plans to research, develop and commercialize our product candidates;
our ability to attract collaborators with development, regulatory and commercialization expertise;
future agreements with third parties in connection with the commercialization of our product candidates and any other approved product;
the size and growth potential of the markets for our product candidates, and our ability to serve those markets;
the rate and degree of market acceptance of our product candidates, if approved;
regulatory developments in the United States and foreign countries;
our ability to contract with third-party suppliers and manufacturers and their ability to perform adequately;
our ability to attract and retain key scientific or management personnel;
the accuracy of our estimates regarding expenses, future revenue, capital requirements and needs for additional financing;
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•
•
the impact of laws and regulations; and
our expectations regarding our ability to obtain and maintain intellectual property protection for our product candidates.
We may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue
reliance on our forward-looking statements. Actual results or events could differ materially from the plans, intentions and expectations disclosed in the
forward-looking statements we make. We have included important factors in the cautionary statements included in this Annual Report on Form 10-K,
particularly in the “Risk Factors” section, that could cause actual results or events to differ materially from the forward-looking statements that we make.
Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, collaborations, joint ventures or
investments that we may make or into which we may enter.
You should read this Annual Report on Form 10-K and the documents that we reference herein and have filed or incorporated by reference as
exhibits hereto completely and with the understanding that our actual future results may be materially different from what we expect. We do not assume
any obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
NOTE REGARDING TRADEMARKS
Akero Therapeutics, Inc. is the owner of the AKERO trademark, as well as certain other trademarks, including design versions of some of these
trademarks. The symbols ™ and ® are not used in connection with the presentation of these trademarks in this report and their absence does not indicate a
lack of trademark rights. Certain other trademarks used in this report are the property of third-party trademark owners and may be presented with or
without trademark references.
All brand names or trademarks appearing in this report are the property of their respective owners. Unless the context requires otherwise,
references in this report to “Akero,” the “Company,” “we,” “us” and “our” refer to Akero Therapeutics, Inc. and its subsidiary.
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PART I
Item 1. Business
Overview
We are a clinical-stage company dedicated to developing transformational treatments for patients with serious metabolic diseases marked by high
unmet medical need, including metabolic dysfunction-associated steatohepatitis, or MASH, formerly known as non-alcoholic steatohepatitis, or NASH, a
disease without any approved therapies. MASH is a severe form of metabolic dysfunction-associated steatotic liver disease, or MASLD, formerly known as
nonalcoholic fatty liver disease, or NAFLD, characterized by inflammation and fibrosis in the liver that can progress to cirrhosis, liver failure, cancer and
death. Our lead product candidate, efruxifermin, or EFX, is an analog of fibroblast growth factor 21, or FGF21, which is an endogenously expressed
hormone that protects against cellular stress and regulates metabolism of lipids, carbohydrates and proteins throughout the body. Based on statistically
significant fibrosis regression and MASH resolution among patients with biopsy-confirmed pre-cirrhotic MASH, as well as a trend toward fibrosis
improvement and statistically significant MASH resolution among patients with cirrhosis due to MASH, we believe EFX has the potential, if approved, to
be an important medicine for treating MASH.
Results from five randomized, double-blind, placebo-controlled clinical trials evaluating EFX have been reported, and across all trials reported to
date a total of 385 adult patients with either MASH and/or type 2 diabetes have been treated with EFX and evaluated for up to 96 weeks. An additional 50
healthy overweight volunteers were treated with EFX as part of a Phase 1 biocomparison study.
In the third quarter of 2022 we reported week 24 results of the 96-week Phase 2b HARMONY study in patients with pre-cirrhotic MASH
(fibrosis stage 2 or 3, or F2-F3). Both the 50mg and 28mg EFX dose groups achieved statistical significance on primary and secondary histology endpoints
after 24 weeks. On the primary endpoint of at least a one-stage improvement of fibrosis without worsening of MASH, the 50mg group (41%) and 28mg
group (39%) had a response rate approximately double that of placebo (20%). In addition, 76% of patients treated with 50mg EFX and 47% of those treated
with 28mg experienced MASH resolution without worsening of fibrosis, which represented response rates approximately three to five times the placebo
rate of 15%. We also observed 41% and 29% response rates for the 50mg and 28mg dose groups, respectively, on a combined endpoint of at least a one-
stage improvement in fibrosis and MASH resolution, which were approximately six to eight times the 5% placebo rate. Significant improvements in non-
invasive fibrosis markers, liver fat, liver enzymes, lipoproteins, and glycemic control were also observed for both EFX dose groups, with a significant
reduction in body weight observed for the 50mg dose group. We believe these results favorably differentiate EFX within the MASH landscape.
In the fourth quarter of 2023 we reported Week 36 results of the 96-week Phase 2b SYMMETRY study in patients with biopsy-confirmed
compensated cirrhosis due to MASH (fibrosis stage 4, or F4, Child-Pugh class A) or cryptogenic cirrhosis presumed secondary to MASH. Although
statistical significance was not achieved on the primary endpoint of fibrosis improvement at 36 weeks, a numerical trend was observed with 22% and 24%
of the 28mg and 50mg EFX-treated groups, respectively, experiencing at least a one-stage improvement in liver fibrosis and no worsening of MASH,
compared with 14% for placebo. A subgroup analysis of patients with more advanced cirrhosis, comprised of patients diagnosed with cirrhosis at least six
months prior to receiving the first dose of EFX or with cryptogenic cirrhosis, showed a trend toward reversal of fibrosis, with 22% (p=0.051) and 10%
(p=0.366)of the 50mg and 28mg dose groups, respectively, experiencing at least a one-stage improvement in liver fibrosis with no worsening of MASH,
compared to only 3% for placebo. In addition, 2 patients (or 4% of patients) in each of the EFX-treated groups experienced at least a two-stage fibrosis
improvement (i.e., from cirrhosis (F4) to F1 or F2) without worsening of MASH, compared with 0% for placebo. Statistically significant rates of MASH
resolution were observed in 67% and 60% of patients at week 36 for the 28mg and 50mg EFX-treated groups, respectively, compared with 26% for
placebo. Although no head-to-head comparative studies have been conducted, these response rates represent the highest reported to date for MASH
resolution in this patient population and the first known public report of statistically significant MASH resolution. Statistically significant improvements
were also observed for both EFX groups in non-invasive markers of liver injury and fibrosis, insulin sensitization and lipoproteins. We believe longer
exposure to EFX among patients with compensated cirrhosis due to MASH or cryptogenic cirrhosis has the potential to show higher rates of fibrosis
improvement. Week 96 results for the Phase 2b SYMMETRY study are expected to be reported in the first quarter of 2025.
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The SYMMETRY study included an expansion cohort in patients with pre-cirrhotic MASH (F1-F3) and type 2 diabetes, known as Cohort D,
which evaluated the safety and tolerability of EFX compared to placebo when added to an existing GLP-1 receptor agonist, or GLP-1. In June 2023, the
Company reported positive topline results from Cohort D, including that patients treated with EFX 50mg for 12 weeks combined with GLP-1 achieved a
statistically significant 65% relative reduction in liver fat, compared to a 10% relative reduction for GLP-1 alone. In addition, 88% of patients treated with
EFX combined with GLP-1 had normalized liver fat at week 12, a statistically significant difference relative to 10% of those treated with GLP-1 alone.
EFX has been reported to be generally well-tolerated across clinical trials of EFX. Most adverse events, or AEs, were mild or moderate.
Diarrhea, nausea and vomiting as well as injection site reactions were generally the most common AEs. Treatment-emergent AEs leading to
discontinuation through each study's primary analysis period have been low, ranging from less than 5% in patients with F1-F3 MASH to less than 10% in
subjects with compensated cirrhosis due to MASH (F4).
Enrollment for a multi-trial, global Phase 3 program called SYNCHRONY began in December 2023. The planned Phase 3 program consists of
three trials, SYNCHRONY Histology, SYNCHRONY Real-World, and SYNCHRONY Outcomes. SYNCHRONY Histology is evaluating the safety and
efficacy of 28 and 50mg doses of EFX in patients with biopsy confirmed pre-cirrhotic MASH (F2-F3) with an estimated enrollment of up to 1,000 patients
planned to complete the primary analysis. The primary endpoint, ≥1-stage fibrosis improvement and resolution of MASH after 52 weeks, is designed to
support an application for accelerated approval. Additional patients will be enrolled and followed for long-term clinical outcomes to verify clinical benefit
and support an application for full marketing approval. SYNCHRONY Real-World is assessing the safety and tolerability of EFX in patients with non-
invasively diagnosed MASH or MASLD with an estimated enrollment of 700 patients, including up to 100 patients rolled over from Phase 2b studies of
EFX. Key secondary endpoints for each of SYNCHRONY Histology and SYNCHRONY Real-World will include change in biomarkers of fibrosis and
other established non-invasive endpoints. Initiation of the third study, SYNCHRONY Outcomes, is expected in the first half of 2024. SYNCHRONY
Outcomes will evaluate the safety and efficacy of EFX for treatment of cirrhosis due to MASH. Consistent with feedback from the FDA in a recent Type B
meeting, there will be two primary endpoints: (1) evaluation of histology from a cohort of patients who will be biopsied after 96 weeks of treatment to
assess the extent of regression of hepatic fibrosis and (2) assessment of clinical outcomes to support an application for full marketing approval. Further
details of the SYNCHRONY Outcomes study will be made available at after the study protocol is finalized.
The FDA has granted both a Fast Track designation and Breakthrough Therapy designation for EFX for the treatment of MASH. In addition, the
European Medicines Agency, or EMA, has granted a Priority Medicines, or PRIME, designation for EFX for the treatment of MASH. The Fast Track and
PRIME programs are designed to enhance regulatory support for the development of promising investigational medicines where early clinical data suggest
the potential to meet a high unmet medical need. The FDA’s Breakthrough Therapy Designation is meant to expedite development and review of a therapy
for a serious or life-threatening disease or condition when preliminary clinical evidence indicates the drug may demonstrate substantial improvement on
one or more clinically significant endpoints over available therapies. Benefits of these programs may include more frequent regulatory interactions,
enhanced guidance on the overall development plan and regulatory strategy, and accelerated assessment of marketing authorization, or MA, applications.
In five separate clinical trials in patients with MASH and/or type 2 diabetes, EFX has been observed to reverse fibrosis, resolve steatohepatitis,
and help restore healthy metabolism to the whole body. Consequently, we believe EFX holds the potential to be an important medicine for treatment of
MASH, if approved. We also believe EFX may be able to be used in combination with other therapies for potentially greater effect in certain
subpopulations, particularly among the substantial proportion of patients with both MASH and type 2 diabetes who are expected to be treated with GLP-1
therapeutics to manage their diabetes.
In June 2018, we acquired exclusive global development and commercialization rights to EFX from Amgen Inc., or Amgen, which leveraged its
deep protein engineering expertise to design and develop EFX. As of February 14, 2024, our patent portfolio relating to EFX and other peptides included
209 issued patents and 17 pending patent applications worldwide, with expected patent exclusivity up to 2034 in the United States, including potential
patent term extension. Recently filed patent applications, if granted, may extend patent exclusivity to 2045. Since EFX is a biologic,
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marketing approval would also provide twelve years of market exclusivity from the approval date of a Biologics License Application, or BLA, in the
United States.
Our management team has extensive experience in drug discovery, development and commercialization, and has been involved in the approvals
of more than 20 medicines. Our Chief Executive Officer, Andrew Cheng, MD, PhD, was formerly Chief Medical Officer at Gilead, and responsible for
clinical development for Gilead's HIV program. Our Chief Development Officer, Kitty Yale, led global clinical operations and management of Gilead’s
oncology, HIV, inflammation and liver disease trials. Our Chief Scientific Officer, Tim Rolph, DPhil, was formerly Chief Scientific Officer of Pfizer's
Cardiovascular & Metabolic Disease Research Unit, and oversaw Pfizer's FGF21 program. We believe that our team is well positioned to leverage its
collective experience in drug development and in-depth knowledge of FGF21 biology and metabolic diseases to develop and commercialize products that
will have significant benefits for patients with MASH and other serious metabolic diseases with high unmet medical need.
Our Strategy
Our goal is to become a leading biotechnology company focused on developing and commercializing transformative treatments for serious
metabolic diseases with high unmet medical need, with an initial focus on MASH. The key components of our strategy are to:
Advance EFX through clinical development in both pre-cirrhotic (F2-F3) and cirrhotic (F4, compensated) MASH. We believe that EFX has
the potential to be an important medicine, if approved, for the treatment of MASH. Data from our Phase 2b HARMONY and SYMMETRY studies suggest
that EFX has the potential to achieve substantial levels of fibrosis improvement as well as MASH resolution and improvements in glycemic control and
lipoprotein profile. We are committed to accelerating development as much as possible for patients with either pre-cirrhotic or cirrhotic MASH, consistent
with guidance from regulatory authorities.
Scale our capabilities to support development and commercialization of EFX. We are scaling our manufacturing and organizational capabilities
to capitalize on our exclusive, global rights to market EFX. We have successfully manufactured drug substance at Boehringer Ingelheim and have
successfully scaled up manufacturing of a new drug product-device combination at Vetter Pharma. Drug product-device combination units have been
released for use in Phase 3 clinical trials. When appropriate, we intend to develop the commercial infrastructure required for bringing EFX to patients with
MASH in the United States, if approved. We also plan to evaluate options, including potential strategic collaborations, for delivering EFX, if approved, to
patients in other key markets, such as Europe, Japan and China.
Leverage our knowledge of FGF21 biology to bring EFX to additional patients with metabolic diseases. Numerous publications have shown
that increases in endogenous FGF21 expression occur in response to various types of metabolic and cellular stress arising from obesity, diabetes,
mitochondrial diseases and cardiovascular disease, as well as MASH. EFX has been engineered to reproduce the biological activity profile of native FGF21
while also addressing certain therapeutic limitations, such as a short half-life. We are exploring opportunities to develop EFX for additional indications
where there is a compelling scientific rationale, strong clinical tractability and significant unmet medical need.
Enhance our position as a leading metabolic disease company by developing, acquiring or in-licensing additional investigational product
candidates. We are continually evaluating opportunities to build a robust pipeline of potential leading treatments for serious metabolic diseases. We may
select additional assets for their potential as stand-alone monotherapies or for eventual use in combination with other products.
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Our Pipeline
Our pipeline is anchored by EFX, a potential treatment for MASH. We have one EFX program focused on patients with pre-cirrhotic MASH
(F2-F3) and a second EFX program focused on patients with compensated cirrhosis due to MASH (F4).
Akero’s Pipeline
MASH Overview
MASH is a severe form of MASLD, which is driven by the global obesity epidemic. Patients with MASLD have an excessive accumulation of
fat in the liver resulting from an excess of caloric intake over energy needs. In patients with MASH, excessive liver fat leads to hepatocyte stress, which
triggers localized inflammation and can cause extensive scarring, or fibrosis, as the liver attempts to repair and replace damaged cells.
Patients with MASH are at increased risk of liver-related morbidity and mortality, including liver failure and hepatocellular carcinoma. As
MASH progresses, cardiovascular-related morbidity and mortality also increase, with cardiovascular disease being the most frequent cause of death in
patients with MASH. The prevalence of patients with advanced fibrosis (F2-F4) in the United States is projected to rise to 14.1 million by 2030,
representing a roughly 100% increase from an estimated 6.7 million in 2016.
Diagnosis and disease burden
MASH is currently diagnosed through liver biopsy and its severity is measured using scoring systems that assess the extent and severity of
steatosis, lobular inflammation, hepatocellular ballooning and fibrosis. Some patients may be diagnosed with MASH after presenting with symptoms such
as general fatigue and nondescript abdominal discomfort. However, MASH diagnosis more commonly follows detection of elevated liver enzymes on
routine lab tests or detection of an enlarged steatotic liver by abdominal imaging. Although noninvasive methods, including a combination of imaging, such
as Magnetic Resonance Imaging Protein Density Fat Fraction, or, MRI-PDFF, and Visceral Transient Elastography, or FibroScan, and plasma biomarkers
of fibrosis, such as Pro-C3, are being evaluated as potential diagnostic tools, none have yet been validated for use in formal diagnosis of MASH.
Two different scoring systems are most commonly used in the United States to measure the severity of MASH: the MASLD activity score, or
MAS, and fibrosis stage. The MAS, which was developed for, and generally only used in, clinical trials, is a measure of liver histology that grades disease
activity in patients with MASLD or MASH. A patient may receive a composite MAS score of 0-8, which is comprised of three individual scores: (1)
steatosis, scored 0-3 according to the percentage of a microscopic field showing steatosis, (2) lobular inflammation, scored 0-3 according to the number of
immune cell foci per optical field at 20-fold magnification, and (3) hepatocellular ballooning, scored 0-2 according to the number of ballooning cells in a
microscopic field. In addition, staging is used to classify the extent and severity of fibrosis with a scoring system based on a scale from 0-4, or F0-F4.
Early, discrete fibrosis is classified as F1 or F2, whereas bridging fibrosis is classified as F3. As more hepatocytes die and scarring becomes extensive, the
liver becomes cirrhotic, which is classified as stage F4.
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Patients with MASH are at increased risk of liver damage and other complications. Fibrosis is generally reversible in its early-to-mid stages.
However, late-stage fibrosis can be irreversible in the absence of therapy and prevents the liver from performing its natural functions.
MASH is commonly associated with metabolic comorbidities, including obesity, type 2 diabetes and dyslipidemia, and with hypertension. In
addition, the majority of patients with MASH also present with metabolic syndrome. As shown in the figure below, which is based on a pooled meta-
analysis of multinational clinical trial data published in Hepatology (2017), liver-related mortality increases with fibrosis stage. As compared to healthy
individuals, patients with MASH also experience higher all-cause morbidity and mortality resulting from major adverse cardiovascular events, and non-
liver cancers. The most common cause of death in patients with MASH is cardiovascular disease. As with liver-related mortality, all-cause mortality also
increases with fibrosis stage. Our focus is on patients with F2-F4 fibrosis, who have the highest liver-related and non-liver-related mortality rates among
patients with MASH.
MASH Mortality Rates by Fibrosis Stage
Market size and trends
According to studies published in Hepatology (2018) and F1000Research (2018), more than one billion people worldwide were estimated to
have MASLD in 2016, including an estimated 85 million individuals in the United States. Approximately 10-20% of patients with MASLD progress to
MASH, including an estimated 17.3 million individuals in the United States and 16.4 million aggregate individuals in France, Germany, Italy, Spain, the
United Kingdom, and Japan in 2016. As the global population ages, the prevalence of MASH is projected to increase approximately 50% by 2030 to a total
of 27.0 million individuals in the United States and 22.5 million aggregate individuals in France, Germany, Italy, Spain, the United Kingdom and Japan.
However, MASH afflicts all age groups, including teenagers and young adults, for whom the loss of quality-adjusted life years will be substantial unless
progression to late-stage diseases can be halted or reversed. According to a study published in Hepatology (2016), in the absence of approved therapies,
direct healthcare costs associated with MASLD and MASH in the United States were estimated to be approximately $100 billion in 2016.
Growth in prevalence of MASH in the United States is projected to be greatest in patients with stage F2-F4 fibrosis, with more than a doubling
across these stages between 2016 and 2030 and higher growth rates with each advancing fibrosis stage. More than 14 million Americans are projected to
have MASH with F2, F3 or F4 fibrosis in the United States by 2030, with over ten million aggregate individuals in France, Germany, Italy, Spain, the
United Kingdom, and Japan. This rapid growth in advanced fibrosis reflects the obesity epidemic that developed in the late 20th century, with patients
progressing through MASLD to advanced MASH over the last 20-30 years.
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Emerging therapies in development
There are no therapies currently approved for treatment of MASH. The current standard of care is diet and exercise. Although diet and exercise
can be effective when maintained, adherence to this treatment regimen is generally poor. In addition, according to studies in Gastroenterology (2016) and
the New England Journal of Medicine (2021), a substantial portion of patients who achieve significant weight loss do not experience fibrosis regression
and, among those who do reverse fibrosis, it typically takes 4-5 years.
The multistep progression of MASH pathogenesis offers a variety of potential approaches for therapeutic intervention and many of these
approaches have been explored with one or more therapeutic candidates. Many MASH therapeutic candidates have had discouraging clinical trial results
due to unfavorable efficacy and/or safety results, with a substantial number of programs discontinued. Disappointing clinical results have especially been
associated with therapeutic candidates designed to target late-stage disease by mitigating inflammation and reversing fibrosis, which have been labeled as
“anti-fibrotic” mechanisms. Available data suggest that focusing only on suppressing inflammation and fibrosis is unlikely to deliver sustained reversal of
fibrosis or resolution of MASH because the processes underlying MASH pathogenesis are not being addressed.
Clinical data has been more promising for “metabolic” therapeutic mechanisms that target earlier stages of MASH pathogenesis, including
excessive liver fat accumulation. Recent data for metabolic therapeutic candidates are consistent with data from anti-viral treatment of hepatitis C, or
modification of diet and exercise as a treatment for MASH. In each of these two cases, targeting the processes underlying inflammation and fibrosis of the
liver can lead to reversal of fibrosis, even without a directly anti-fibrotic intervention. However, some of the encouraging data for metabolic therapeutic
mechanisms has been offset by unwanted side effects, which may limit their ability to be used as treatment for patients with MASH. For instance, some
MASH candidates have been shown to substantially increase plasma levels of low-density lipoprotein cholesterol, or LDL-C, or triglycerides, each of
which is an independent causal risk factor for cardiovascular disease. Patients with MASH are already at increased risk for cardiovascular events. We
therefore believe interventions that could be associated with increased cardiovascular risk may struggle to gain marketing approval from regulatory
authorities and, if approved, may not be prescribed widely by treating physicians, particularly among patients with pre-cirrhotic MASH.
One investigational MASH drug product, resmetirom, a selective agonist of thyroid hormone receptor-β, has completed Phase 3 clinical trials
and has the potential to be approved for marketing in the United States as early as March 14, 2024. This investigational product appears to act primarily by
regulating fat metabolism that helps address the underlying disease drivers of MASH, as reflected in reported response rates for MASH resolution without
worsening of fibrosis.
We believe the greatest potential for effective MASH treatment requires addressing both the late-stage fibrosis and the underlying processes of
MASH pathogenesis, combined with a favorable cardiovascular profile and minimal potential for drug-drug interactions associated with small molecules.
Some MASH candidates are being evaluated for use in combination with one or more other investigational or marketed drugs to intervene at different
stages of MASH pathogenesis and manage unwanted side effects. However, combining multiple interventions, particularly multiple small molecules, places
an additional burden of drug metabolism and clearance upon already stressed hepatocytes.
We believe EFX has the potential to address the complex pathogenesis of MASH as a foundational monotherapy: reducing liver fat, restoring
metabolic balance, and reversing fibrosis while simultaneously improving independent risks of cardiovascular disease, without worsening MASH
pathogenesis.
Harnessing FGF21’s Natural Metabolic and Anti-Fibrotic Effects
EFX harnesses the natural properties of FGF21 as a potential treatment for MASH. Specifically, EFX has been engineered to overcome the
limitations of endogenous FGF21 by extending half-life from less than two hours to approximately 3 days while maintaining FGF21’s natural role in
alleviating cellular stress and regulating whole-body metabolism. Consequently, EFX has the potential to address the underlying metabolic disease drivers
of MASH while also reversing liver fibrosis. We believe EFX has the potential to be the leading FGF21 analog that most closely mimics the native protein
with a half-life that supports convenient weekly dosing.
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Overview of FGF21 biology
Fibroblast growth factors, or FGFs, are a large family of cell-signaling proteins involved in the regulation of many processes within the body.
FGF21 is part of a sub-family known as endocrine FGFs, which are unique among FGFs because they initiate their biological effects by binding tightly to a
cell surface receptor known as Beta Klotho, or (cid:0)Klotho. After this initial binding, FGF21 triggers signaling pathways within cells, such as hepatocytes and
adipocytes, by binding to a second class of cell-surface receptor, known as the FGF receptors, or FGFRs. FGF21 binds to three specific FGFRs, known as
FGFR1c, FGFR2c and FGFR3c. Once a co-receptor complex has formed with (cid:0)Klotho and one of the FGFRs, a series of intracellular signaling cascades
is initiated. These signaling cascades enable FGF21 to exert its biological functions, which include regulation of energy homeostasis, glucose-lipid-protein
metabolism and insulin sensitivity, and modulation of pathways that mitigate against intracellular stress. FGF21 cannot signal through cell membranes
without both an intact C-terminus and an intact N-terminus to bind, respectively, to (cid:0)Klotho and FGFR. We believe EFX has been engineered to maximize
binding at both the C-terminus and N-terminus, which distinguishes EFX from other FGF21 analogs.
EFX is designed to overcome the limitations of native FGF21 as a therapeutic
EFX has been engineered to retain balanced agonism across FGFR1c, FGFR2c and FGFR3c. Specifically, EFX delivers: (1) protection against
proteolysis and reduced renal clearance, (2) a half-life of approximately 3 days, (3) lower susceptibility to aggregation in solution and (4) enhanced binding
affinity for (cid:0)Klotho. These attributes are accomplished through a combinataion of three amino acid substitutions in the FGF21 protein sequence and fusion
to a human IgG1 Fc-domain similar to the platform used for Enbrel and Trulicity. As illustrated in the figure below, each EFX molecule consists of two Fc-
FGF21 molecules linked by two disulfide bridges. The N-terminus of the FGF21 moiety is connected to the Fc portion of EFX through a polyglycine-
serine linker. Our patents include claims directed to Fc fusion with a recombinantly modified FGF21 as well as claims directed to an FGF21 polypeptide
comprising combinations of point mutations at positions 98, 171 and 180 of mature human FGF21. Pharmacokinetic modeling based on analysis of intact,
active EFX in human serum after weekly administration of EFX for 16-24 weeks in the Phase 2a BALANCED and Phase 2b HARMONY studies indicates
steady-state exposure is attained between weeks 4 and 8. More than a two-fold increase in exposure to EFX is observed for 50mg relative to 28mg despite a
less-than-two-fold increase in dose. Subsequent analysis of SYMMETRY data indicates a similar relationship.
Protein engineering of EFX
Based on recent in vitro analysis as well as the robust results of clinical trials evaluating EFX, we believe the bivalent structure of EFX, with two
FGF21 monomers covalently linked via the disulfide bridges of the Fc fragment, may confer a longer duration of pharmacological activity relative to
analogs of FGF21 based on single chain configurations. The bivalent configuration of EFX was associated with a 100-fold greater affinity of EFX for
(cid:0)Klotho than corresponding single chain configurations.
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EFX maintains balanced agonism of FGFR1c, FGFR2c and FGFR3c to mimic native FGF21
EFX was designed through an empirical process that incorporated in vitro and in vivo measurements of receptor agonism to assess which of
many tested discovery candidates yielded the most attractive drug properties. EFX was selected for clinical evaluation over other potential candidates,
which included a proprietary PEGylated FGF21 analog and two versions of a two-point mutation Fc-fusion protein known as RG (with mutations at
positions 98 and 171, but not 180), one of which had the Fc fused to the C-terminus while the other had it fused to the N-terminus of the modified FGF21.
Among the candidates tested, in vitro assays showed EFX to be the most potent agonist for each of FGFR1c, FGFR2c, and FGFR3c with potency
comparable to recombinantly expressed human FGF21.
In vitro receptor agonism assays based on recombinant cell lines expressing human receptors do not necessarily predict in vivo pharmacological
activity in humans. Because distribution of FGF21's receptors is tissue-dependent, the in vivo activity of EFX against different receptors can be evaluated
in clinical studies using tissue-specific markers. For example, activation of FGFR1c expressed in adipose tissue results in secretion of adiponectin and
higher serum adiponectin levels. Likewise, activation of FGFR2c, which appears to be the most highly expressed FGF21 receptor in the liver, appears to be
associated with reduced secretion of apolipoprotein-B, or Apo-B. On a placebo-adjusted basis among patients treated with 50mg EFX, across 5 clinical
trials of 12- 36 weeks in duration, levels of adiponectin approximately doubled and Apo-B decreased by 10-20%.
The effects observed in clinical trials with EFX contrast with observations from clinical trials evaluating certain pegylated or glycopegylated
FGF21 analogs, which we believe may be attributed to the potential for pegylated proteins to accumulate in the liver. For example, each of two FGF21
analogs for which results have been reported publicly, have shown smaller reductions in triglycerides (which are largely carried on Apo-B-containing
particles) and smaller increases in adiponectin than reported for 50mg EFX. We believe the unique and proprietary engineering of EFX, including its
targeted amino acid substitutions and Fc fusion scaffold, as described above, may be responsible for the differentiated clinical effects observed after
treatment with EFX compared with other FGF21 analogs.
EFX exerts both metabolic and anti-fibrotic effects
We believe intervening across the core processes underlying MASH pathogenesis is the most effective way to restore health to the liver and
reduce the risk of cardiovascular disease associated with MASH, which is the leading contributor to mortality and morbidity. By mimicking FGF21, EFX
has the potential to intervene in each of the core processes underlying MASH pathogenesis, acting as both a metabolic and anti-fibrotic therapeutic agent.
EFX acts to leverage whole-body metabolism to redirect calories away from the liver to peripheral tissues, including adipose tissue, thereby reducing fat
deposited in the liver and decreasing the rate of fat oxidation by the liver. Through this activity, EFX reduces fibrosis both indirectly, as a result of
alleviating hepatocyte stress, and directly, by suppressing local inflammation and activation of collagen-secreting myofibroblasts that lay down fibrotic
tissue.
Phase 3 Evaluation of EFX
EFX is being evaluated in two ongoing Phase 3 clinical trials, which are part of a three-study program called SYNCHRONY. The first of these
studies, SYNCHRONY Histology, is evaluating the safety and efficacy of 28 and 50mg doses of EFX in patients with biopsy-confirmed, pre-cirrhotic
MASH, fibrosis stage 2 or 3 (F2-F3) with an estimated enrollment of up to 1,000 patients planned to complete the primary analysis. Patients will receive
weekly injections of 28mg EFX, 50mg EFX, or placebo. The primary endpoint, to support an application for accelerated approval in the United States, is
the proportion of patients experiencing ≥ 1-stage fibrosis improvement and resolution of MASH after 52 weeks of treatment. Additional patients will be
enrolled and followed for long-term clinical outcomes to verify clinical benefit and support conversion to full marketing approval. A second study,
SYNCHRONY Real-World, is expected to enroll approximately 600 patients with MASH or MASLD diagnosed by non-invasive tests to receive weekly
injections of EFX 50mg or placebo. Approximately 100 patients rolled over from Phase 2b studies are expected to bring the Real-World study size to 700.
The primary endpoint of safety and tolerability will be assessed after 52 weeks of treatment. Key secondary endpoints in both the Histology and Real-
World studies include changes from baseline in non-invasive markers of liver injury and fibrosis, glycemic control and lipids.
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Trial Designs for SYNCHRONY Histology and SYNCHRONY Real-World Studies
The third planned Phase 3 study, SYNCHRONY Outcomes, is expected to be initiated in the first half of 2024 and will evaluate the safety and
efficacy of EFX for treatment of cirrhosis due to MASH. Consistent with feedback from the FDA in a recent Type B meeting, there will be two primary
endpoints: (1) evaluation of histology from a cohort of patients who will be biopsied after 96 weeks of treatment to assess the extent of regression of
hepatic fibrosis and (2) assessment of clinical outcomes to support an application for full marketing approval. Further details of the SYNCHRONY
Outcomes study will be made available after the study protocol is finalized.
In all EFX Phase 3 studies, patients will self-administer EFX using the LyoJect 3S dual chamber syringe, a pre-filled device intended for
commercial use in the event EFX is approved for marketing. This optimized formulation delivers blood levels of EFX comparable to those of the liquid
formulation used in prior clinical studies.
Phase 2b Evaluation of EFX
Our Phase 3 SYNCHRONY program evaluating EFX for treatment of pre-cirrhotic and cirrhotic MASH builds on the results of two separate 96-
week Phase 2b studies, the HARMONY study in patients with pre-cirrhotic MASH (F2-F3) and the SYMMETRY study in patients with compensated
cirrhosis due to MASH (F4).
Biopsy Analysis in Phase 2b HARMONY and SYMMETRY Studies
Consistent with FDA recommendations, the HARMONY and SYMMETRY studies evaluate all biopsies using consensus readers. Two
independent and cross-trained pathologists score each biopsy for NAS score and fibrosis stage. If there are any differences on any component of pathology
scoring, the two pathologists determine if consensus can be reached. In the absence of consensus, a third pathologist would adjudicate between the first two
pathologists’ scores. Adjudication by a third pathologist has not yet been required because the two principal pathologists achieved consensus on
interpretation of all week 24 and week 96 HARMONY biopsy samples to date.
Per applicable FDA guidance regarding endpoints recommended for use in Phase 3 clinical trials, the HARMONY and SYMMETRY studies’
primary and key secondary histology endpoints are defined as:
•
•
•
Proportion of subjects who achieve improvement in liver fibrosis greater than or equal to one stage (MASH CRN fibrosis score) and no
worsening of steatohepatitis (defined as no increase in NAS for ballooning, inflammation, or steatosis)
Proportion of subjects who achieve resolution of steatohepatitis (defined as a NAS score of 0–1 for inflammation, 0 for ballooning, and any
value for steatosis) and no worsening of liver fibrosis on MASH CRN fibrosis score.
Proportion of subjects who achieve improvement in liver fibrosis greater than or equal to one stage and no worsening of steatohepatitis (as
defined above).
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Phase 2b HARMONY Study in Patients with Pre-Cirrhotic MASH (F2-F3)
The Phase 2b HARMONY study was a 96-week multicenter, randomized, double-blind, placebo-controlled, dose-ranging trial in biopsy-
confirmed adult patients with pre-cirrhotic MASH (F2-F3). The study enrolled a total of 128 patients, randomized to receive once-weekly subcutaneous
dosing of 28mg or 50mg EFX or placebo. The primary efficacy endpoint for the study was the proportion of subjects who achieved at least a one-stage
improvement in fibrosis without worsening of MASH at week 24. Key secondary histology endpoints included MASH resolution without worsening of
fibrosis and a composite endpoint of both MASH resolution and fibrosis improvement at weeks 24 and 96, as well as fibrosis improvement without
worsening of MASH at week 96. Additional secondary measures included change from baseline in liver fat, markers of livery injury, noninvasive markers
of liver fibrosis, glycemic control, lipoproteins, and body weight at 24 and 96 weeks as well as safety and tolerability measures.
The figure below summarizes the study design.
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Phase 2b HARMONY Study Design
Both the 50mg and 28mg EFX doses achieved statistical significance on primary and secondary histology endpoints
The HARMONY study met its primary endpoint for both the 50mg and 28mg EFX dose groups, with 41% and 39% of EFX-treated patients,
respectively, experiencing at least a one-stage improvement in liver fibrosis with no worsening of MASH at week 24, compared with 20% for the placebo
arm. The study also met a key secondary endpoint with 76% and 47% of patients treated with 50mg and 28mg, respectively, achieving MASH resolution
without worsening of fibrosis, compared with 15% for placebo. In addition, 41% and 29% of patients treated with 50mg and 28mg, respectively, achieved
both endpoints (MASH resolution and fibrosis improvement ≥1 stage), compared with 5% for placebo. The charts below summarize histological response.
EFX reduced liver fat
As summarized in the table below, highly statistically significant relative reductions of 52 to 64 percent of liver fat were observed for the 28 and
50mg dose groups, respectively, compared with a 6 percent reduction for placebo. Roughly two-thirds of EFX patients achieved at least a 50 percent
relative reduction in liver fat and one-third to one-half of EFX patients normalized their liver fat levels, which is defined as reaching less than or equal to 5
percent absolute liver fat content at week 24 with a baseline level of greater than 5 percent. Based on the results of additional post-hoc
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analyses of liver fat reduction, we believe normalization of liver fat, rather than a relative reduction of at least 30 percent liver fat may be a more reliable
predictor of histological improvement, particularly MASH resolution.
Summary of Liver Fat Endpoints
Measure
Relative change in liver fat (%), LS Mean
≥50% relative reduction in fat (%), Proportion
≤ 5% absolute liver fat (%), Proportion
***
p<0.001, versus placebo (ANCOVA [relative change] or CMH [≥50% relative reduction and ≤5% absolute])
Placebo
(N=42)
-6
2
2
EFX 28mg
(N=38)
***
***
-52
***
63
***
***
34
***
EFX 50mg
(N=35)
***
***
-64
***
77
***
***
51
***
EFX improved markers of liver injury
The substantial reductions in liver fat among EFX patients correlated with various markers of liver health, including the liver enzyme ALT, as
shown in the figure below. The 28 and 50mg EFX groups achieved highly statistically significant ALT reductions by week 8, with reductions of 38 percent
and 47 percent, respectively, at week 24, compared with a 4 percent reduction for placebo. Similar dose-related improvements were observed for other liver
health markers, including AST, GGT, ALP, and uric acid. We believe the rapid and sustained reductions in ALT are particularly noteworthy as reductions
have been positively correlated with histological response. The chart below shows a timecourse of ALT change from baseline to week 24 with standard
error, or SE, bars.
ALT
LS Mean [SE] Change from Baseline (U/L)
**p<0.01, versus placebo, ***p<0.001, versus placebo (ANCOVA)
EFX improved noninvasive markers of liver fibrosis
EFX was observed to significantly improve two important noninvasive markers of liver fibrosis. Pro-C3 is a serum biomarker of collagen
synthesis and fibrogenesis in the liver. The Enhanced Liver Fibrosis, or ELF, score is a composite biomarker that has strong correlations with fibrosis stage.
Reductions in Pro-C3 indicate lower levels of new fibrosis formation while reductions in the ELF score suggest lower overall fibrosis burden. Pro-C3 and
the ELF score are clinically important because they are: (1) a measure of whole liver fibrosis burden and fibrogenesis unlike a biopsy and (2) noninvasive,
allowing repeated measurement (i.e. monitoring) over time, thus overcoming the two major limitations of biopsy-based histopathology. As shown in the
table below, highly statistically significant absolute reductions in
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Pro-C3 of about 5 ug/L were observed for both EFX dose groups, compared with a nominal increase for placebo. Likewise, highly statistically significant
reductions in ELF score of 0.6 to 0.7 were observed for the 28 and 50mg EFX dose groups, respectively, compared with a nominal increase for placebo.
Summary of Week 24 Noninvasive Measures of Liver Fibrosis
Measure (LS Mean Change from Baseline)
Pro-C3 (µg/L)
ELF Score
Liver Stiffness by FibroScan (kPa)
†
**
***
p<0.01,
p<0.001, versus placebo; p<0.01, versus baseline (ANCOVA)
Placebo
(N=40-42)
+0.1
+0.1
-0.7
28mg
(N=37-38)
***
***
-5.1
50mg
(N=34-36)
***
***
-5.2
***
***
-0.6
†
†
-2.6
***
***
-0.7
**
**
-4.3
EFX improved glycemic control, restored a healthy lipoprotein profile and reduced body weight
As summarized in the following table, treatment with EFX was also associated with significant improvements in multiple metabolic parameters,
including markers of glycemic control, lipoproteins and body weight. This favorable metabolic profile is important because cardiovascular disease remains
the greatest mortality risk for patients with MASH. The HARMONY study shows that EFX has the potential to be consistent with the FDA guidance by
improving multiple metabolic parameters.
Summary of Week 24 Cardio-Metabolic Biomarkers
Measure (LS Mean Change from Baseline)
HbA1C (%, absolute)
Non-HDL Cholesterol (%)
Triglycerides (%)
HDL Cholesterol (%)
LDL Cholesterol (%)
Placebo
(N=42)
0.0
+8
+9
-2
+9
-0.6
28 mg
(N=37)
†
†
-0.3
50 mg
(N=36)
*
*
-0.4
***
***
***
***
-13
-25
***
***
***
***
-13
-29
***
***
+24
**
**
-8
***
***
+30
**
**
-8
-0.2
††
††
-2.9
Body Weight (kg)
***
**
*
p<0.05, p<0.01,
††
p<0.001, versus placebo; p<0.05, p<0.01, versus baseline (ANCOVA)
†
EFX’s potential to improve glycemic control is an important feature of its therapeutic profile because approximately two-thirds of patients with
F2-F3 fibrosis have type 2 diabetes, which is frequently poorly controlled. FDA encourages later-stage MASH clinical trials to stratify for type 2 diabetes
status, signifying the importance of assessing the impact of any therapy on patients with both MASH and type 2 diabetes. EFX treatment resulted in
absolute reductions in HbA1c of 0.3% and 0.4% for the 28 and 50mg doses, respectively, compared with no change for placebo. These results exceeded our
expectations because EFX was dosed on top of antidiabetic medications for the nearly two-thirds of patients with type 2 diabetes. EFX’s insulin sensitizing
benefits are seen more clearly in the subpopulation of patients with type 2 diabetes, who had reductions in HbA1c of 0.5 for both EFX dose groups,
compared with no change for placebo.
The overall improvement in glycemic control is consistent with observations previously reported by Amgen after treating type 2 diabetes patients
for 4 weeks, as well as observations from our Phase 2a BALANCED study in patients with pre-cirrhotic MASH (F1-F3), underscoring the consistency of
this effect. Achieving better glycemic control by improving insulin sensitization is highly desirable because it is rectifying the fundamental driver of type 2
diabetes, i.e. insulin resistance. We believe this means EFX has the potential to achieve a sustained reduction in HbA1c, in contrast to diabetes therapies
that promote insulin secretion whose efficacy tends to wane over time.
The improvement in glycemic control at 50mg was accompanied by a mean reduction in body weight of 2.9kg after 24 weeks, corresponding to a
2.6 percent decrease. This trend toward weight loss contrasts with another class of
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insulin sensitizers, the PPAR gamma agonists. This class includes established antidiabetic drugs like pioglitazone, whose use has declined substantially
because of weight gain and edema, and lanifibranor, which has been associated with weight gain of about 2.4-2.7kg and 6 to 8% edema. We believe the
potential for weight loss will be attractive to clinicians and MASH patients.
These encouraging 24-week metabolic data are best viewed holistically rather than in isolation. The HARMONY study showed that EFX has the
potential to rectify each aspect of the metabolic dysfunction associated with MASH: improved glycemic control through enhanced insulin sensitivity,
restoration of a healthy lipoprotein profile and reduced body weight. These broadly based improvements increase our confidence that the rapid reduction of
steatohepatitis and collagen deposition seen at week 24 could be sustained and potentially improved over longer treatment periods, including at 96 weeks in
the Phase 2b HARMONY study. The magnitude of metabolic improvements, particularly regarding lipoproteins that are associated with increased risk of
cardiovascular disease, also points to the potential of EFX to achieve meaningful reductions in markers of cardiovascular risk.
In summary, while head-to-head preclinical studies and clinical trials have not been conducted, we believe the breadth of desirable clinical
effects elicited by EFX sets it apart from other candidates in development for MASH, which frequently trade off efficacy improvements against detrimental
effects on lipoproteins, increased body weight, and/or no improvement in glycemic control. With EFX, we see potential to restore a healthy metabolic
profile not only to the liver, but also to the whole body. The results are consistent with our predictions based on FGF21 biology and EFX’s engineering.
EFX was generally well tolerated
EFX was generally well tolerated in the HARMONY study. There were no deaths, one drug-related Serious Adverse Event, or SAE, and three
non-drug-related SAEs. Across EFX groups, the most frequent Adverse Events, or AEs, were grade 1 or 2 gastrointestinal events, which were transient in
nature. There were two discontinuations due to drug-related AEs in each of the 28 and 50 mg EFX groups and no discontinuations due to the most common
AE, diarrhea, in the 50mg EFX group. No clinically significant, dose-dependent changes in laboratory parameters or electrocardiograms were identified
compared to placebo. There were no notable changes in respiratory rate or heart rate. Although transient increases in systolic blood pressure were noted, no
dose response was observed, and change from baseline at week 24 was not significantly different from baseline or placebo in either dose group.
As with all therapeutic proteins, there is potential for immunogenicity following treatment with EFX. The detection of anti-drug antibody, or
ADA, is highly dependent on the sensitivity and specificity of the assay. The EFX ADA assay is 10 times more sensitive than the minimum FDA
requirements. Pre-existing baseline antibodies to EFX were detected in 8.7% of patients. In the evaluable subjects receiving at least 1 dose of EFX, ADAs
were detected in roughly 83% of patients, compared with 5% for placebo. Importantly, antibody titers were largely low or very low, occasionally moderate,
and developed slowly. No association was discernable between antibody titer and serum levels of EFX, tolerability or therapeutic/pharmacodynamic
response to EFX.
HARMONY Week 96 results expected to be reported on March 4, 2024
The HARMONY study design incorporated two timepoints for histological evaluation, at weeks 24 and 96. The study was powered for statistical
significance based on the 24-week primary endpoint, not the secondary endpoints at week 96. At week 24, the magnitude of improvement in fibrosis and
MASH resolution with EFX treatment was among the largest reported to date for pre-cirrhotic MASH. Analysis of histopathology after 96 weeks will help
elucidate the degree to which 72 more weeks of dosing with EFX could lead to improved treatment response. Additional week 96 analyses will include
changes from baseline in noninvasive markers of liver injury, fibrosis and function, and overall metabolic health, as well as assessments of safety and
tolerability.
EFX for Treatment of Compensated Cirrhosis Due to MASH (F4)
Compensated cirrhosis due to MASH (F4) represents a high unmet medical need. Approximately 50 percent of patients with cirrhosis die within
5 years of diagnosis, absent a liver transplant. The risk of liver-related clinical events such as hospitalization for acute or chronic liver failure or
hepatocellular carcinoma, as well as cardiovascular events, is substantially higher for patients with cirrhosis. The FDA has issued draft guidance specific to
the development of
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investigational therapies for patients with cirrhosis due to MASH, who are projected to number more than 3.5 million patients in the United States by 2030.
According to the FDA, the treatment goal for cirrhotic patients is to halt disease progression, thereby preventing clinical decompensation, reducing the
incidence of liver transplantation, and improving survival.
A recent analysis showed reversal of cirrhosis was associated with an 80% reduction in risk of liver-related clinical events, emphasizing the
medical benefit to be gained for a therapy that could reverse cirrhosis. To date, as reported publicly with the exception of EFX, all investigational MASH
drugs in clinical development for treatment of cirrhotic MASH have failed to demonstrate evidence of reversing fibrosis. We believe the week 36 data from
our Phase 2b SYMMETRY study in patients with compensated cirrhosis due to MASH shows that EFX has the potential to help treat compensated
cirrhosis.
Phase 2b clinical trial of EFX in patients with cirrhosis due to MASH (F4, compensated)
The Phase 2b SYMMETRY study is a 96-week multicenter, randomized, double-blind, placebo-controlled, dose-ranging trial in biopsy-
confirmed adult patients with compensated cirrhosis due to MASH (F4). One hundred eighty-two patients have been randomized to receive once-weekly
subcutaneous dosing of 28 or 50mg EFX, or placebo. The study incorporates two timepoints for histological evaluation, at weeks 36 and 96. The primary
efficacy endpoint for the study was the proportion of subjects who achieve at least a one-stage improvement in fibrosis without worsening of MASH at
week 36. Key secondary histology endpoints include MASH resolution without worsening of fibrosis and a composite endpoint of both MASH resolution
and fibrosis improvement at weeks 36 and 96, as well as fibrosis improvement without worsening of MASH at week 96. Additional secondary measures
include change from baseline in markers of livery injury, noninvasive markers of liver fibrosis, glycemic control, lipoproteins, and body weight at 36 and
96 weeks as well as measures of safety and tolerability.
Phase 2b SYMMETRY Study Design
All patients have biopsy-proven compensated cirrhosis (F4) due to definitive MASH or cryptogenic cirrhosis presumed secondary to MASH.
Cryptogenic cirrhosis, sometimes referred to as “burned-out MASH,” is associated with advanced fibrosis and a higher risk of liver decompensation or
death. Subjects with cryptogenic cirrhosis are approximately 20% of the total study population.
Trend Toward Fibrosis Improvement
The SYMMETRY study did not meet its primary endpoint for either the 50mg or 28mg EFX dose group; however, among all patients with
baseline biopsies and week 36 biopsies, a numerical trend of 24% and 22% for the 50mg and 28mg dose groups, respectively, was observed for the primary
endpoint of at least a one-stage improvement in liver fibrosis with no worsening of MASH by week 36, compared with 14% for placebo. A subgroup
analysis of patients with more advanced cirrhosis, comprised of patients diagnosed with cirrhosis at least six months prior to receiving the first dose of EFX
or with cryptogenic cirrhosis, showed a trend toward reversal of fibrosis, with 22% (p=0.051) and 10% (p=0.366) of the 50mg and 28mg dose groups,
respectively, experiencing at least a one-stage improvement in liver fibrosis with no worsening of MASH, compared to only 3% for placebo. We believe the
reduction in placebo response in this sub-group with more advanced cirrhosis may be attributable to a higher proportion of baseline liver having F4 as
opposed to advanced F3 fibrosis pathology, thereby decreasing the probability of the week 36 sample being F3. The
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figures below show the trends toward fibrosis improvement observed for both the primary endpoint and the subgroup of patients with more advanced
MASH.
Fibrosis Improvement ≥1 Stage Without Worsening of MASH at Week 36
We believe the trend observed after only 36 weeks of treatment shows the potential for a more substantial treatment response after 96 weeks of
treatment.
Both the 50mg and 28mg EFX doses achieved statistical significance on the secondary histology endpoint of MASH resolution without worsening of
fibrosis
On a key secondary endpoint, 67% and 60% of patients treated with 28mg and 50mg EFX, respectively, experienced MASH resolution without
worsening of fibrosis, compared with 26% for placebo. We believe this is the first public report of an investigational drug to show statistically significant
MASH resolution in patients with compensated cirrhosis, irrespective of treatment duration. We also believe the high rates of MASH resolution could
translate to more improvements in fibrosis after an additional 60 weeks of treatment with EFX.
MASH Resolution at Week 36
EFX improved noninvasive markers of liver fibrosis
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Treatment with EFX significantly improved two important noninvasive markers of liver fibrosis, Pro-C3 and ELF. As shown in the table below,
highly significant absolute reductions in Pro-C3 of about 50-60 ug/L were observed for both EFX groups, compared with a decrease of 16 ug/L for
placebo. Likewise, ELF score was significantly reduced by 0.2 to 0.3 for the 28 and 50mg EFX groups, respectively, compared with a nominal increase for
placebo. EFX reductions in liver stiffness were statistically significant relative to baseline. However, the reductions were not significantly different from
placebo, which declined to a similar extent.
Summary of Week 36 Noninvasive Measures of Liver Fibrosis
Measure (LS Mean Change from Baseline)
Pro-C3 (µg/L) (Generation 2 ELISA)
ELF Score
Placebo
(n=52-58)
-16
+0.1
Liver Stiffness by FibroScan (kPa)
†
*
p<0.05,
***
††
p<0.001, versus placebo; p<0.05, p<0.01, versus placebo (ANCOVA)
††
††
-4.3
28mg
(n=45-47)
***
***
-59
*
*
-0.2
†
†
-3.6
50mg
(n=50-51)
***
***
-49
***
***
-0.3
††
††
-3.8
Two- and three-stage improvement in fibrosis without worsening of MASH observed for some patients
Evidence of EFX’s potential to reverse compensated cirrhosis includes several instances of two- or three-stage improvements in fibrosis without
worsening of MASH, which was experienced by two patients in each of the EFX groups, equivalent to 4% of EFX-treated patients, compared with 0 for
placebo. Shown below are the baseline and week 36 biopsy slide images for a patient who experienced a three-stage improvement in fibrosis.
Case Study: 3-Stage Fibrosis Improvement & MASH Resolution
EFX improved markers of liver injury
Levels of ALT were significantly reduced by week 12 for EFX-treated patients, with reductions of 13 and 11 U/L for the 28 and 50mg EFX
groups, respectively, at week 36, compared with a 5 U/L reduction for placebo. Statistically significant improvements from baseline were also observed for
platelet counts for both EFX groups, but not placebo.
EFX improved glycemic control, restored a healthy lipoprotein profile and reduced body weight
As summarized in the table below, treatment with EFX was associated with significant improvements in multiple metabolic parameters,
including markers of glycemic control, lipoproteins and body weight. A more healthy metabolic profile is important because mortality associated with
cardiovascular disease remains a major risk factor for patients with cirrhosis due to MASH.
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Summary of Week 36 Cardio-Metabolic Biomarkers
Measure (LS Mean Change from Baseline)
HbA1C (%, absolute)
Non-HDL Cholesterol (%)
Triglycerides (%)
HDL Cholesterol (%)
LDL Cholesterol (%)
Body Weight (kg)
***
**
p<0.01,
p<0.001, versus placebo; p<0.05, p<0.01,
p<0.001, versus baseline (ANCOVA)
†
††
†††
Placebo
(N=58)
-0.1
-3
-5
-2
-1
-0.8
28mg
(N=47)
††
-0.4
†††
-10
***
-23
***
+24
-5
-0.8
50mg
(N=50)
-0.2
**
-15
***
-29
***
+30
†††
-10
†
-1.4
EFX was generally well tolerated
EFX was generally well tolerated in the SYMMETRY study. There was one death in a placebo patient who had pneumonia. Twenty-one SAEs
were reported, which were balanced across treatment groups and reflect the many comorbidities of this advanced MASH population. The only SAE
reported in more than one subject was angina, which occurred in one patient on placebo and one patient in EFX 50mg group. None of the SAEs reported
were determined to be drug-related by the clinical investigators.
A total of 12 patients were discontinued due to drug-related AEs (one in placebo, three in the 28mg group and eight in the 50mg group). The
majority of these were due to mild-to-moderate (grade 1-2) diarrhea, with 5 patients discontinuing for this AE in the 50mg group and one each for placebo
and 28mg EFX. Consistent with previous evaluations of EFX, the most frequent AEs were gastrointestinal, transient, and mild-to-moderate events. The
majority of injection site reactions were mild (grade 1). As reported in previous studies, even though increased appetite was reported as an AE, mean body
weight reduction was observed across EFX dose groups.
No clinically meaningful changes were observed for heart rate or diastolic blood pressure. However, at week 36, increases of 4-7mm in systolic
blood pressure were observed in the EFX dose groups. Small reductions in bone mineral density were observed for the EFX dose groups in the lumbar
spine region (≤1%) and the femoral neck region (2-3%).
SYMMETRY Week 96 results expected in the first quarter of 2025
The SYMMETRY study’s 36-week primary endpoint was the earliest timepoint at which any investigational drug has been reported to evaluate
treatment of compensated cirrhosis due to MASH (F4). Despite this early timepoint, SYMMETRY showed a trend toward fibrosis improvement and
statistically significant MASH resolution. Analysis of histopathology after 96 weeks will help elucidate the extent to which 60 more weeks of dosing with
EFX could lead to improved treatment response.
Evaluation of EFX in combination with GLP-1 therapy in patients with pre-cirrhotic MASH
The SYMMETRY study included an expansion cohort, known as Cohort D, evaluating administration of EFX to patients with type 2 diabetes
who are already being treated with GLP-1 receptor agonist, or GLP-1, therapy. Approximately two-thirds of patients with F2 or F3 MASH, and roughly
three-quarters of patients with compensated cirrhosis due to MASH, also have type 2 diabetes. Given the increasing use of GLP-1 for treatment of patients,
we expect that many patients who could be eligible for treatment with EFX, if approved, may receive GLP-1 therapy. Cohort D was designed to assess
whether EFX could be added in patients with MASH who are already being treated with GLP-1 for type 2 diabetes.
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Cohort D enrolled a total of 32 patients with type 2 diabetes and F1-F3 liver fibrosis due to MASH. Approximately two-thirds of randomized
patients were on a stable dose of GLP-1 for more than one year; all patients were on a stable dose for at least three months.
The study met the primary endpoint, with the safety and tolerability of EFX dosed to patients in combination with a GLP-1 therapy broadly
comparable to that of placebo-treated patients receiving a GLP-1 therapy alone. There were no deaths in the study. No patients were reported to have a
drug-related SAE. One patient discontinued due to nausea related to treatment with EFX. Consistent with previous evaluations of EFX, gastrointestinal
events were the most frequent AEs. The overall tolerability profile was similar observations with EFX in the BALANCED and HARMONY studies.
Diarrhea was slightly more frequent in the GLP-1 alone group than the EFX combined with GLP-1 group, while nausea was slightly more frequent in the
combined group than for GLP-1 alone. While both treatment groups reported decreased appetite, more EFX-treated patients reported increased appetite.
However, a mean reduction in body weight was observed for EFX-treated patients despite reports of increased appetite. No new safety signals were
evident.
In addition, on key non-invasive measures of liver injury and fibrosis, EFX combined with GLP-1 therapy was more effective than GLP-1 alone,
in most cases with statistical significance despite the modest study size. Likewise, glycemic control and lipid profiles were improved more by the
combination of EFX with GLP-1 than GLP-1 alone.
The tables below summarize multiple secondary and exploratory endpoints.
Summary of Week 12 Changes in Liver Fat
Measure
Hepatic Fat Fraction (MRI-PDFF) (%), LS Mean Relative
Change from Baseline
Proportion of patients achieving ≥50% Relative Reduction in
Liver Fat (%)
Proportion of patients with Normalized (≤5%) Liver Fat (%)
Placebo
(N=10)
-10
0
10
EFX 50mg
(N=16)
***
***
-65
***
88
***
***
88
***
***
p<0.001, versus placebo (ANCOVA)
Summary of Week 12 Noninvasive Measures of Liver Injury & Fibrosis
Measure (LS Mean Change from Baseline)
ALT (UL)
Pro-C3 (µg/L) (Generation 2 ELISA)
ELF Score
Liver Stiffness by FibroScan (kPa)
Placebo
(N=10)
-1.0
-2.7
+0.1
-1.1
*
p<0.05, p<0.01, versus placebo; p<0.01,
††
**
†††
p<0.001, versus baseline (ANCOVA)
25
EFX 50mg
(N=16)
*
-*
-10
††
**
††
**
-5.2
-0.6
†††
†††
-3.0
Table of Contents
Summary of Week 12 Cardio-Metabolic Biomarkers
Measure (LS Mean Change from Baseline)
HbA1C (%, absolute)
Non-HDL Cholesterol (%)
Triglycerides (%)
HDL Cholesterol (%)
LDL Cholesterol (%)
Body Weight (kg)
Placebo
(N=58)
-0.2
-6.8
-4.1
+2.5
-6.1
-0.8
EFX 50mg
(N=50)
†††
†††
-0.5
†††
†††
-19
***
***
-42
***
***
+38
-8.0
-1.2
**
***
p<0.01,
p<0.001, versus placebo; p<0.05, p<0.01,
p<0.001, versus baseline (ANCOVA)
†
††
†††
Exclusive license agreement with Amgen Inc.
In June 2018, we entered into an exclusive license agreement with Amgen Inc., or Amgen, pursuant to which we have been granted an exclusive,
royalty-bearing license to certain intellectual property rights owned or controlled by Amgen, to commercially develop, manufacture, use, distribute and sell
therapeutic products, or Products. In particular, we have been granted licenses under patents filed in both the United States and foreign jurisdictions that are
owned or controlled by Amgen, including an exclusive license under certain patents claiming polypeptides comprised of an FGF21 portion with certain
point mutations, a linker, and an Fc domain. Our exclusively licensed patents include, but are not limited to, the composition of EFX and methods of using
the same. In connection with the license, Amgen also licensed and transferred to us certain know-how related to the manufacture of EFX as well as certain
quantities of EFX drug substance manufactured to Good Manufacturing Practices, or GMP, for clinical use, master cell bank, not-for-human use EFX drug
product suitable for nonclinical studies and critical reagents.
Pursuant to the terms of the license agreement, we must use commercially reasonable efforts to develop and commercialize a Product in each of
several major market territories. In addition, Amgen provided us, at its expense, consulting support in connection with the transfer of the licensed materials
and the exploitation of the Products. We are also entitled to sublicense the rights granted to us under the license agreement.
As initial consideration for the license, we paid Amgen an upfront payment of $5.0 million and also issued 2,653,333 shares of our Series A
preferred stock to Amgen at the time of the initial closing in June 2018 with a subsequent 3,205,128 shares of our Series A preferred stock issued at the
time of the second closing in November 2018, representing 10% of total shares outstanding at such times. In August 2019 we made an additional payment
of $2.5 million in connection with dosing the first patient in our Phase 2a clinical trial, which was the first development milestone under the license
agreement. In December 2023, we paid Amgen $7.5 million in connection with dosing the first patient in our Phase 3 SYNCHRONY program. As
additional consideration for the license, we are obligated to pay Amgen up to $30.0 million in connection with marketing approvals, and aggregate
milestone payments of up to $75.0 million upon the achievement of specified commercial milestones for all products licensed under the Amgen
Agreement. No commercial milestones have been achieved to date under the license agreement. We are also required to pay tiered royalties of low to high
single-digit percentages on annual net sales of the products covered by the license. The royalty rate with respect to the net sales is subject to customary
reductions, including in the event that the exploitation of a Product is not covered by a valid claim with the licensed patent rights. The royalty term will
terminate on a country-by-country basis on the later of (i) the expiration date of the last valid claim within the licensed patent rights, (ii) the loss of
regulatory exclusivity in such country, and (iii) the tenth anniversary of the first commercial sale of such product in such country.
The license agreement shall expire upon the expiration of the last-to-expire royalty term for the Products in the territory. Upon expiration of the
license agreement, the licenses granted to us shall be considered fully paid-up, irrevocable and non-exclusive. Either we or Amgen may terminate the
license agreement if the other party commits a material breach of the agreement or defaults in the performance thereunder and fails to cure that breach
within 90 days (or 30 days in the case of failure to make any payment as and when due under the agreement) after written notice is provided or in the event
of bankruptcy, insolvency, dissolution or winding up. Amgen shall have the right to terminate
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the license agreement in full upon written notice to us in the event we, our affiliates or sublicensees, directly challenge the patentability, enforceability or
validity of any licensed patents, unless, in the event of a sublicensee challenge, we terminate the sublicense within 60 days’ notice. We shall have the right
to terminate the license agreement within 90 days written notice to Amgen if we conclude, due to scientific, technical, regulatory or commercial reasons,
that the exploitation of the Products is no longer commercially practicable.
Intellectual property
Our success depends in part upon our ability to protect our core technology and intellectual property. To protect our intellectual property rights,
we rely on patents, trademarks, copyrights and trade secret laws, confidentiality procedures, and employee disclosure and invention assignment
agreements. Our intellectual property is critical to our business and we strive to protect it through a variety of approaches, including by obtaining and
maintaining patent protection in the United States and internationally for our product candidates, novel biological discoveries, new targets and applications,
and other inventions that are important to our business. For our product candidates, we generally intend to pursue patent protection covering compositions
of matter, methods of making and methods of use, including combination therapies. As we continue the development of our product candidates, we intend
to identify additional means of obtaining patent protection that would potentially enhance commercial success, including through claims covering
additional methods of use and biomarkers and complementary diagnostic and/or companion diagnostic related claims. As of February 14, 2024, we have
licensed from Amgen Inc. approximately 209 issued patents and 14 pending patent applications worldwide. There are currently no pending U.S.
provisional patent applications licensed from Amgen.
As of February 14, 2024, our patent portfolio relating to EFX includes 14 issued U.S. patents, one pending U.S. patent application, and issued
and pending foreign counterpart patents in Europe, Asia, Canada, Australia, and Mexico. Nine issued U.S. patents include claims directed to the EFX
product, the FGF21 polypeptide component of the EFX product, nucleic acids encoding the product and related polypeptides, polypeptide multimers,
related compositions, and methods of using EFX to, e.g., treat diabetes, lower blood glucose in patients suffering from a metabolic disorder, improve
glucose tolerance, lower body weight, or reduce triglyceride levels in patients. These issued U.S. patents are expected to expire in 2029. The pending U.S.
patent application and related foreign counterparts are directed to a method of treating a patient with MASH; if issued, the resulting U.S. patent is expected
to expire in 2029. We currently anticipate that a composition of matter patent will be eligible for patent term extension to 2034 in the U.S. The portfolio
further includes five issued U.S. patents that are directed to related polypeptides and methods of use. International patent applications are pending relating
EFX formulations and FGF21 variant multimers. There is a pending U.S. provisional application directed to methods of using EFX to treat liver and lung
injury, and a pending U.S. provisional patent application directed to a drug delivery device. A design patent application also has been filed relating to the
device.
In addition to patents, we rely upon unpatented trade secrets and know-how and continuing technological innovation to develop and maintain our
competitive position. However, trade secrets and know-how can be difficult to protect. We seek to protect our proprietary information, in part, by executing
confidentiality agreements with our collaborators and scientific advisors, and non-solicitation, confidentiality, and invention assignment agreements with
our employees and consultants. We have also executed agreements requiring assignment of inventions with selected scientific advisors and collaborators.
The confidentiality agreements we enter into are designed to protect our proprietary information and the agreements or clauses requiring assignment of
inventions to us are designed to grant us ownership of technologies that are developed through our relationship with the respective counterparty. We cannot
guarantee, however, that we have executed such agreements with all applicable counterparties, such agreements will not be breached, or that these
agreements will afford us adequate protection of our intellectual property and proprietary rights. For more information, see "Risk factors—Risks related to
our intellectual property."
Manufacturing and supply
We manage several external commercial manufacturing organizations, or CMOs, to develop and manufacture EFX.
EFX drug substance, or DS, is manufactured by fermentation of a recombinant strain of the bacterium E. coli. Product accumulates as insoluble
particles (inclusion bodies) within the cells and is recovered by cell disruption, followed by solubilization of the inclusion bodies, protein refolding and
three chromatographic separation steps to yield
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product with target quality attributes. We have an agreement with Boehringer Ingelheim Biopharmaceuticals GmbH, or Boehringer Ingelheim, to
manufacture DS for clinical development and plan in the future to enter into an agreement for commercial supply . Whereas our Phase 2a BALANCED
study was supplied by DS acquired by Amgen, our ongoing Phase 2b HARMONY and SYMMETRY studies are being supplied by DS manufactured by
Boehringer Ingelheim. Analysis of the Boehringer Ingelheim GMP DS confirmed it met the same release specification as previously used for Amgen GMP
DS and was comparable to Amgen GMP DS across a number of protein characterization studies.
We have an agreement with Vetter Pharma International GmbH, or Vetter, to manufacture EFX drug product, or DP, for clinical development and
plan in the future to enter into an agreement for commercial supply. The GMP DP being used for our ongoing Phase 2b HARMONY and SYMMETRY
studies, which was stored as a frozen liquid until immediately before administration to trial subjects, is similar to that for the Phase 2a BALANCED study,
which was made from Amgen GMP DS. Analysis of the Vetter Phase 2b GMP DP confirmed that it met the same release specification as previously used
for the Phase 2a DP manufactured from Amgen GMP DS.
We are using a lyophilized DP formulation for Phase 3 clinical trials and plan to use this formulation as the initial commercial presentation, if
EFX is approved. This drug-device combination product, employing Vetter’s Lyo-Ject 3S dual-chamber syringe, was selected for convenient subcutaneous
self-administration by patients. Manufacturing of the product-device combination by Vetter for Phase 3 clinical trials has been conducted under GMP
conditions. Analysis of the Vetter Phase 3 lyophilized GMP DP confirmed that it met the same release specification as previously used for the Phase 2b
frozen DP. A Phase 1 biocomparison study, performed before Phase 3 clinical studies commenced, confirmed that plasma levels of the lyophilized Phase 3
DP were comparable to those of the frozen Phase 2b formulation, following a single subcutaneous dose.
Sales and marketing
Successful marketing of a new drug for the treatment of MASH will require a targeted commercial infrastructure. We expect to begin making
plans for commercialization in parallel with our ongoing HARMONY and SYMMETRY studies. We have also contracted with a third-party manufacturer,
Vetter, to support clinical development and the potential commercialization of EFX with commercial-scale manufacturing. We intend to develop the
commercial infrastructure required for bringing EFX to patients in the United States, if approved, in parallel with an anticipated Phase 3 clinical trial. We
also plan to evaluate options for delivering EFX, if approved, to patients in other key markets, such as Europe, Japan and China, which may include
strategic collaborations.
Competition
The biotechnology industry is intensely competitive and subject to rapid and significant technological change. Our competitors include
multinational pharmaceutical companies, specialized biotechnology companies and universities and other research institutions.
We understand that a number of pharmaceutical companies, including AstraZeneca PLC/MedImmune LLC, Boehringer Ingelheim AG, Bristol-
Myers Squibb Company, Inc., Eisai, Inc., Eli Lilly and Company, GSK plc, Johnson & Johnson, Merck & Co., Inc., Novartis Pharmaceuticals Corporation,
Novo Nordisk A/S, Pfizer Inc., Roche Holding AG, Sanofi and Takeda Pharmaceutical Company Limited, as well as large and small biotechnology
companies such as Albireo Pharma, Inc., Alnylam Pharmaceuticals, Inc., Altimmune, Inc., Amgen, Inc., Arrowhead Pharmaceuticals, Inc., Axcella Health,
Inc., Boston Pharmaceuticals, Inc., Cirius Therapeutics, Inc., CohBar, Inc., Corcept Therapeutics, Inc., CymaBay Therapeutics, Inc., 89bio, D&D
Pharmatech, Inc., Enanta Pharmaceuticals, Inc., Galectin Therapeutics Inc., Galmed Pharmaceuticals Ltd., Gilead Sciences, Inc., Hanmi Pharmaceutical
Company, Ltd., Intercept Pharmaceuticals, Inc., Inventiva Pharma SA, Ionis Pharmaceuticals, Inc., Madrigal Pharmaceuticals, Inc., MediciNova, Inc.,
NeuroBo Pharmaceuticals, Inc., North Sea Pharmaceuticals, Poxel SA, Sagimet Biosciences, Inc., Terns Pharmaceuticals, Inc., Viking Therapeutics, Inc.
and Zhejiang Doer Biologics Co. Ltd. are or may be pursuing the development or marketing of pharmaceuticals that target MASH. It is also probable that
the number of companies seeking to develop products and therapies for the treatment of serious metabolic diseases, such as MASH, will increase. Many of
our competitors have substantially greater financial, technical, human and other resources than we do and may be better equipped to develop, manufacture
and market technologically superior products. In addition, many of these competitors have significantly greater experience than we have in undertaking
nonclinical studies and human clinical trials of new pharmaceutical products and in obtaining regulatory approvals of human therapeutic products.
Accordingly, our competitors may
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succeed in obtaining FDA approval for superior products. Many of our competitors have established distribution channels for the commercialization of
their products, whereas we have no such channel or capabilities. In addition, many competitors have greater name recognition and more extensive
collaborative relationships. Smaller and earlier-stage companies may also prove to be significant competitors, particularly through collaborative
arrangements with large, established companies.
Our competitors may obtain regulatory approval of their products more rapidly than we do or may obtain patent protection or other intellectual
property rights that limit our ability to develop or commercialize our product candidate or any future product candidates. Our competitors may also develop
drugs that are more effective, more convenient, more widely used and less costly or have a better safety profile than our products and these competitors
may also be more successful than we are in manufacturing and marketing their products. If we are unable to compete effectively against these companies,
then we may not be able to commercialize our product candidate or any future product candidates or achieve a competitive position in the market. This
would adversely affect our ability to generate revenue. Our competitors also compete with us in recruiting and retaining qualified scientific, management
and commercial personnel, establishing clinical trial sites and patient registration for clinical trials, as well as in acquiring technologies complementary to,
or necessary for, our programs.
Government Regulation
The FDA and other regulatory authorities at federal, state, and local levels, as well as in foreign countries, extensively regulate, among other
things, the research, development, testing, manufacture, quality control, import, export, safety, effectiveness, labeling, packaging, storage, distribution,
record keeping, approval, advertising, promotion, marketing, post-approval monitoring, and post-approval reporting of biologics, medical devices and
combinations of biologics and devices, or combination products, such as those we are developing. We, along with third-party contractors, will be required
to navigate the various nonclinical, clinical and commercial approval requirements of the governing regulatory agencies of the countries in which we wish
to conduct studies or seek approval or licensure of our product candidates.
U.S. biological product development
In the United States, biological products are subject to regulation under the Federal Food, Drug, and Cosmetic Act, or FD&C Act, and the Public
Health Service Act, or PHS Act, and other federal, state, local and foreign statutes and regulations. The process required by the FDA before a biological
product may be marketed in the United States generally involves the following:
•
•
•
•
•
•
•
•
•
completion of nonclinical laboratory tests and animal studies performed in accordance with the FDA's Good Laboratory Practice, or GLP,
regulation;
submission to the FDA of an investigational new drug application, or IND, which must become effective before clinical trials may begin and
must be updated annually or when significant changes are made;
approval of a clinical trial protocol and related documentation by an independent Institutional Review Board, or IRB, or ethics committee at each
clinical site before the trial may be initiated;
performance of adequate and well-controlled human clinical trials according to FDA's regulations commonly referred to as Good Clinical
Practices, or GCPs, and any additional requirements for the protection of human research subjects and their health information, to establish the
safety, purity and potency of the proposed biologic product candidate for its intended use;
preparation of and submission to the FDA of a Biologics License Application, or BLA, for MA that includes substantive evidence of safety,
purity, and potency from results of nonclinical testing and clinical trials;
satisfactory completion of an FDA Advisory Committee review, if applicable;
a determination by the FDA within 60 days of its receipt of a BLA to file the application for review;
satisfactory completion of an FDA inspection of the manufacturing facility or facilities where the biological product is produced to assess
compliance with current Good Manufacturing Practices, or cGMPs, and to assure that the facilities, methods and controls are adequate to
preserve the biological product's identity, strength, quality and purity;
potential FDA audit of the nonclinical and clinical trial sites that generated the data in support of the BLA in accordance with any applicable
expedited programs or designations;
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•
•
payment of user fees for FDA review of the BLA (unless a fee waiver applies); and
FDA review and approval, or licensure, of the BLA to permit commercial marketing of the product for particular indications for use in the
United States.
Nonclinical and clinical development
Before testing any biological product candidate in humans, the product candidate enters the nonclinical testing stage. Nonclinical tests, also
referred to as nonclinical studies, include laboratory evaluations of product biological characteristics, chemistry, toxicity and formulation, as well as animal
studies to assess the potential safety and activity of the product candidate. The conduct of the nonclinical tests must comply with federal regulations and
requirements including GLP regulations and requirements.
Prior to beginning the first clinical trial with a product candidate, we must submit an IND to the FDA. An IND is a request for authorization from
the FDA to administer an investigational new drug product to humans. The central focus of an IND submission is on the general investigational plan and
the protocol(s) for clinical studies. The IND also includes results of the nonclinical tests, including animal and in vitro studies assessing the toxicology,
pharmacokinetics, pharmacology, and pharmacodynamic characteristics of the product; chemistry, manufacturing, and controls, or CMC information; and
any available human data or literature to support the use of the investigational product. An IND must become effective before human clinical trials may
begin. The IND automatically becomes effective 30 days after receipt by the FDA, unless the FDA places the clinical trial on a clinical hold within the 30-
day time period. In such a case, the IND may be placed on clinical hold and the IND sponsor and the FDA must resolve any outstanding concerns or
questions before the clinical trial can begin. The FDA also may impose clinical holds on a biological product candidate at any time before or during clinical
trials due to, among other considerations, unreasonable or significant safety concerns, inability to assess safety concerns, lack of qualified investigators, a
misleading or materially incomplete investigator brochure, study design deficiencies, interference with the conduct or completion of a study designed to be
adequate and well-controlled for the same or another investigational drug, insufficient quantities of investigational product, lack of effectiveness, or non-
compliance. Accordingly, we cannot be sure that submission of an IND will result in the FDA allowing a clinical trial to begin, or that, once begun, issues
or circumstances will not arise that delay, suspend or terminate such studies.
Clinical trials involve the administration of the investigational product to healthy volunteers or patients under the supervision of qualified
investigators, generally physicians not employed by or under the study sponsor's control, in accordance with GCPs, which include the requirement that all
research subjects provide their informed consent for their participation in any clinical study. Clinical trials are conducted under protocols detailing, among
other things, the objectives of the study, dosing procedures, subject selection and exclusion criteria, and the parameters to be used in monitoring subject
safety, including stopping rules that assure a clinical trial will be stopped if certain AEs should occur. A separate submission to the existing IND must be
made for each successive clinical trial conducted during product development and for any subsequent protocol amendments. Furthermore, an independent
IRB for each site proposing to conduct the clinical trial must review and approve the plan for any clinical trial and its related documentation before the
clinical trial begins at that site, and must monitor the study until completed. Regulatory authorities, the IRB or the sponsor may suspend a clinical trial at
any time on various grounds, including a finding that the subjects are being exposed to an unacceptable health risk or that the trial is unlikely to meet its
stated objectives. Some studies also include oversight by an independent group of qualified experts organized by the clinical study sponsor, known as a data
safety monitoring board, which provides authorization for whether or not a study may move forward at designated check points based on access to certain
data from the study and may halt the clinical trial if it determines that there is an unacceptable safety risk for subjects or other grounds, such as no
demonstration of efficacy. There are also requirements governing the reporting of ongoing clinical studies and clinical study results to public registries.
A sponsor who wishes to conduct a clinical trial outside of the United States may, but need not, obtain FDA authorization to conduct the clinical
trial under an IND. If a foreign clinical trial is not conducted under an IND, the sponsor may submit data from the clinical trial to the FDA in support of a
BLA. The FDA may accept a well-designed and well-conducted foreign clinical study not conducted under an IND if the study was conducted in
accordance with GCP requirements, and the FDA is able to validate the data through an onsite inspection if deemed necessary.
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Clinical trials typically are conducted in three sequential phases that may overlap or be combined:
Phase 1—The investigational product is initially introduced into healthy human subjects. These studies are designed to test the safety, dosage
tolerance, absorption, metabolism and distribution of the investigational product in humans, the side effects associated with increasing doses, and, if
possible, to gain early evidence on effectiveness. In the cases of some products for severe of life-threatening diseases, especially when the product may be
too inherently toxic to ethically administer to healthy volunteers, the initial human testing is often conducted in the targeted patient population.
Phase 2—The investigational product is administered to a limited patient population with a specified disease or condition to evaluate the
preliminary efficacy, optimal dosages and dosing schedule and to identify possible adverse side effects and safety risks. Multiple Phase 2 clinical trials may
be conducted to obtain information prior to beginning Phase 3 clinical trials.
Phase 3—The investigational product is administered to an expanded patient population to further evaluate dosage, to provide significant
evidence of clinical efficacy and to further test for safety, generally at multiple geographically dispersed clinical trial sites. These clinical trials are intended
to establish the overall risk/benefit ratio of the investigational product and to provide an adequate basis for product approval or licensure and product
labeling.
In some cases, the FDA may require, or companies may voluntarily pursue, additional clinical trials after a product is approved to gain more
information about the product. These so called Phase 4 studies may be made a condition to approval of the BLA.
During all phases of clinical development, regulatory agencies require extensive monitoring and auditing of all clinical activities, clinical data,
and clinical trial investigators. Annual progress reports detailing the results of the clinical trials must be submitted to the FDA. Written IND safety reports
must be promptly submitted to the FDA and the investigators for serious and unexpected adverse events, any findings from other studies, tests in laboratory
animals or in vitro testing that suggest a significant risk for human subjects, or any clinically important increase in the rate of a serious suspected adverse
reaction over that listed in the protocol or investigator brochure. The sponsor must submit an IND safety report within 15 calendar days after the sponsor
determines that the information qualified for reporting. The sponsor also must notify the FDA of any unexpected fatal or life-threatening suspected adverse
reaction within seven calendar days after the sponsor's initial receipt of the information. Phase 1, Phase 2 and Phase 3 clinical trials may not be completed
successfully within any specified period, if at all. The FDA or the sponsor, acting on its own or based on a recommendation from the sponsor's data safety
monitoring board may suspend a clinical trial at any time on various grounds, including a finding that the research subjects or patients are being exposed to
an unacceptable health risk. Similarly, an IRB can suspend or terminate approval of a clinical trial at its institution if the clinical trial is not being conducted
in accordance with the IRB's requirements or if the biological product has been associated with unexpected serious harm to patients.
Concurrent with clinical trials, companies may complete additional animal studies and develop additional information about the biological
characteristics of the product candidate, and must finalize a process for manufacturing the product in commercial quantities in accordance with cGMP
requirements. The manufacturing process must be capable of consistently producing quality batches of the product candidate and, among other things, must
develop methods for testing the identity, strength, quality and purity of the final product, or for biologics, the safety, purity and potency. Additionally,
appropriate packaging must be selected and tested and stability studies must be conducted to demonstrate that the product candidate does not undergo
unacceptable deterioration over its shelf life.
BLA submission and review
Assuming successful completion of all required testing in accordance with all applicable regulatory requirements, the results of product
development, nonclinical studies and clinical trials are submitted to the FDA as part of a BLA requesting approval to market the product for one or more
indications. FDA approval of a BLA must be obtained before a biologic may be marketed in the United States. The BLA must include all relevant data
available from pertinent nonclinical and clinical studies, including negative or ambiguous results as well as positive findings, together with detailed
information relating to the product's chemistry, manufacturing, controls, and proposed labeling, among other things. The submission of a BLA requires
payment of a substantial application user fee to the FDA, unless a waiver or exemption applies.
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Within 60 days following submission of the application, the FDA reviews a BLA submitted to determine if it is substantially complete before the
FDA accepts it for filing. The FDA may refuse to file any BLA that it deems incomplete or not properly reviewable at the time of submission and may
request additional information. In this event, the BLA must be resubmitted with the additional information. The resubmitted application also is subject to
review before the FDA accepts it for filing. Under the performance goals and policies implemented by the FDA under the Prescription Drug User Fee Act,
or PDUFA, for original BLAs, the FDA targets ten months from the filing date in which to complete its initial review of a standard application and respond
to the applicant, and six months from the filing date for an application with priority review. In both standard and priority reviews, the FDA does not always
meet its PDUFA goal dates, and the review process is often significantly extended by FDA requests for additional information or clarification. This review
typically takes twelve months from the date the BLA is submitted to the FDA because the FDA has approximately two months to make a "filing" decision.
The review process and the PDUFA goal date may be extended by three months if the FDA requests or the BLA sponsor otherwise provides additional
information or clarification regarding information already provided in the submission within the last three months before the PDUFA goal date.
Once the submission is accepted for filing, the FDA begins an in-depth substantive review of the BLA. The FDA reviews a BLA to determine,
among other things, whether a proposed product is safe, pure and potent for its intended use, and the facility in which it is manufactured, processed,
packed, or held meets standards designed to assure the product's continued safety, purity and potency. Further, the FDA may convene an advisory
committee to provide clinical insight on application review questions. The FDA is not bound by the recommendations of an advisory committee, but it
considers such recommendations carefully when making decisions.
Before approving a BLA, the FDA will typically inspect the facility or facilities where the product is manufactured. The FDA will not approve a
product unless it determines that the manufacturing processes and facilities are in compliance with cGMP requirements and adequate to assure consistent
production of the product within required specifications. Additionally, before approving a BLA, the FDA will typically inspect one or more clinical sites to
assure compliance with GCP requirements. If the FDA determines that the application, manufacturing process or manufacturing facilities are not
acceptable, it will outline the deficiencies in the submission and often will request additional testing or information. Notwithstanding the submission of any
requested additional information, the FDA ultimately may decide that the application does not satisfy the regulatory criteria for approval.
After the FDA evaluates a BLA and conducts inspections of manufacturing facilities where the investigational product and/or its drug substance
will be produced, the FDA may issue an approval letter or a Complete Response letter. An approval letter authorizes commercial marketing of the product
with specific prescribing information for specific indications. A Complete Response letter will describe all of the deficiencies that the FDA has identified in
the BLA, except that where the FDA determines that the data supporting the application are inadequate to support approval, the FDA may issue the
Complete Response letter without first conducting required inspections, testing submitted product lots, and/or reviewing proposed labeling. In issuing the
Complete Response letter, the FDA may recommend actions that the applicant might take to place the BLA in condition for approval, including requests for
additional information or clarification. The FDA may delay or refuse approval of a BLA if applicable regulatory criteria are not satisfied, require additional
testing or information and/or require post-marketing testing and surveillance to monitor safety or efficacy of a product.
If regulatory approval of a product is granted, such approval will be granted for particular indications and may entail limitations on the indicated
uses for which such product may be marketed. For example, the FDA may approve the BLA with a Risk Evaluation and Mitigation Strategy, or REMS, to
ensure the benefits of the product outweigh its risks. A REMS is a safety strategy to manage a known or potential serious risk associated with a product and
to enable patients to have continued access to such medicines by managing their safe use, and 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. The FDA also may
condition approval on, among other things, changes to proposed labeling or the development of adequate controls and specifications. Once approved, the
FDA may withdraw the product approval if compliance with pre- and post-marketing requirements is not maintained or if problems occur after the product
reaches the marketplace. The FDA may require one or more Phase 4 post-market studies and surveillance to further assess and monitor the product's safety
and effectiveness after commercialization, and may limit further marketing of the product based on the results of these post-marketing studies.
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Expedited development and review programs
The FDA has various programs, including Fast Track designation, breakthrough therapy designation, accelerated approval and priority review,
that are intended to expedite or simplify the process for the development and FDA review of biologics that are intended for the treatment of serious or life-
threatening diseases or conditions. These programs do not change the standards for approval but may help expedite the development or approval process.
To be eligible for Fast Track designation, new biological products must be intended to treat a serious or life-threatening condition and demonstrate the
potential to address an unmet medical need for the condition. Fast Track designation applies to the combination of the product and the specific indication
for which it is being studied. The sponsor of a new biologic may request the FDA to designate the biologic as a Fast Track product at any time during the
clinical development of the product. One benefit of Fast Track designation, for example, is that the FDA may consider for review sections of the marketing
application for a product that has received Fast Track designation on a rolling basis before the complete application is submitted.
Under the FDA's breakthrough therapy program, products intended to treat a serious or life-threatening disease or condition may be eligible for
the benefits of the Fast Track program when preliminary clinical evidence demonstrates that such product may have substantial improvement on one or
more clinically significant endpoints over existing therapies. Additionally, the FDA will seek to ensure the sponsor of a breakthrough therapy product
receives timely advice and interactive communications to help the sponsor design and conduct a development program as efficiently as possible.
A product is eligible for priority review if it treats a serious or life-threatening disease or condition and has the potential, if approved, to provide
a significant improvement in safety and effectiveness. The FDA will attempt to direct additional resources to the evaluation of an application for a new
biological product designated for priority review in an effort to facilitate the review. Under priority review, the FDA's goal is to review an application in six
months once it is filed, compared to ten months for a standard review.
Additionally, a product may be eligible for accelerated approval (also referred to as Subpart E approval). Biological products studied for their
safety and effectiveness in treating serious or life-threatening illnesses and that provide meaningful therapeutic benefit over existing treatments, as
demonstrated by a surrogate or intermediate clinical endpoint, may receive accelerated approval. Specifically, this means that they may be approved on the
basis of clinical data establishing that the product has an effect on a surrogate endpoint that is reasonably likely to predict a clinical benefit, or on the basis
of an effect on an intermediate clinical endpoint other than survival or irreversible morbidity. As a condition of approval, the FDA generally requires that a
sponsor of a biological product receiving accelerated approval perform adequate and well-controlled post-marketing confirmatory clinical trials to verify
the clinical benefit. Under the Food and Drug Omnibus Reform Act of 2022, or FDORA, the FDA is now permitted to require, as appropriate, that such
trials be underway prior to approval or within a specific time period after the date of approval for a product granted accelerated approval, and the FDA has
increased authority for expedited procedures to withdraw accelerated approval if, for example, the confirmatory trial fails to verify the predicted clinical
benefit of the product. In addition, the FDA generally requires as a condition for accelerated approval pre-approval of promotional materials, which could
adversely impact the timing of the commercial launch of the product.
Pediatric information
Under the Pediatric Research Equity Act, a BLA or supplement to a BLA must contain data to assess the safety and efficacy of the drug for the
claimed indications in all relevant pediatric subpopulations and to support dosing and administration for each pediatric subpopulation for which the product
is safe and effective. The FDA may grant deferrals for submission of pediatric data or full or partial waivers. A sponsor who is planning to submit a
marketing application for a drug that includes a new active ingredient, new indication, new dosage form, new dosing regimen, or new route of
administration must submit an initial Pediatric Study Plan, or PSP, within 60 days of an end-of-Phase 2 meeting or, if there is no such meeting, as early as
practicable before the initiation of the Phase 3 of Phase 2/3 study. The initial PSP must include an outline of the pediatric study or studies that the sponsor
plans to conduct, including study objectives and design, age groups, relevant endpoints, and statistical approach, or a justification for not including such
detailed information, and any request for a deferral of pediatric assessments or a full or partial waiver of the requirement to provide data from pediatric
studies along with supporting information. The FDA and the sponsor must reach an agreement on the PSP. A sponsor can submit amendments to an agreed-
upon initial PSP at any time if changes to the
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pediatric plan need to be considered based on data collected from nonclinical studies, early phase clinical trials, and/or other clinical development
programs.
Post-Approval requirements
Any products manufactured or distributed by us pursuant to FDA approvals are subject to pervasive and continuing regulation by the FDA,
including, among other things, requirements relating to record-keeping, reporting of adverse experiences, periodic reporting, product sampling and
distribution, and advertising and promotion of the product. After approval, most changes to the approved product, such as adding new indications or other
labeling claims, are subject to prior FDA review and approval. There also are continuing user fee requirements, under which the FDA assesses an annual
program fee for each product identified in an approved BLA. Biologics manufacturers and their subcontractors, including those supplying products,
ingredients, and components of them, are required to register their establishments with the FDA and certain state agencies, and are subject to periodic
unannounced inspections by the FDA and certain state agencies for ongoing compliance with cGMP, which impose certain procedural and documentation
requirements upon us and our third-party manufacturers. Changes to the manufacturing process are strictly regulated, and, depending on the significance of
the change, may require prior FDA approval before being implemented. FDA regulations also require investigation and correction of any deviations from
cGMP and impose reporting requirements upon us and any third-party manufacturers that we may decide to use. For certain commercial prescription
biologic products, manufacturers and other parties involved in the supply chain must also meet chain of distribution requirements and build electronic,
interoperable systems for product tracking and tracing and for notifying the FDA of counterfeit, diverted, stolen and intentionally adulterated products or
other products that are otherwise unfit for distribution in the United States. Accordingly, manufacturers must continue to expend time, money and effort in
the area of production and quality control to maintain compliance with cGMP and other aspects of regulatory compliance.
The FDA may 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 a product, including adverse events of unanticipated severity or
frequency, or with 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 studies to assess new safety risks; or imposition of distribution restrictions or other
restrictions under a REMS program. Other potential consequences include, among other things:
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restrictions on the marketing or manufacturing of a product, complete withdrawal of the product from the market or product recalls;
fines, warning letters or holds on post-approval clinical studies;
refusal of the FDA to approve pending applications or supplements to approved applications, or suspension or revocation of existing product
approvals;
product seizure or detention, or refusal of the FDA to permit the import or export of products; or
injunctions or the imposition of civil or criminal penalties.
The FDA closely regulates the marketing, labeling, advertising and promotion of biologics. A company can make only those claims relating to
safety and efficacy, purity and potency that are approved by the FDA 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. Failure to comply with these requirements can result in,
among other things, adverse publicity, warning letters, corrective advertising and potential civil and criminal penalties. Physicians may prescribe legally
available products for uses that are not described in the product's labeling and that differ from those tested by us and approved by the FDA. Such off-label
uses are common across medical specialties. Physicians may believe that such off-label uses are the best treatment for many patients in varied
circumstances. The FDA does not regulate the behavior of physicians in their choice of treatments. The FDA does, however, regulate manufacturers’
communications regarding off-label use of their products.
U.S. patent term restoration and marketing exclusivity
Depending upon the timing, duration and specifics of the FDA approval of the use of our product candidates, some of our U.S. patents may be
eligible for limited patent term extension under the Drug Price Competition and Patent Term Restoration Act of 1984, or Hatch-Waxman Amendments. The
Hatch-Waxman Amendments permit a patent
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restoration term of up to five years as compensation for patent term lost during product development and the FDA regulatory review process. However,
patent term restoration cannot extend the remaining term of a patent beyond a total of 14 years from the product's approval date. The patent term restoration
period is generally one-half the time between the effective date of an IND and the submission date of a BLA plus the time between the submission data of a
BLA and the approval of that application. Only one patent applicable to an approved biological product is eligible for the extension and the application for
the extension must be submitted prior to the expiration of the patent. In addition, a patent can only be extended once and only for a single product. The
United States Patent and Trademark Office, or U.S. PTO, in consultation with the FDA, reviews and approves the application for any patent term extension
or restoration. In the future, we may intend to apply for restoration of patent term for one of our patents, if and as applicable, to add patent life beyond its
current expiration date, depending on the expected length of the clinical trials and other factors involved in the filing of the relevant BLA.
A biological product can obtain pediatric market exclusivity in the United States. Pediatric exclusivity, if granted, adds six months to existing
exclusivity periods, for all formulations, dosage forms, and indications of the biologic. This six-month exclusivity, which runs from the end of other
exclusivity protection or patent term, may be granted based on the voluntary completion of a pediatric study in accordance with an FDA-issued "Written
Request" for such a study.
The Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act, or collectively, the
Affordable Care Act, signed into law in 2010, includes a subtitle called the Biologics Price Competition and Innovation Act of 2009, or BPCIA, which
created an abbreviated approval pathway for biological products that are biosimilar to or interchangeable with an FDA-approved reference biological
product. To date, a number of biosimilars have been licensed under the BPCIA, and numerous biosimilars have been approved in Europe. The FDA has
issued several guidance documents outlining an approach to review and approval of biosimilars.
Biosimilarity, which requires that there be no clinically meaningful differences between the biological product and the reference product in terms
of safety, purity, and potency, can be shown through analytical studies, animal studies, and a clinical study or studies. Interchangeability requires that a
product is biosimilar to the reference product and the product must demonstrate that it can be expected to produce the same clinical results as the reference
product in any given patient and, for products that are administered multiple times to an individual, the biologic and the reference biologic may be
alternated or switched after one has been previously administered without increasing safety risks or risks of diminished efficacy relative to exclusive use of
the reference biologic. Complexities associated with the larger, and often more complex, structures of biological products, as well as the processes by
which such products are manufactured, pose significant hurdles to implementation of the abbreviated approval pathway that are still being worked out by
the FDA.
Under the BPCIA, a reference biological product is granted a 12 year exclusivity period from the time of first licensure of the product. The FDA
will not accept an application for a biosimilar or interchangeable product based on the reference biological product until four years after the date of first
licensure of the reference product, and the FDA will not approve an application for a biosimilar or interchangeable product based on the reference
biological product until twelve years after the date of first licensure of the reference product. "First licensure" typically means the initial date the particular
product at issue was licensed in the United States. Date of first licensure does not include the date of licensure of (and a new period of exclusivity is not
available for) a biological product if the licensure is for a supplement for the biological product or for a subsequent application by the same sponsor or
manufacturer of the biological product (or licensor, predecessor in interest, or other related entity) for a change (not including a modification to the
structure of the biological product) that results in a new indication, route of administration, dosing schedule, dosage form, delivery system, delivery device
or strength, or for a modification to the structure of the biological product that does not result in a change in safety, purity, or potency. Therefore, one must
determine whether a new product includes a modification to the structure of a previously licensed product that results in a change in safety, purity, or
potency to assess whether the licensure of the new product is a first licensure that triggers its own period of exclusivity. Whether a subsequent application,
if approved, warrants exclusivity as the "first licensure" of a biological product is determined on a case-by-case basis with data submitted by the sponsor.
The BPCIA is complex and continues to be interpreted and implemented by the FDA. Other aspects of the BPCIA, some of which may impact
the BPCIA exclusivity provisions, have also been the subject of recent litigation. As a result, the ultimate impact, implementation, and impact of the
BPCIA is subject to significant uncertainty.
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Regulation of Combination Products in the United States
Certain products may be comprised of components, such as drug components, biologic components and device components, that would normally
be regulated under different types of regulatory authorities, and frequently by different centers at the FDA. These products are known as combination
products. Under regulations issued by the FDA, a combination product may be:
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a product comprised of two or more regulated components that are physically, chemically, or otherwise combined or mixed and produced as a
single entity;
two or more separate products packaged together in a single package or as a unit and comprised of drug and device products, device and
biological products, or biological and drug products;
a drug, or device, or biological product packaged separately that according to its investigational plan or proposed labeling is intended for use
only with an approved individually specified drug, or device, or biological product where both are required to achieve the intended use,
indication, or effect and where upon approval of the proposed product the labeling of the approved product would need to be changed, e.g., to
reflect a change in intended use, dosage form, strength, route of administration, or significant change in dose; or
any investigational drug, or device, or biological product packaged separately that according to its proposed labeling is for use only with another
individually specified investigational drug, device, or biological product where both are required to achieve the intended use, indication, or
effect.
Under the FD&C Act and its implementing regulations, the FDA is charged with assigning a center with primary jurisdiction, or a lead center, for
review of a combination product. The designation of a lead center generally eliminates the need to receive approvals from more than one FDA center for
combination products, although it does not preclude consultations by the lead center with another FDA center. The determination of which center will be
the lead center is based on the “primary mode of action” of the combination product. The FDA has also established an Office of Combination Products to
address issues surrounding combination products and provide more certainty to the regulatory review process. That office serves as a focal point for
combination product issues for agency reviewers and industry. It is also responsible for developing guidance and regulations to clarify the regulation of
combination products, and for assignment of the FDA center that has primary jurisdiction for review of combination products where the jurisdiction is
unclear or in dispute.
A combination product with biologic primary mode of action, such as a biologic dispensed in a pre-filled syringe, generally would be reviewed
and licensed pursuant to the biologic licensing processes under the PHS Act. In reviewing the BLA application for such a product, however, FDA
reviewers in the drug or biologics center could consult with their counterparts in the device center to ensure that the device component of the combination
product meets applicable requirements regarding safety, effectiveness, durability and performance.
Following approval of a combination product, each component of a combination product retains its regulatory status (as a biologic or device, for
example) and is subject to the requirements established by the FDA for that type of component. Accordingly, under FDA regulations, biologic-device
combination products are subject to cGMP requirements applicable to both biologics and devices, including the cGMP requirements for biologics and the
FDA’s Quality System Regulation applicable to medical devices.
Other U.S. healthcare and Data Privacy laws and compliance requirements
In the United States, our current and future operations are subject to regulation by various federal, state and local authorities in addition to the
FDA, including but not limited to, the Centers for Medicare and Medicaid Services, or CMS, other divisions of the U.S. Department of Health and Human
Services, or HHS (such as the Office of Inspector General, Office for Civil Rights and the Health Resources and Service Administration), the U.S.
Department of Justice, or DOJ, and individual U.S. Attorney offices within the DOJ, and state and local governments. For example, our clinical research,
sales, marketing and scientific/educational grant programs may have to comply with the anti-fraud and abuse provisions of the Social Security Act, the
false claims laws, the privacy and security provisions of the Health Insurance Portability and Accountability Act, or HIPAA, and similar state laws, each as
amended, as applicable.
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Pharmaceutical companies are subject to additional healthcare regulation and enforcement by the federal government and by authorities in the
states and foreign jurisdictions in which they conduct their business that may constrain the financial arrangements and relationships through which we
research, as well as sell, market and distribute any products for which we obtain MA. Such laws include, without limitation, state and federal anti-kickback,
fraud and abuse, false claims, and transparency laws and regulations related to drug pricing and payments and other transfers of value made to physicians
and other healthcare providers. If our operations are found to be in violation of any of such laws or any other governmental regulations that apply, we may
be subject to penalties, including, without limitation, administrative, civil and criminal penalties, damages, fines, disgorgement, the curtailment or
restructuring of operations, integrity oversight and reporting obligations, exclusion from participation in federal and state healthcare programs and
responsible individuals may be subject to imprisonment.
Also, many states have similar, and typically more prohibitive, fraud and abuse statutes or regulations that apply to items and services
reimbursed under Medicaid and other state programs, or, in several states, apply regardless of the payor.
We may be subject to data privacy and security regulations by both the federal government and the states in which we conduct our business.
HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act, or HITECH, and their implementing regulations, as well
as the California Consumer Privacy Act of 2018 (the “CCPA”), impose requirements relating to the privacy, security and transmission of individually
identifiable health information. Among other things, HITECH makes HIPAA's privacy and security standards directly applicable to business associates,
independent contractors, or agents of covered entities, which include certain healthcare providers, health plans, and healthcare clearinghouses, that receive
or obtain protected health information in connection with providing a service on behalf of a covered entity. HITECH also created four 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 HIPAA and seek attorneys' fees and costs associated with pursuing
federal civil actions. In addition, many state laws govern the privacy and security of health information in specified circumstances. For example, in
California the California Consumer Privacy Act (CCPA) established a privacy framework for covered businesses by creating a broad definition of personal
information, establishing new data privacy rights for consumers in the State of California, imposing special rules on the collection of consumer data from
minors, and creating a new and potentially severe statutory damages framework for violations of the CCPA and for businesses that fail to implement
reasonable security procedures and practices to prevent data breaches. Many of the state laws differ from each other in significant ways and may have a
more prohibitive effect than HIPAA and cover personal information other than protected health information that is subject to HIPAA, thus complicating
compliance efforts.
We may develop products that, once approved, may be administered by a physician. Under currently applicable U.S. law, certain products not
usually self-administered (including injectable drugs) may be eligible for coverage under Medicare through Medicare Part B. Medicare Part B is part of
original Medicare, the federal health care program that provides health care benefits to the aged and disabled, and covers outpatient services and supplies,
including certain pharmaceutical products, that are medically necessary to treat a beneficiary's health condition. As a condition of receiving Medicare Part
B reimbursement for a manufacturer's eligible drugs, the manufacturer is required to participate in other government healthcare programs, including the
Medicaid Drug Rebate Program and the 340B Drug Pricing Program. The Medicaid Drug Rebate Program requires pharmaceutical manufacturers to enter
into and have in effect a national rebate agreement with the Secretary of HHS as a condition for states to receive federal matching funds for the
manufacturer's outpatient drugs furnished to Medicaid patients. Under the 340B Drug Pricing Program, the manufacturer must extend discounts to entities
that participate in the program.
In addition, many pharmaceutical manufacturers must calculate and report certain price reporting metrics to the government, such as average
sales price, or ASP, and best price. Penalties may apply in some cases when such metrics are not submitted accurately and timely. Further, these prices for
drugs may be reduced by mandatory discounts or rebates required by government healthcare programs or private payors.
Additionally, the federal Physician Payments Sunshine Act, or the Sunshine Act, within the Affordable Care Act, and its implementing
regulations, require that certain manufacturers of drugs, devices, biological and medical supplies for which payment is available under Medicare, Medicaid
or the Children's Health Insurance Program (with certain exceptions) report annually to CMS information related to certain payments or other transfers of
value made or
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distributed to physicians (defined to include doctors, dentists, optometrists, podiatrists and chiropractors), certain other licensed healthcare professionals
and teaching hospitals, or to entities or individuals at the request of, or designated on behalf of, physicians and teaching hospitals and to report annually
certain ownership and investment interests held by physicians and their immediate family members. In addition, many states also govern the reporting of
payments or other transfers of value, many of which differ from each other in significant ways, are often not pre-empted, and may have a more prohibitive
effect than the Sunshine Act, thus further complicating compliance efforts.
In order to distribute products commercially, we must comply with state laws that require the registration of manufacturers and wholesale
distributors of drug and biological products in a state, including, in certain states, manufacturers and distributors who ship products into the state even if
such manufacturers or distributors have no place of business within the state. Some states also impose requirements on manufacturers and distributors to
establish the pedigree of product in the chain of distribution, including some states that require manufacturers and others to adopt new technology capable
of tracking and tracing product as it moves through the distribution chain. Several states have enacted legislation requiring pharmaceutical and
biotechnology companies to establish marketing compliance programs, file periodic reports with the state, make periodic public disclosures on sales,
marketing, pricing, clinical trials and other activities, and/or register their sales representatives, as well as to prohibit pharmacies and other healthcare
entities from providing certain physician prescribing data to pharmaceutical and biotechnology companies for use in sales and marketing, and to prohibit
certain other sales and marketing practices. All of our activities are potentially subject to federal and state consumer protection and unfair competition laws.
Ensuring business arrangements with third parties comply with applicable healthcare laws and regulations is a costly endeavor. If our operations
are found to be in violation of any of the federal and state healthcare laws described above or any other current or future governmental regulations that
apply to us, we may be subject to penalties, including without limitation, civil, criminal and/or administrative penalties, damages, fines, disgorgement,
individual imprisonment, exclusion from participation in government programs, such as Medicare and Medicaid, injunctions, private "qui tam" actions
brought by individual whistleblowers in the name of the government, or refusal to allow us to enter into government contracts, contractual damages,
reputational harm, administrative burdens, diminished profits and future earnings, 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, and the curtailment or restructuring of our
operations, any of which could adversely affect our ability to operate our business and our results of operations.
Coverage, pricing and reimbursement
Significant uncertainty exists as to the coverage and reimbursement status of any product candidates for which we may obtain regulatory
approval. In the United States and in foreign markets, sales of any products for which we receive regulatory approval for commercial sale will depend, in
part, on the extent to which third-party payors provide coverage and establish adequate reimbursement levels for such products. In the United States, third-
party payors include federal and state healthcare programs, such as Medicare and Medicaid, private managed care providers, health insurers and other
organizations. Adequate coverage and reimbursement from third-party payors are critical to new product acceptance.
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 therapeutic is:
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a covered benefit under its health plan;
safe, effective and medically necessary;
appropriate for the specific patient;
cost-effective; and
neither experimental nor investigational.
We cannot be sure that reimbursement will be available for any product that we commercialize and, if coverage and reimbursement are available,
what the level of reimbursement will be. Coverage may also be more limited than the purposes for which the product is approved by the FDA or
comparable foreign regulatory authorities. Reimbursement may impact the demand for, or the price of, any product for which we obtain regulatory
approval.
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Third-party payors are increasingly challenging the price, examining the medical necessity, and reviewing the cost-effectiveness of medical
products, therapies and services, in addition to questioning their safety and efficacy. Obtaining reimbursement for our products may be particularly difficult
because of the higher prices often associated with branded drugs and drugs administered under the supervision of a physician. We may need to conduct
expensive pharmacoeconomic studies in order to demonstrate the medical necessity and cost-effectiveness of our products, in addition to the costs required
to obtain FDA approvals. Our product candidates may not be considered medically necessary or cost-effective. 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 product on a payor-by-payor basis, with no assurance that coverage and
adequate reimbursement will be obtained. A third-party payor's decision to provide coverage for a product does not imply that an adequate reimbursement
rate will be approved. Further, in the United States, no uniform policy of coverage and reimbursement for products exists among third-party payors. Private
third-party payors tend to follow Medicare coverage and reimbursement limitations to a substantial degree, but also have their own methods and approval
process apart from Medicare determinations. Therefore, one payor's determination to provide coverage for a product does not assure that other payors will
also provide coverage for the product. Adequate third-party reimbursement may not be available to enable us to maintain price levels sufficient to realize an
appropriate return on our investment in product development. If reimbursement is not available or is available only at limited levels, we may not be able to
successfully commercialize any product candidate that we successfully develop.
Different pricing and reimbursement schemes exist in other countries. In the European Union, or EU, governments influence the price of
pharmaceutical products through their pricing and reimbursement rules and control of national health care systems that fund a large part of the cost of those
products to consumers. Some jurisdictions operate positive and negative list systems under which products may only be marketed once a reimbursement
price has been agreed. To obtain reimbursement or pricing approval, some of these countries may require the completion of clinical trials that compare the
cost effectiveness of a particular product candidate to currently available therapies. Other Member States allow companies to fix their own prices for
medicines, but monitor and control company profits. The downward pressure on health care costs has become intense. As a result, increasingly high
barriers are being erected to the entry of new products. In addition, in some countries, cross-border imports from low-priced markets exert a commercial
pressure on pricing within a country.
The marketability of any product candidates for which we receive regulatory approval for commercial sale may suffer if third-party payors fail to
provide coverage and adequate reimbursement. In addition, emphasis on managed care, the increasing influence of health maintenance organizations, and
additional legislative changes in the United States has increased, and we expect will continue to increase, the pressure on healthcare pricing. The downward
pressure on the rise in healthcare costs in general, particularly prescription medicines, medical devices and surgical procedures and other treatments, has
become very intense. Coverage policies and third-party reimbursement rates may change at any time. Even if favorable coverage and reimbursement status
is attained for one or more products for which we receive regulatory approval, less favorable coverage policies and reimbursement rates may be
implemented in the future.
Healthcare reform
In the United States and some foreign jurisdictions, there have been, and continue to be, several legislative and regulatory changes and proposed
changes regarding the healthcare system that could prevent or delay marketing approval of product candidates, restrict or regulate post-approval activities,
and affect the ability to profitably sell product candidates for which marketing approval is obtained. Among policy makers and payors in the United States
and elsewhere, there is significant interest in promoting changes in healthcare systems with the stated goals of containing healthcare costs, improving
quality and/or expanding access. In the United States, the pharmaceutical industry has been a particular focus of these efforts and has been significantly
affected by major legislative initiatives.
For example, the Affordable Care Act has substantially changed healthcare financing and delivery by both governmental and private insurers.
Among the Affordable Care Act provisions of importance to the pharmaceutical and biotechnology industries, in addition to those otherwise described
above, are the following:
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an annual, nondeductible fee on any entity that manufactures or imports certain specified branded prescription drugs and biologic agents
apportioned among these entities according to their market share in some government healthcare programs that began in 2011;
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an increase in the statutory minimum rebates a manufacturer must pay under the Medicaid Drug Rebate Program, retroactive to January 1, 2010,
to 23.1% and 13% of the average manufacturer price for most branded and generic drugs, respectively, and capped the total rebate amount for
innovator drugs at 100% of the Average Manufacturer Price, or AMP;
a new Medicare Part D coverage gap discount program, in which manufacturers must agree to offer 50% (increased to 70%, the current discount
owed as of January 1, 2019 pursuant to the Bipartisan Budget Act of 2018, or BBA) point-of-sale discounts, off negotiated prices of applicable
brand drugs to eligible beneficiaries during their coverage gap period, as a condition for the manufacturers' outpatient drugs to be covered under
Medicare Part D;
extension of manufacturers' Medicaid rebate liability to covered drugs dispensed to individuals who are enrolled in Medicaid managed care
organizations;
expansion of eligibility criteria for Medicaid programs, thereby potentially increasing manufacturers' Medicaid rebate liability;
expansion of the entities eligible for discounts under the 340B Drug Discount Program;
a Patient-Centered Outcomes Research Institute to oversee, identify priorities in, and conduct comparative clinical effectiveness research, along
with funding for such research;
expansion of healthcare fraud and abuse laws, including the FCA and the federal Anti-Kickback Statute, new government investigative powers,
and enhanced penalties for noncompliance;
requirements to report certain financial arrangements with physicians and teaching hospitals;
a requirement to annually report certain information regarding drug samples that manufacturers and distributors provide to physicians;
establishment of the Center for Medicare and Medicaid Innovation at CMS to test innovative payment and service delivery models to lower
Medicare and Medicaid spending; and
a licensure framework for follow on biologic products.
Additionally, 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 and enacted 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 programs, and reform government program reimbursement methodologies for drugs. For example, in May 2019, CMS issued a final
rule to allow Medicare Advantage Plans the option of using step therapy, a type of prior authorization, for Part B drugs beginning January 1, 2020. This
final rule codified CMS’s policy change that was effective January 1, 2019. However, it is unclear whether the Biden administration will challenge, reverse,
revoke or otherwise modify these executive and administrative actions after January 20, 2021. President Biden has issued multiple executive orders that
have sought to reduce prescription drug costs. In February 2023, HHS also issued a proposal in response to an October 2022 executive order from President
Biden that includes a proposed prescription drug pricing model that will test whether targeted Medicare payment adjustments will sufficiently incentivize
manufacturers to complete confirmatory trials for drugs approved through FDA’s accelerated approval pathway.
In addition, there have been several changes to the 340B drug pricing program, which imposes ceilings on prices that certain drug and biologic
manufacturers can charge for medications sold to certain health care facilities. It is unclear how these developments could affect covered hospitals who
might purchase our future products and affect the rates we may charge such facilities for our approved products in the future, if any. On July 24, 2020 and
September 13, 2020, former President Trump announced several executive orders related to prescription drug pricing that seek to implement several of the
former administration's proposals. In response, the FDA released a final rule on September 24, 2020, which went into effect on November 30, 2020,
providing guidance for states to build and submit importation plans for drugs from Canada. Further, on November 20, 2020 CMS issued an Interim Final
Rule implementing the Most Favored Nation, or MFN, Model under which Medicare Part B reimbursement rates will be calculated for certain drugs and
biologicals based on the lowest price manufacturers receive in Organization for Economic Cooperation and Development countries with a similar gross
domestic product per capita. The MFN Model regulations mandate participation by identified Part B providers and would have applied to all U.S. states
and territories for a seven-year period beginning January 1, 2021 and ending December 31, 2027. However, in response to a lawsuit filed by several
industry groups, on December 28, the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction enjoining
government defendants from implementing the MFN Rule pending completion of notice-and-comment procedures under the Administrative Procedure Act.
On January 13, 2021, in a separate lawsuit
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brought by industry groups in the U.S. District of Maryland, the government defendants entered a joint motion to stay litigation on the condition that the
government would not appeal the preliminary injunction granted in the U.S. District Court for the Northern District of California and that performance for
any final regulation stemming from the MFN Interim Final Rule shall not commence earlier than 60 days after publication of that regulation in the Federal
Register. Further, authorities in Canada have passed rules designed to safeguard the Canadian drug supply from shortages. If implemented, importation of
drugs from Canada and the MFN Model may materially and adversely affect the price we receive for any of our product candidates. Additionally, on
December 2, 2020, HHS published a regulation removing safe harbor protection for price reductions from pharmaceutical manufacturers to plan sponsors
under Part D, either directly or through pharmacy benefit managers, unless the price reduction is required by law. The rule also creates a new safe harbor
for price reductions reflected at the point-of-sale, as well as a safe harbor for certain fixed fee arrangements between pharmacy benefit managers and
manufacturers. Pursuant to an order entered by the U.S. District Court for the District of Columbia, the portion of the rule eliminating safe harbor
protection for certain rebates related to the sale or purchase of a pharmaceutical product from a manufacturer to a plan sponsor under Medicare Part D has
been delayed to January 1, 2026. This deadline was delayed to January 1, 2027 by the Bipartisan Safer Communities Act. The Inflation Reduction Act of
2022 further delayed implementation of this rule to January 1, 2032. While a number of these and other proposed measures may require additional
authorization to become effective, and the Biden administration may reverse or otherwise change these measures, Congress has indicated that it will
continue to seek new legislative and/or administrative measures to control drug costs. Individual states in the United States have also increasingly passed
legislation and implemented regulations designed to control pharmaceutical 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.
Further, on May 30, 2018, the Trickett Wendler, Frank Mongiello, Jordan McLinn, and Matthew Bellina Right to Try Act of 2017, or the Right to
Try Act, was signed into law. The law, among other things, provides a federal framework for certain patients to request access to 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 clinical trials and without obtaining FDA permission under the FDA expanded access program. There is no
obligation for a pharmaceutical manufacturer to make its drug products available to eligible patients as a result of the Right to Try Act.
On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 into law, which eliminates the statutory Medicaid drug rebate
cap, currently set at 100% of a drug’s average manufacturer price, for single source and innovator multiple source drugs, beginning January 1, 2024. Due to
the Statutory Pay-As-You-Go Act of 2010, estimated budget deficit increases resulting from the American Rescue Plan Act of 2021, and subsequent
legislation, Medicare payments to providers will be further reduced starting in 2025 absent further legislation.
The Foreign Corrupt Practices Act
The Foreign Corrupt Practices Act, or FCPA, prohibits any U.S. individual or business from paying, offering, or 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 accounting provisions requiring us 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.
Government regulations outside the United States
In addition to regulations in the United States, we are subject to a variety of regulations in other jurisdictions governing, among other things,
research and development, clinical trials, testing, manufacturing, safety, efficacy, labeling, packaging, storage, record keeping, distribution, reporting,
advertising and other promotional practices involving biological products as well as authorization and approval of our products.
Whether or not we obtain FDA approval for a product, we must obtain the requisite approvals from regulatory authorities in foreign countries
prior to the commencement of clinical trials or marketing of the product in those countries. Certain countries outside of the United States have a similar
process that requires the submission of a clinical
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trial application much like the IND prior to the commencement of human clinical trials. In the EU, for example, a Clinical Trial Application, or CTA, must
be submitted for each clinical trial to each applicable country's national competent authority, or NCA, and an independent ethics committee, or EC, much
like the FDA and an IRB, respectively. Under the Clinical Trials Regulation (EU) no 536/2014, which replaced the Clinical Trials Directive 2001/20/EC on
January 31, 2022, a single application is now made through the Clinical Trials Information System, or CTIS, for clinical trial authorization in up to 30
EU/EEA countries at the same time and with a single set of documentation.
The assessment of applications for clinical trials in the EU is divided in two parts (Part I contains scientific and medicinal product documentation
and Part II contains the national and patient-level documentation). Part I is assessed by a coordinated review by the competent authorities of all EU
Member States in which an application for authorization of a clinical trial has been submitted (Member States concerned) of a draft report prepared by a
Reference Member State. Part II is assessed separately by each Member State concerned. Strict deadlines have been established for the assessment of
clinical trial applications. The role of the relevant ethics committees in the assessment procedure continues to be governed by the national law of the
concerned EU Member State, however overall related timelines are defined by the Clinical Trials Regulation. The Clinical Trials Regulation also provides
for simplified reporting procedures for clinical trial sponsors.
The requirements and process governing the conduct of clinical trials, product licensing, pricing and reimbursement vary from country to
country. In all cases, the clinical trials must be conducted in accordance with GCP and the applicable regulatory requirements and the ethical principles that
have their origin in the Declaration of Helsinki.
Regulation in the European Union
In the EU, medicinal products are subject to extensive pre- and post-market regulation by regulatory authorities at both the EU and national
levels. To obtain regulatory approval of a medicinal product in the EU, we must submit an MA application. The application used to submit the BLA in the
United States is similar to that required in the EU, with certain exceptions. There are two main types of MA in the EU:
•
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The centralized MA is issued by the European Commission through the centralized procedure, based on the opinion of the Committee for
Medicinal Products for Human Use, or CHMP, of the EMA, which is valid throughout the entire territory of the EU, and in the additional
Member States of the European Economic Area (Iceland, Liechtenstein and Norway), or EEA. The centralized procedure is mandatory for
certain types of products, including medicines produced by biotechnological process, products designated as orphan medicinal products,
advanced-therapy medicinal products (i.e. gene-therapy, somatic cell-therapy or tissue-engineered medicines) and medicinal products containing
a new active substance indicated for the treatment of HIV, AIDS, cancer, neurodegenerative disorders, diabetes, auto-immune and other immune
dysfunctions and viral diseases. The centralized procedure is optional for products containing a new active substance not yet authorized in the
EU, or for products that constitute a significant therapeutic, scientific or technical innovation or which are in the interest of public health in the
EU. Under the centralized procedure the maximum timeframe for the evaluation of an MA application by the EMA is 210 days, excluding clock
stops, when additional written or oral information is to be provided by the applicant in response to questions asked by the CHMP. Clock stops
may extend the timeframe of evaluation of an MA application considerably beyond 210 days. Where the CHMP gives a positive opinion, the
EMA provides the opinion together with supporting documentation to the European Commission, who make the final decision to grant an MA,
which is issued within 67 days of receipt of the EMA’s recommendation. Accelerated assessment might be granted by the CHMP in exceptional
cases, when a medicinal product is expected to be of a major public health interest, particularly from the point of view of therapeutic innovation.
The timeframe for the evaluation of an MA application under the accelerated assessment procedure is of 150 days, excluding clock stops, but it is
possible that the CHMP may revert to the standard time limit for the centralized procedure if it determines that an accelerated assessment is no
longer appropriate.
National MAs, which are issued by the competent authorities of the Member States of the EU and only cover their respective territory, are
available for products not falling within the mandatory scope of the centralized procedure. Where a product has already been authorized for
marketing in a Member State of the EU, this national MA can be recognized in other Member States through the mutual recognition procedure. If
the product has not received a national MA in any Member State at the time of application, it can be approved simultaneously in various Member
States through the decentralized procedure. Under the decentralized
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procedure an identical dossier is submitted to the competent authorities of each of the Member States in which the MA is sought, one of which is
selected by the applicant as the Reference Member State, or RMS. The competent authority of the RMS prepares a draft assessment report, a
draft summary of product characteristics, or SmPC, and a draft of the labeling and package leaflet, which are sent to the other Member States
(referred to as the Concerned Member States, or CMSs) for their approval. If the CMSs raise no objections to public health, to the assessment,
SmPC, labeling, or packaging proposed by the RMS, the product is subsequently granted a national MA in all the Member States (i.e., in the
RMS and the CMSs).
Under the above described procedures, before granting the MA, the EMA or the competent authorities of the Member States of the EU make an
assessment of the risk-benefit balance of the product on the basis of scientific criteria concerning its quality, safety and efficacy.
Now that the UK (which comprises Great Britain and Northern Ireland) has left the EU, Great Britain is no longer covered by centralized Mas
(under the Northern Ireland Protocol, centralized MAs currently continue to be recognized in Northern Ireland). On January 1, 2024, a new international
recognition framework was put in place by the Medicines and Healthcare products Regulatory Agency, or MHRA, the UK medicines regulator, under
which the MHRA may have regard to decisions on the approval of MAs made by the European Medicines Agency and certain other regulators when
determining an application for a new Great Britain MA. The MHRA also has the power to have regard to MAs approved in EU Member States through
decentralized or mutual recognition procedures with a view to more quickly granting an MA in the United Kingdom or Great Britain.
The EU also provides opportunities for regulatory exclusivity. For example, in the EU, upon receiving an MA, innovative medicinal products
generally receive eight years of data exclusivity and an additional two years of market exclusivity. If granted, data exclusivity prevents generic or
biosimilar applicants from referencing the innovator's preclinical and clinical trial data contained in the dossier of the reference product when applying for
a generic or biosimilar MA in the EU, during a period of eight years from the date on which the reference product was first authorized in the EU. During
the additional two-year period of market exclusivity, a generic or biosimilar MA application can be submitted and authorized, and the innovator's data may
be referenced, but no generic or biosimilar product can be marketed in the EU until the expiration of the market exclusivity. The overall ten-year period
will be extended to a maximum of 11 years if, during the first eight years of those ten years, the MA holder obtains an authorization for one or more new
therapeutic indications which, during the scientific evaluation prior to their authorization, are determined to bring a significant clinical benefit in
comparison with currently approved therapies. There is no guarantee that a product will be considered by the EMA to be an innovative medicinal product,
and products may not qualify for data exclusivity. Even if an innovative medicinal product gains the prescribed period of data exclusivity, another company
could nevertheless also market another version of the product if such company obtained an MA based on an application with a complete and independent
data package of pharmaceutical tests, preclinical tests and clinical trials.
Pediatric development in the Europe Union
In the EU, companies developing a new medicinal product must agree upon a pediatric investigation plan, or PIP, with the EMA’s Paediatric
Committee, or PDCO, and must conduct pediatric clinical trials in accordance with that PIP, unless the EMA has granted a product-specific waiver, a class
waiver, or a deferral for one or more of the measures included in the PIP. This requirement also applies when a company wants to add a new indication,
pharmaceutical form or route of administration for a medicine that is already authorized. The PIP sets out the timing and measures proposed to generate
data to support a pediatric indication of the product for which an MA is being sought. The PDCO can grant a deferral of the obligation to implement some
or all of the measures of the PIP until there are sufficient data to demonstrate the efficacy and safety of the product in adults. Further, the obligation to
provide pediatric clinical trial data can be waived by the PDCO when this data is not needed or appropriate because the product is likely to be ineffective or
unsafe in children, the disease or condition for which the product is intended occurs only in adult populations, or when the product does not represent a
significant therapeutic benefit over existing treatments for pediatric patients. Products that are granted an MA on the basis of the pediatric clinical trials
conducted in accordance with the PIP are eligible for a six-month extension of the protection under a supplementary protection certificate (if any is in effect
at the time of approval) or, in the case of orphan medicinal products, a two year extension of the orphan market exclusivity. This pediatric reward is subject
to specific conditions and is not automatically available when data in compliance with the PIP are developed and submitted.
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PRIME designation
In March 2016, the EMA launched an initiative to facilitate development of product candidates in indications, often rare, for which few or no
therapies currently exist. The PRIority MEdicines, or PRIME, scheme is intended to encourage drug development in areas of unmet medical need and
provides accelerated assessment of products representing substantial innovation, where the MA application will be made through the centralized procedure.
Eligible products must target conditions for which there is an unmet medical need (there is no satisfactory method of diagnosis, prevention or treatment in
the EU or, if there is, the new medicine will bring a major therapeutic advantage) and they must demonstrate the potential to address the unmet medical
need by introducing new methods of therapy or improving existing ones. Products from small- and medium-sized enterprises may qualify for earlier entry
into the PRIME scheme than larger companies. Many benefits accrue to sponsors of product candidates with PRIME designation, including but not limited
to, early and proactive regulatory dialogue with the EMA, frequent discussions on clinical trial designs and other development program elements, and
accelerated MA application assessment once a dossier has been submitted. Importantly, a dedicated contact and rapporteur from the EMA’s CHMP or
Committee for Advanced Therapies are appointed early in PRIME scheme facilitating increased understanding of the product at the EMA’s Committee
level. A kick-off meeting initiates these relationships and includes a team of multidisciplinary experts at the EMA to provide guidance on the overall
development and regulatory strategies. Where, during the course of development, a medicine no longer meets the eligibility criteria, support under the
PRIME scheme may be withdrawn.
Post-approval controls in the European Union
The holder of an MA must establish and maintain a pharmacovigilance system and appoint an individual qualified person for pharmacovigilance,
who is responsible for oversight of that system. Key obligations include expedited reporting of suspected serious adverse reactions and submission of
periodic safety update reports, or PSURs.
All new MA applications must include a risk management plan, or RMP, describing the risk management system that the company will put in
place and documenting measures to prevent or minimize the risks associated with the product. The regulatory authorities may also impose specific
obligations as a condition of the MA. Such risk-minimization measures or post-authorization obligations may include additional safety monitoring, more
frequent submission of PSURs, or the conduct of additional clinical trials or post-authorization safety studies. RMPs and PSURs are routinely available to
third parties requesting access, subject to limited redactions.
All advertising and promotional activities for the product must be consistent with the approved summary of product characteristics, or SmPC,
and therefore all off-label promotion is prohibited. Direct-to-consumer advertising of prescription medicines is also prohibited in the EU. Although general
requirements for advertising and promotion of medicinal products are established under EU directives, the details are governed by regulations in each EU
Member State and can differ from one country to another.
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 EU. The provision
of benefits or advantages to induce or reward improper performance generally is governed by the national anti-bribery laws of EU Member States and the
Bribery Act of 2010 in the UK. Infringement of these laws could result in substantial fines and imprisonment. EU Directive 2001/83/EC, which is the EU
Directive governing medicinal products for human use, further provides that, where medicinal products are being promoted to persons qualified to
prescribe or supply them, no gifts, pecuniary advantages or benefits in kind may be supplied, offered or promised to such persons unless they are
inexpensive and relevant to the practice of medicine or pharmacy. This provision has been transposed into the Human Medicines Regulations 2012 in the
UK and so remains applicable in the UK despite its departure from the EU.
Payments made to physicians in certain EU 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 EU Member States. These requirements are provided in the national laws, industry codes, or professional codes of conduct, applicable in the
EU Member States. Failure to comply with these requirements could result in reputational risk, public reprimands, administrative penalties, fines, or
imprisonment.
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Regulation of Combination Products
The EU regulates medical devices and medicinal products separately, through different legislative instruments, and the applicable requirements
will vary depending on the type of drug-device combination product. EU guidance has been published to help manufacturers select the right regulatory
framework. In the case of drug-delivery products intended to administer a medicinal product where the device and the medicinal product do not form a
single integral product, the medicinal product is regulated in accordance with the aforementioned rules while the device part is regulated as a medical
device and will have to comply with all the requirements set forth by Regulation 2017/745, or the Medical Devices Regulation (which became applicable
on 26 May 2021 and repealed the EU Council Directive 93/42/EEC, or the Medical Devices Directive). Where the medical device and medicinal product
form a single integral product (e.g. pre-filled inhalers), if the principal intended action is achieved by the medicine, the product is considered a medicinal
product that includes a medical device and the entire product is regulated under the EU pharmaceutical legislation. However, the MA application for the
product should include a CE certificate for the device in accordance with the Medical Devices Regulation or, if not CE marked but would need to be
certified if marketed separately, the applicant must include an opinion from a notified body on the conformity of device with the Medical Devices
Regulation (except for Class I non-sterile, non-measuring devices).
The characteristics of non-integral devices used for the administration of medicinal products may impact the quality, safety and efficacy profile
of the medicinal products. To the extent that administration devices are co-packaged with the medicinal product or, in exceptional cases, where the use of a
specific type of administration device is specifically provided for in the product information of the medicinal product, additional information may need to
be provided in the MA application for the medicinal product on the characteristics of the medical device(s) that may impact on the quality, safety and/or
efficacy of the medicinal product. The requirements regarding quality aspects for integral drug-device combination products, including devices that are co-
packaged with medicinal products, are outlined in an EMA guideline which came into effect on January 1, 2022.
The EU requires that all medical devices placed on the market in the EU must meet the relevant general safety and performance requirements
laid down in Annex I of the Medical Devices Regulation. The most fundamental requirement is that a medical device must be designed and manufactured
in such a way that it will not compromise the clinical condition or safety of patients, or the safety and health of users and others. In addition, the device
must achieve the performances intended by the manufacturer and be designed, manufactured, and packaged in a suitable manner. To demonstrate
compliance with the general safety and performance requirements laid down in Annex I to the Medical Devices Regulation, medical device manufacturers
must undergo a conformity assessment procedure, which varies according to the type of medical device and its (risk) classification. Conformity assessment
procedures require an assessment of available clinical evidence, literature data for the product, and post-market experience in respect of similar products
already marketed. Except for low-risk medical devices (Class I non-sterile, non-measuring devices), where the manufacturer can self-declare the
conformity of its products with the general safety and performance requirements (except for any parts which relate to sterility or metrology), a conformity
assessment procedure requires the intervention of a notified body. Notified bodies are independent organizations designated by EU countries to assess the
conformity of devices before being placed on the market. If satisfied that the relevant product conforms to the relevant general safety and performance
requirements, the notified body issues a certificate of conformity, which the manufacturer uses as a basis for its own declaration of conformity. The
manufacturer may then apply the CE mark to the device, which allows the device to be placed on the market throughout the EU.
As a general rule, demonstration of conformity of medical devices and their manufacturers with the general safety and performance requirements
must be based, among other things, on the evaluation of clinical data supporting the safety and performance of the products during normal conditions of
use. Specifically, a manufacturer must demonstrate that the device achieves its intended performance during normal conditions of use, that the known and
foreseeable risks, and any adverse events, are minimized and acceptable when weighed against the benefits of its intended performance, and that any claims
made about the performance and safety of the device are supported by suitable evidence.
The aforementioned EU rules are generally applicable in the EEA.
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European data collection
The collection and processing of personal data, including health data regarding the EEA is governed by the EU General Data Protection
Regulation, or GDPR, ”) and similarly, processing of personal data regarding the UK is subject to the UK General Data Protection Regulation and the UK
Data Protection Act 2018 (“UK GDPR” and together with the EU GDPR, referred to as the “GDPR” in this Annual Report on Form 10-K), as well as other
supplementary national data protection legislation in force in the EEA member states and the UK. The GDPR imposes stringent requirements relating to the
consent of the individuals to whom the personal data relates, the information provided to the individuals, notification of data processing obligations to the
competent national data protection authorities, and the security and confidentiality of the personal data. The GDPR also impose strict rules on the transfer
of personal data out of the EEA/UK, including to the United States in certain circumstances. Failure to comply with the requirements of the GDPR, and the
related national data protection laws of the EEA Member States and UK may result in administrative penalties and substantial fines of up to 4% total
worldwide annual turnover or up to €20 million (£17.5 million for the UK GDPR), whichever is higher. The GDPR imposes additional responsibility and
liability in relation to personal data that we process and requires us to put in place additional mechanisms to ensure compliance with its obligations. We are
subject to the GDPR if we have a presence or "establishment" in the EEA/UK (e.g. EEA/UK based subsidiary or operations), are monitoring individuals in
the EEA/UK, including when conducting clinical trials with EEA/UK based data subjects (whether the trials are conducted directly by us or through a
clinical vendor or partner), or offering approved products or services (if relevant) to EEA/UK based data subjects (regardless of whether involving
EEA/UK based subsidiaries or operations). The GDPR regulations are onerous and may adversely affect our business, financial condition, results of
operations, and prospects.
Reform of the Regulatory Framework in the European Union
The European Commission introduced legislative proposals in April 2023 that, if implemented, will replace the current regulatory framework in
the EU for all medicines (including those for rare diseases and for children). The European Commission has provided the legislative proposals to the
European Parliament and the European Council for their review and approval. In October 2023, the European Parliament published draft reports proposing
amendments to the legislative proposals, which will be debated by the European Parliament. Once the European Commission’s legislative proposals are
approved (with or without amendment), they will be adopted into EU law.
Brexit and the Regulatory Framework in the United Kingdom
The UK formally left the EU on January 31, 2020 and the EU and the UK have concluded a trade and cooperation agreement, or TCA, which
was provisionally applicable since January 1, 2021 and has been formally applicable since May 1, 2021. The TCA includes specific provisions concerning
pharmaceuticals, which include the mutual recognition of GMP, inspections of manufacturing facilities for medicinal products and GMP documents issued,
but does not provide for wholesale mutual recognition of UK and EU pharmaceutical regulations. At present, Great Britain has implemented EU legislation
on the marketing, promotion and sale of medicinal products through the Human Medicines Regulations 2012 (as amended) (under the Northern Ireland
Protocol, the EU regulatory framework continues to apply in Northern Ireland). The regulatory regime in Great Britain therefore largely aligns with current
EU regulations, however it is possible that these regimes will diverge more significantly in future now that Great Britain’s regulatory system is independent
from the EU and the TCA does not provide for mutual recognition of UK and EU pharmaceutical legislation. However, notwithstanding that there is no
wholesale recognition of EU pharmaceutical legislation under the TCA, under a new international recognition procedure which was put in place by the
MHRA on January 1, 2024, the MHRA may take into account decisions on the approval of an MA from the EMA (and certain other regulators) when
considering an application for a Great Britain MA.
On February 27, 2023, the UK government and the European Commission announced a political agreement in principle to replace the Northern
Ireland Protocol with a new set of arrangements, known as the “Windsor Framework”. This new framework fundamentally changes the existing system
under the Northern Ireland Protocol, including with respect to the regulation of medicinal products in the UK. In particular, the MHRA will be responsible
for approving all medicinal products destined for the UK market (i.e., Great Britain and Northern Ireland), and the EMA will no longer have any role in
approving medicinal products destined for Northern Ireland. A single UK-wide MA will be granted by the MHRA for all medicinal products to be sold in
the UK, enabling products to be sold in a single pack and under a single authorization throughout the UK. The Windsor Framework was approved by the
EU-UK Joint Committee on
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March 24, 2023, so the UK government and the EU will enact legislative measures to bring it into law. On June 9, 2023, the MHRA announced that the
medicines aspects of the Windsor Framework will apply from January 1, 2025.
Rest of world regulation
For other countries outside the EU and the United States, such as countries in Eastern Europe, Latin America, Middle East, or Asia, the
requirements governing the conduct of clinical trials, product licensing, pricing, and reimbursement vary from country to country. Additionally, the clinical
trials must be conducted in accordance with GCP requirements and the applicable regulatory requirements and the ethical principles that have their origin
in the Declaration of Helsinki.
If we fail to comply with applicable foreign regulatory requirements, we may be subject to, among other things, fines, suspension or withdrawal
of regulatory approvals, product recalls, seizure of products, operating restrictions, or criminal prosecution.
Additional regulation
In addition to the foregoing, local, state and federal laws regarding such matters as safe working conditions, manufacturing practices,
environmental protection, fire hazard control and hazardous substances, including the Occupational Safety and Health Act, the Resource Conservancy and
Recovery Act and the Toxic Substances Control Act, affect our business. These and other laws govern our use, handling and disposal of various biological,
chemical and radioactive substances used in, and wastes generated by, our operations. If our operations result in contamination of the environment or
expose individuals to hazardous substances, we could be liable for damages and governmental fines. We believe that we are in material compliance with
applicable environmental laws and that continued compliance therewith will not have a material adverse effect on our business. We cannot predict,
however, how changes in these laws may affect our future operations. We may incur significant costs to comply with such laws and regulations now or in
the future.
Human Capital Resources
We believe the success of our mission largely depends on our ability to attract and retain highly skilled employees. We believe programs that
foster company engagement, diversity, equity and inclusion, growth and development while providing competitive compensation and benefits will attract a
diverse population of employees who will bring innovative ideas and creative solutions that will enable the achievement of our goals. Our human capital
resources objectives include, as applicable, identifying, recruiting, retaining, incentivizing and integrating our existing and additional employees. The
principal purposes of our equity incentive plans are to attract, retain and motivate selected employees, consultants and directors through the granting of
stock-based compensation awards.
As of February 23, 2024, we employed 56 total employees, including 38 in research and development and 17 in general and administrative and
one part-time employee. Ten of our employees hold M.D. or Ph.D. degrees. We have never had a work stoppage, and none of our employees is represented
by a labor organization or under any collective-bargaining arrangements. We consider our employee relations to be good.
Corporate Information
We were incorporated under the laws of the state of Delaware on in January 2017 as Pippin Pharmaceuticals, Inc. On May 16, 2018, we changed
our name to Akero Therapeutics, Inc. Our mailing address and executive offices are located at 601 Gateway Boulevard, Suite 350, South San Francisco,
California 94080 and our telephone number at that address is (650) 487-6488. We maintain an Internet website at the following address: www.akerotx.com.
The information on our website is not incorporated by reference in this Annual Report on Form 10-K or in any other filings we make with the Securities
and Exchange Commission, or SEC.
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Available Information
We make available on or through our website certain reports and amendments to those reports that we file with or furnish to the SEC in
accordance with the Securities Exchange Act of 1934, as amended. These include our annual reports on Form 10-K, our quarterly reports on Form 10-Q,
and our current reports on Form 8-K, exhibits and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act.
We make this information available on or through our website free of charge as soon as reasonably practicable after we electronically file the information
with, or furnish it to, the SEC.
A copy of our Corporate Governance Guidelines, Code of Business Conduct and Ethics and the charters of the Audit Committee, Compensation
Committee and Nominating and Corporate Governance Committee are posted on our website, www.akerotx.com, under “Investors – Corporate
Governance.”
The SEC maintains an Internet website that contains reports, proxy and information statements, and other information regarding us and other
issuers that file electronically with the SEC. The SEC’s Internet website address is http://www.sec.gov.
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Item 1A. Risk Factors.
In evaluating the Company and our business, careful consideration should be given to the following risk factors, in addition to the other
information set forth in this Annual Report on Form 10-K and in other documents that we file with the SEC. Investing in our common stock involves a high
degree of risk. If any of the following risks and uncertainties actually occur, our business, prospects, financial condition, results of operations and cash
flow could be materially and adversely affected. The risks described below are not intended to be exhaustive and are not the only risks facing the Company.
New risk factors can emerge from time to time, and it is not possible to predict the impact that any factor or combination of factors may have on our
business, prospects, financial condition, results of operations or cash flow.
Risks Related to the Clinical Development and Manufacturing of our Product Candidate
Risks Related to Clinical Development
Enrollment and retention of patients in clinical trials is an expensive and time-consuming process and could be made more difficult or
rendered impossible by multiple factors outside our control, including difficulties in identifying patients with MASH, significant competition for
recruiting such patients in clinical trials, and restrictions on patients and investigators related to outbreaks of infectious diseases or public health
crises.
Identifying and qualifying patients to participate in clinical trials is critical to our success. We may be unable to retain a sufficient number of
patients to successfully complete the long-term follow-up portion of the ongoing Phase 2b SYMMETRY study, and may encounter delays in enrolling or be
unable to enroll or retain a sufficient number of patients in our planned Phase 3 SYNCHRONY studies or any other future clinical trials. In particular, as a
result of the inherent difficulties in diagnosing MASH and the significant competition for recruiting patients with MASH in clinical trials, there may be
delays in enrolling the patients we need to complete clinical trials on a timely basis, or at all. In addition, enrollment in Phase 3 clinical trials may be
adversely affected by marketing approval for one or more investigational MASH drugs.
Factors that may generally affect patient enrollment include:
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the size and nature of the patient population;
the number and location of clinical sites we enroll;
the impact of geopolitical tensions, such as the ongoing armed conflict in Israel and the Gaza Strip, on clinical trial sites, such as those in
Turkey and Israel, where we are currently planning to activate sites in our Phase 3 SYNCHRONY program;
the ability of our clinical sites to maintain adequate personnel;
competition with other companies for clinical sites or patients;
the eligibility and exclusion criteria for the trial;
the design of the clinical trial;
inability to obtain and maintain patient consents;
risk that enrolled participants will drop out before completion;
the availability of marketed therapies; and
clinicians’ and patients’ perceptions as to the potential advantages of the drug being studied in relation to other available therapies, including
any new drugs that may be approved for the indications we are investigating.
In addition, if any significant adverse events or other side effects are observed in any of our future clinical trials, it may make it more difficult for
us to recruit patients to our clinical trials and 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.
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Our inability to enroll a sufficient number of patients for our clinical trials could result in significant delays, which would increase our costs and have an
adverse effect on our company.
We face substantial competition, which may result in others discovering, developing or commercializing products before or more successfully
than us.
The biotechnology industry is intensely competitive and subject to rapid and significant technological change. Our competitors include
multinational pharmaceutical companies, specialized biotechnology companies and universities and other research institutions. We understand that a
number of pharmaceutical companies, including AstraZeneca PLC/MedImmune LLC, Boehringer Ingelheim AG, Inc., Eisai, Inc., Eli Lilly, GSK plc, and
Company, Johnson & Johnson, Merck & Co., Inc., Novo Nordisk A/S, Pfizer Inc., Roche Holding AG and Takeda Pharmaceutical Company Limited, as
well as large and small biotechnology companies such as Alnylam Pharmaceuticals, Inc., Altimmune, Inc., Amgen, Inc., Arrowhead Pharmaceuticals, Inc.,
Boston Pharmaceuticals, Inc., Cirius Therapeutics, Inc., CohBar, Inc., Corcept Therapeutics, Inc., 89bio, D&D Pharmatech, Inc., Galectin Therapeutics
Inc., Galmed Pharmaceuticals Ltd., Gilead Sciences, Inc., Hanmi Pharmaceutical Company, Ltd., HighTide Therapeutics Inc., Inventiva Pharma SA, Ionis
Pharmaceuticals, Inc., Madrigal Pharmaceuticals, Inc., MediciNova, Inc., NeuroBo Pharmaceuticals, Inc., North Sea Pharmaceuticals, Regeneron
Pharmaceuticals, Inc., Poxel SA, Sagimet Biosciences, Inc., Terns Pharmaceuticals, Inc., Viking Therapeutics, Inc. and Zhejiang Doer Biologics Co. Ltd.
are or may be pursuing the development or marketing of pharmaceuticals that target MASH. It is also probable that the number of companies seeking to
develop products and therapies for the treatment of serious metabolic diseases, such as MASH, will increase. Many of our competitors have substantially
greater financial, technical, human and other resources than we do and may be better equipped to develop, manufacture and market technologically superior
products. In addition, many of these competitors have significantly greater experience than we have in undertaking nonclinical studies and human clinical
trials of new pharmaceutical products and in obtaining regulatory approvals of human therapeutic products. Accordingly, our competitors may succeed in
obtaining FDA approval for superior products. In addition, many competitors have greater name recognition and more extensive collaborative
relationships.
Smaller and earlier-stage companies may also prove to be significant competitors, particularly through collaborative arrangements with large, established
companies.
Our competitors may obtain regulatory approval of their products more rapidly than we do or may obtain patent protection or other intellectual
property rights that limit our ability to develop or commercialize our product candidate or any future product candidates. Our competitors may also develop
drugs that are more effective, more convenient, more widely used and less costly or have a better safety profile than our products and these competitors
may also be more successful than we are in manufacturing and marketing their products. If we are unable to compete effectively against these companies,
then we may not be able to commercialize our product candidate or any future product candidates or achieve a competitive position in the market. This
would adversely affect our ability to generate revenue. Our competitors also compete with us in recruiting and retaining qualified scientific, management
and commercial personnel, establishing clinical trial sites and patient registration for clinical trials, as well as in acquiring technologies complementary to,
or necessary for, our programs.
Failures or delays in the commencement or completion of, or ambiguous or negative results from our planned clinical trials of our product
candidates could result in increased costs to us and could delay, prevent, or limit our ability to generate revenue and continue our business.
We do not know whether the long-term follow-up portion of the SYMMETRY study will be completed or the Phase 3 SYNCHRONY program
or any future clinical trials will enroll or be completed on schedule, if at all, as the commencement and completion of clinical trials can be delayed or
prevented for a number of reasons, including, among others:
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the FDA or comparable foreign regulatory authorities may not authorize us or our investigators to commence our planned clinical trials or
any other clinical trials we may initiate, or may suspend our clinical trials, for example, through imposition of a clinical hold, and may
request additional data to permit allowance of our IND;
delays in filing or receiving allowance of additional INDs that may be required;
lack of adequate funding to continue our clinical trials and nonclinical studies;
negative results from our ongoing nonclinical studies;
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delays in reaching or failing to reach agreement on acceptable terms with prospective CROs and clinical study sites, the terms of which can
be subject to extensive negotiation and may vary significantly among different CROs and study sites;
inadequate quantity or quality of a product candidate or other materials necessary to conduct clinical trials, for example delays in the
manufacturing of sufficient supply of finished drug product;
difficulties obtaining ethics committee or Institutional Review Board ("IRB") approval to conduct a clinical study at a prospective site or
sites;
challenges in recruiting and enrolling subjects to participate in clinical trials, the proximity of subjects to study sites, eligibility criteria for the
clinical study, the nature of the clinical study protocol, the availability of approved effective treatments for the relevant disease, and
competition from other clinical study programs for similar indications;
challenges and delays in activating planned clinical trial sites globally due to the impact of geopolitical tensions, including the ongoing armed
conflict in Israel and the Gaza Strip;
severe or unexpected drug-related side effects experienced by subjects in a clinical trial;
we may decide, or regulatory authorities may require us, to conduct additional nonclinical or clinical trials or abandon product development
programs;
delays in validating, or inability to validate, any endpoints utilized in a clinical trial;
the FDA or comparable foreign regulatory authorities may disagree with our clinical study design and our interpretation of data from clinical
trials, or may change the requirements for approval even after it has reviewed and commented on the design for our clinical trials; and
difficulties retaining subjects who have enrolled in a clinical trial but may be prone to withdrawal due to rigors of the clinical trials, lack of
efficacy, side effects, personal issues, or loss of interest.
Clinical trials may also be delayed or terminated as a result of ambiguous or negative interim results. In addition, a clinical study may be suspended
or terminated by us, the FDA or comparable foreign regulatory authorities, the IRBs at the sites where the IRBs are overseeing a clinical study, a data and
safety monitoring board ("DSMB") overseeing the clinical study at issue or other regulatory authorities due to a number of factors, including, among
others:
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failure to conduct the clinical study in accordance with regulatory requirements or our clinical protocols;
inspection of the clinical study operations or study sites by the FDA or other regulatory authorities that reveals deficiencies or violations that
require us to undertake corrective action, including in response to the imposition of a clinical hold;
unforeseen safety issues or safety signals, including any that could be identified in our ongoing nonclinical studies or clinical trials, adverse
side effects or lack of effectiveness;
changes in government regulations or administrative actions;
problems with clinical supply materials; and
lack of adequate funding to continue clinical trials.
Any inability to successfully complete nonclinical and clinical development could result in additional costs to us or impair our ability to generate
revenue. In addition, if we make changes to a product candidate, such as the drug product-device combination that we plan to use in the Phase 3
SYNCHRONY program, we may need to conduct additional nonclinical studies or clinical trials to bridge or demonstrate the comparability of our
modified product candidate to earlier versions, which could delay our clinical development plan or marketing approval for our current product candidate
and any future product candidates. Clinical trial delays could also shorten any periods during which we may have the exclusive right to commercialize our
product candidates or allow our competitors to bring products to market before we do, which could impair our ability to successfully commercialize our
product candidates and may harm our business and results of operations.
Clinical development is uncertain and our clinical trials for EFX and any future product candidates may experience delays, which would
adversely affect our ability to obtain regulatory approvals or commercialize these programs on a timely basis or at all, which would have an adverse
effect on our business.
We cannot be sure that we will be able to continue development of EFX or submit INDs or similar applications for any future product candidates,
on the timelines we expect, if at all. To proceed with our development plans and ultimately commercialization, we may need to conduct and meet
regulatory requirements for additional preclinical studies and clinical trials. We cannot be certain of the timely completion or outcomes of our preclinical
testing and
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studies and cannot predict if the FDA or other regulatory authorities will accept our proposed clinical programs or if the outcomes of our preclinical studies
and clinical trials will enable any future clinical trials to begin under a proposed protocol.
We rely and will continue to 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 and will continue to depend upon third parties, including independent investigators, to conduct our clinical trials under agreements
with universities, medical institutions, CROs, strategic partners and others. We expect to have 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, our reliance
on third parties does not relieve us of our regulatory responsibilities and 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. 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, regulatory authorities will determine that any of our
clinical trials comply with the GCP requirements. In addition, our clinical trials must be conducted with products produced under current good
manufacturing practice ("cGMP") requirements and may require a large number of patients. Our failure or any failure by these third parties to comply with
these applicable 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.
The third parties who conduct our clinical trials are not our employees and, except for remedies that may be available to us under our agreements
with those third parties, we cannot control whether or not they devote sufficient time and resources to our ongoing nonclinical 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 in a timely manner or at all. 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.
If CROs do not successfully carry out their contractual duties or obligations or meet expected deadlines or if the quality or accuracy of the
clinical data they obtain is compromised due to the failure (including by clinical sites or investigators) to adhere to our clinical protocols, regulatory
requirements or for other reasons, our clinical trials may be extended, delayed or terminated and we may not be able to obtain regulatory approval for or
successfully commercialize our product candidates. As a result, our results of operations and the commercial prospects for our product candidates
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would be harmed, our costs could increase substantially and our ability to generate revenues could be delayed significantly.
Risks Related to the Manufacturing of our Product Candidate
The manufacture of our product candidates is complex and we may encounter difficulties in production. If we or any of our third-party
manufacturers encounter such difficulties, or fail to meet rigorously enforced regulatory standards, 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 processes involved in manufacturing our product candidates, including pre-filled, dual-chamber syringe presentations of our product
candidates, are complex, expensive, highly regulated, and subject to multiple risks. Further, as product candidates are developed through nonclinical studies
to late-stage clinical trials towards 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.
In addition, the manufacturing process for any products that we may develop is subject to FDA and other comparable foreign regulatory
authority approval processes and continuous oversight, and we will need to contract with manufacturers who can meet all applicable FDA and foreign
regulatory authority requirements, including, for example, complying with cGMP, applicable product tracking and tracing requirements and applicable
QSRs, on an ongoing basis. If we or our third-party manufacturers 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 contract manufacturers 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 or comparability
nonclinical or clinical trials or the repetition of one or more clinical trials, increase clinical study costs, delay approval of our product candidate, impair
commercialization efforts, increase our cost of goods, and have an adverse effect on our business, financial condition, results of operations, and growth
prospects.
We are subject to many manufacturing risks, any of which could substantially increase our costs, delay clinical programs and limit supply of
our product candidates.
We have contracted with a third-party manufacturer, Boehringer Ingelheim, to make EFX drug substance (active pharmaceutical ingredient
("API")) and with another third-party manufacturer, Vetter Pharma International GmbH, or Vetter, to manufacture EFX drug product ("DP") including a
DP-device combination to be used in Phase 3 studies. We have successfully manufactured API and a DP-device combination under GMP conditions, which
have both been released for Phase 3 clinical use. We plan to enter into new commercial supply agreements with each of Boehringer Ingelheim and Vetter at
the appropriate time. For Phase 3 clinical studies, the formulation used for API manufacture has been modified to enable production of a lyophilized DP
rather than the frozen liquid used in Phase 2b studies. This change improves long-term pharmaceutical stability of the DP, making it suitable as the
potential commercial presentation. A program of pharmaceutical and clinical studies has shown that the DP-device presentation to be used in Phase 3
studies is comparable to that used for Phase 2b studies.
The process of manufacturing our product candidates is complex, highly regulated and subject to several risks, including:
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the manufacturing process is susceptible to product loss due to contamination by adventitious microorganisms, equipment failure, improper
installation or operation of equipment, vendor or operator error and improper storage conditions. Even minor deviations from normal
manufacturing processes could result in reduced production yields and quality as well as other supply disruptions. If microbial, viral, or other
contaminants are discovered in our products or in the manufacturing facilities in which our products are made, the manufacturing facilities
may need to be closed for an extended period of time to investigate and eliminate the contamination;
the manufacturing facilities in which our products are made could be adversely affected by equipment failures, labor and raw material
shortages, pandemics, epidemics, or outbreaks of infectious disease,
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financial difficulties of our contract manufacturers, natural disasters, power failures, local political unrest and numerous other factors; and
any adverse developments affecting manufacturing operations for our products may result in shipment delays, inventory shortages, lot
failures, product withdrawals or recalls or other interruptions in the supply of our products. We may also have to record inventory write-offs
and incur other charges and expenses for products that fail to meet specifications, undertake costly remediation efforts or seek more
expensive manufacturing alternatives.
The manufacture of EFX requires significant expertise and capital investment, including the development of advanced manufacturing techniques
and in-process controls. Manufacturers of these products sometimes encounter difficulties in production, especially during scale-up from the manufacturing
process used for early clinical trials to a validated and qualified process needed for pivotal clinical trials and commercial launch. These problems include
failure to meet target production costs and yields, failure to meet product release specifications, including stability of the product, quality assurance system
failures, operator error and shortages of qualified personnel, as well as compliance with strictly enforced federal, state and foreign regulations. We cannot
assure you that any product quality issues relating to the manufacture of our product candidate or any future product candidates will not occur in the future.
We do not have, and we do not currently plan to acquire or build the facilities or internal capabilities to manufacture bulk drug substance,
finished drug product or delivery device for use in clinical trials or commercialization. To a large extent, that makes us dependent on the goodwill of our
contract manufacturing partners to quickly fix deviations that will inevitably occur during the manufacturing of our product and to manufacture API and/or
the DP-device combination in sufficient quantities to meet commercial demand, if approved for marketing. Any delay or interruption in the supply of
clinical trial materials on our contract manufacturing partners, could delay the completion of clinical trials, increase the costs associated with maintaining
clinical trial programs and, depending upon the period of delay, require us to commence new clinical trials at additional expense or terminate clinical trials
altogether.
A new lyophilized EFX DP-device combination product for commercial use is being evaluated in the Phase 3 SYNCHRONY program.
We contract with third parties for the manufacture of EFX and the delivery device utilized for EFX and expect to continue to do so for future
clinical trials and for commercialization of EFX as well as for any future product candidates. This reliance on third parties increases the risk that we
will not have sufficient quantities of EFX, or the delivery devices utilized for EFX, or any future product candidates or medicines or that such supply
will not be available to us at an acceptable cost, which could delay, prevent or impair our development or commercialization efforts.
We do not have any manufacturing facilities. We currently rely, and expect to continue to rely, on third-party manufacturers for the manufacture
of EFX, delivery devices utilized for EFX or any future product candidates for nonclinical and clinical testing and for commercial supply of any of these
product candidates for which we obtain marketing approval. Reliance on third-party manufacturers may expose us to different risks than if we were to
manufacture product candidates ourselves. To the extent any issues arise with our third-party manufacturers, we may be unable to establish any agreements
with any other third-party manufacturers or to do so on acceptable terms. Even if we are able to establish agreements with third-party manufacturers,
reliance on third-party manufacturers entails additional risks, including:
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the possible breach of the manufacturing agreement by the third party;
the possible termination or nonrenewal of the agreement by the third party at a time that is costly or inconvenient for us; and
reliance on the third party for regulatory compliance, quality assurance and safety and pharmacovigilance reporting.
Third-party manufacturers may not be able to comply with cGMP regulations or similar regulatory requirements outside the United States. For
our product candidates that are biologic-device combination products, third-party manufacturers may not be able to comply with cGMP regulatory
requirements applicable to biologic-device combination products, including applicable provisions of the FDA’s drug product cGMP regulations, device
cGMP requirements embodied in the FDA’s Quality System Regulation ("QSR") or similar regulatory requirements outside the United States. Our failure,
or the failure of third-party manufacturers, to comply with applicable regulations could result
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in sanctions being imposed on us, including fines, injunctions, civil penalties, delays, suspension or withdrawal of approvals, license revocation, seizures or
recalls of product candidates or medicines, operating restrictions and criminal prosecutions, any of which could significantly and adversely affect supplies
of our medicines and harm our business and results of operations.
If any CMO with whom we contract fails to perform its obligations, we may be forced to manufacture the materials ourselves, for which we may
not have the capabilities or resources, or enter into an agreement with a different CMO, which we may not be able to do on reasonable terms, if at all. In
either scenario, our clinical trials supply could be delayed significantly as we establish alternative supply sources. In some cases, the technical skills
required to manufacture our product candidates may be unique or proprietary to the original CMO and we may have difficulty, or there may be contractual
restrictions prohibiting us from, transferring such skills to a back-up or alternate supplier, or we may be unable to transfer such skills at all. In addition, if
we are required to change CMOs for any reason, we will be required to verify that the new CMO maintains facilities and procedures that comply with
quality standards and with all applicable regulations. We will also need to verify, such as through a manufacturing comparability study, that any new
manufacturing process will produce our product candidate according to the specifications previously submitted to or approved by the FDA or another
regulatory authority. The delays associated with the verification of a new CMO could negatively affect our ability to develop product candidates or
commercialize our products in a timely manner or within budget. Furthermore, a CMO may possess technology related to the manufacture of our product
candidate that such CMO owns independently. This would increase our reliance on such CMO or require us to obtain a license from such CMO in order to
have another CMO manufacture our product candidates. In addition, in the case of CMOs that supply our product candidate, changes in manufacturers
often involve changes in manufacturing procedures and processes, which could require that we conduct bridging studies between our prior clinical supply
used in our clinical trials and that of any new manufacturer. We may be unsuccessful in demonstrating the comparability of clinical supplies which could
require the conduct of additional clinical trials. Any medicines that we may develop may compete with other product candidates and products 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.
Any performance failure on the part of our existing or future manufacturers could delay clinical development or marketing approval. We do not
currently have arrangements in place for redundant supply of bulk drug substance or for the manufacture of our drug product-delivery device combination.
If any one of our current contract manufacturers cannot perform as agreed, we may be required to replace that manufacturer. Although we believe that there
potentially are alternative manufacturers who could manufacture our drug substance or drug product-delivery device combination or any future product
candidates, we may incur added costs and delays in identifying and qualifying any such replacement.
Our current and anticipated future dependence upon others for the manufacture of EFX or any future product candidates or medicines may
adversely affect our future profit margins and our ability to commercialize any medicines that receive marketing approval on a timely and competitive
basis.
Risks Related to Our Business, Industry and Intellectual Property
Risks Related to Business Development
We are heavily dependent on the success of EFX, our only product candidate.
We currently have no products that are approved for commercial sale and may never be able to develop marketable products. We expect that a
substantial portion of our efforts and expenditures over the next several years will be devoted to EFX, which is currently our only product candidate.
Accordingly, our business currently depends heavily on the successful development, regulatory approval, and commercialization of EFX. We cannot be
certain that EFX will receive regulatory approval or be successfully commercialized even if we receive regulatory approval. If we were required to
discontinue development of EFX or if EFX does not receive regulatory approval or fails to achieve significant market acceptance, we would be delayed by
many years in our ability to achieve profitability, if ever.
The research, testing, manufacturing, safety, efficacy, labeling, approval, sale, marketing, and distribution of EFX is, and will remain, subject to
comprehensive regulation by the FDA and foreign regulatory authorities. Failure to
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obtain regulatory approval for EFX in the United States, Europe, Japan or other jurisdictions will prevent us from commercializing and marketing EFX in
such jurisdictions.
Clinical development of EFX prior to the BALANCED study was conducted by Amgen, Inc. ("Amgen") in patients with type 2 diabetes. We did
not conduct any of the development of EFX related to clinical trials in patients with T2D, and we have relied on Amgen to have conducted such research
and development in accordance with the applicable protocol, legal, regulatory, and scientific standards, have accurately reported the results of all
nonclinical studies and clinical trials conducted prior to our license of EFX, and have correctly collected and interpreted the data from these studies and
trials. To the extent any of the foregoing has not occurred, our expected development time and development costs for EFX may be increased.
Even if we were to successfully obtain approval from the FDA and foreign regulatory authorities for EFX, any approval might contain significant
limitations related to use, including limitations on the stage of disease EFX is approved to treat, as well as restrictions for specified age groups, warnings,
precautions or contraindications. Furthermore, even if we obtain regulatory approval for EFX, we will still need to develop a commercial infrastructure or
develop relationships with collaborators to commercialize, establish a commercially viable pricing structure and obtain coverage and adequate
reimbursement from third-party payors, including government healthcare programs. If we, or any future collaborators, are unable to successfully
commercialize EFX, we may not be able to generate sufficient revenue to continue our business.
We have expended and will continue to expend our limited resources to pursue a particular therapeutic candidate or indication, such as our
focus on developing EFX for the treatment of MASH, and may fail to capitalize on therapeutic candidates or indications that may be more profitable or
for which there is a greater likelihood of success.
We have focused our extensive research and development efforts on EFX for the treatment of MASH. Therefore, we have, and in the future may,
forego or delay pursuit of opportunities with other therapeutic candidates or for other indications that later prove to have greater commercial potential. We
are highly dependent on the success of the future clinical trials of EFX, the outcomes of which are uncertain. Because EFX is our first and only therapeutic
candidate, if it encounters safety, efficacy, supply or manufacturing problems, developmental delays, regulatory or commercialization issues or other
problems, the value of our platform could be greatly diminished and our development plans could be curtailed and our business would be significantly
harmed.
Our resource allocation decisions may cause us to fail to capitalize on viable commercial products or profitable market opportunities. Our
spending on current and future research and development programs and EFX for the treatment of MASH may not yield any commercially viable
therapeutic candidates. If we do not accurately evaluate the commercial potential or target market for a particular therapeutic candidate or misread trends in
the biopharmaceutical industry, in particular for serious metabolic diseases, we may relinquish valuable rights to that therapeutic candidate through
collaboration, licensing or other royalty arrangements in cases in which it would have been more advantageous for us to retain sole development and
commercialization rights to such therapeutic candidate.
At any time and for any reason, we may determine that one or more of our discovery programs or pre- clinical or clinical therapeutic candidates
or programs does not have sufficient potential to warrant the allocation of resources toward such program or therapeutic candidate. Accordingly, we may
choose not to develop a potential therapeutic candidate or elect to suspend, deprioritize or terminate one or more of our discovery programs or preclinical
or clinical therapeutic candidates or programs. Suspending, deprioritizing or terminating a program or therapeutic candidate in which we have invested
significant resources, means we will have expended resources on a program that will not provide a full return on our investment and may have missed the
opportunity to have allocated those resources to potentially more productive uses, including existing or future programs or therapeutic candidates.
If we fail to develop and successfully commercialize other product candidates, our business and future prospects may be harmed and our
business will be more vulnerable to any problems that we encounter in developing and commercializing our product candidate.
Our product candidate and any future product candidates must undergo rigorous clinical trials and regulatory approvals, and success in
nonclinical studies or earlier-stage clinical trials may not be indicative of results in future clinical trials. EFX and any future product candidates will be
subject to rigorous and extensive clinical trials and
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extensive regulatory approval processes implemented by the FDA and similar regulatory bodies in other jurisdictions. The approval process is typically
lengthy and expensive, and approval is never certain. As a company, our only experience with clinical trials is our completed BALANCED study, our
HARMONY study, for which we have reported week 24 results, and our ongoing SYMMETRY study, for which we have reported Week 36 results, and we
have not yet completed the clinical trials required to obtain regulatory approval. We may not be able to conduct clinical trials at preferred sites, enlist
clinical investigators, enroll sufficient numbers of participants or begin or successfully complete clinical trials in a timely fashion, if at all. Our anticipated
clinical trials, including our SYNCHRONY Phase 3 trials, of which we dosed the first patients in December 2023, may be insufficient to demonstrate that
our potential products will be safe or effective. Additional clinical trials may be required if clinical trial results are negative or inconclusive, which will
require us to incur additional costs and significant delays.
Success in nonclinical studies and earlier-stage clinical trials does not ensure that later clinical trials will generate the same results or otherwise
provide adequate data to demonstrate the effectiveness and safety of a product candidate. In addition, the design of a clinical trial can determine whether its
results will support approval of a product, and flaws in the design of a clinical trial may not become apparent until the clinical trial is well advanced. We
may be unable to design and execute a clinical trial to support regulatory approval for a MASH therapy. In addition, there is a high failure rate for drugs
and products proceeding through clinical trials. In fact, many companies in the pharmaceutical and biotechnology industries have suffered significant
setbacks in late-stage clinical trials even after achieving promising results in nonclinical studies and earlier-stage clinical trials. Similarly, the outcome of
nonclinical studies may not predict the success of clinical trials. Moreover, data obtained from nonclinical and clinical activities are subject to varying
interpretations, which may delay, limit or prevent regulatory approval. In addition, we may experience regulatory delays or rejections as a result of many
factors, including due to changes in regulatory policy during the period of our product development. Additionally, we are developing a pre-filled, dual-
chamber syringe presentation of EFX that is considered to be a biologic-device combination product by the FDA, and any BLA for EFX will require
review and coordination by FDA’s drug and device centers prior to approval. Any such delays could negatively impact our business, financial condition,
results of operations and prospects. From time to time, we may publish interim ‘‘top-line’’ or preliminary data from our clinical trials. Preliminary or
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. Preliminary or interim 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. Adverse differences between preliminary or interim data and final data could significantly harm our
business and financial prospects.
In addition, certain of our hypotheses regarding the potential clinical and therapeutic benefit of EFX compared to other candidates in
development for MASH are based on cross-trial comparisons of results that were not derived from head-to-head preclinical studies or clinical trials. These
observations, which do not reflect robust comparative analyses, may suggest misleading similarities or differences due to differences in study protocols,
conditions and patient populations, and may not be reliable predictors of the relative efficacy or other benefits of EFX compared to other product
candidates that are in development for the treatment of MASH.
We may develop EFX, and potentially future product candidates, in combination with other therapies, which exposes us to additional risks.
We may develop EFX and future product candidates in combination with one or more approved therapies. Even if any product candidate we
develop were to receive marketing approval or be commercialized for use in combination with other existing therapies, we would continue to be subject to
the risks that the FDA or similar regulatory authorities outside of the United States could revoke approval of the therapy used in combination with our
product candidate or that safety, efficacy, manufacturing or supply issues could arise with these existing therapies. This could result in our own products
being removed from the market or being less successful commercially.
We may also evaluate EFX or any other future product candidates in combination with one or more other therapies that have not yet been
approved for marketing by the FDA or similar regulatory authorities outside of the United States. We will not be able to market and sell EFX or any
product candidate we develop in combination with any such unapproved therapies that do not ultimately obtain marketing approval. If the FDA or similar
regulatory authorities outside of the United States do not approve these other drugs or revoke their approval, or if safety, efficacy, manufacturing, or supply
issues arise with the drugs we choose to evaluate in combination with EFX or any other
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product candidate we develop, we may be unable to obtain approval of or market EFX or any other product candidate we develop.
If we are not successful in discovering, developing, receiving regulatory approval for and commercializing EFX and any future product
candidates, our ability to expand our business and achieve our strategic objectives would be impaired.
Although we plan to devote a majority of our resources to the continued nonclinical and clinical testing and potential approval of EFX for the
treatment of patients with MASH, another key element of our strategy is to discover, develop and commercialize a portfolio of products. We are seeking to
do so through the identification and potential development of additional pipeline programs, but our resources are limited, and those that we have are geared
towards nonclinical and clinical testing and seeking regulatory approval of EFX for the treatment of patients with MASH. We may also explore strategic
collaborations for the development or acquisition of new product candidates, but we may not be successful in entering into such relationships. EFX is our
only product candidate in clinical stages of development. Research programs to identify product candidates require substantial technical, financial and
human resources, regardless of whether any product candidates are ultimately identified. Our research programs may initially show promise in identifying
potential product candidates, yet fail to yield product candidates for clinical development for many reasons, including:
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the research methodology used may not be successful in identifying potential product candidates;
competitors may develop alternatives that render our product candidates obsolete;
product candidates we develop may nevertheless be covered by third parties’ patents or other exclusive rights;
a product candidate may, on further study, be shown to have harmful side effects or other characteristics that indicate it is unlikely to be
effective or otherwise does not meet applicable regulatory criteria;
a product candidate may not be capable of being produced in commercial quantities at an acceptable cost, or at all;
an approved product may not be accepted as safe and effective by trial participants, the medical community or third-party payors; and
intellectual property or other proprietary rights of third parties for product candidates we develop may potentially block our entry into certain
markets or make such entry economically impracticable.
Risks Related to our License and Third-Parties
We may be required to make significant payments under our license agreement for EFX.
We acquired worldwide, exclusive rights to EFX pursuant to our license agreement with Amgen, which we refer to as the Amgen Agreement.
Under the Amgen Agreement, in consideration for the license, we made an upfront payment of $5.0 million to Amgen and also issued 2,653,333 shares of
our Series A convertible preferred stock to Amgen at the time of the initial closing of our Series A Preferred Stock financing in June 2018, with a
subsequent 3,205,128 shares of our Series A convertible preferred stock issued at the time of the second closing of the Series A Preferred Stock financing
in November 2018. On July 2, 2019, we announced the dosing of the first patient in the BALANCED study of EFX, which resulted in a $2.5 million
milestone obligation under the Amgen Agreement. Additionally, we paid Amgen $7.5 million in December 2023 in connection with dosing the first patient
in our Phase 3 SYNCHRONY program. As additional consideration for the license, we are required to pay Amgen up to $30.0 million in connection with
marketing approvals and aggregate milestone payments of up to $75.0 million upon the achievement of specified commercial milestones. Commencing on
the first commercial sale of licensed products, we are obligated to pay tiered royalties of low to high single-digit percentages on annual net sales of the
products covered by the license. If milestone or other non-royalty obligations become due, we may not have sufficient funds available to meet our
obligations, which will materially adversely affect our business operations and financial condition.
If we breach our license agreement with Amgen related to EFX, we could lose the ability to continue the development and commercialization
of EFX.
We are dependent on patents, know-how and proprietary technology in-licensed from Amgen. Our commercial success depends upon our ability
to develop, manufacture, market and sell our product candidate or any future product candidates and use our and our licensor’s proprietary technologies
without infringing the proprietary rights of third
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parties. Amgen may have the right to terminate the license agreement in full in the event we materially breach or default in the performance of any of the
obligations under the license agreement. A termination of the license agreement with Amgen could result in the loss of significant rights and could harm
our ability to commercialize our product candidates.
Disputes may also arise between us and Amgen, as well as any future potential licensors, regarding intellectual property subject to a license
agreement, including:
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the scope of rights granted under the license agreement and other interpretation-related issues;
whether and the extent to which our technology and processes infringe on intellectual property of the licensor that is not subject to the
licensing agreement;
our right to sublicense patent and other rights to third parties under collaborative development relationships;
our diligence obligations with respect to the use of the licensed technology in relation to our development and commercialization of our
product candidate and what activities satisfy those diligence obligations; and
the ownership of inventions and know-how resulting from the joint creation or use of intellectual property by our licensors and us and our
partners.
If disputes over intellectual property that we have licensed prevent or impair our ability to maintain our current licensing arrangements on
acceptable terms, we may be unable to successfully develop and commercialize the affected product candidates.
In addition, the Amgen Agreement under which we currently license intellectual property is complex, and certain provisions may be susceptible
to multiple interpretations. The resolution of any contract interpretation disagreement that may arise could narrow what we believe to be the scope of our
rights to the relevant intellectual property, or increase what we believe to be our financial or other obligations under the Amgen Agreement, either of which
could have a material adverse effect on our business, financial condition, results of operations, and prospects. Moreover, if disputes over intellectual
property that we have licensed prevent or impair our ability to maintain our current licensing arrangement on commercially acceptable terms, we may be
unable to successfully develop and commercialize the affected product candidates, which could have a material adverse effect on our business, financial
conditions, results of operations, and prospects.
We are generally also subject to all of the same risks with respect to protection of intellectual property that we license, as we are for intellectual
property that we own, which are described below. If we or our licensors fail to adequately protect this intellectual property, our ability to commercialize
products could suffer.
We may seek to establish collaborations, and, if we are not able to establish them on commercially reasonable terms, we may have to alter our
development and commercialization plans.
We may pursue collaborations in order to develop and commercialize EFX and any future product candidates. We face significant competition in
seeking appropriate collaborators. Whether we 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. Those factors may include the design or results of clinical trials, the likelihood of approval by the FDA or similar regulatory authorities outside the
United States, the potential market for the subject product candidate, the costs and complexities of manufacturing and delivering such product candidate to
patients, the potential of competing products and the existence of uncertainty with respect to our ownership of technology, which can exist if there is a
challenge to such ownership without regard to the merits of the challenge and industry and market conditions generally. The collaborators may also
consider alternative product candidates or technologies for similar indications that may be available to collaborate on and whether such a collaboration
could be more attractive than the one with us for our product candidate.
Collaborations are complex and time-consuming to negotiate and document. In addition, there have been a significant number of business
combinations among large pharmaceutical companies that have resulted in a reduced number of potential future collaborators.
We may not be able to negotiate collaborations on a timely basis, on acceptable terms, or at all. If we are unable to do so, we may have to curtail
the development of the product candidate for which we are seeking to collaborate, reduce or delay its development program or one or more of our other
development programs, delay its potential
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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 capital, which may not be available to us on acceptable terms, or at all. If we do not have sufficient funds, we may not be able to further
develop our product candidate or any future product candidates or bring them to market and generate product revenue.
Risks Related to Employee Matters and Growth
We must attract and retain highly skilled employees in order to succeed. If we are not able to retain our current senior management team and
our scientific advisors or continue to attract and retain qualified scientific, technical and business personnel, our business will suffer.
To succeed, we must recruit, retain, manage and motivate qualified clinical, scientific, technical and management personnel and we face
significant competition for experienced personnel. If we do not succeed in attracting and retaining qualified personnel, particularly at the management
level, it could adversely affect our ability to execute our business plan and harm our operating results. We are dependent on the members of our
management team and our scientific advisors for our business success. We do not maintain “key person” insurance for any of our key personnel. An
important element of our strategy is to take advantage of the research and development expertise of our current management and to utilize the expertise of
our scientific advisors in the MASH field. We currently have employment agreements with all of our executive officers. Our employment agreements with
our executive officers are terminable by them without notice and some provide for severance and change in control benefits. The loss of any one of our
executive officers or key scientific consultants could result in a significant loss in the knowledge and experience that we, as an organization, possess and
could cause significant delays, or outright failure, in the development and further commercialization of our product candidate or any future product
candidates.
There is intense competition for qualified personnel, including management, in the technical fields in which we operate, and we may not be able
to attract and retain qualified personnel necessary for the successful research, development and commercialization of EFX or any future product candidates.
In particular, we have experienced a very competitive hiring environment in the San Francisco Bay Area, where we are headquartered. Many of the other
pharmaceutical companies that we compete against for qualified personnel have greater financial and other resources, different risk profiles and a longer
history in the industry than we do. They also may provide more diverse opportunities and better chances for career advancement. Some of these
characteristics may be more appealing to high-quality candidates than what we have to offer. If we are unable to continue to attract and retain high-quality
personnel, the rate and success with which we can discover and develop product candidates and our business will be limited.
Our employees, independent contractors, consultants, commercial partners and vendors may engage in misconduct or other improper
activities, including noncompliance with regulatory standards and requirements.
We cannot ensure that our compliance controls, policies, and procedures will in every instance protect us from acts committed by our employees,
agents, contractors, or collaborators that would violate the law or regulation, including, without limitation, healthcare, employment, foreign corrupt
practices, environmental, competition, and patient privacy and other privacy laws and regulations. Such improper actions could subject us to civil or
criminal investigations, and monetary and injunctive penalties, and could adversely impact our ability to conduct business, operating results, and
reputation.
We are exposed to the risk of employee fraud or other illegal activity by our employees, independent contractors, consultants, commercial
partners and vendors. Misconduct by these parties could include intentional, reckless and/or negligent conduct that fails to comply with the laws enforced
by the FDA and other similar foreign regulatory bodies, fails to provide true, complete and accurate information to the FDA and other similar foreign
regulatory bodies, fails to comply with manufacturing standards we have established, fails to comply with healthcare fraud and abuse laws in the United
States and similar foreign laws, or fails to report financial information or data accurately or to disclose unauthorized activities to us. If we obtain FDA
approval of any of our product candidates and begin commercializing those products in the United States, our potential exposure under these laws will
increase significantly, and our costs associated with compliance with these laws are also likely to increase. Additionally, we are subject to the risk that a
person could allege such fraud or other misconduct, even if none occurred. 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. If any such actions are instituted against us,
and we are not
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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, 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. It is not always possible to identify and deter employee misconduct, and the
precautions we take to detect and prevent this activity may not be effective in controlling unknown or unmanaged risks or losses or in protecting us from
government investigations or other actions or lawsuits stemming from a failure to comply with these laws or regulations. If any such actions are instituted
against us and we are not successful in defending ourselves or asserting our rights, those actions could result in significant civil, criminal and administrative
penalties, damages, fines, disgorgement, imprisonment, exclusion from government funded healthcare programs, such as Medicare and Medicaid, integrity
oversight and reporting obligations, and the curtailment or restructuring of our operations.
We may encounter difficulties in managing our growth, which could adversely affect our operations.
As of February 23, 2024, we had 55 full-time employees and one part-time employee. As we continue development and pursue the potential
commercialization of EFX and other product candidates, as well as function as a public company, we will need to expand our financial, development,
regulatory, manufacturing, marketing and sales capabilities or contract with third parties to provide these capabilities for us. As our operations expand, we
expect that we will need to manage additional relationships with various strategic collaborators, suppliers and other third parties. Our future financial
performance and our ability to develop and commercialize our product candidate and to compete effectively will depend, in part, on our ability to manage
any future growth effectively.
We may acquire additional technology and complementary businesses in the future. Acquisitions involve many risks, any of which could
materially harm our business, including the diversion of management’s attention from core business concerns, failure to effectively exploit acquired
technologies, failure to successfully integrate the acquired business or realize expected synergies or the loss of key employees from either our business or
the acquired businesses.
Risks Related to Protecting Our Intellectual Property
Our success depends upon our ability to obtain and maintain intellectual property protection for our products and technologies. It is difficult
and costly to protect our proprietary rights and technology, and we may not be able to ensure their protection.
Our success will depend in significant part on our and our current or future licensors’, licensees’ or collaborators’ ability to establish and
maintain adequate protection of our intellectual property covering the product candidates we plan to develop, and the ability to develop these product
candidates and commercialize the products resulting therefrom, without infringing the intellectual property rights of others. We strive to protect and
enhance the proprietary technologies that we believe are important to our business, including seeking patents intended to cover our products and
compositions, their methods of use, and any other inventions that are important to the development of our business. In addition to taking other steps to
protect our intellectual property, we have applied for, and intend to continue to apply for, patents with claims covering our technologies, processes and
product candidates when and where we deem it appropriate to do so. Our in-licensed patents and patent applications in both United States and certain
foreign jurisdictions relate to EFX and related Fc-fusion polypeptides. There can be no assurance that the claims of our patents or any patent application
that issues as a patent, will exclude others from making, using or selling our product candidate or any future product candidates or products that are
substantially similar to our product candidate or any future product candidates. We also rely on trade secrets to protect aspects of our business that are not
amenable to, or that we do not consider appropriate for, patent protection. In countries where we have not and do not seek patent protection, third parties
may be able to manufacture and sell our product candidate or any future product candidates without our permission, and we may not be able to stop them
from doing so.
With respect to patent rights, we do not know whether any of the pending patent applications for our product candidate or any future product
candidates will result in the issuance of patents that effectively protect our technologies, processes and product candidates, or if any of our issued patents or
our current or future licensors’, licensees’ or collaborators’ issued patents will effectively prevent others from commercializing competitive technologies,
processes and products. 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
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cases not at all, until they are issued as a patent. Therefore, we cannot be certain that we or our current or future licensors, licensees or collaborators were
the first to make or file on the inventions claimed in our owned or licensed patents or pending patent applications, or that we or our current or future
licensors, licensees or collaborators were the first to file for patent protection of such inventions. There is also no assurance that all of the potentially
relevant prior art relating to our patents and patent applications has been found, which could be used by a third party to challenge the validity of our
patents, should they issue, or prevent a patent from issuing from a pending patent application. Any of the foregoing could harm our competitive position,
business, financial condition, results of operations, and prospects.
Any changes we make to our product candidate or any future product candidates, including formulations that may be required for
commercialization, or that cause them to have what we view as more advantageous properties may not be covered by our existing patents and patent
applications, and we may be required to file new applications and/or seek other forms of protection for any such altered product candidates. The patent
landscape surrounding the technology underlying our product candidate or any future product candidates is crowded, and there can be no assurance that we
would be able to secure patent protection that would adequately cover an alternative to our product candidate or any future product candidates.
The patent prosecution process is expensive and time-consuming, and we and our current or future licensors, licensees or collaborators may not
be able to prepare, file and prosecute all necessary or desirable patent applications at a reasonable cost or in a timely manner. It is also possible that we or
our current or future licensors, licensees or collaborators will fail to identify patentable aspects of inventions made in the course of development and
commercialization activities before it is too late to obtain patent protection for them. Moreover, in some circumstances, we may not have the right to
control the preparation, filing and prosecution of patent applications, or to maintain or enforce the patents, covering technology that we license from or
license to third parties and may be reliant on our current or future licensors, licensees or collaborators to perform these activities, which means that these
patent applications may not be prosecuted, and these patents enforced, in a manner consistent with the best interests of our business. If our current or future
licensors, licensees or collaborators fail to establish, maintain, protect or enforce such patents and other intellectual property rights, such rights may be
reduced or eliminated. If our current or future licensors, licensees or collaborators 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.
The patent positions of biotechnology and pharmaceutical companies, including our patent position, involve complex legal and factual questions,
which in recent years have been the subject of much litigation, and, therefore, the issuance, scope, validity, enforceability, and commercial value of any
patent claims that we have rights or may obtain cannot be predicted with certainty. No consistent policy regarding the breadth of claims allowed in
biotechnology and pharmaceutical patents has emerged to date in the United States or in many foreign jurisdictions. Changes in either the patent laws or
interpretation of the patent laws in the United States and other countries may diminish the value of our patents or narrow the scope of our patent protection.
As a result, the issuance, scope, validity, enforceability and commercial value of our and our current or future licensors’, licensees’ or collaborators’ patent
rights are highly uncertain. Our and our current or future licensors’, licensees’ or collaborators’ pending and future patent applications may not result in
patents being issued that protect our technology or product candidates, or products resulting therefrom, in whole or in part, or that effectively prevent others
from commercializing competitive technologies and products. The patent examination process may require us or our current or future licensors, licensees or
collaborators to narrow the scope of the claims of pending and future patent applications, which would limit the scope of patent protection that is obtained,
if any. Our and our current or future licensors’, licensees’ or collaborators’ patent applications cannot be enforced against third parties practicing the
technology that is currently claimed in such applications unless and until a patent issues from such applications, and then only to the extent the claims that
issue are broad enough to cover the technology being practiced by third parties.
Furthermore, given the amount of time required for the development, testing and regulatory review of new product candidates, patents protecting
such candidates might expire before or shortly after the resulting products are commercialized. As a result, our owned and in-licensed patents may not
provide us with sufficient rights to exclude others from commercializing products similar or identical to ours. We expect to seek extensions of patent terms
for our issued patents, where available. This includes in the United States under the Hatch-Waxman Act, which permits a patent term extension of up to
five years beyond the original expiration date of the patent as compensation for regulatory delays. However, such a patent term extension cannot lengthen
the remaining term of a patent beyond a total of 14 years from the product’s approval date. Only one patent applicable to an approved drug is eligible for
the extension and the application for the extension must be submitted prior to the expiration of the patent and within 60 days of product
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approval. During the period of patent term extension, the claims of a patent are not enforceable for their full scope but are instead limited to the scope of the
approved product. In addition, the applicable authorities, including the FDA in the United States, and any equivalent regulatory authority in other countries,
may not agree with our assessment of whether such extensions are available, and may refuse to grant extensions to our patents, or may grant more limited
extensions than we request. In addition, we may not be granted an extension because of, for example, failing to apply within applicable deadlines, failing to
apply prior to the expiration of relevant patents or otherwise failing to satisfy applicable requirements. If this occurs, any period during which we have the
right to exclusively market our product will be shorter than we would otherwise expect, and our competitors may obtain approval of and launch products
earlier than might otherwise be the case.
Patent terms may be inadequate to protect our competitive position on our product candidate or any future product candidates for an
adequate amount of time.
Patents have a limited lifespan. In the United States, if all maintenance fees are timely paid, the natural expiration of a patent is generally 20
years from its earliest U.S. non-provisional filing date. Various extensions may be available, but the life of a patent, and the protection it affords, is limited.
A number of U.S. patents directed to various aspects of EFX will expire in 2029; we currently anticipate that a composition of matter patent will be eligible
for patent term extension to 2034. Even if patents covering our product candidate or any future product candidate are obtained, once the patent life has
expired, we may be open to competition from competitive products. Given the amount of time required for the development, testing and regulatory review
of new product candidates, patents protecting our product candidate or any future product candidate might expire before or shortly after we or our partners
commercialize those candidates. As a result, our owned and licensed patent portfolio may not provide us with sufficient rights to exclude others from
commercializing products similar or identical to ours.
We may not be able to protect our intellectual property rights throughout the world.
The legal protection afforded to inventors and owners of intellectual property in countries outside of the United States may not be as protective
or effective as that in the United States and we may, therefore, be unable to acquire and enforce intellectual property rights outside the United States to the
same extent as in the United States. Whether filed in the United States or abroad, our patent applications may be challenged or may fail to result in issued
patents.
In addition, our existing patents and any future patents we obtain may not be sufficiently broad to prevent others from practicing our
technologies or from developing or commercializing competing products. Furthermore, others may independently develop or commercialize similar or
alternative technologies or drugs, or design around our patents. Our patents may be challenged, invalidated, circumvented or narrowed, or fail to provide us
with any competitive advantages. In many foreign countries, patent applications and/or issued patents, or parts thereof, must be translated into the native
language. If our patent applications or issued patents are translated incorrectly, they may not adequately cover our technologies; in some countries, it may
not be possible to rectify an incorrect translation, which may result in patent protection that does not adequately cover our technologies in those countries.
Filing, prosecuting, enforcing and defending patents on product candidates in all countries throughout the world would be prohibitively
expensive, and our intellectual property rights in some countries outside the United States are less extensive than those in the United States. In addition, the
laws of some foreign countries do not protect intellectual property rights to the same extent as federal and certain state laws in the United States.
Consequently, we and our licensor may not be able to prevent third parties from practicing our and our licensor’s inventions in all countries outside the
United States, or from selling or importing products made using our and our licensor’s inventions in and into the United States or other jurisdictions. For
example, the complexity and uncertainty of European patent laws have increased in recent years. In Europe, the new unitary patent system that came into
effect in 2023 would significantly impact European patents, including those granted before the introduction of such a system. Under the unitary patent
system, European applications will have the option, upon grant of a patent, of becoming a Unitary Patent which will be subject to the jurisdiction of the
Unitary Patent Court, or UPC. As the UPC is a new court system, there is no precedent for the court, increasing the uncertainty of any litigation. Patents
that remain under the jurisdiction of the UPC will be potentially vulnerable to a single UPC-based revocation challenge that, if successful, could invalidate
the patent in all countries who are signatories to the UPC. We cannot predict with certainty the long-term effects of any potential changes. Competitors may
use our and our licensor’s 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 and our licensor have patent protection, but enforcement is not as strong as that in the United States.
These products may
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compete with our product candidate or any future product candidates and our and our licensor’s 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 biotechnology. This could make it difficult for us and our licensor to stop the infringement of our and our licensor’s
patents or the marketing of competing products in violation of our and our licensor’s proprietary rights, generally. Proceedings to enforce our and our
licensor’s patent rights in foreign jurisdictions could result in substantial costs and divert our and our licensor’s efforts and attention from other aspects of
our business, could put our and our licensor’s patents at risk of being invalidated or interpreted narrowly, could place our and our licensor’s patent
applications at risk of not issuing and could provoke third parties to assert claims against us or our licensor. We or our licensor may not prevail in any
lawsuits that we or our licensor initiate and the damages or other remedies awarded, if any, may not be commercially meaningful.
The requirements for patentability 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, India, certain countries in Europe and
certain developing countries, including Thailand, have compulsory licensing laws under which a patent owner may be compelled to grant licenses to third
parties. In those countries, we and our licensor may have limited remedies if patents are infringed or if we or our licensor are compelled to grant a license to
a third party, which could materially diminish the value of those patents. This could limit our potential revenue opportunities. In addition, many countries
limit the enforceability of patents against government agencies or government contractors. In these countries, the patent owner may have limited remedies,
which could materially diminish the value of such patent. Accordingly, our and our licensor’s efforts to enforce intellectual property rights around the
world may be inadequate to obtain a significant commercial advantage from the intellectual property that we own or license.
Obtaining and maintaining our patent protection depends on compliance with various procedural, document submission, 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 and annuity fees on issued United States patents and most foreign patent applications and patents must be paid to the U.S.
Patent and Trademark Office ("USPTO") and foreign patent agencies, respectively, in order to maintain such patents and patent applications. The USPTO
and various foreign governmental patent agencies require compliance with a number of procedural, documentary, fee payment and other similar provisions
during the patent application, examination and issuance processes. While an inadvertent lapse can, in some cases, be cured by payment of a late fee or by
other means in accordance with the applicable rules, 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. Non-compliance events that could result in abandonment or
lapse of a patent or patent application include failure to respond to official actions within prescribed time limits, non-payment of fees and failure to
properly legalize and submit formal documents. If we or our licensor fail to maintain the patents and patent applications covering our product candidate or
any future product candidates, our competitors might be able to enter the market with similar or identical products or technology, which would have a
material adverse effect on our business, financial condition and results of operations.
We may be unable to obtain intellectual property rights or technology necessary to develop and commercialize EFX or any future product
candidates.
Several third parties are actively researching and seeking and obtaining patent protection in the MASH field, and there are issued third-party
patents and published third-party patent applications in these fields. However, we may not be aware of all third-party intellectual property rights potentially
relating to our product candidate or any future product candidates and technologies.
Depending on what patent claims ultimately issue and how courts construe the issued patent claims, as well as depending on the ultimate
formulation and method of use of our product candidate or any future product candidates, we may need to obtain a license under such patents. There can be
no assurance that such licenses will be available on commercially reasonable terms, or at all. If a third party does not offer us a necessary license or offers a
license only on terms that are unattractive or unacceptable to us, we might be unable to develop and commercialize one or more of our product candidate or
any future product candidates, which would have a material adverse effect on our business,
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financial condition and results of operations. Moreover, even if we obtain licenses to such intellectual property, but subsequently fail to meet our
obligations under our license agreements, or such license agreements are terminated for any other reasons, we may lose our rights to in-licensed
technologies.
The licensing or acquisition of third-party intellectual property rights is a competitive area, and several more established companies may pursue
strategies to license or acquire third-party intellectual property rights that we may consider attractive or necessary. These established companies may have a
competitive advantage over us due to their size, capital resources and greater clinical development and commercialization capabilities. In addition,
companies that perceive us to be a competitor may be unwilling to assign or license rights to us. We also may be unable to license or acquire third-party
intellectual property rights on terms that would allow us to make an appropriate return on our investment, or at all. If we are unable to successfully obtain
rights to required third-party intellectual property rights or maintain the existing intellectual property rights we have, we may have to abandon development
of the relevant program or product candidate, which could have a material adverse effect on our business, financial condition, results of operations and
prospects.
Our inability to protect our confidential information and trade secrets would harm our business and competitive position.
In addition to seeking patents for some of our technology and products, in our activities we also rely substantially on trade secrets, including
unpatented know-how, technology and other proprietary materials and information, to maintain our competitive position. We seek to protect these trade
secrets, in part, by entering into non-disclosure and confidentiality agreements with parties who have access to them, such as our employees, corporate
collaborators, outside scientific collaborators, contract manufacturers, consultants, advisors and other third parties. We also enter into confidentiality and
invention or patent assignment agreements with our employees and consultants. However, these steps may be inadequate, we may fail to enter into
agreements with all such parties or any of these parties may breach the agreements and disclose our proprietary information and there may be no adequate
remedy available for such breach of an agreement. We cannot assure you that our proprietary information will not be disclosed or that we can meaningfully
protect our trade secrets. Enforcing a claim that a party illegally disclosed or misappropriated a trade secret is difficult, expensive and time-consuming, and
the outcome is unpredictable. In addition, some courts both within and outside the United States may be less willing, or unwilling, to protect trade secrets.
If a competitor lawfully obtained or independently developed any of our trade secrets, we would have no right to prevent such competitor from using that
technology or information to compete with us, which could harm our competitive position.
Risks Related to Intellectual Property Litigation
We may become involved in lawsuits or other proceedings to protect or enforce our intellectual property, which could be expensive, time-
consuming and unsuccessful and have a material adverse effect on the success of our business.
Third parties may infringe our or our licensor’s patents or misappropriate or otherwise violate our or our licensor’s intellectual property rights. In
the future, we or our licensor may initiate legal proceedings to enforce or defend our or our licensor’s intellectual property rights, to protect our or our
licensor’s trade secrets or to determine the validity or scope of intellectual property rights we own or control. Also, third parties may initiate legal
proceedings against us or our licensor to challenge the validity or scope of intellectual property rights we own, control or to which we have rights. For
example, generic or biosimilar drug manufacturers or other competitors or third parties may challenge the scope, validity or enforceability of our or our
licensor’s patents, requiring us or our licensor to engage in complex, lengthy and costly litigation or other proceedings. These proceedings can be expensive
and time-consuming and many of our or our licensor’s adversaries in these proceedings may have the ability to dedicate substantially greater resources to
prosecuting these legal actions than we can. Moreover, the outcome following legal assertions of invalidity and unenforceability is unpredictable.
Accordingly, despite our or our licensor’s efforts, we or our licensor may not be able to prevent third parties from infringing upon or misappropriating
intellectual property rights we own, control or have rights to, particularly in countries where the laws may not protect those rights as fully as in the United
States. Litigation could result in substantial costs and diversion of management resources, which could harm our business and financial results. In addition,
if we or our licensor initiated legal proceedings against a third party to enforce a patent covering a product candidate, the defendant could counterclaim that
such patent is invalid or unenforceable. In patent litigation in the United States, defendant counterclaims alleging invalidity or unenforceability are
commonplace. Grounds for a
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validity challenge could be an alleged failure to meet any of several statutory requirements, including lack of novelty, obviousness or non-enablement.
Grounds for an unenforceability assertion could be an allegation that someone connected with prosecution of the patent withheld relevant information from
the USPTO, or made a misleading statement, during prosecution. In an infringement or declaratory judgment proceeding, a court may decide that a patent
owned by or licensed to us is invalid or unenforceable, or may refuse to stop the other party from using the technology at issue on the grounds that our or
our licensor’s patents do not cover the technology in question. An adverse result in any litigation proceeding could put one or more of our or our licensor’s
patents at risk of being invalidated, narrowed, held unenforceable or interpreted in such a manner that would not preclude third parties from entering the
market with competing products.
Third-party pre-issuance submission of prior art to the USPTO, or opposition, derivation, revocation, reexamination, inter partes review or
interference proceedings, or other pre-issuance or post-grant proceedings or other patent office proceedings or litigation in the United States or other
jurisdictions provoked by third parties or brought by us or our licensor, may be necessary to determine the inventorship, priority, patentability or validity of
inventions with respect to our or our licensor’s patents or patent applications. An unfavorable outcome could leave our technology or product candidates
without patent protection, allow third parties to commercialize our technology or product candidates and compete directly with us, without payment to us,
or could require us or our licensor to obtain license rights from the prevailing party in order to be able to manufacture or commercialize our product
candidate or any future product candidates without infringing third-party patent rights. Our business could be harmed if the prevailing party does not offer
us or our licensor a license on commercially reasonable terms, or at all. Even if we or our licensor obtain a license, it may be non-exclusive, thereby giving
our competitors access to the same technologies licensed to us or our licensor. In addition, if the breadth or strength of protection provided by our or our
licensor’s patents and patent applications is threatened, it could dissuade companies from collaborating with us to license, develop or commercialize current
or any future product candidates. Even if we successfully defend such litigation or proceeding, we may incur substantial costs and it may distract our
management and other employees. In addition, the uncertainties associated with litigation could have a material adverse effect on our ability to raise the
funds necessary to continue our clinical trials, continue our research programs, license necessary technology from third parties, or enter into collaborations.
Furthermore, because of the substantial amount of discovery required in connection with intellectual property litigation, there is a risk that some
of our confidential information could be compromised by disclosure during this type of litigation. In addition, many foreign jurisdictions have rules of
discovery that are different than those in the United States and which may make defending or enforcing our or our licensor’s patents extremely difficult.
There could also be public announcements of the results of hearings, motions or other interim proceedings or developments. If securities analysts or
investors perceive these results to be negative, it could have a material adverse effect on the price of shares of our common stock.
Third parties may initiate legal proceedings against us alleging that we infringe their intellectual property rights or we may initiate legal
proceedings against third parties to challenge the validity or scope of intellectual property rights controlled by third parties, the outcome of which
would be uncertain and could have a material adverse effect on the success of our business.
Our commercial success depends upon our ability to develop, manufacture, market and sell any product candidates that we may develop and use
our proprietary technologies without infringing, misappropriating or otherwise violating the intellectual property and proprietary rights of third parties. The
biotechnology and pharmaceutical industries are characterized by extensive litigation regarding patents and other intellectual property rights. Third parties
may initiate legal proceedings against us or our licensor alleging that we or our licensor infringe their intellectual property rights or we or our licensor may
initiate legal proceedings against third parties to challenge the validity or scope of intellectual property rights controlled by third parties, including in
oppositions, interferences, revocations, reexaminations, inter partes review or derivation proceedings before the USPTO or its counterparts in other
jurisdictions. These proceedings can be expensive and time-consuming and many of our or our licensor’s adversaries in
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these proceedings may have the ability to dedicate substantially greater resources to prosecuting these legal actions than we or our licensor can.
An unfavorable outcome in any such proceeding could require us or our licensor to cease using the related technology or developing or
commercializing our product candidate or any future product candidates, or to attempt to license rights to it from the prevailing party, which may not be
available on commercially reasonable terms, or at all.
We could be found liable for monetary damages, including treble damages and attorneys’ fees, if we are found to have willfully infringed a
patent. A finding of infringement could prevent us from commercializing our product candidate or any future product candidates or force us to cease some
of our business operations, which could materially harm our business.
We perform searches of patent and scientific databases in order to identify documents that may be of potential relevance to the freedom-to-
operate and/or patentability of our product candidate or any future product candidates. In general, such searches are conducted based on keywords,
sequences, inventors/authors and assignees/entities to capture U.S. and European patents and patent applications, PCT publications and scientific journal
articles.
The patent landscape around our EFX product candidate is complex, and we may not be aware of all third-party intellectual property rights
potentially relating to our product candidate or any future product candidates and technologies. Moreover, it is possible that we are or may become aware
of patents or pending patent applications that we think do not relate to our product candidate or any future product candidates or that we believe are invalid
or unenforceable, but that may nevertheless be interpreted to encompass our product candidate or any future product candidates and to be valid and
enforceable. As to pending third-party applications, we cannot predict with any certainty which claims will issue, if any, or the scope of such issued claims.
If any third-party intellectual property claims are asserted against us, even if we believe the claims are without merit, there is no assurance that a court
would find in our favor, e.g., on questions of infringement, validity, enforceability or priority. A court of competent jurisdiction could hold that these third-
party patents are valid, enforceable and infringed, which could materially and adversely affect our ability and the ability of our licensor to commercialize
any product candidates we may develop, and any other product candidates or technologies covered by the asserted third-party patents. In order to
successfully challenge the validity of any such U.S. patent in federal court, we would need to overcome a presumption of validity. As this burden is a high
one requiring us to present clear and convincing evidence as to the invalidity of any such U.S. patent claim, there is no assurance that a court of competent
jurisdiction would invalidate the claims of any such U.S. patent. If any such third-party patents (including those that may issue from such applications)
were successfully asserted against us or our licensor or other commercialization partners and we were unable to successfully challenge the validity or
enforceability of any such asserted patents, then we or our licensor and other commercialization partners may be prevented from commercializing our
product candidate or any future product candidates, or may be required to pay significant damages, including treble damages and attorneys’ fees if we are
found to willfully infringe the asserted patents, or obtain a license to such patents, which may not be available on commercially reasonable terms, or at all.
Even if we were able to obtain a license, it could be non-exclusive, thereby giving our competitors and other third parties access to the same technologies
licensed to us, and it could require us to make substantial licensing and royalty payments. Defense of these claims, regardless of their merit, would involve
substantial litigation expense and would be a substantial diversion of employee resources from 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, any uncertainties resulting from the initiation and continuation of any litigation could have
material adverse effect on our ability to raise additional funds or otherwise have a material adverse effect on our business, results of operations, financial
condition and prospects. Any of the foregoing would have a material adverse effect on our business, financial condition and operating results.
We may be subject to claims by third parties asserting that our employees or we have misappropriated a third party’s intellectual property, or
claiming ownership of what we regard as our own intellectual property.
Many of our employees, including our senior management, were previously employed at other biotechnology or pharmaceutical companies,
including our competitors or potential competitors. Some of these employees executed proprietary rights, non-disclosure and non-competition agreements
in connection with such previous employment. We may be subject to claims that we or these employees have used or disclosed confidential information or
intellectual property, including trade secrets or other proprietary information, of any such employee’s former employer, or that third parties have an interest
in our patents as an inventor or co-inventor. Litigation may be necessary to defend against these claims. If we fail in prosecuting or defending any such
claims, in addition to paying monetary damages, we may lose
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valuable intellectual property rights or personnel or sustain other damages. Such intellectual property rights could be awarded to a third party, and we could
be required to obtain a license from such third party to commercialize our technology or products. Such a license may not be available on commercially
reasonable terms, or at all. Even if we successfully prosecute or defend against such claims, litigation could result in substantial costs and distract
management.
In addition, while it is our policy to require our employees and contractors who may be involved in the conception or development of intellectual
property to execute agreements assigning such intellectual property to us, we may be unsuccessful in executing such an agreement with each party who, in
fact, conceives or develops intellectual property that we regard as our own. The assignment of intellectual property rights may not be self-executing, or the
assignment agreements may be breached, and we may be forced to bring claims against third parties, or defend claims that they may bring against us, to
determine the ownership of what we regard as our intellectual property. Such claims could have a material adverse effect on 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:
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others may be able to make products that are similar to any product candidates we may develop or utilize similar technology but that are not
covered by the claims of the patents that we license or may own in the future;
we, or our current or future collaborators, might not have been the first to make the inventions covered by the issued patents and pending
patent applications that we license or may own in the future;
we, or our current or future 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 pending patent applications or those that we may own in the future 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;
our competitors 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 application 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.
Issued patents covering our product candidates could be found invalid or unenforceable if challenged in court or the USPTO.
If we or our licensing partner initiate legal proceedings against a third party to enforce a patent covering our product candidate or any future
product candidates, the defendant could counterclaim that the patent covering our product candidate, as applicable, 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. Third parties may also raise similar claims before administrative
bodies in the United States or abroad, even outside the context of litigation. These types of mechanisms include inter partes review, post grant review, and
equivalent proceedings in foreign jurisdictions (e.g., opposition proceedings). These types of proceedings could result in revocation or amendment to our
patents such that they no longer cover our product candidates. The outcome for any particular patent following legal assertions of invalidity and
unenforceability is unpredictable. With respect to the validity question, for example, we cannot be certain that there is no invalidating prior art, of which
we, our patent counsel and the patent examiner were unaware during prosecution. If a
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defendant were to prevail on a legal assertion of invalidity and/or unenforceability, or if we are otherwise unable to adequately protect our rights, we would
lose at least part, and perhaps all, of the patent protection on our product candidates. A loss of patent protection for our product candidates could have a
material adverse impact on our ability to commercialize or license our technology and product candidates and, resultantly, on our business, financial
condition, prospects and results of operations.
Likewise, patents directed to our proprietary technologies and our product candidates may expire before or soon after our first product achieves
marketing approval in the United States or foreign jurisdictions. Upon the expiration of our current patents, we may lose the right to exclude others from
practicing these inventions. The expiration of these patents could also have a similar material adverse effect on our business, financial condition, prospects
and results of operations. A number of U.S. patents directed to various aspects of EFX will expire in 2029; we currently anticipate that a composition of
matter patent will be eligible for patent term extension to 2034.
Changes in patent law could diminish the value of patents in general, thereby impairing our ability to protect our product candidate or any
future product candidates.
As is the case with other biotechnology and pharmaceutical companies, our success is heavily dependent on intellectual property, particularly
patents. Obtaining and enforcing patents in the biotechnology industry involves technological and legal complexity, and obtaining and enforcing
biotechnology patents is costly, time-consuming and inherently uncertain. The U.S. Supreme Court has ruled on several patent cases in recent years, either
narrowing the scope of patent protection available in certain circumstances, weakening the rights of patent owners in certain situations or ruling that certain
subject matter is not eligible for patent protection. In addition to increasing uncertainty with regard to our and our licensor’s ability to obtain patents in the
future, this combination of events has created uncertainty with respect to the value of patents, once obtained. Depending on decisions by Congress, the
federal courts, the USPTO and equivalent bodies in foreign jurisdictions, the laws and regulations governing patents could change in unpredictable ways
that would weaken our and our licensor’s ability to obtain new patents or to enforce existing patents and patents we and our licensor may obtain in the
future.
Patent reform laws, such as the Leahy-Smith America Invents Act ("the Leahy-Smith Act") as well as changes in how patent laws are
interpreted, could increase the uncertainties and costs surrounding the prosecution of our and our licensor’s patent applications and the enforcement or
defense of our or our licensor’s issued patents, all of which could have a material adverse effect on our business, financial condition and results of
operations.
Risks Related to Government Regulation
Risks Related to Obtaining Regulatory Approval
We have limited experience in conducting clinical trials and have never obtained approval for any product candidates, and may be unable to
do so successfully.
As a company, other than the completed BALANCED study and our ongoing HARMONY and SYMMETRY studies, we have no experience in
designing, conducting or completing clinical trials and have never progressed a product candidate through to regulatory approval. In part because of this
lack of experience, our clinical trials may require more time and incur greater costs than we anticipate. We cannot be certain that our planned clinical trials,
including the SYNCHRONY Phase 3 trials, will begin or conclude on time, if at all. Large-scale trials will require significant additional financial and
management resources. Any performance failure on the part of such third parties could delay the clinical development of our product candidate or any
future product candidates or delay or prevent us from obtaining regulatory approval or commercializing our current or any future product candidates,
depriving us of potential product revenue and resulting in additional losses.
The regulatory approval processes of the FDA and comparable foreign regulatory authorities are lengthy, time-consuming and inherently
unpredictable. Our inability to obtain regulatory approval for EFX or any future product candidate would substantially harm our business.
The time required to obtain approval from the FDA and comparable foreign regulatory authorities is unpredictable but typically takes many years
following the commencement of nonclinical studies and clinical trials and depends upon numerous factors, including the substantial discretion of
regulatory authorities. In addition, approval
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policies, regulations or the type and amount of clinical data necessary to gain approval may change during the course of a product candidate’s development
and may vary among jurisdictions.
EFX or our future product candidates could fail to receive regulatory approval from the FDA or a comparable foreign regulatory authority for
many reasons, including:
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disagreement with the design or implementation of our clinical trials;
failure to demonstrate that a product candidate is safe and effective for its proposed indication;
failure of clinical trials to meet the level of statistical significance required for approval;
failure to demonstrate that a product candidate’s clinical and other benefits outweigh its safety risks;
disagreement with our interpretation of data from nonclinical studies or clinical trials;
the insufficiency of data collected from clinical trials of EFX or any future product candidates to obtain regulatory approval;
failure to obtain approval of the manufacturing processes or facilities of third-party manufacturers with whom we contract for clinical and
commercial supplies; or
changes in the approval policies or regulations that render our nonclinical and clinical data insufficient for approval.
The FDA or a comparable foreign regulatory authority may require more information, including additional nonclinical or clinical data to support
approval, which may delay or prevent approval and our commercialization plans, or we may decide to abandon the development program for other reasons.
If we were to obtain approval, regulatory authorities may approve EFX or any future product candidates for fewer or more limited indications than we
request, may require labeling or a Risk Evaluation and Mitigation Strategy ("REMS") that includes significant use or distribution restrictions or safety
warnings, precautions, or contraindications, 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.
Additional time may be required to obtain regulatory approval for our product candidates because they are combination products.
EFX is being developed, and future product candidates may be developed, as combination products that require coordination within the FDA and
similar foreign regulatory agencies for review of their device and drug/biologic components. Medical products containing a combination of new drugs,
biological products or medical devices may be regulated as “combination products” in the United States and Europe. A combination product generally is
defined as a product comprised of components from two or more regulatory categories (e.g., drug/device, device/biologic, drug/biologic). Each component
of a combination product is subject to the requirements established by the FDA for that type of component, whether a new drug, biologic or device. In
order to facilitate pre-market review of combination products, the FDA designates one of its centers to have primary jurisdiction for the pre-market review
and regulation of the overall product based upon a determination by the FDA of the primary mode of action of the combination product. Where approval of
the drug or biologic and device is sought under a single application, there could be delays in the approval process due to the increased complexity of the
review process and the lack of a well-established review process and criteria. The EMA has a parallel review process in place for combination products, the
potential effects of which in terms of approval and timing could independently affect our ability to market our combination products in Europe.
While we intend to seek designations for our product candidates with the FDA and comparable other regulatory authorities that are intended
to confer benefits such as a faster development process or an accelerated regulatory pathway, there can be no assurance that we will successfully obtain
such designations. In addition, even if one or more of our product candidates are granted such designations, we may not be able to realize the intended
benefits of such designations.
The FDA and comparable other regulatory authorities offer certain designations for product candidates that are designed to encourage the
research and development of product candidates that are intended to address conditions with significant unmet medical need. These designations may
confer benefits such as additional interaction with regulatory authorities, a potentially accelerated regulatory pathway and priority review. Despite these
designations, there can be no assurance that we will successfully obtain these or other designations for any of our other product candidates. In addition,
while such designations could expedite the development or review process, they generally do not change the
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standards for approval. Even if we obtain such designations for one or more of our product candidates, there can be no assurance that we will realize their
intended benefits.
For example, we have received a Breakthrough Therapy designation for EFX for the treatment of MASH and we may seek a Breakthrough
Therapy designation for some of our product candidates in the future. 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
control regimens. 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
designation.
In addition, in October 2021, the FDA granted Fast Track designation for EFX for the treatment of MASH, and we may seek Fast Track
Designation for some of our future product candidates. 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, there can be no
assurance that the FDA would decide to grant it. Even if we do receive Fast Track Designation, as we have for EFX for the treatment of MASH, we may
not experience a faster development process, review or approval compared to conventional FDA procedures, and receiving a Fast Track Designation does
not provide assurance of ultimate FDA approval. In addition, the FDA may withdraw Fast Track Designation if it believes that the designation is no longer
supported by data from our clinical development program.
Biologics designated as breakthrough therapies or granted Fast Track designation by the FDA may also be eligible for other expedited approval
programs, including accelerated approval. A product candidate may be eligible for accelerated approval if it treats a serious or life-threatening condition,
generally provides a meaningful advantage over available therapies, and demonstrates an effect on a surrogate endpoint that is reasonably likely to predict
clinical benefit. As a condition of accelerated approval, the FDA may require that a sponsor of a product receiving accelerated approval perform adequate
and well-controlled post-marketing clinical trials. These confirmatory trials must be completed with due diligence. Under the Food and Drug Omnibus
Reform Act of 2022, or FDORA, the FDA is permitted to require, as appropriate, that a post-approval confirmatory study or studies be underway prior to
approval or within a specified time period after the date of approval for a product granted accelerated approval. FDORA also requires sponsors to send
updates to the FDA every 180 days on the status of such studies, including progress toward enrollment targets, and the FDA must promptly post this
information publicly. In addition, FDORA gives the FDA increased authority to withdraw accelerated approval on an expedited basis if the sponsor fails to
conduct such studies in a timely manner, send the necessary updates to the FDA, or if such post-approval studies fail to verify the drug’s predicted clinical
benefit. The FDA is empowered to take action, such as issuing fines, against companies that fail to conduct with due diligence any post-approval
confirmatory study or submit timely reports to the agency on their progress. Accelerated approval may also be withdrawn if, among other things, a
confirmatory trial required to verify the predicted clinical benefit of the product fails to verify such benefit or if such trial is not conducted with due
diligence. In addition, the FDA generally requires, unless otherwise informed by the agency, pre-approval of promotional materials for products receiving
accelerated approval, which could adversely impact the timing of the commercial launch of the product. Thus, even if we seek to utilize the accelerated
approval pathway, we may not be able to obtain accelerated approval and, even if we do, we may not experience a faster development, regulatory review or
approval process for that
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product. In addition, receiving accelerated approval does not assure that the product’s accelerated approval will eventually be converted to full marketing
approval.
We may seek priority review designation for one or more of our product candidates, but we might not receive such designation, and even if we
do, such designation may not lead to a faster 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 result in expedited development and does not necessarily result in expedited 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.
Our failure to obtain regulatory approval in international jurisdictions would prevent us from marketing EFX or any future product
candidates outside the United States.
We intend to market any approved products in the United States, the EU, Japan and other foreign jurisdictions. Even if our products are approved
for marketing in the United States, in order to market and sell our products in other jurisdictions, we must obtain separate marketing approvals and comply
with numerous and varying regulatory requirements. The approval procedure varies among countries and can involve additional testing. The time required
to obtain approval may differ substantially from that required to obtain FDA approval. The regulatory approval process outside the United States generally
includes all of the risks associated with obtaining FDA approval. In addition, in many countries outside the United States, we must secure product
reimbursement approvals before regulatory authorities will approve the product for sale in that country. 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. Further, clinical trials conducted in one country may not be accepted by regulatory authorities in other countries and
regulatory approval in one country does not ensure approval in any other country. For example, even if EFX is approved in the United States, the EMA
may require more information, including additional nonclinical or clinical data to support approval, which may delay or prevent approval and our
commercialization plans in the EU. Moreover, a failure or delay in obtaining regulatory approval in one country may have a negative effect on the
regulatory approval process in others.
Also, regulatory approval for our product candidate or any future product candidates may be withdrawn if we fail to comply with regulatory
requirements, if problems occur after the product candidate reaches the market or for other reasons. If we fail to comply with the regulatory requirements in
international markets and fail to receive applicable marketing approvals, our target market will be reduced and our ability to realize the full market potential
of our product candidate or any future product candidates will be harmed and our business will be adversely affected. We may not obtain foreign regulatory
approvals on a timely basis, if at all. Approval by the FDA does not ensure approval by regulatory authorities in other countries or jurisdictions. Approval
by one regulatory authority outside the United States does not ensure approval by regulatory authorities in other countries or jurisdictions or by the FDA. If
we fail to obtain approval of our product candidate or any future product candidates by regulatory authorities in another country, we will be unable to
commercialize our product in that country, and the commercial prospects of that product candidate and our business prospects could decline.
Risks Related to Ongoing Regulatory Obligations
Even if we are able to obtain regulatory approvals for our product candidate or any future product candidates, if they exhibit harmful side
effects after approval, our regulatory approvals could be revoked or otherwise negatively impacted, and we could be subject to costly and damaging
product liability claims.
Clinical trials are conducted in representative samples of the potential patient population which may have significant variability. Even if we
receive regulatory approval for EFX or any of our future product candidates, we will have tested them in only a small number of patients during our clinical
trials. Clinical trials are by design based on a
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limited number of subjects and of limited duration for exposure to the product used to determine whether, on a potentially statistically significant basis, the
planned safety and efficacy of any product candidate can be achieved. As with the results of any statistical sampling, we cannot be sure that all side effects
of our product candidates may be uncovered, and it may be the case that only with a significantly larger number of patients exposed to the product
candidate for a longer duration, may a more complete safety profile be identified. Further, even larger clinical trials may not identify rare serious adverse
effects or the duration of such studies may not be sufficient to identify when those events may occur. If our applications for marketing are approved and
more patients begin to use our product, new risks and side effects associated with our products may be discovered. There have been other products that
have been approved by the regulatory authorities but for which safety concerns have been uncovered following approval. Such safety concerns have led to
labelling changes or withdrawal of products from the market, and any of our product candidates may be subject to similar risks. Additionally, we may be
required to conduct additional nonclinical and clinical trials, require additional warnings on the label of our product candidate, reformulate our product or
make changes, create a medication guide outlining the risks of such side effects for distribution to patients and obtain new approvals for our and our
suppliers’ manufacturing facilities for EFX and any future product candidates. We might have to withdraw or recall our products from the marketplace. We
may also experience a significant drop in the potential sales of our product if and when regulatory approvals for such product are obtained, experience harm
to our reputation in the marketplace or become subject to lawsuits, including class actions. Any of these results could decrease or prevent any sales of our
approved product or substantially increase the costs and expenses of commercializing and marketing our product.
Even if our current product candidate or any future product candidates receive regulatory approval, they will remain subject to extensive
regulatory scrutiny and may still face future development and regulatory difficulties.
Even if we obtained regulatory approval for a product candidate, regulatory authorities may still impose significant restrictions on our product
candidates, including their indicated uses or marketing, or impose ongoing requirements for potentially costly post-approval studies. For example, if EFX is
approved by the FDA based on a surrogate endpoint pursuant to accelerated approval regulations (also referred to as Subpart E regulations), we will be
required to conduct additional confirmatory clinical trials demonstrating the clinical benefit on the ultimate outcome of MASH. Further, even if we
obtained regulatory approval for a product candidate, it would be subject to ongoing requirements by the FDA and comparable foreign regulatory
authorities governing the manufacture, quality control, further development, labeling, packaging, storage, distribution, safety surveillance, import, export,
advertising, promotion, recordkeeping and reporting of safety and other post-market information.
The FDA and comparable foreign regulatory authorities will continue to closely monitor the safety profile of any product even after approval. If
the FDA or comparable foreign regulatory authorities become aware of new safety information after approval of our product candidate or any future
product candidates, they may require labeling changes or establishment of a risk evaluation and mitigation strategy or similar strategy, impose significant
restrictions on a product’s indicated uses or marketing or impose ongoing requirements for potentially costly post-approval studies or post-market
surveillance.
In addition, manufacturers of our products, if approved, and their facilities are subject to continual review and periodic inspections by the FDA
and other regulatory authorities for compliance with cGMP and applicable QSRs, regulations and standards. If we or a regulatory agency discover
previously unknown problems with a product, such as adverse events of unanticipated severity or frequency, or problems with the facility where the
product is manufactured, a regulatory agency may impose restrictions on that product, the manufacturing facility or us, including requiring recall or
withdrawal of the product from the market or suspension of manufacturing. If we, EFX, or any future product candidates or the manufacturing facilities for
EFX, the delivery device used for EFX, or any future product candidates fail to comply with applicable regulatory requirements, or undesirable side effects
caused by such products are identified, a regulatory agency may:
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issue safety alerts, Dear Healthcare Provider letters, press releases or other communications containing warnings about such product;
mandate modifications to instructions for use;
mandate modifications to promotional materials or require us to provide corrective information to healthcare practitioners;
require that we conduct post-marketing studies;
require us to enter into a consent decree, which can include imposition of various fines, reimbursements for inspection costs, required due
dates for specific actions and penalties for noncompliance;
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seek an injunction or impose civil or criminal penalties or monetary fines;
suspend marketing of, withdraw regulatory approval of or recall such product;
suspend any ongoing clinical trials;
refuse to approve pending applications or supplements to applications filed by us;
suspend or impose restrictions on operations, including costly new manufacturing requirements; or
seize or detain products, refuse to permit the import or export of products or require us to initiate a product recall.
The occurrence of any event or penalty described above may inhibit our ability to commercialize our product and generate revenue.
Advertising and promotion of any product candidate that obtains approval in the United States will be heavily scrutinized by the FDA, the
Department of Justice, the Department of Health and Human Services’ Office of Inspector General, state attorneys general, members of Congress and the
public. Violations, including promotion of our products for unapproved (or off-label) uses, are subject to enforcement letters, inquiries and investigations,
and civil and criminal sanctions by the government. Additionally, comparable foreign regulatory authorities will heavily scrutinize advertising and
promotion of any product candidate that obtains approval outside of the United States.
In the United States, engaging in the impermissible promotion of our products for off-label uses can also subject us to false claims litigation
under federal and state statutes, which can lead to civil and criminal penalties and fines and agreements that materially restrict the manner in which a
company promotes or distributes drug products. These false claims statutes include the federal False Claims Act, which allows any individual to bring a
lawsuit against a pharmaceutical company on behalf of the federal government alleging submission of false or fraudulent claims, or causing to present such
false or fraudulent claims, for payment by a federal program such as Medicare or Medicaid. If the government prevails in the lawsuit, the individual will
share in any fines or settlement funds. Since 2004, these federal False Claims Act lawsuits against pharmaceutical companies have increased significantly
in volume and breadth, leading to several substantial civil and criminal settlements regarding certain sales practices promoting off-label drug uses involving
fines in excess of $1 billion. This growth in litigation has increased the risk that a pharmaceutical company will have to defend a false claim action, pay
settlement fines or restitution, agree to comply with burdensome reporting and compliance obligations and be excluded from Medicare, Medicaid and other
federal and state healthcare programs. If we do not lawfully promote our approved products, we may become subject to such litigation and, if we do not
successfully defend against such actions, those actions may have a material adverse effect on our business, financial condition and results of operations.
The FDA’s policies may change and additional government regulations may be enacted that could prevent, limit or delay regulatory approval of
our product candidate or any future 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.
Risks Related to Healthcare Regulation
The advancement of healthcare reform may negatively impact our ability to profitably sell our product candidate or any future product
candidates, if approved.
The United States and many foreign jurisdictions have enacted or proposed legislative and regulatory changes affecting the healthcare system
that could prevent or delay marketing approval of our product candidate or any future product candidates, restrict or regulate post-approval activities and
affect our ability to profitably sell any product for which we obtain marketing approval. 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.
In March 2010, the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010, or
collectively, the Affordable Care Act or ACA, was enacted, which includes measures that have significantly changed the way health care is financed by
both governmental and private insurers. Since its enactment, there have been numerous judicial, administrative, executive, and legislative challenges to
certain aspects of
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the ACA. On June 17, 2021, the U.S. Supreme Court dismissed the most recent judicial challenge to the ACA brought by several states without specifically
ruling on the constitutionality of the ACA. Prior to the Supreme Court's decision, President Biden issued an Executive Order to initiate a special enrollment
period from February 15, 2021 through August 15, 2021 for purposes of obtaining health insurance coverage through the ACA marketplace. The Executive
Order also instructed certain governmental agencies to review and reconsider their existing policies and rules that limit access to healthcare, including
among others, reexamining Medicaid demonstration projects and waiver programs that include work requirements, and policies that create unnecessary
barriers to obtaining access to health insurance coverage through Medicaid or the ACA. It is unclear how other healthcare reform measures of the Biden
administrations or other efforts, if any, to challenge repeal or replace the ACA, will impact our business.
In addition, other legislative changes have been proposed and adopted since the Affordable Care Act was enacted. The U.S. Budget Control Act
of 2011, which, among other things, created the Joint Select Committee on Deficit Reduction to recommend to Congress proposals in spending reductions.
The Joint Select Committee on Deficit Reduction did not achieve a targeted deficit reduction, which triggered the legislation’s automatic reduction to
several government programs. This includes aggregate reductions to Medicare payments to providers of, on average, 2% per fiscal year through 2031
unless Congress takes additional action. Due to the Statutory Pay-As-You-Go Act of 2010, estimated budget deficit increases resulting from the American
Rescue Plan Act of 2021, and subsequent legislation, Medicare payments to providers will be further reduced starting in 2025 absent further legislation.
The American Taxpayer Relief Act of 2012, among other things, further reduced Medicare payments to several providers, including hospitals and cancer
treatment centers, and increased the statute of limitations period for the government to recover overpayments to providers from three to five years. CMS
has published a final rule to allow Medicare Advantage Plans the option of using step therapy, a type of prior authorization, for Part B drugs beginning
January 1, 2020.
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 and enacted 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
programs and reform government program reimbursement methodologies for drugs.
In addition, President Biden has issued multiple executive orders that have sought to reduce prescription drug costs. In February 2023, HHS also
issued a proposal in response to an October 2022 executive order issued by President Biden that includes a proposed prescription drug pricing model that
will test whether targeted Medicare payment adjustments will sufficiently incentivize manufacturers to complete confirmatory trials for drugs approved
through FDA’s accelerated approval pathway. Although a number of these and other proposed measures may require authorization through additional
legislation to become effective, and the Biden Administration may reverse or otherwise change these measures, both the Biden Administration and the U.S.
Congress have indicated that they will continue to seek new legislative measures to control drug costs.
In August 2022, the Inflation Reduction Act of 2022 (the “IRA”) was signed into law. The IRA includes several provisions that will impact our
business to varying degrees, including provisions that reduce the out-of-pocket spending cap for Medicare Part D beneficiaries from $7,050 to $2,000
starting in 2025, thereby effectively eliminating the coverage gap, allow the U.S. government to negotiate Medicare Part B and Part D pricing for certain
high-cost drugs and biologics without generic or biosimilar competition, require companies to pay rebates to Medicare for drug prices that increase faster
than inflation, and delay until January 1, 2032 the implementation of the HHS rebate rule that would require pass through of pharmacy benefit manager
rebates to beneficiaries. Further, under the IRA, orphan drugs are exempted from the Medicare drug price negotiation program, if they have one rare
disease designation and the only approved indication is for that rare disease. If a product receives multiple rare disease designations or has multiple
approved indications, it may not qualify for the orphan drug exemption. The implementation of the IRA is currently subject to ongoing litigation
challenging the constitutionality of the IRA’s Medicare drug price negotiation program. The effect of IRA on our business and the healthcare industry in
general is not yet known.
We cannot predict the initiatives that may be adopted in the future. The continuing efforts of the government, insurance companies, managed
care organizations and other payors of healthcare services to contain or reduce costs of healthcare and/or impose price controls may adversely affect:
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the demand for our product candidates, if we obtain regulatory approval;
our ability to set a price that we believe is fair for our approved products;
our ability to generate revenue and achieve or maintain profitability;
the level of taxes that we are required to pay; and
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the availability of capital.
Any reduction in reimbursement from Medicare or other government programs may result in a similar reduction in payments from private
payors, which may adversely affect our future profitability. Although a number of these, and other proposed measures may require additional authorization
to become effective, and the Biden administration may reverse or otherwise change these measures, Congress has indicated that it will continue to seek new
legislative and/or administrative measures to control drug costs. At the state level, legislatures have increasingly passed legislation and implemented
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 that the healthcare reform measures that have been adopted and may be adopted in the future, may result in more rigorous coverage
criteria and in additional downward pressure on the price that we receive for any approved product and could seriously harm our future revenues. Any
reduction in reimbursement from Medicare or other government programs may result in a similar reduction in payments from private third-party payors.
There have been, and likely will continue to be, legislative and regulatory proposals at the foreign, federal and state levels directed at broadening
the availability of healthcare and containing or lowering the cost of healthcare. In addition, regional healthcare authorities and individual hospitals are
increasingly using bidding procedures to determine what pharmaceutical products and which suppliers will be included in their prescription drug and other
healthcare programs. The implementation of cost containment measures or other healthcare reforms may prevent us from being able to generate revenue,
attain profitability, or commercialize our product. Such reforms could have an adverse effect on anticipated revenue from product candidates that we may
successfully develop and for which we may obtain regulatory approval and may affect our overall financial condition and ability to develop product
candidates.
Our relationships with customers and third-party payors will be subject to applicable anti-kickback, fraud and abuse, transparency and other
healthcare laws and regulations, which, if violated, could expose us to criminal sanctions, civil penalties, contractual damages, reputational harm,
administrative burdens and diminished profits and future earnings.
Healthcare providers, physicians and third-party payors will play a primary role in the recommendation and prescription of any product
candidates for which we obtain marketing approval. Our current and future arrangements with healthcare providers, third-party payors and customers may
expose us to broadly applicable fraud and abuse and other healthcare laws and regulations that may constrain the business or financial arrangements and
relationships through which we research, and if approved, market, sell and distribute our products. Restrictions under applicable federal and state healthcare
laws and regulations, include the following:
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the federal Anti-Kickback Statute prohibits persons from, among other things, knowingly and willfully soliciting, offering, receiving or
providing remuneration, directly or indirectly, in cash or in kind, to induce or reward, or in return for, the referral of an individual for the
furnishing or arranging for the furnishing, or the purchase, lease or order, or arranging for or recommending purchase, lease or order, of any
good or service for which payment may be made under a federal healthcare program, such as Medicare and Medicaid. A person or entity
does not need to have actual knowledge of the federal Anti-Kickback Statute or specific intent to violate it to have committed a violation.
Violations are subject to civil and criminal fines and penalties for each violation, plus up to three times the remuneration involved,
imprisonment, and exclusion from government healthcare programs. In addition, the government may assert that a claim including items or
services resulting from a violation of the federal Anti-Kickback Statute constitutes a false or fraudulent claim for purposes of the federal
False Claims Act;
federal civil and criminal false claims laws and civil monetary penalty laws, including the federal False Claims Act, which can be enforced
through civil whistleblower or qui tam actions, prohibit individuals or entities from, among other things knowingly presenting, or causing to
be presented, to the federal government or a government contractor, grantee, or other recipient of federal funds, claims for payment that are
false or fraudulent or making a false statement to avoid, decrease or conceal an obligation to pay money to the federal government;
knowingly making, using or causing to be made or used, a false statement or record material to a false or fraudulent claim or obligation to
pay or transmit money or property to the federal government or knowingly concealing or knowingly and improperly avoiding or decreasing
an obligation to pay money to the federal government. Manufacturers can be held liable under the federal False Claims Act even when they
do not submit claims directly to government payors if they are deemed to
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“cause” the submission of false or fraudulent claims. The federal False Claims Act also permits a private individual acting as a
“whistleblower” to bring actions on behalf of the federal government alleging violations of the federal False Claims Act and to share in any
monetary recovery;
the federal Health Insurance Portability and Accountability Act of 1996 ("HIPAA") imposes criminal liability for knowingly and willfully
executing a scheme to defraud any healthcare benefit program, knowingly and willfully embezzling or stealing from a healthcare benefit
program, willfully obstructing a criminal investigation of a healthcare offense or knowingly and willfully making false statements relating to
healthcare matters; similar to the federal Anti-Kickback Statute, a person or entity does not need to have actual knowledge of the statute or
specific intent to violate it in order to have committed a violation;
HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 ("HITECH") and their
implementing regulations, including the Final Omnibus Rule published in January 2013, imposes obligations on certain healthcare providers,
health plans and healthcare clearinghouses, known as covered entities, as well as their business associates, which are individuals and entities
that perform certain services involving the creation, maintenance, receipt, use or disclosure of individually identifiable health information,
including mandatory contractual terms, with respect to safeguarding the privacy, security and transmission of individually identifiable health
information. 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. In addition, there
may be additional federal, state and non-U.S. laws which govern the privacy and security of health and other personal information in certain
circumstances, many of which differ from each other in significant ways and may not have the same effect, thus complicating compliance
efforts;
federal price reporting laws, which require manufacturers to calculate and report complex pricing metrics to government programs, where
such reported prices may be used in the calculation of reimbursement and/or discounts on approved products;
federal consumer protection and unfair competition laws, which broadly regulate marketplace activities and activities that potentially harm
consumers;
the federal Open Payments program, created under Section 6002 of the Affordable Care Act and its implementing regulations, requires
manufacturers of drugs, devices, biologics and medical supplies for which payment is available under Medicare, Medicaid or the Children’s
Health Insurance Program (with certain exceptions) to report annually to CMS information related to “payments or other transfers of value”
made to physicians (defined to include doctors, dentists, optometrists, podiatrists and chiropractors) and teaching hospitals, as well as
ownership and investment interests held by physicians (as defined above) and their immediate family members. As of January 1, 2022, these
reporting obligations have now extended to include transfers of value made to certain non-physician providers such as physician assistants
and nurse practitioners; and
analogous state, local, 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; 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, marketing expenditures or drug prices; state and local laws that require the
registration of pharmaceutical sales representatives; several states also impose other marketing restrictions or require pharmaceutical
companies to make marketing or price disclosures to the state and require the registration of pharmaceutical sales representatives. State and
foreign laws, including for example the EU General Data Protection Regulation, which became effective May 2018 also govern the privacy
and security of health information in some circumstances, many of which differ from each other in significant ways and often are not
preempted by HIPAA, thus complicating compliance efforts; and state and foreign laws that govern 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.
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Efforts to ensure that our business arrangements with third parties comply with 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 interpreting applicable fraud and abuse or other healthcare laws and regulations. If our operations are found to be in violation of any
of these laws or any other governmental regulations that may apply to us, we may be subject to significant civil, criminal and administrative penalties,
damages, fines, disgorgement, imprisonment, exclusion from government funded healthcare programs, such as Medicare and Medicaid, integrity oversight
and reporting obligations, and the curtailment or restructuring of our operations. If any of the physicians or other healthcare providers or entities with
whom we expect to do business is found not to be in compliance with applicable laws, that person or entity may be subject to criminal, civil or
administrative sanctions, including exclusions from government funded healthcare programs.
Failure to comply with health and data protection laws and regulations could lead to government enforcement actions (which could include
civil or criminal penalties), private litigation, and/or adverse publicity and could negatively affect our operating results and business.
We and any potential collaborators may be subject to federal, state, and foreign data protection laws and regulations (i.e., laws and regulations
that address privacy and data security). In the United States, numerous federal and state laws and regulations, including federal health information privacy
laws, state data breach notification laws, state health information privacy laws, and federal and state consumer protection laws (e.g., Section 5 of the
Federal Trade Commission Act and the CCPA, that govern the collection, use, disclosure and protection of health-related and other personal information
could apply to our operations or the operations of our collaborators. The CCPA has been characterized as the first “GDPR-like” privacy statute to be
enacted in the United States because it mirrors a number of the key provisions of the GDPR (discussed below in the European Data Collection subsection).
Specifically, the act established a comprehensive privacy framework for covered businesses by creating an expanded definition of personal information,
establishing new data privacy rights for consumers in the State of California, imposing special rules on the collection of consumer data from minors, and
creating a new and potentially severe statutory damages framework for violations of the CCPA and for businesses that fail to implement reasonable security
procedures and practices to prevent data breaches. In addition, we may obtain health information from third parties (including research institutions from
which we obtain clinical trial data) that are subject to privacy and security requirements under HIPAA, as amended by HITECH. While there is currently an
exception for protected health information that is subject to HIPAA and clinical trial regulations, as currently written, the CCPA may impact some of our
business activities.
Further, the CCPA was amended by the California Privacy Rights Act ("CPRA") which entered into force on January 1, 2023. The amendments
introduced by the CPRA create additional obligations with respect to processing and storing personal information. Some observers have noted that the
CCPA could mark the beginning of a trend toward more stringent privacy legislation in the U.S., which could increase our potential liability and adversely
affect our business. Already, in the United States, we have witnessed significant developments at the state level with numerous other states passing
comprehensive privacy laws that incorporate many similar concepts of the CCPA.
A number of other states have proposed new privacy laws, some of which are similar to the above discussed recently passed laws. Such proposed
legislation, if enacted, may add additional complexity, variation in requirements, restrictions and potential legal risk, require additional investment of
resources in compliance programs, impact strategies and the availability of previously useful data and could result in increased compliance costs and/or
changes in business practices and policies. There are also states that are specifically regulating health information. For example, Washington state recently
passed a health privacy law that will regulate the collection and sharing of health information, and the law also has a private right of action, which further
increases the relevant compliance risk. Connecticut and Nevada have also passed similar laws regulating consumer health data. In addition, other states
have proposed and/or passed legislation that regulates the privacy and/or security of certain specific types of information. For example, a small number of
states have passed laws that regulate biometric data specifically. These various privacy and security laws may impact our business activities, including our
identification of research subjects, relationships with business partners and ultimately the marketing and distribution of our products. State laws are
changing rapidly and there is discussion in the U.S. Congress of a new comprehensive federal data privacy law to which we may likely become subject, if
enacted.
Compliance with U.S. and international data protection laws and regulations, including the GDPR and other EEA and UK data protection laws
could require us to take on more onerous obligations in our contracts, restrict our ability to collect, use and disclose data, or in some cases, impact our
ability to operate in certain jurisdictions. Failure to
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comply with these laws and regulations could result in government enforcement actions (which could include civil, criminal and administrative penalties),
private litigation, and/or adverse publicity and could negatively affect our operating results and business. Moreover, clinical trial subjects, employees and
other individuals about whom we or our potential collaborators obtain personal information, as well as the providers who share this information with us,
may limit our ability to collect, use and disclose the information. Claims that we have violated individuals’ privacy rights, failed to comply with data
protection laws, or breached our contractual obligations, even if we are not found liable, could be expensive and time-consuming to defend and could result
in adverse publicity that could harm our business.
Where we collect and otherwise process personal data regarding Europe, including in the event we decide to conduct clinical trials or continue to
enroll subjects in our ongoing or future clinical trials, we may be subject to additional privacy restrictions. The collection, use, storage, disclosure, transfer,
or other processing of personal data, including personal health data regarding (i) individuals in the European Economic Area (“EEA”) and United Kingdom
(“UK”) and/or (ii) carried out in the context of the activities of an establishment in the EEA and UK, is subject to the EU General Data Protection
Regulation (“EU GDPR”), and similarly, processing of personal data regarding individuals in the UK is subject to the GDPR, as well as other
supplementary national data protection legislation in force in the EEA member states and the UK (including the UK Data Protection Act 2018). The GDPR
is wide-ranging in scope and imposes numerous requirements on companies that process personal data, including requirements related to having a legal
basis for processing personal data, stricter requirements related to processing of sensitive data (including health data), obtaining consent of the individuals
to whom the personal data relates or ensuring another appropriate legal basis or condition applies to the processing of personal data, providing information
to individuals regarding data processing activities, implementing safeguards to protect the security and confidentiality of personal data, providing
notification of data breaches, requiring data protection impact assessments for high risk processing and taking certain measures when engaging third-party
processors. The GDPR also imposes strict rules on the transfer of personal data to countries outside the EEA/UK, including the United States, and permits
data protection authorities to impose large penalties for violations of the GDPR, including potential fines of up to €20 million (£17.5 million under UK
GDPR) or 4% of annual global revenues, whichever is greater. The GDPR also confers a private right of action on data subjects and consumer associations
to lodge complaints with supervisory authorities, seek judicial remedies, and obtain compensation for damages resulting from violations of the GDPR. In
addition, the GDPR includes restrictions on cross-border data transfers of personal data to countries outside the EEA/UK that are not considered by the
European Commission and UK government as providing “adequate” protection to personal data (“third countries”), including the United States. The GDPR
may increase our responsibility and liability in relation to personal data that we process where such processing is subject to the GDPR, and we may be
required to put in place additional mechanisms to ensure compliance with the GDPR, including as implemented by individual countries. Compliance with
the GDPR will be a rigorous and time-intensive process that may increase our cost of doing business or require us to change our business practices, and
despite those efforts, there is a risk that we may be subject to fines and penalties, litigation, and reputational harm in connection with our European
activities.
To enable the transfer of personal data outside of the EEA or the UK, adequate safeguards (for example, the European Commission approved
Standard Contractual Clauses (“SCCs”)) must be implemented in compliance with European and UK data protection laws. In addition, transfers made
pursuant to the SCCs (and other similar appropriate transfer safeguards) need to be assessed on a case-by-case basis taking into account the legal regime
applicable in the destination country, in particular regarding applicable surveillance laws and relevant rights of individuals with respect to the transferred
personal data, to ensure an “essentially equivalent” level of protection to that guaranteed in the EEA in the jurisdiction where the data imported is based
(“Transfer Impact Assessment”). On June 4, 2021, the EC issued new forms of standard contractual clauses for data transfers from controllers or processors
in the EU/EEA (or otherwise subject to the GDPR) to controllers or processors established outside the EU/EEA. The UK is not subject to the EC’s standard
contractual clauses but has published its own transfer mechanism, the International Data Transfer Agreement and International Data Transfer Addendum
(“IDTA”), which will enable transfers from the UK, and has also implemented a similar Transfer Impact Assessment requirement. Further, the EU and
United States have adopted its adequacy decision for the EU-U.S. Data Privacy Framework ("Framework"), which entered into force on July 11, 2023. This
Framework provides that the protection of personal data transferred between the EU and the United States is comparable to that offered in the EU. This
provides a further avenue to ensuring transfers to the United States are carried out in line with GDPR. There has been an extension to the Framework to
cover UK transfers to the United States. The Framework could be challenged like its predecessor frameworks. We will be required to implement these new
safeguards and carry out Transfer Impact Assessments when conducting restricted data transfers under the GDPR and doing so will require significant
effort and cost, and may result in us needing to make strategic considerations around
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where EEA or UK personal data is stored and transferred, and which service providers we can utilize for the processing of EEA/UK personal data.
Although the UK is regarded as a third country under the EU GDPR, the European Commission has issued a decision recognizing the UK as
providing adequate protection under the EU GDPR (“Adequacy Decision”) and, therefore, transfers of personal data originating in the EEA to the UK
remain unrestricted. The UK government has confirmed that personal data transfers from the UK to the EEA remain free flowing. The UK Government has
also now introduced a Data Protection and Digital Information Bill (“UK Bill”) into the UK legislative process which will introduce changes to the UK
GDPR. This may lead to additional compliance costs and could increase our overall risk. The lack of clarity on future UK laws and regulations and their
interaction with EU laws and regulations could add legal risk, uncertainty, complexity and cost to our handling of European personal data and our privacy
and data security compliance programs and could require us to implement different compliance measures for the UK and the EEA. The respective
provisions and enforcement of the EU GDPR and UK GDPR may further diverge in the future and create additional regulatory challenges and
uncertainties.
In addition, EEA Member States have adopted national laws to implement the EU GDPR that may partially deviate from the EU GDPR and
competent authorities in the EEA Member States may interpret the EU GDPR obligations slightly differently from country to country. Therefore, we do not
expect to operate in a uniform legal landscape in the EEA.
Compliance with the above and any other applicable privacy and data security laws and regulations is a rigorous and time-intensive process, and
we may be required to put in place additional mechanisms ensuring compliance with the new data protection rules. If we fail to comply with any such laws
or regulations, we may face significant fines and penalties that could adversely affect our business, reputation, financial condition and results of operations.
Artificial intelligence presents risks and challenges that can impact our business, including by posing security risks to our confidential
information , proprietary information and personal data.
Issues in the development and use of artificial intelligence, combined with an uncertain regulatory environment, may result in reputational harm,
liability, or other adverse consequences to our business operations. As with many technological innovations, artificial intelligence presents risks and
challenges that could impact our business. We may adopt and integrate generative artificial intelligence tools into our systems for specific use cases
reviewed by legal and information security. Our vendors may incorporate generative artificial intelligence tools into their offerings without disclosing this
use to us, and the providers of these generative artificial intelligence tools may not meet existing or rapidly evolving regulatory or industry standards with
respect to privacy and data protection and may inhibit our or our vendors’ ability to maintain an adequate level of service and experience. If we, our
vendors, or our third-party partners experience an actual or perceived breach or privacy or security incident because of the use of generative artificial
intelligence, we may lose valuable intellectual property and confidential information and our reputation and the public perception of the effectiveness of
our security measures could be harmed. Further, bad actors around the world use increasingly sophisticated methods, including the use of artificial
intelligence, to engage in illegal activities involving the theft and misuse of personal information, confidential information, and intellectual property. Any
of these outcomes could damage our reputation, result in the loss of valuable property and information, and adversely impact our business.
Governments outside the United States tend to impose strict price controls, which may adversely affect our revenue, if any.
In some countries, particularly the countries of the EU, the pricing of prescription pharmaceuticals is subject to governmental control. In these
countries, pricing negotiations with governmental authorities can take considerable time after the receipt of marketing approval for a drug. In addition,
there can be considerable pressure by governments and other stakeholders on prices and reimbursement levels, including as part of cost containment
measures. Political, economic and regulatory developments may further complicate pricing negotiations. To obtain coverage and reimbursement or pricing
approval in some countries, we may be required to conduct a clinical trial that compares the
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cost-effectiveness of our drug candidate to other available procedures. If reimbursement of our drugs is unavailable or limited in scope or amount, or if
pricing is set at unsatisfactory levels, our business could be harmed, possibly materially.
Healthcare insurance coverage and reimbursement may be limited or unavailable for our product candidate, if approved, which could make
it difficult for us to sell our product candidate or other therapies profitably.
The success of our product candidate, if approved, depends on the availability of coverage and adequate reimbursement from third-party payors
including governmental healthcare programs, such as Medicare and Medicaid, commercial payors, and health maintenance organizations. 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. Coverage and adequate reimbursement from third-party payors are critical to new product acceptance.
Third-party payors 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:
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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 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. There is significant uncertainty related to the insurance coverage and reimbursement of newly approved
products. In the United States, the principal decisions about reimbursement for new medicines are typically made by CMS, an agency within HHS, as CMS
decides whether and to what extent a new medicine will be covered and reimbursed under Medicare. Private third-party payors tend to follow Medicare
coverage and reimbursement limitations to a substantial degree, but also have their own methods and approval process apart from Medicare determinations.
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.
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.
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. We cannot be sure that reimbursement will be available for any product candidate that we
commercialize and, if reimbursement is available, the level of reimbursement.
In addition, many pharmaceutical manufacturers must calculate and report certain price reporting metrics to the government, such as average
sales price ("ASP") and best price. Penalties may apply in some cases when such metrics are not submitted accurately and timely. Further, these prices for
drugs may be reduced by mandatory discounts or rebates required by government healthcare programs.
Our activities in the United States subject us to various laws relating to foreign investment and the export of certain technologies, and our
failure to comply with these laws or adequately monitor the compliance of our suppliers
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and others we do business with could subject us to substantial fines, penalties and even injunctions, the imposition of which on us could have a
material adverse effect on the success of our business.
Because we have substantial operations in the United States, we are subject to U.S. laws that regulate foreign investments in U.S. businesses and
access by foreign persons to technology developed and produced in the United States. These laws include Section 721 of the Defense Production Act of
1950, as amended by the Foreign Investment Risk Review Modernization Act of 2018, and the regulations at 31 C.F.R. Parts 800 and 801, as amended,
administered by the Committee on Foreign Investment in the United States; and the Export Control Reform Act of 2018, which is being implemented in
part through Commerce Department rulemakings to impose new export control restrictions on “emerging and foundational technologies” yet to be fully
identified. Application of these laws, including as they are implemented through regulations being developed, may negatively impact our business in
various ways, including by restricting our access to capital and markets; limiting the collaborations we may pursue; regulating the export our products,
services, and technology from the United States and abroad; increasing our costs and the time necessary to obtain required authorizations and to ensure
compliance; and threatening monetary fines and other penalties if we do not.
We are subject to U.S. and certain foreign export and import controls, sanctions, embargoes, anti-corruption laws, and anti-money
laundering laws and regulations. Compliance with these legal standards could impair our ability to compete in domestic and international markets. We
can face criminal liability and other serious consequences for violations, which can harm our business.
We are subject to export control and import laws and regulations, including the U.S. Export Administration Regulations, U.S. Customs
regulations, various economic and trade sanctions regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Controls, the U.S.
Foreign Corrupt Practices Act of 1977, as amended, ("FCPA"), the U.S. domestic bribery statute contained in 18 U.S.C. § 201, the U.S. Travel Act, the
USA PATRIOT Act, and other state and national anti-bribery and anti-money laundering laws in the countries in which we conduct activities. Anti-
corruption laws are interpreted broadly and prohibit companies and their employees, agents, contractors, and other collaborators from authorizing,
promising, offering, or providing, directly or indirectly, improper payments or anything else of value to recipients in the public or private sector. We may
engage third parties to sell our products sell our products outside the United States, to conduct clinical trials, and/or to obtain necessary permits, licenses,
patent registrations, and other regulatory approvals. We have direct or indirect interactions with officials and employees of government agencies or
government-affiliated hospitals, universities, and other organizations. We can be held liable for the corrupt or other illegal activities of our employees,
agents, contractors, and other collaborators, even if we do not explicitly authorize or have actual knowledge of such activities. Any violations of the laws
and regulations described above may result in substantial civil and criminal fines and penalties, imprisonment, the loss of export or import privileges,
debarment, tax reassessments, breach of contract and fraud litigation, reputational harm, and other consequences.
Inadequate funding for the FDA, the SEC and other government agencies, including from government shut downs, or other disruptions to
these agencies’ operations, could hinder their ability to hire and retain key leadership and other personnel, prevent new or existing product candidates
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, the ability to hire and retain key personnel and accept payment of user fees, and statutory, regulatory, and policy changes. Average review times at
the agency have fluctuated in recent years as a result. In addition, government funding of the SEC and other government agencies on which our operations
may rely, including those that fund research and development activities is subject to the political process, which is inherently fluid and unpredictable.
Disruptions at the FDA and other agencies may also slow the time necessary for new drug candidates to be reviewed and/or approved by
necessary government agencies, which would adversely affect our business. If a prolonged government shutdown occurs, it could significantly impact the
ability of the FDA to timely review and process our regulatory submissions, which could have a material adverse effect on our business. Further, in our
operations as a
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public company, future government shutdowns could impact our ability to access the public markets and obtain necessary capital in order to properly
capitalize and continue our operations.
Risks Related to Our Financial Condition and Need for Additional Capital
We have incurred significant losses since our inception and we expect to incur losses for the foreseeable future.
We have no products approved for commercial sale and have not generated any revenue 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 significant losses in each period
since our inception in January 2017. For the years ended December 31, 2023, 2022 and 2021, we reported net losses of $151.8 million, $112.0 million and
$100.8 million, respectively. As of December 31, 2023, we had an accumulated deficit of $574.1 million. We expect to continue to incur significant losses
for the foreseeable future, and we expect these losses to increase as we continue our research and development of, and seek regulatory approvals for, our
product candidate. We anticipate that our expenses will increase substantially if, and as, we:
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conduct larger scale clinical trials for our product candidate, EFX, and any future product candidates;
discover and develop new product candidates, and conduct nonclinical studies and clinical trials;
incur any disruption or delays to the supply of our product candidate;
manufacture, or have manufactured, clinical and commercial supplies of our product candidates;
seek regulatory approvals for EFX or any future product candidates;
commercialize EFX or any future product candidates, if approved;
attempt to transition from a company with a development focus to a company capable of supporting commercial activities, including
establishing sales, marketing and distribution infrastructure;
hire additional clinical, scientific, and management personnel;
add operational, financial, and management information systems and personnel;
identify additional compounds or product candidates and acquire rights from third parties to those compounds or product candidates through
licenses; and
incur additional costs associated with operating as a public company.
Even if we succeed in commercializing EFX or any future product candidates, we may continue to incur substantial research and development
and other expenditures to develop and market additional product candidates. 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.
We currently have a limited operating history, have not generated any revenue to date, and may never become profitable.
We are a clinical-stage biotechnology company with a limited operating history. Our operations to date have been limited to organizing and
staffing our company, acquiring, developing and securing our technology and product candidate, EFX, and conducting nonclinical studies and clinical trials
of EFX. We have not yet demonstrated our ability to complete late-stage clinical trials, obtain regulatory approval, formulate and manufacture a
commercial-scale product, or conduct sales and marketing activities necessary for successful product commercialization. Investment in biotechnology
product development is highly speculative because it entails substantial upfront expenditures in clinical research organizations and contract manufacturing
organizations 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. Consequently, any predictions you may make about our future success or viability may not be as
accurate as they could be if we had a longer operating history.
Though Phase 3 clinical development of EFX has been initiated, we do not expect to receive revenue from EFX for a number of years, if ever. To
date, we have not generated any revenue and we will not be able to generate product revenue unless and until EFX, or any future product candidate,
successfully completes clinical trials, receives regulatory approval, and is commercialized. We may seek to obtain revenue from collaboration or licensing
agreements with third
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parties. Our ability to generate future product revenue from EFX or any future product candidates also depends on a number of additional factors, including
our, or our current and future contractors’ and collaborators’, ability to:
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successfully complete nonclinical studies and clinical trials for EFX and any future product candidates;
seek and obtain marketing approvals for any product candidates that complete clinical development;
establish and maintain supply and manufacturing relationships with third parties, and ensure adequate and legally compliant manufacturing of
bulk drug substances and drug products to maintain that supply;
launch and commercialize any product candidates for which we obtain marketing approval, and, if launched independently, successfully
establish a sales, marketing and distribution infrastructure;
demonstrate the necessary safety data post-approval to ensure continued regulatory approval;
obtain coverage and adequate product reimbursement from third-party payors, including government payors;
achieve market acceptance for any approved products;
address any competing technological and market developments;
maintain our rights under our existing license agreement with Amgen and any similar agreements we may enter into in the future;
negotiate favorable terms in any collaboration, licensing or other arrangements into which we may enter in the future and performing our
obligations in such collaborations;
establish, maintain, protect and enforce our intellectual property rights; and
attract, hire and retain qualified personnel.
In addition, because of the numerous risks and uncertainties associated with biotechnology product development, including that our product
candidate may not advance through development or achieve the endpoints of applicable clinical trials, we are unable to predict the timing or amount of
increased expenses, or if or when we will achieve or maintain profitability. In addition, our expenses could increase beyond expectations if we decide, or
are required by the FDA or foreign regulatory authorities, to perform nonclinical studies or clinical trials in addition to those that we currently anticipate.
Even if we complete the development and regulatory processes described above, we anticipate incurring significant costs associated with launching and
commercializing any approved product.
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 you to lose all or part of your investment.
We will require additional capital to finance our operations, which may not be available to us on acceptable terms, or at all. As a result, we
may not complete the development and commercialization of our product candidate or develop any future product candidates.
As a research and development company, our operations have consumed substantial amounts of cash since inception. We expect our research and
development expenses to increase substantially in connection with our ongoing activities, particularly as we advance EFX into later-stage clinical
development.
As of December 31, 2023, we had $569.3 million of cash, cash equivalents, short-term and long-term marketable securities. We raised gross
proceeds of $105.8 million from our initial public offering in June 2019 and $216.4 million from a follow-on public offering in July 2020. We also raised
gross proceeds of $25.0 million from Pfizer through a registered direct common stock offering and borrowed $10.0 million from Hercules under a term
loan in June 2022. In September 2022, we raised gross proceeds of $230.0 million from a follow-on public offering. In March 2023, we borrowed $15.0
million from Hercules under our term loan facility. In April and May 2023, we raised gross proceeds of $127.4 million from sales of common stock under
an ATM offering and gross proceeds of $220.0 million from sales of common stock through an underwritten registered direct offering. Any forecast of the
period of time through which our financial resources will adequately support our operations is a forward-looking statement and involves risks and
uncertainties, and actual results could vary as a result of a number of factors, including the factors discussed elsewhere in this "Risk Factors" section. The
assumptions underlying any estimate may prove to be wrong, and we could utilize our available capital resources sooner than we currently expect. Our
future funding requirements, both short and long-term, will depend on many factors, including, but not limited to:
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the initiation, progress, timing, costs and results of nonclinical studies and clinical trials for our product candidate or any future product
candidates we may develop;
the cost and timing of manufacturing our product candidate for use in clinical trials or, if approved by the FDA, for commercial use;
our ability to maintain our license to EFX from Amgen;
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the outcome, timing and cost of seeking and obtaining regulatory approvals from the FDA and comparable foreign regulatory authorities,
including the potential for such authorities to require that we perform more nonclinical studies or clinical trials than those that we currently
expect or change their requirements on studies that had previously been agreed to;
the cost to establish, maintain, expand, enforce and defend the scope of our intellectual property portfolio, including the amount and timing
of any payments we may be required to make, or that we may receive, in connection with licensing, preparing, filing, prosecuting, defending
and enforcing any patents or other intellectual property rights;
the effect of competing technological and market developments;
market acceptance of any approved product candidates, including product pricing, as well as product coverage and the adequacy of
reimbursement by third-party payors;
the cost of acquiring, licensing or investing in additional businesses, products, product candidates and technologies;
the cost and timing of selecting, auditing and potentially validating a manufacturing site for commercial scale manufacturing;
the cost of establishing sales, marketing and distribution capabilities for any product candidates for which we may receive regulatory
approval and that we determine to commercialize; and
our need to implement additional internal systems and infrastructure, including financial and reporting systems.
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 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 raise additional funds through public or private equity offerings, the terms
of these securities may include liquidation or other preferences that adversely affect our stockholders’ rights. Further, to the extent that we raise additional
capital through the sale of common stock or securities convertible or exchangeable into common stock, your ownership interest will be diluted. If we raise
additional capital through debt financing, we could be subject to fixed payment obligations and may be subject to covenants limiting or restricting our
ability to take specific actions, such as incurring additional debt, making capital expenditures or declaring dividends. If we raise additional capital through
marketing and distribution arrangements or other collaborations, strategic alliances or licensing arrangements with third parties, we may have to relinquish
certain valuable rights to our product candidates, technologies, future revenue streams or research programs or grant licenses on terms that may not be
favorable to us. We also could be required to seek collaborators for one or more of our current or any 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. 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.
Risks Related to Our Indebtedness
Our operating activities may be restricted as a result of covenants related to our term loan obligation, which we may be required to repay in
an event of default, which could have a materially adverse effect on our business.
On June 15, 2022, we entered into a Loan and Security Agreement ("Loan Agreement") with Hercules Capital, Inc., ("Hercules") for an
aggregate principal amount of up to $100.0 million. Until we have repaid such indebtedness, the Loan Agreement subjects us to various customary
covenants, including requirements as to financial reporting and insurance, and restrictions on our ability to dispose of our business or property, to change
our line of business, to liquidate or dissolve, to merge or consolidate with any other entity or to acquire all or substantially all the capital stock or property
of another entity, to incur additional indebtedness, to incur liens on our property, to pay any dividends or other distributions on capital stock other than
dividends payable solely in capital stock, to redeem capital stock, to enter into licensing agreements, to engage in transactions with affiliates, or to
encumber our intellectual property. Additionally, there is a financial covenant requiring us to maintain a minimum cash balance in relation to the
outstanding
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principal balance of the Term Loan. Our business may be adversely affected by these restrictions on our ability to operate our business.
Additionally, we may be required to repay the outstanding indebtedness under the Term Loan if an event of default occurs under the Loan
Agreement. Under the Loan Agreement, an event of default will occur if, among other things: we fail to make payments under the Loan Agreement; we
breach any of our covenants under the Loan Agreement, subject to specified cure periods with respect to certain breaches; the Lender determines that a
material adverse change has occurred; we or our assets become subject to certain legal proceedings, such as bankruptcy proceedings; we are unable to pay
our debts as they become due; or we default on contracts with third parties which would permit the holder of indebtedness to accelerate the maturity of such
indebtedness or that could have a material adverse change on us. As a result of the occurrence of an event of default, Hercules could accelerate all of the
amounts due. In the event of an acceleration of amounts due under the Term Loan, we may not have enough available cash or be able to raise additional
funds through equity or debt financings to repay such indebtedness at the time any such event of default occurs. In this case, we may be required to delay,
limit, reduce or terminate our product development or commercialization efforts or grant to others rights to develop and market product candidates that we
would otherwise prefer to develop and market ourselves. Our business, financial condition and results of operations could be materially adversely affected
as a result of any of these events.
Our level of indebtedness and debt service obligations could adversely affect our financial condition and may make it more difficult for us to
fund our operations.
The Term Loan with Hercules provides up to $100.0 million of debt financing and has interest-only payments through July 1, 2024, which may
be extended based on achievement of certain milestones. Thereafter, we are obligated to make payments that will include installments of principal and
interest through the maturity date of January 1, 2027.
This indebtedness may create additional financing risk for us, particularly if our business or prevailing financial market conditions are not
conducive to paying off or refinancing our outstanding debt obligations at maturity. This indebtedness could also have important negative consequences,
including the fact that:
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we will need to repay our indebtedness by making payments of interest and principal, which will reduce the amount of money available to
finance our operations, our research and development efforts and other general corporate activities; and
our failure to comply with the restrictive covenants in the Term Loan could result in an event of default that, if not cured or waived, would
accelerate our obligation to repay this indebtedness, and Hercules could seek to enforce our security interest in the assets securing such
indebtedness.
Risks Related to Commercialization and Market Acceptance
Risks Related to Commercialization
Even if we commercialize EFX or any future product candidates, if approved, these products may become subject to unfavorable pricing
regulations, third-party reimbursement practices or healthcare reform initiatives, which could harm our business.
The regulations that govern marketing approvals, pricing and reimbursement for new drug products vary widely from country to country. Current
and future legislation may significantly change the approval requirements in ways that could involve additional costs and cause delays in obtaining
approvals. 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 product licensing approval is granted. In some foreign markets, prescription pharmaceutical pricing remains subject to continuing
governmental control even after initial approval is granted. As a result, we might obtain marketing approval for a product in a particular country, but then
be subject to price regulations that delay or limit our commercial launch of the product, possibly for lengthy time periods, which could negatively impact
the revenue we generate from the sale of the product in that particular country. Adverse pricing limitations may hinder our ability to recoup our investment
in one or more product candidates, even if our product candidate or any future product candidates obtain marketing approval.
Our ability to commercialize any products successfully also will depend in part on the extent to which coverage and adequate reimbursement for
these products and related treatments will be available from third-party payors such as government health administration authorities, private health insurers
and other organizations. Third-party payors determine which medications they will cover and establish reimbursement levels. 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
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the prices charged for medical products. We cannot be sure that coverage and reimbursement will be available for any product that we commercialize and,
if reimbursement is available, what the level of reimbursement will be. Coverage and reimbursement may impact the demand for, or the price of, any
product candidate for which we obtain marketing approval, if any. If coverage and reimbursement are not available or reimbursement is available only to
limited levels, we may not be able to successfully commercialize any product candidate for which marketing approval is obtained, if any.
There may be significant delays in obtaining coverage and reimbursement for newly approved drugs, and coverage may be more limited than the
purposes for which the drug is approved by the FDA or comparable foreign regulatory authorities. Moreover, eligibility for coverage and reimbursement
does not imply that a 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 only be temporary. 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. Our inability to promptly obtain coverage and profitable reimbursement rates third-party payors for
any approved products that we develop could have a material adverse effect on our operating results, our ability to raise capital needed to commercialize
products and our overall financial condition.
Product liability lawsuits against us could cause us to incur substantial liabilities and to limit commercialization of any products that we may
develop.
We face an inherent risk of product liability exposure related to the testing of our product candidate or any future product candidates in human
clinical trials and will face an even greater risk if we commercialize any resulting products. Product liability claims may be brought against us by subjects
enrolled in our clinical trials, patients, their family members, healthcare providers or others using, administering or selling our products. If we cannot
successfully defend ourselves against claims that our product candidate or any future product candidates or products that we may develop caused injuries,
we could incur substantial liabilities. Regardless of merit or eventual outcome, liability claims may result in:
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decreased demand for any product candidates or products that we may develop;
termination of clinical trial sites or entire trial programs;
injury to our reputation and significant negative media attention;
withdrawal of clinical trial participants;
significant costs to defend the related litigation;
substantial monetary awards to trial subjects or patients;
loss of revenue;
diversion of management and scientific resources from our business operations;
the inability to commercialize any products that we may develop; and
a decline in our stock price.
Our clinical trial liability insurance coverage may not adequately cover all liabilities that we may incur. We may not be able to maintain
insurance coverage at a reasonable cost or in an amount adequate to satisfy any liability that may arise. Our inability to obtain product liability insurance at
an acceptable cost or to otherwise protect against potential product liability claims could prevent or delay the commercialization of any products or product
candidates that we develop. We intend to expand our insurance coverage for products to include the sale of commercial products if we obtain marketing
approval for our product candidate or any future product candidates in development, but we may be unable to obtain commercially reasonable product
liability insurance for any products approved for marketing. Large judgments have been awarded in lawsuits based on drugs that had unanticipated side
effects. If we are sued for any injury caused by our products, product candidates or processes, our liability could exceed our product liability insurance
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coverage and our total assets. Claims against us, regardless of their merit or potential outcome, may also generate negative publicity or hurt our ability to
obtain physician adoption of our product or expand our business.
Risks Related to Market Acceptance
If, in the future, we are unable to establish sales and marketing capabilities or enter into agreements with third parties to sell and market any
product candidates we may develop, we may not be successful in commercializing those product candidates if and when they are approved.
We do not currently have an infrastructure for the sales, marketing, and distribution of pharmaceutical products. In order to market our product
candidates, if approved by the FDA or any other regulatory body, we must build our sales, marketing, managerial, and other non-technical capabilities, or
make arrangements with third parties to perform these services. There are risks involved with both establishing our own commercial capabilities and
entering into arrangements with third parties to perform these services. For example, recruiting and training a sales force or reimbursement specialists is
expensive and time-consuming and could delay any product launch. If the commercial launch of a product candidate for which we recruit a sales force and
establish marketing and other commercialization capabilities is delayed or does not occur for any reason, we would have prematurely or unnecessarily
incurred these commercialization expenses. This may be costly, and our investment would be lost if we cannot retain or reposition our commercialization
personnel.
If we enter into arrangements with third parties to perform sales, marketing, commercial support, and distribution services, our product revenue
or the profitability of product revenue may be lower than if we were to market and sell any products we may develop ourselves. In addition, we may not be
successful in entering into arrangements with third parties to commercialize our product candidates or may be unable to do so on terms that are favorable to
us. We may have little control over such third parties, and any of them may fail to devote the necessary resources and attention to sell and market our
products effectively and they could expose our company to regulatory enforcement and legal risk in the execution of their sales and commercialization
activities. If we do not establish commercialization capabilities successfully, either on our own or in collaboration with third parties, we will not be
successful in commercializing our product candidates if approved.
If we are unable to establish adequate sales, marketing, and distribution capabilities, whether independently or with third parties, or if we are
unable to do so on commercially reasonable terms, our business, results of operations, financial condition, and prospects will be materially adversely
affected.
Our product candidate or any future product candidates may not achieve adequate market acceptance among physicians, patients, third-party
payors and others in the medical community necessary for commercial success.
Even if our product candidate or any future product candidates receive regulatory approval, they may not gain adequate market acceptance
among physicians, patients, third-party payors, pharmaceutical companies and others in the medical community. Demonstrating the safety and efficacy of
our product candidate or any future product candidates and obtaining regulatory approvals will not guarantee future revenue. Our commercial success also
depends on coverage and adequate reimbursement of our product candidate or any future product candidates by third-party payors, including government
payors and private insurers, which may be difficult or time-consuming to obtain, may be limited in scope and may not be obtained in all jurisdictions in
which we may seek to market our products. Third-party payors closely examine medical products to determine whether they should be covered by
reimbursement and, if so, the level of reimbursement that will apply. We cannot be certain that third-party payors will sufficiently reimburse sales of our
product or enable us to sell our product at a profitable price. Similar concerns could also limit the reimbursement amounts that health insurers or
government agencies in other countries are prepared to pay for our products. In many regions, including Europe, Japan and Canada, where we may market
our products, the pricing of prescription drugs is controlled by the government or regulatory agencies. Regulatory agencies in these countries could
determine that the pricing for our products should be based on prices of other commercially available drugs for the same disease, rather than allowing us to
market our products at a premium as new drugs. The degree of market acceptance of any of our approved product candidates will depend on a number of
factors, including:
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the efficacy and safety profile of the product candidate as demonstrated in clinical trials;
the timing of market introduction of the product candidate as well as competitive products;
the clinical indications for which the product candidate is approved;
acceptance of the product candidate as a safe and effective treatment by clinics and patients;
the potential and perceived advantages of the product candidate over alternative treatments, including any similar generic treatments;
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the cost of treatment in relation to alternative treatments;
the availability of coverage and adequate reimbursement and pricing by third-party payors;
the relative convenience and ease of administration;
the frequency and severity of adverse events;
the effectiveness of sales and marketing efforts; and
unfavorable publicity relating to our product candidate or any future product candidates.
Sales of medical products also depend on the willingness of physicians to prescribe the treatment, which is likely to be based on a determination
by these physicians that the products are safe, therapeutically effective and cost effective. In addition, the inclusion or exclusion of products from treatment
guidelines established by various physician groups and the viewpoints of influential physicians can affect the willingness of other physicians to prescribe
the treatment. We cannot predict whether physicians, physicians’ organizations, hospitals, other healthcare providers, government agencies or private
insurers will determine that our product is safe, therapeutically effective and cost effective as compared with competing treatments. If any product
candidate is approved but does not achieve an adequate level of acceptance by such parties, we may not generate or derive sufficient revenue from that
product candidate and may not become or remain profitable.
Risks Related to Our Operations
We incur significant costs and expend significant time and effort, as a result of operating as a public company, and our management is
required to devote substantial time to compliance initiatives and corporate governance practices.
We incur significant legal, accounting and other expenses, and expend significant time and effort by management and other personnel, to comply
with the rules applicable to us as a public company. We are subject to the reporting requirements of Nasdaq and of the Securities Exchange Act of 1934, as
amended, which require, among other things, that we file with the Securities and Exchange Commission (SEC), annual, quarterly, and current reports with
respect to our business and financial condition and that we establish and maintain effective disclosure controls, procedures and corporate governance
practices. We must also comply with the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), and specifically Section 404 of the Sarbanes-Oxley Act,
which requires that we establish and maintain effective internal controls over financial reporting. In order to maintain compliance with the SEC’s rules that
implement Section 404 of the Sarbanes-Oxley Act, we are required to make a formal assessment of the effectiveness of our internal control over financial
reporting, to certify financial and other information in our quarterly and annual reports and to provide an annual management report on the effectiveness of
our internal control over financial reporting, which includes the disclosure of any material weaknesses and associated remediation activities. Also, as a
large accelerated filer, we incur additional significant costs to meet the requirement to provide an attestation report on our internal control over financial
reporting from our independent registered public accounting firm. We will need to continue to dedicate significant internal resources and outside
consultants in order to complete management’s annual assessment and to prepare for when we are no longer a smaller reporting company. Despite these
efforts, there is no guarantee that we will be able to conclude that our internal controls over financial reporting remain effective.
Further, in July 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act) was enacted. There are significant
corporate governance and executive compensation related provisions in the Dodd-Frank Act that require the SEC to adopt additional rules and regulations
in these areas, such as “say on pay” and proxy access. Stockholder activism, the current political environment, and the current high level of government
intervention and regulatory reform may lead to substantial new regulations and disclosure obligations, which may lead to additional compliance costs and
impact the manner in which we operate our business in ways we cannot currently anticipate.
We expect the rules and regulations applicable to public companies, and the additional compliance requirements that we will be subject to when
we are no longer a smaller reporting company, to substantially increase our legal and financial compliance costs and to make some activities more time-
consuming and costly. If these requirements divert the attention of our management and personnel from other business concerns, they could have a material
adverse effect on our business, financial condition, and results of operations. The increased costs will decrease our net income or increase our net loss and
may require us to reduce costs in other areas of our business or increase the prices of our products or services. For example, these rules and regulations may
make it more difficult and more expensive for us to obtain director and officer liability insurance and we may be required to incur substantial costs to
maintain the same or similar coverage. We cannot predict or estimate the amount or timing of additional costs we may incur to respond to
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these requirements. The impact of these requirements could also make it more difficult for us to attract and retain key financial or management personnel.
If we fail to maintain an effective system of internal controls over financial reporting, we may not be able to accurately report our financial
results or prevent fraud. As a result, stockholders could lose confidence in our financial and other public reporting, which would harm our business
and the trading price of our common stock.
Effective internal control over financial reporting is necessary for us to provide reliable financial reports and, together with adequate disclosure
controls and procedures, is designed to prevent fraud. Any failure to implement required new or improved controls, or difficulties encountered in their
implementation could cause us to fail to meet our reporting obligations. In addition, any testing by us conducted in connection with Section 404 of the
Sarbanes-Oxley Act, or any subsequent testing by our independent registered public accounting firm, may reveal deficiencies in our internal control over
financial reporting that are deemed to be material weaknesses or that may require prospective or retroactive changes to our financial statements or identify
other areas for further attention or improvement. Inferior internal controls could also cause investors to lose confidence in our reported financial
information, which could harm our business and have a negative effect on the trading price of our stock.
If material weaknesses or significant deficiencies in our internal control over financial reporting are identified in the future, we may not detect or
remediate errors on a timely basis and our consolidated financial statements may be materially misstated. We, or our independent registered public
accounting firm, may not be able to conclude on an ongoing basis that we have effective internal control over financial reporting, which could harm our
operating results, cause investors to lose confidence in our reported financial information and cause the trading price of our stock to fall. In addition, any
failure to report our financial results on an accurate and timely basis could result in sanctions, lawsuits, delisting of our shares from NASDAQ or other
adverse consequences that would materially harm our business.
Our business and operations would suffer in the event of computer system failures, cyber-attacks or deficiencies in our or related parties’
cyber security.
Given our limited operating history, we are still in the process of implementing our internal security measures. Our internal computer systems
and those of current and future third parties on which we rely may fail and are vulnerable to damage from computer viruses and unauthorized access.
Geopolitical instability, including Russia's invasion of Ukraine may increase cyber-attacks. Additionally, cyberattacks could include industrial espionage,
wire fraud and other forms of cyber fraud, the deployment of harmful malware, including ransomware, denial-of-service, social engineering fraud or other
means to threaten data security, confidentiality, integrity and availability. Although we devote resources to protect our information systems, we realize that
cyberattacks are a threat, and there can be no assurance that our efforts will prevent information security breaches that would result in business, legal,
financial, or reputational harm to us, or would have a material adverse effect on our results of operations and financial condition. Our information
technology and other internal infrastructure systems, including corporate firewalls, servers, leased lines and connection to the Internet, face the risk of
systemic failure that could disrupt our operations. A successful cyberattack could result in the theft or destruction of intellectual property, data, or other
misappropriation of assets, or otherwise compromise our confidential or proprietary information and disrupt our operations. Cyberattacks are increasing in
their frequency, sophistication and intensity, and have become increasingly difficult to detect. We may not be able to anticipate all types of security threats,
and we may not be able to implement preventive measures effective against all such security threats. The techniques used by cyber criminals change
frequently, may not be recognized until launched, and can originate from a wide variety of sources, including outside groups such as external service
providers, organized crime affiliates, terrorist organizations or hostile foreign governments or agencies. While we have not, to our knowledge, experienced
any such material system failure 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 or future clinical
trials could result in the following, which could be material:
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delays in our regulatory approval efforts;
remediation costs, such as liability for stolen assets or information, repairs of system damage, and incentives to business partners in an effort
to maintain relationships after an attack;
investigation costs, including costs associated with potential notification of the attack to data subjects, regulators or others and costs to
engage third party forensic investigators and other experts;
increased cybersecurity protection costs, which may include the costs of making organizational changes, deploying additional personnel and
protection technologies, training employees, and engaging third party experts and consultants;
increased insurance premiums;
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reputational damage that adversely affects customer or investor confidence;
damage to the company’s competitiveness, stock price, and long-term shareholder value; and
significantly increase our costs to recover or reproduce the data.
Likewise, we currently rely, and expect to continue to rely, on third parties for the manufacture of our product candidate or any future product
candidates and to conduct clinical trials, and similar events relating to their computer systems could also have a material adverse effect on our business. We
rely on these third parties to implement effective security measures and identify and correct for any failures, deficiencies or breaches. 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 liability, our competitive position could be harmed and the further development and commercialization of our product
candidate or any future product candidates could be hindered or delayed.
We use and generate materials that may expose us to material liability.
Our research programs involve the use of hazardous materials and chemicals, which are currently only handled by third parties. We are subject to
foreign, federal, state and local environmental and health and safety laws and regulations governing, among other matters, the use, manufacture, handling,
storage and disposal of hazardous materials and waste products. We may incur significant costs to comply with these current or future environmental and
health and safety laws and regulations. In addition, we cannot completely eliminate the risk of contamination or injury from hazardous materials and may
incur material liability as a result of such contamination or injury. In the event of an accident, an injured party may seek to hold us liable for any damages
that result. Any liability could exceed the limits or fall outside the coverage of our workers’ compensation, property and business interruption insurance
and we may not be able to maintain insurance on acceptable terms, if at all. We currently carry no insurance specifically covering environmental claims.
General Risk Factors
Unfavorable global economic conditions could adversely affect our business, financial condition or results of operations.
Our results of operations could be adversely affected by economic and political changes in the location in which we, or our suppliers and
vendors, maintain operations. For example, our business may be generally exposed to the impact of political or civil unrest or military action. While we do
not have direct exposure to Ukraine or Russia, we do have third-party manufacturing partners with locations in Europe, which may be affected by the
ongoing conflict between Russia and Ukraine. In addition, we currently plan to activate sites for our SYNCHRONY trials in Israel and Turkey in 2024.
These plans may be materially impacted or delayed by the ongoing Israel-Hamas war and could result in difficulties securing necessary clearance from
regulatory authorities, activating clinical trial sites, and screening and enrolling patients in such areas on schedule. Any of the foregoing could harm our
business and we cannot anticipate all of the ways in which the current economic climate and financial market conditions could adversely impact our
business.
Our business is affected by macroeconomic conditions, including rising inflation, interest rates and supply chain constraints.
Various macroeconomic factors could adversely affect our business and the results of our operations and financial condition, including changes
in inflation, interest rates and overall economic conditions and uncertainties such as those resulting from the current and future conditions in the global
financial markets. For instance, rising interest rates have impacted the Company’s net income. Recent supply chain constraints have led to higher inflation,
which if sustained could have a negative impact on the Company's product development and operations. If inflation or other factors were to significantly
increase our business costs, our ability to develop our current pipeline and new therapeutic products may be negatively affected. Interest rates, the liquidity
of the credit markets and the volatility of the capital markets could also affect the operation of our business and our ability to raise capital on favorable
terms, or at all, in
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order to fund our operations. Similarly, these macroeconomic factors could affect the ability of our third-party suppliers and manufacturers to manufacture
clinical trial materials for our product candidates.
Adverse developments affecting the financial services industry, such as actual events or concerns involving liquidity, defaults or non-
performance by financial institutions or transactional counterparties, could adversely affect our current and projected business operations and its
financial condition and results of operations.
Adverse developments that affect financial institutions, such as events involving liquidity that are rumored or actual, have in the past and may in
the future lead to market-wide liquidity problems. For example, on March 10, 2023, Silicon Valley Bank was closed by the California Department of
Financial Protection and Innovation, which appointed the Federal Deposit Insurance Corporation as receiver. Although we assess our banking relationships
as we believe necessary or appropriate, our access to funding sources and other credit arrangements, for example through our loan with Hercules, in
amounts adequate to finance or capitalize our current and projected future business operations could be significantly impaired by factors that us, the
financial institutions with which we have credit agreements or arrangements directly, or the financial services industry or economy in general. These factors
could include, among others, events such as liquidity constraints or failures, the ability to perform obligations under various types of financial, credit or
liquidity agreements or arrangements, disruptions or instability in the financial services industry or financial markets, or concerns or negative expectations
about the prospects for companies in the financial services industry.
We are a "large accelerated filer" as defined by the SEC, and the reduced disclosure requirements previously available to us no longer apply.
As of June 30, 2023, the market value of our common stock that was held by non-affiliates exceeded $700 million, and as a result, we now
qualify as a "large accelerated filer. As such, we incur significant additional expenses in complying with the Sarbanes-Oxley Act of 2002 and rules
implemented by the SEC. As a large accelerated filer, we are subject to certain disclosure requirements that are applicable to other public companies that
were not applicable to us as a smaller reporting company. These requirements include:
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compliance with the auditor attestation requirements of Section 404;
compliance with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm
rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements;
full disclosure obligations regarding executive compensation; and
compliance with the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden
parachute payments not previously approved.
If we or our independent registered public accounting firm identifies deficiencies in our internal control over financial reporting that are deemed
to be material weaknesses, the market price of our stock could decline and we could be subject to sanctions or investigations by the SEC or other regulatory
authorities, which would require additional financial and management resources. Additionally, we expect that our loss of “smaller reporting company”
status will require additional attention from management and will result in increased costs to us, which could include higher legal fees, accounting fees and
fees associated with investor relations activities, among others.
Risks Related to an Investment in Our Securities
The market price of our stock may be volatile, and you could lose all or part of your investment. Because of potential volatility in our trading
price and trading volume, we may incur significant costs from class action securities litigation.
The trading price of our common stock is likely to be volatile and subject to wide fluctuations in response to various factors, some of which we
cannot control. For example, between January 1, 2023 and December 31, 2023, our stock price has ranged from $11.25 to $58.38. In addition to the factors
discussed in this “Risk Factors” section and elsewhere in this Annual Report on Form 10-K, these factors include:
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developments associated with our license with Amgen, including any termination or other change in our relationship with Amgen;
the success of competitive products or technologies;
regulatory actions with respect to our product candidate or any future product candidates or our competitors’ product candidates or products;
results of clinical trials of our product candidate or any future product candidates or those of our competitors;
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actual or anticipated changes in our growth rate relative to our competitors;
announcements by us or our competitors or collaborators of significant acquisitions, strategic collaborations, joint ventures, collaborations or
capital commitments;
regulatory, legal or payor developments in the United States and other countries;
developments or disputes concerning patent applications, issued patents or other proprietary rights;
the recruitment or departure of key personnel;
the level of expenses related to any of our product candidate or any future product candidates or clinical development programs;
the results of our efforts to in-license or acquire additional product candidates or products;
actual or anticipated changes in estimates as to financial results, development timelines or recommendations by securities analysts;
variations in our financial results or those of companies that are perceived to be similar to us;
fluctuations in the valuation of companies perceived by investors to be comparable to us;
share price and volume fluctuations attributable to inconsistent trading volume levels of our shares;
announcement or expectation of additional financing efforts;
sales of our common stock by us, our insiders or our other stockholders;
changes in the structure of healthcare payment systems;
general economic, industry and market conditions;
production shortages resulting from any events affecting raw material supply or manufacturing capabilities abroad (such as the ongoing
conflict between Ukraine and Russia, including the sanctions imposed by the United States, the EU and others on Russia and other related
parties);
market conditions in the pharmaceutical and biotechnology sectors; and
general economic, industry and market conditions.
In addition, the stock market in general, and the market for biotechnology companies in particular, have experienced extreme price and volume
fluctuations that have often been unrelated or disproportionate to the operating performance of these companies, which has resulted in decreased stock
prices for many companies notwithstanding the lack of a fundamental change in their underlying business models or prospects. Although the markets
recovered, market and industry factors, including potentially worsening economic conditions and other adverse effects or developments relating to
inflation, rising interest rates, may significantly reduce the market price of our common stock, regardless of our actual operating performance. The
realization of any of the above risks or any of a broad range of other risks, including those described in this “Risk Factors” section, could have a dramatic
and material adverse impact on the market price of our common stock.
Holders of stock in companies that have a volatile stock price frequently bring securities class action litigation against the company that issued
the stock. We may be the target of this type of litigation in the future. If any of our stockholders were to bring a lawsuit of this type against us, even if the
lawsuit is without merit, we could incur substantial costs defending the lawsuit. A stockholder lawsuit could also divert the time and attention of our
management. Securities litigation against us could result in substantial costs and divert our management’s attention from other business concerns, which
could seriously harm our business.
We do not intend to pay dividends on our common stock so any returns will be limited to the value of our stock.
We currently anticipate that we will retain future earnings for the development, operation and expansion of our business and do not anticipate
declaring or paying any cash dividends for the foreseeable future. Any return to stockholders will therefore be limited to the appreciation of their stock.
Our disclosure controls and procedures may not prevent or detect all errors or acts of fraud.
We designed our disclosure controls and procedures to reasonably assure that information we must disclose in reports we file or submit under the
Exchange Act is accumulated and communicated to management, and recorded, processed, summarized and reported within the time periods specified in
the rules and forms of the SEC. We believe that any disclosure controls and procedures or internal controls and procedures, no matter how well-conceived
and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met.
These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of
simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people or by an
unauthorized override of the controls. Accordingly,
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because of the inherent limitations in our control system, misstatements due to error or fraud may occur and not be detected.
If securities or industry analysts do not 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 will depend, in part, on the research and reports that securities or industry analysts publish about us or
our business. Securities and industry analysts do not currently, and may never, publish research on our company. If no securities or industry analysts
commence coverage of our company or if they cease to cover our company, the trading price for our stock would likely be negatively impacted. In the
event that securities or industry analysts initiate coverage, if one or more of the analysts who cover us downgrade our stock or publish inaccurate or
unfavorable research about our business, our stock price would likely decline. In addition, if our operating results fail to meet the forecast of analysts, our
stock price would likely decline. If one or more of these analysts cease coverage of our company or fail to publish reports on us regularly, demand for our
stock could decrease, which might cause our stock price and trading volume to decline.
Risks Related to Our Charter and Bylaws
Anti-takeover provisions under our organizational 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 fourth amended and restated certificate of incorporation and second amended and restated bylaws contain provisions that could delay or
prevent a change of control of our company or changes in our board of directors that our stockholders might consider favorable. Some of these provisions
include:
•
•
•
•
•
•
•
a board of directors divided into three classes serving staggered three-year terms, such that not all members of the board will be elected at
one time;
a prohibition on stockholder action through written consent, which requires that all stockholder actions be taken at a meeting of our
stockholders;
a requirement that special meetings of the stockholders may be called only by the board of directors acting pursuant to a resolution approved
by the affirmative vote of a majority of the directors then in office, and special meetings of stockholders may not be called by any other
person or persons;
advance notice requirements for stockholder proposals and nominations for election to our board of directors;
a requirement that no member of our board of directors may be removed from office by our stockholders except for cause and, in addition to
any other vote required by law, upon the approval of not less than two-thirds (2/3) of all outstanding shares of our voting stock then entitled
to vote in the election of directors;
a requirement of approval of not less than a majority of all outstanding shares of our voting stock to amend any bylaws by stockholder action
and not less than two-thirds (2/3) of all outstanding shares of our voting stock to amend specific provisions of our certificate of incorporation;
and
the authority of the board of directors to issue preferred stock on terms determined by the board of directors without stockholder approval,
which preferred stock may include rights superior to the rights of the holders of common stock.
In addition, because we are incorporated in Delaware, we are governed by the provisions of Section 203 of the Delaware General Corporate Law,
which may prohibit certain business combinations with stockholders owning 15% or more of our outstanding voting stock. These anti-takeover provisions
and other provisions in our fourth amended and restated certificate of incorporation and second amended and restated 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 you and other stockholders to elect directors of your choosing or cause us to take other corporate actions you 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.
Our amended and restated bylaws designate the Court of Chancery of the State of Delaware as the sole and exclusive forum for certain types
of actions and proceedings that may be initiated by our stockholders, which could
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limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers, or employees.
Our amended and restated bylaws provide that, unless we consent in writing to an alternative forum, the Court of Chancery of the State of
Delaware will be the sole and exclusive forum for state law claims for (i) any derivative action or proceeding brought on our behalf, (ii) any action
asserting a claim of breach of fiduciary duty owed by any of our directors, officers, and employees to us or our stockholders, (iii) any action asserting a
claim arising pursuant to any provision of the Delaware General Corporation Law, our amended and restated certificate of incorporation or our second
amended and restated bylaws (including the interpretation, validity or enforceability thereof), or (iv) any action asserting a claim that is governed by the
internal affairs doctrine(the “Delaware Forum Provision”). The Delaware Forum Provision will not apply to any causes of action arising under the
Exchange Act. Our amended and restated bylaws further provide that unless we consent in writing to the selection of an alternative forum, the federal
district courts of the United States shall be the sole and exclusive forum for resolving any complaint asserting a cause of action arising under the Securities
Act (the “Federal Forum Provision”). In addition, our amended and restated bylaws provide that any person or entity purchasing or otherwise acquiring any
interest in shares of our capital stock is deemed to have notice of and consented to the Delaware Forum Provision and the Federal Forum Provision;
provided, however, that stockholders cannot and will not be deemed to have waived our compliance with the U.S. federal securities laws and the rules and
regulations thereunder.
The Delaware Forum Provision and the Federal Forum Provision in our bylaws may impose additional litigation costs on stockholders in
pursuing any such claims. Additionally, these forum selection clauses may limit our stockholders’ ability to bring a claim in a judicial forum that they find
favorable for disputes with us or our directors, officers or employees, which may discourage the filing of lawsuits against us and our directors, officers and
employees, even though an action, if successful, might benefit our stockholders. In addition, while the Delaware Supreme Court ruled in March 2020 that
federal forum selection provisions purporting to require claims under the Securities Act be brought in federal court are “facially valid” under Delaware law,
there is uncertainty as to whether other courts will enforce our Federal Forum Provision. If the Federal Forum Provision is found to be unenforceable, we
may incur additional costs associated with resolving such matters. The Federal Forum Provision may also impose additional litigation costs on stockholders
who assert that the provision is not enforceable or invalid. The Court of Chancery of the State of Delaware and the federal district courts of the United
States may also reach different judgments or results than would other courts, including courts where a stockholder considering an action may be located or
would otherwise choose to bring the action, and such judgments may be more or less favorable to us than our stockholders.
Risks Related to Income Taxes
Changes in tax laws could adversely affect our business and financial condition.
The rules dealing with U.S. federal, state and local income taxation are constantly under review by persons involved in the legislative process
and by the Internal Revenue Service and the U.S. Treasury Department. Changes to tax laws (which changes may have retroactive application) could
adversely affect us or holders of our common stock. In recent years, many such changes have been made and changes are likely to continue to occur in the
future. It cannot be predicted whether, when, in what form, or with what effective dates, new tax laws may be enacted, or regulations and rulings may be
promulgated or issued under existing or new tax laws, which could result in an increase in our or our stockholders’ tax liability or require changes in the
manner in which we operate in order to minimize or mitigate any adverse effects of changes in tax law or in the interpretation thereof. Future changes in tax
laws could have a material adverse effect on our business, cash flow, financial condition or results of operations.
We might not be able to utilize a significant portion of our net operating loss carryforwards and research and development tax credit
carryforwards.
As of December 31, 2023, we had U.S. federal and state net operating loss, or NOL, carryforwards of $284.3 million and $413.2 million,
respectively and federal and state research and development tax credit carryforwards of $14.4 million and $2.4 million, respectively. If not utilized, such
NOL carryforwards (other than federal NOL carryforwards arising in taxable years beginning after December 31, 2017) and research and development
credits will expire at various dates beginning in 2033. Our ability to use our U.S. federal and state NOL and tax credit carryforwards to offset potential
future taxable income and related income taxes that would otherwise be due is dependent upon our generation of future taxable income. We do not
anticipate generating revenue from sales of products for the foreseeable future, if ever, and we may never achieve profitability. These NOL and tax credit
carryforwards could expire unused and
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be unavailable to offset future income tax liabilities. Under the current law, federal NOL carryforwards generated in tax years beginning after December 31,
2017 are not subject to expiration. However, any such NOL carryforwards may only offset 80% of our annual taxable income in taxable years beginning
after December 31, 2020. In addition, under Sections 382 and 383 of the Code, the amount of benefits from our NOL carryforwards may be impaired or
limited if we incur a cumulative ownership change of more than 50 percentage points by certain stockholders, as interpreted by the U.S. Internal Revenue
Service, over a three-year period. We experienced such ownership changes on March 24, 2017, June 7, 2018 and July 8, 2020. We may experience
ownership changes again in the future, some of which may be outside our control. No ownership change occurred in 2022 and 2023. As a result, our use of
federal NOL and tax credit carryforwards could be limited. State NOL carryforwards may be similarly limited. Any such disallowances may result in
greater tax liabilities than we would incur in the absence of such a limitation and any increased liabilities could adversely affect our business, results of
operations, financial position and cash flows.
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Item 1B. Unresolved Staff Comments.
None.
Item 1C. Cybersecurity
Risk Management and Strategy
The Company relies on information systems and the data stored on them to conduct its operations. Our cybersecurity risk management program,
which is supported by third parties, is designed to allow us to identify, assess, and manage cybersecurity risks. Our external partners include professional
services firms, cybersecurity consultants, cybersecurity software providers, managed cybersecurity service providers, and security testing firms. We have
also begun an assessment process, using an external partner, to assess cybersecurity risks across our business that is informed by the Center for Internet
Security Controls and have recently invested in a full-time role dedicated to assessing, developing, and maintaining our IT/Cybersecurity infrastructure.
Our Senior Director IT has years of experience leading cybersecurity teams. We also provide cybersecurity trainings to our employees during onboarding
and are formalizing an ongoing information security training program for active employees and relevant consultants to address matters such as phishing,
email security, and training on data privacy.
To operate our business, we utilize third-party service providers to perform various functions, such as outsourced business-critical functions,
professional services, SaaS platforms, managed services, cloud-based infrastructure, content delivery to third parties, corporate productivity services, and
other functions. We engage reliable, reputable service providers that maintain cybersecurity programs and we conduct cybersecurity reviews as part of our
quality assessment processes.
Governance
The Company reports on its information security program, including the results of periodic testing, to the Audit Committee of the Board of
Directors. Our Board’s Audit Committee is responsible for overseeing the Company’s cybersecurity and information security procedures. The Audit
Committee reviews management presentations concerning cybersecurity-related issues, including information security, technology risks, policies, and risk
mitigation programs. The Audit Committee reports matters to the Board of Directors as needed. Our Chief Operating Officer, with the support of our Senior
Director IT and third-party consultants, assesses and manages cybersecurity risk, including preventing, mitigating, detecting, and addressing cybersecurity
incidents, if any. Our Chief Operating Officer also works closely with other management positions and external legal counsel to ensure that the Company
understands its cybersecurity risk management responsibilities.
We have not identified any cybersecurity incidents or threats that have materially affected us or are reasonably likely to materially affect us.
However, like other companies in our industry, we and our third-party vendors have from time-to-time experienced threats to and security incidents relating
to information systems. For more information, please see the section entitled “Risk Factors” in this Annual Report on Form 10-K.
Item 2. Properties.
We lease office space where our corporate headquarters are located, which consists of 6,647 square feet located at 601 Gateway Boulevard,
South San Francisco, California. We believe our current office space is sufficient to meet our office needs until the expiration of the lease in July 2027.
Item 3. Legal Proceedings.
From time to time, we may be involved in lawsuits, claims, investigations and proceedings, consisting of intellectual property, commercial,
employment and other matters which arise in the ordinary course of business. While the outcome of any such proceedings cannot be predicted with
certainty, as of December 31, 2023, we were not party to any legal proceedings that we would expect to have a material adverse impact on our financial
position, results of operations or cash flow.
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Item 4. Mine Safety Disclosures.
Not applicable.
PART II
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
On June 20, 2019 our common stock began trading on the Nasdaq Global Select Market under the symbol “AKRO”. Prior to such time, there
was no public market for our common stock.
Stockholders
As of February 13, 2024, there were six stockholders of record of our common stock. The actual number of holders of our common stock is
greater than this number of record holders, and includes stockholders who are beneficial owners, but whose shares are held in street name by brokers or
held by other nominees. This number of holders of record also does not include stockholders whose shares may be held in trust by other entities.
Recent Sales of Unregistered Securities
During the year ended December 31, 2023, we did not issue or sell any unregistered securities not previously disclosed in an Annual Report on
Form 10-K or in a Current Report on Form 8-K.
Dividend Policy
We have never paid or declared any cash dividends on our common stock, and we do not anticipate paying any cash dividends on our common
stock in the foreseeable future. We intend to retain all available funds and any future earnings to fund the development and expansion of our business. Any
future determination to pay dividends will be at the discretion of our board of directors and will depend upon a number of factors, including our results of
operations, financial condition, future prospects, contractual restrictions, restrictions imposed by applicable law and other factors that our board of directors
deems relevant.
Securities Authorized for Issuance under Equity Compensation Plans
The information required by Item 5 of Form 10-K regarding equity compensation plans is incorporated herein by reference to Item 12 of Part III of this
Annual Report.
Issuer Purchases of Equity Securities
We did not purchase any of our registered equity securities during the period covered by this Annual Report.
Performance Graph
The following is not deemed to be “soliciting material” or “filed” with the Securities and Exchange Commission for purposes of Section 18 of the
Securities and Exchange Act of 1934, as amended, or otherwise subject to the liability under that Section, and is not to be incorporated by reference into
any filing we make under the Securities Act of 1933, as amended, or the Security and Exchange Act of 1934, whether made before or after the date hereof
and irrespective of any general incorporation by reference language in such filing.
The graph below matches Akero Therapeutics, Inc.’s cumulative total shareholder return on common stock with the cumulative total returns of
the Nasdaq Composite index, the Nasdaq Biotechnology index, and the Nasdaq Pharmaceutical index. The graph tracks the performance of a $100
investment in our common stock and in each index (with the reinvestment of all dividends) from June 20, 2019 (the first date that shares of our common
stock were publicly
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traded) to December 31, 2023. As discussed above, we have never declared or paid a cash dividend on our common stock and do not anticipate declaring or
paying a cash dividend in the foreseeable future.
Company/Index
Akero Therapeutics, Inc.
Nasdaq Composite Index
Nasdaq Biotechnology Index
6/20/2019*
12/31/2019
12/31/2020
12/31/2021
$
$
100.00
100.00
100.00
138.72 $
111.44
110.89
161.25 $
160.08
139.37
132.19 $
194.32
138.49
12/31/2022 12/31/2023
145.94
186.45
127.99
342.50 $
130.00
123.38
* $100.00 invested on June 20, 2019 in stock or index, including reinvestment of dividends.
The stock price performance included in this graph is not necessarily indicative of future stock price performance and is not intended to suggest future
performance.
Item 6. Reserved
Not applicable.
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Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
The following discussion should be read in conjunction with our financial statements and accompanying footnotes appearing elsewhere in this
Annual Report on Form 10-K. Some of the information contained in this discussion and analysis or set forth elsewhere in this Annual Report on Form 10-
K, including information with respect to our plans and strategy for our business and related financing, includes forward-looking statements that involve
risks and uncertainties. See “Special Note Regarding Forward-Looking Statements.” Because of many factors, including those factors set forth in Part 1,
Item 1A “Risk Factors” section of this Annual Report on Form 10-K, our actual results could differ materially from the results described in or implied by
the forward-looking statements contained in the following discussion and analysis. We do not assume any obligation to update any forward-looking
statements, whether as a result of new information, future events or otherwise, except as required by law.
Overview
We are a clinical-stage company dedicated to developing transformational treatments for patients with serious metabolic diseases marked by high
unmet medical need, including metabolic dysfunction-associated steatohepatitis, or MASH, formerly known as non-alcoholic steatohepatitis, or NASH, a
disease without any approved therapies. MASH is a severe form of metabolic dysfunction-associated steatotic liver disease, or MASLD, formerly known as
nonalcoholic fatty liver disease, or NAFLD, characterized by inflammation and fibrosis in the liver that can progress to cirrhosis, liver failure, cancer and
death. Our lead product candidate, efruxifermin, or EFX, is an analog of fibroblast growth factor 21, or FGF21, which is an endogenously expressed
hormone that protects against cellular stress and regulates metabolism of lipids, carbohydrates and proteins throughout the body. Based on statistically
significant fibrosis regression and MASH resolution among patients with biopsy-confirmed pre-cirrhotic MASH, as well as a trend toward fibrosis
improvement and statistically significant MASH resolution among patients with cirrhosis due to MASH, we believe EFX has the potential, if approved, to
be an important medicine for treating MASH.
As demonstrated across five separate clinical trials in patients with MASH and/or type 2 diabetes, EFX has a unique ability to reproduce the
actions of native FGF21. Consequently, we believe EFX holds the potential to be a highly differentiated, best-in-class FGF21 analog and promising
monotherapy for the treatment of MASH, if approved. MASH is a complex disease, and its ideal treatment would include intervening at each stage of its
pathogenesis. We believe EFX could potentially address all stages of MASH pathogenesis in a single treatment: reversing fibrosis, resolving steatohepatitis,
and helping to restore healthy metabolism to the whole body. We also believe EFX may be able to be used in combination with other therapies for
potentially greater effect in certain subpopulations, particularly among the substantial proportion of patients with both MASH and type 2 diabetes who are
expected to be treated with GLP-1 therapeutics to manage their diabetes.
We were incorporated in January 2017 and have devoted substantially all of our efforts to organizing and staffing our company, business
planning, raising capital, in-licensing rights to EFX, research and development activities for EFX, building our intellectual property portfolio, exploring
pipeline expansion opportunities, and providing general and administrative support for these operations. To date, we have raised capital principally through
the sale of redeemable convertible preferred stock, the initial public offering of our common stock in June 2019, and the sales of common stock in equity
offerings in 2020, 2022 and 2023, including a $25.0 million equity investment from Pfizer, Inc., in 2022. We have also borrowed $25.0 million from a Term
Loan provided by Hercules. We have incurred significant operating losses since inception. Our ability to generate product revenue sufficient to achieve
profitability will depend heavily on the successful development and eventual commercialization of EFX and any future product candidates. Our net losses
were $151.8 million, $112.0 million and $100.8 million for the years ended December 31, 2023, 2022 and 2021, respectively. As of December 31, 2023,
we had an accumulated deficit of $574.1 million.
We expect to continue to incur significant expenses for at least the next several years as we advance EFX through later-stage clinical
development, develop additional product candidates and seek regulatory approval of any product candidates that complete clinical development. In
addition, if we obtain marketing approval for any product candidates, we expect to incur significant commercialization expenses related to product
manufacturing, marketing, sales and distribution.
We may also incur expenses in connection with the in-licensing or acquisition of additional product candidates. As a result, we will need
substantial additional funding to support our continuing operations and pursue our growth strategy. Until such time as we can generate significant revenue
from product sales, if ever, we expect to finance our
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operations through the sale of equity, debt financings, or other capital sources, which may include collaborations with other companies or other strategic
transactions. We may be unable to raise additional funds or enter into such other agreements or arrangements when needed on favorable terms, or at all. If
we fail to raise capital or enter into such agreements as and when needed, we may have to significantly delay, reduce or eliminate the development and
commercialization of one or more of our product candidates or delay our pursuit of potential in-licenses or acquisitions.
Because of the numerous risks and uncertainties associated with product development, we are unable to predict the timing or amount of increased expenses
or when or if we will be able to achieve or maintain profitability. Even if we are able to generate product sales, we may not become profitable. If we fail to
become profitable or are unable to sustain profitability on a continuing basis, then we may be unable to continue our operations at planned levels and be
forced to reduce or terminate our operations.
As of December 31, 2023, we had cash, cash equivalents, short-term and long-term marketable securities of $569.3 million. We believe this will
be sufficient to fund our current operating plan into 2026.
Components of our results of operations
Revenue
We have not generated any revenue since our inception and do not expect to generate any revenue from the sale of products in the near future, if
at all. If our development efforts for EFX or additional product candidates that we may develop in the future are successful and result in marketing approval
or if we enter into collaboration or license agreements with third parties, we may generate revenue in the future from a combination of product sales or
payments from such collaboration or license agreements.
Operating expenses
Research and development expenses
Research and development expenses consist primarily of costs incurred in connection with the development of EFX, as well as unrelated
discovery program expenses. We expense research and development costs as incurred. These expenses include:
•
•
•
•
•
employee-related expenses, including salaries, related benefits and stock-based compensation expense for employees engaged in research and
development functions;
expenses incurred under agreements with CROs that are primarily engaged in the oversight and conduct of our clinical trials; CMOs that are
primarily engaged to provide drug substance and product for our clinical trials, research and development programs, as well as investigative sites
and consultants that conduct our clinical trials, nonclinical studies and other scientific development services;
the cost of acquiring and manufacturing nonclinical and clinical trial materials, including manufacturing registration and validation batches;
costs related to compliance with quality and regulatory requirements; and
payments made under third-party licensing agreements.
Advance payments that we make for goods or services to be received in the future for use in research and development activities are recorded as
prepaid expenses. Such amounts are recognized as an expense as the goods are delivered or the related services are performed, or until it is no longer
expected that the goods will be delivered or the services rendered.
Product candidates in later stages of clinical development, such as EFX, generally have higher development costs than those in earlier stages of
clinical development, primarily due to the increased size and duration of later-stage clinical trials. We expect that our research and development expenses
will increase substantially in connection with our planned clinical development activities in the near term and in the future. At this time, we cannot
accurately estimate or know the nature, timing and costs of the efforts that will be necessary to complete the clinical development of EFX and any future
product candidates.
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Our clinical development costs may vary significantly based on factors such as:
•
•
•
•
•
•
•
•
•
•
•
•
•
per patient trial costs;
the number of sites included in the trials;
the countries in which the trials are conducted;
the length of time required to enroll eligible patients;
the number of patients that participate in the trials;
the number of doses that patients receive;
the drop-out or discontinuation rates of patients enrolled in clinical trials;
potential additional safety monitoring requested by regulatory agencies;
the duration of patient participation in the trials and follow-up;
any setbacks or delays to the initiation or completion of preclinical or non-clinical studies, product development or clinical trials;
the cost and timing of manufacturing our product candidates, including on account of any disruption or delays to the supply of our product
candidates;
the phase of development of our product candidates; and
the efficacy and safety profile of our product candidates.
The successful development and commercialization of product candidates is highly uncertain. This is due to the numerous risks and uncertainties
associated with product development and commercialization, including the following:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
the timing and progress of nonclinical and clinical development activities;
the number and scope of nonclinical and clinical programs we decide to pursue;
the ability to raise necessary additional funds;
the progress of the development efforts of parties with whom we may enter into collaboration arrangements;
our ability to maintain our current development program and to establish new ones;
our ability to establish new licensing or collaboration arrangements;
the successful initiation and completion of clinical trials with safety, tolerability and efficacy profiles that are satisfactory to the FDA or any
comparable foreign regulatory authority;
the receipt and related terms of regulatory approvals from applicable regulatory authorities;
the availability of drug substance, drug product, and delivery devices utilized in the production of our product candidate;
establishing and maintaining agreements with third-party manufacturers for clinical supply for our clinical trials and commercial manufacturing,
if our product candidate is approved;
our ability to obtain and maintain patents, trade secret protection and regulatory exclusivity, both in the United States and internationally;
our ability to protect our rights in our intellectual property portfolio;
the commercialization of our product candidate, if and when approved;
obtaining and maintaining third-party insurance coverage and adequate reimbursement;
the acceptance of our product candidate, if approved, by patients, the medical community and third-party payors;
competition with other products;
the impacts of a pandemic, epidemic or outbreak of an infectious disease, such as COVID-19, on the supply of our product candidate and ability
to successfully initiate and complete preclinical and non-clinical studies and clinical trials, to receive regulatory approval for our product
candidate and to commercialize our product candidate, if approved; and
a continued acceptable safety profile of our therapy following approval.
A change in the outcome of any of these variables with respect to the development of our product candidates could significantly change the costs
and timing associated with the development of that product candidate. We may never succeed in obtaining regulatory approval for any of our product
candidates.
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General and administrative expenses
General and administrative expenses consist primarily of salaries and related costs for personnel in executive, finance, corporate and business
development, and administrative functions. General and administrative expenses also include legal fees relating to patent and corporate matters;
professional fees for accounting, auditing, tax and administrative consulting services; insurance costs; administrative travel expenses; marketing expenses
and other operating costs.
We anticipate that our general and administrative expenses will increase in the future as we increase our headcount to support development of
EFX and our continued research activities. We also anticipate that we will incur increased accounting, audit, legal, tax, regulatory, compliance, and director
and officer insurance costs, as well as investor and public relations expenses associated with maintaining compliance with exchange listing and SEC
requirements.
Interest expense
Interest expense consists primarily of interest expense on our term loan with Hercules.
Other income
Other income consists primarily of interest income earned on our cash, cash equivalents and short- and long-term marketable securities.
Income taxes
Since our inception, we have not recorded any income tax benefits for the net losses we have incurred in each period or for our earned research
and development tax credits, as we believe, based upon the weight of available evidence, that it is more likely than not that all of our net operating loss
carryforwards and tax credits will not be realized. As of December 31, 2023, we had U.S. federal and state net operating loss carryforwards of $284.3
million and $413.2 million which may be available to offset future income tax liabilities and expire at various dates beginning in 2037. The federal net
operating loss carryforwards include $281.9 million, which may be carried forward indefinitely. As of December 31, 2023, we also had U.S. federal and
state research and development tax credit carryforwards of $14.4 million and $2.4 million, respectively, which may be available to offset future tax
liabilities which expire at various dates beginning in 2033, respectively. We have recorded a full valuation allowance against our net deferred tax assets at
each balance sheet date.
Results of operations
Comparison of the years ended December 31, 2023 and 2022
The following table summarizes our results of operations for the years ended December 31, 2023 and 2022:
Operating expenses:
Research and development
General and administrative
Total operating expenses
Loss from operations
Interest expense
Interest and other income, net
Net loss
Year Ended
December 31,
2023
2022
$ Change
% Change
(in thousands, except percentages)
$
$
141,798 $
31,072
172,870
(172,870 )
(3,099 )
24,210
(151,759 ) $
85,284 $
29,872
115,156
(115,156 )
(739 )
3,862
(112,033 ) $
56,514
1,200
57,714
(57,714 )
(2,360 )
20,348
(39,726 )
66 %
4 %
50 %
50 %
319 %
527 %
35 %
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Research and development expenses
The following table summarizes our research and development expenses incurred during the years ended December 31, 2023 and 2022:
Research and development expenses:
Direct EFX program expenses
Personnel and other R&D related expenses
Total research and development expenses
Year Ended
December 31,
2023
2022
$ Change
% Change
(in thousands, except percentages)
$
$
120,684 $
21,114
141,798 $
66,407 $
18,877
85,284 $
54,277
2,237
56,514
82 %
12 %
66 %
Research and development expenses were $141.8 million and $85.3 million for the years ended December 31, 2023 and 2022, respectively, an
increase of $56.5 million. Direct costs for our EFX program increased $54.3 million, attributed primarily to a $27.9 million increase in CRO expenses for
our ongoing HARMONY, SYMMETRY, and SYNCHRONY clinical trials, an $18.3 million increase in third-party contract manufacturing expenses for
EFX, a $7.5 million milestone payment to Amgen in connection with dosing the first patient in our Phase 3 SYNCHRONY program and a $0.6 million
increase in other research and development costs. Personnel and other research and development related expenses increased $2.2 million; attributed to $1.4
million increase in other non-EFX related research and development activities and a $1.3 million increase in wage and wage-related expenses resulting
from increased staff, offset by a $0.5 million decrease in stock-based compensation. We expect that our research and development expenses will increase
substantially in connection with our planned manufacturing and clinical development activities in the near term and in the future to support the ongoing
programs.
General and administrative expenses
General and administrative expenses were $31.1 million and $29.9 million for the years ended December 31, 2023 and 2022, respectively, an
increase of $1.2 million which was due primarily to a $1.5 million increase in other general and administrative expenses associated with running the
company and a $0.9 million increase in other wage and wage-related expenses resulting from increased staff, offset by a $1.2 million decrease in stock-
based compensation.
Interest expense
Interest expense was $3.1 million and $0.7 million for the year ended December 31, 2023 and 2022, respectively, an increase of $2.4 million
related to the Hercules term loan.
Interest and other income
Interest and other income for the year ended December 31, 2023 is comprised primarily of $24.2 million of interest income from our cash, cash
equivalents and short- and long-term term marketable securities compared to $3.9 million for the year ended December 31, 2022. This increase is related to
increased investment returns on our cash, cash equivalents and short- and long-term and marketable securities.
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Comparison of the years ended December 31, 2022 and 2021
The following table summarizes our results of operations for the years ended December 31, 2022 and 2021:
Operating expenses:
Research and development
General and administrative
Total operating expenses
Loss from operations
Interest expense
Interest and other income, net
Net loss
Research and development expenses
Year Ended
December 31,
2022
2021
$ Change
% Change
(in thousands, except percentages)
$
$
85,284 $
29,872
115,156
(115,156 )
(739 )
3,862
(112,033 ) $
81,759 $
19,127
100,886
(100,886 )
—
109
(100,777 ) $
3,525
10,745
14,270
(14,270 )
(739 )
3,753
(11,256 )
4 %
56 %
14 %
14 %
100 %
3,443 %
11 %
The following table summarizes our research and development expenses incurred during the years ended December 31, 2022 and 2021:
Research and development expenses:
Direct EFX program expenses
Personnel and other R&D related expenses
Total research and development expenses
Year Ended
December 31,
2022
2021
$ Change
% Change
(in thousands, except percentages)
$
$
66,407 $
18,877
85,284 $
72,336 $
9,423
81,759 $
(5,929 )
9,454
3,525
(8 ) %
100 %
4 %
Research and development expenses were $85.3 million and $81.8 million for the years ended December 31, 2022 and 2021, respectively, an
increase of $3.5 million. Direct costs for our EFX program decreased $5.9 million, attributed primarily to a $11.1 million increase in CRO expenses related
to our ongoing HARMONY and SYMMETRY clinical trials offset by a $16.6 million decrease in third-party contract manufacturing expenses for EFX and
a $0.4 million decrease in other research and development costs. Personnel and other research and development related expenses increased $9.5 million,
due to a $5.0 million increase in stock-based compensation and a $4.4 million increase in other R&D, wage and wage-related expenses resulting from
increased staff. We expect that our research and development expenses will increase substantially in connection with our planned manufacturing and
clinical development activities in the near term and in the future to support the ongoing programs.
General and administrative expenses
General and administrative expenses were $29.9 million and $19.1 million for the years ended December 31, 2022 and 2021, respectively, an
increase of $10.7 million which was due primarily to a $8.1 million increase in stock-based compensation and a $2.6 increase in other expenses and wage
and wage-related expenses resulting from increased staff.
Interest expense
Interest expense the year ended December 31, 2022 is comprised primarily of $0.7 million of interest expense related to the Hercules term loan.
Interest and other income
Interest and other income for the year ended December 31, 2022 is comprised primarily of $3.9 million of interest income from our cash, cash
equivalents and short-term marketable securities compared to $0.1 million for the
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year ended December 31, 2021. This increase is related to increased investment returns on our cash, cash equivalents and short-term and marketable
securities.
Liquidity and capital resources
From our inception through December 31, 2023, we have incurred significant operating losses. We have not yet commercialized any products
and we do not expect to generate revenue from sales of products for several years, if at all. Through December 31, 2023, we have funded our operations
primarily with proceeds from the sale of our redeemable convertible preferred stock, the initial public offering of our common stock in June 2019, and
follow-on public offerings of our common stock in July 2020 and in September 2022. In June 2022, we received $25.0 million from an equity investment
from Pfizer, Inc. and $10.0 million from a Term Loan provided by Hercules. An additional $15.0 million was borrowed from Hercules in March of 2023. In
April and May 2023, we received gross proceeds of $127.4 million in an ATM offering and gross proceeds of $220.0 million from the sale of common
stock in an underwritten registered direct offering. From our inception through December 31, 2023, these and other funding sources have provided gross
proceeds totaling $1,040.2 million. As of December 31, 2023, we had cash, cash equivalents short and long-term marketable securities of $569.3 million.
We have invested our cash resources primarily in liquid money market accounts, U.S Treasuries and agency securities, commercial paper and corporate
debt securities.
The following table summarizes our cash flows for the periods indicated:
Net cash used in operating activities
Net cash (used in) provided by investing activities
Net cash provided by financing activities
Net increase in cash, cash equivalents and restricted cash
Cash flows from operating activities
2023
Year Ended
December 31,
2022
(in thousands)
$
$
(145,367 )
(223,623 )
353,316
(15,674 )
$
$
(92,517 ) $
(63,825 )
255,632
99,290
$
2021
(79,681 )
42,280
602
(36,799 )
Cash used in operating activities for the year ended December 31, 2023 was $145.4 million, consisting of a net loss of $151.8 million offset by
non-cash charges of $13.1 million, including $21.5 million of stock-based compensation expense offset by a decrease of $10.0 million from net
amortization of premiums from investments, and a decrease in changes in our operating assets and liabilities of $6.7 million. The changes in operating
assets and liabilities was primarily related to $6.8 million increase in prepaid expenses and other assets and $0.6 million increase in accounts payable, most
of which are related to the timing of payments and prepayments to our CROs and CMOs for ongoing clinical trial and manufacturing activities. These
amounts were partially offset by $0.9 million decreases in accrued expenses and other liabilities mostly related to the timing of prepayments and payments
to our CMOs and CROs for ongoing clinical trial and manufacturing activities.
Cash used in operating activities for the year ended December 31, 2022 was $92.5 million, consisting of a net loss of $112.0 million offset by
non-cash charges of $24.0 million, including $23.2 million of stock-based compensation expense, and changes in our operating assets and liabilities of $4.5
million. The changes in operating assets and liabilities was primarily related to $2.1 million decrease in prepaid expenses and other assets and $1.0 million
increase in accounts payable, all of which are related to the timing of payments and prepayments to our CROs and CMOs for ongoing clinical trial and
manufacturing activities. These amounts were partially offset by $7.3 million decreases in accrued expenses and other liabilities mostly related to the
timing of prepayments and payments to our CMOs and CROs for ongoing clinical trial and manufacturing activities.
Cash used in operating activities for the year ended December 31, 2021 was $79.7 million, consisting of a net loss of $100.8 million which was
partially offset by non-cash charges of $11.4 million and changes in our operating assets and liabilities of $9.7 million. The non-cash charges are primarily
related to $10.1 million of stock-based compensation expense and $1.1 million in net amortization of premiums and discounts on short-term marketable
securities. The change in operating assets and liabilities was primarily due to increases of $8.7 million in accrued expenses and other current liabilities and
$3.3 million in accounts payable, all of which are related to the timing of payments and prepayments to our CROs and CMOs for ongoing clinical trial and
manufacturing activities. These
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amounts were partially offset by an increase of $2.1 million in prepaid expenses and other assets mostly related to the timing of payments and prepayments
to our CROs and CMOs for ongoing clinical trial and manufacturing activities and deferred offering costs.
Cash flows from investing activities
Cash used in investing activities for the year ended December 31, 2023 was $223.6 million consisting of $433.1 million from the purchases of
short- and long-term marketable securities offset by $209.5 million from the maturities of short-term marketable securities.
Cash used in investing activities for the year ended December 31, 2022 was $63.8 million consisting of $101.4 million used in the purchase of
short term securities offset by $37.6 million from the maturities of short-term marketable securities.
Cash provided by investing activities for the year ended December 31, 2021 was $42.3 million consisting of $85.8 million from the maturities of
short-term marketable securities offset by $43.6 million in purchases of short-term marketable securities.
Cash flows from financing activities
Cash provided by financing activities for the year ended December 31, 2023 was $353.3 million, including $15.0 million from a Term Loan
provided by Hercules, $123.8 million of net proceeds from the ATM offering, $211.0 million of net proceeds from a registered direct offering and $3.7
million in proceeds from the exercise of stock options and the issuance of employee stock purchase plan shares.
Cash provided by financing activities for the year ended December 31, 2022 was $255.6 million, including $216.2 million from follow-on public
offering proceeds, net of underwriting discounts, $25.0 million from an equity investment from Pfizer, Inc. through a registered direct common stock
offering, $10.0 million from a Term Loan provided by Hercules and $5.3 million in proceeds from the exercise of stock options and the issuance of
employee stock purchase plan shares.
Cash provided by financing activities for the year ended December 31, 2021 was $0.6 million from the exercise of stock options and the issuance
of employee stock purchase shares.
Description of Indebtedness
We have outstanding borrowings of $25.0 million under a loan and security agreement, or Loan Agreement, with Hercules and we may borrow
an additional $30.0 million at our sole discretion until March 15, 2024. In addition, up to an additional $45.0 million may become available to us at
Hercules’ sole discretion. Borrowings under the loan are repayable in monthly interest-only payments until July 1, 2025, with the option to extend under
certain conditions. The interest-only period will be followed by equal monthly payments of principal plus interest until the loan maturity date of January 1,
2027. Outstanding borrowings bear interest at the greater of (i) 7.65% and (ii) the prime rate as reported in the Wall Street Journal plus 3.65%. On February
28, 2024 we amended the Hercules Loan Agreement to increase the total amount of borrowings available to $150.0 million and to change the conditions
under which the remaining borrowings will become available. In connection with this amendment, we borrowed an additional $10.0 million under the loan
facility (see Notes 6, 7 and 13 to the financial statements).
Funding requirements
Our primary uses of capital are, and we expect will continue to be, research and development services, compensation and related expenses and
general overhead costs. We expect to continue to incur significant expenses and operating losses for the foreseeable future. In addition, since the closing of
our IPO, we have incurred and expect to continue to incur additional costs associated with operating as a public company. We anticipate that our expenses
will
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increase significantly in connection with our ongoing activities. The timing and amount of our operating expenditures will depend largely on:
•
•
•
•
•
•
•
•
•
•
•
the initiation, progress, timing, costs and results of nonclinical studies and clinical trials for EFX or any future product candidates we may
develop;
timing delays, if any, with respect to preclinical and clinical development of EFX or any future product candidates we may develop as a result of
a pandemic, epidemic or outbreak of an infectious disease, or from the impact of geopolitical tensions;
our ability to maintain our license to EFX from Amgen;
the outcome, timing and cost of seeking and obtaining regulatory approvals from the FDA and comparable foreign regulatory authorities,
including the potential for such authorities to require that we perform more nonclinical studies or clinical trials than those that we currently
expect or change their requirements on studies or trials that had previously been agreed to;
the cost to establish, maintain, expand, enforce and defend the scope of our intellectual property portfolio, including the amount and timing of
any payments we may be required to make, or that we may receive, in connection with licensing, preparing, filing, prosecuting, defending and
enforcing any patents or other intellectual property rights;
the effect of competing technological and market developments;
market acceptance of any approved product candidate, including product pricing, as well as product coverage and the adequacy of
reimbursement by third-party payors;
the cost of acquiring, licensing or investing in additional businesses, products, product candidates and technologies;
the cost and timing of selecting, auditing and potentially validating a manufacturing site for commercial scale manufacturing;
the cost of establishing sales, marketing and distribution capabilities for any product candidates for which we may receive regulatory approval
and that we determine to commercialize; and
our need to implement additional internal systems and infrastructure, including financial and reporting systems.
We expect that we will require additional funding to complete the clinical development of EFX, commercialize EFX, if we receive regulatory
approval, and pursue in-licenses or acquisitions of other product candidates. If we receive regulatory approval for EFX or other product candidates, we
expect to incur significant commercialization expenses related to product manufacturing, sales, marketing and distribution, depending on whether we
choose to commercialize EFX ourselves.
Until such time, if ever, as we can generate substantial product revenue, we expect to finance our cash needs through a combination of equity
offerings, debt financings, collaborations, strategic alliances, and marketing, distribution or licensing arrangements with third parties. To the extent that we
raise additional capital through the sale of equity or convertible debt securities, ownership interest may be materially diluted, and the terms of such
securities could include liquidation or other preferences that adversely affect your rights as a common stockholder. Debt financing and preferred equity
financing, if available, may involve agreements that include restrictive covenants that limit our ability to take specified actions, such as incurring additional
debt, making capital expenditures or declaring dividends. If we raise funds through collaborations, strategic alliances or marketing, distribution or licensing
arrangements with third parties, we may have to relinquish valuable rights to our technologies, future revenue streams, research programs or product
candidates or grant licenses on terms that may not be favorable to us. If we are unable to raise additional funds through equity or debt financings or other
arrangements when needed, we may be required to delay, reduce or eliminate our product development or future commercialization efforts, or grant rights
to develop and market product candidates that we would otherwise prefer to develop and market ourselves.
Contractual obligations and other commitments
We have entered into agreements with CROs and CMOs to provide services in connection with our nonclinical studies and clinical trials and to
manufacture clinical development materials. Apart from the contracts with non-cancelable purchase commitments, we have entered into other contracts in
the normal course of business with certain CROs, CMOs, and other third parties for nonclinical research studies and testing, clinical trials and
manufacturing services. These contracts do not contain any minimum purchase commitments and are cancelable by us upon prior notice. Payments due
upon cancellation consist only of payments for services provided and expenses incurred, including non-cancelable obligations of our service providers, up
to the date of cancellation.
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Non-cancelable purchase and other arrangements increased to $32.1 million as of December 31, 2023, compared to $8.8 million as of December
31, 2022. The increase of $23.3 million was primarily attributable to $23.6 million increase in the purchase and other obligations to support the growth and
expansion of our clinical trials activities and a $0.3 million decrease in operating lease obligations for the office space in South San Francisco, California.
Under the Amgen Agreement, we are obligated to pay Amgen up to $30.0 million in connection with marketing approvals, and aggregate
milestone payments of up to $75.0 million upon the achievement of specified commercial milestones for all products licensed under the agreement.
Commencing on the first commercial sale of licensed products, we are obligated to pay tiered royalties on escalating tiers of annual net sales of licensed
products ranging from low to high single-digit percentages. The amount and timing of any contingent payment obligations to Amgen are not currently
known. The first clinical milestone, in the amount of $2.5 million, was paid to Amgen in August 2019 and a second milestone of $7.5 million was paid in
December 2023 with dosing the first patient in our Phase 3 SYNCHRONY program.
Critical accounting policies and estimates
Our consolidated financial statements are prepared in accordance with generally accepted accounting principles in the United States or GAAP.
The preparation of our consolidated financial statements and related disclosures requires us to make estimates and assumptions that affect the reported
amounts of assets, liabilities, and expenses, as well as related disclosures. We base our estimates on historical experience, known trends and events, and
various other factors that we believe are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying
values of assets and liabilities that are not readily apparent from other sources. We evaluate our estimates and assumptions on an ongoing basis. Our actual
results may differ from these estimates under different assumptions or conditions.
While our significant accounting policies are described in more detail in Note 2 to our consolidated financial statements appearing elsewhere in
this Annual Report, we believe that the following critical accounting policies and estimates reflect the most significant judgments and estimates used in the
preparation of our consolidated financial statements.
Accrued and prepaid research and development expenses
As part of the process of preparing our consolidated financial statements, we are required to estimate our accrued and prepaid research and
development expenses. This process involves reviewing open contracts and purchase orders, communicating with our applicable personnel to identify
services that have been performed on our behalf and estimating the level of service performed and the associated cost incurred for the service when we
have not yet been invoiced or otherwise notified of actual costs. The majority of our service providers invoice us in arrears for services performed, on a pre-
determined schedule or when contractual milestones are met; however, some require advance payments. We make estimates of our accrued and prepaid
expenses as of each balance sheet date in the consolidated financial statements based on facts and circumstances known to us at that time. We periodically
confirm the accuracy of these estimates with the service providers and make adjustments, if necessary. Examples of estimated accrued and prepaid research
and development expenses include fees paid to:
•
•
•
vendors in connection with nonclinical development activities;
CROs and investigative sites in connection with nonclinical studies and clinical trials; and
CMOs in connection with the production of nonclinical and clinical trial materials.
We base the expense recorded related to external research and development on our estimates of the services received and efforts expended
pursuant to quotes and contracts with multiple CMOs and CROs that supply, conduct and manage nonclinical studies and clinical trials on our behalf. The
financial terms of these agreements are subject to negotiation, vary from contract to contract and may result in uneven payment flows. There may be
instances in which payments made to our vendors will exceed the level of services provided and result in a prepayment of the expense. In accruing service
fees, we estimate the time period over which services will be performed and the level of effort to be expended in each period. If the actual timing of the
performance of services or the level of effort varies from the estimate, we adjust the accrual or the amount of prepaid expenses accordingly. Although we
do not expect our estimates to be materially different from amounts actually incurred, our understanding of the status and timing of services performed
relative to the actual status and timing of services performed may vary and may result in reporting amounts
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that are too high or too low in any particular period. To date, there have not been any material adjustments to our prior estimates of accrued and prepaid
research and development expenses.
Stock-based compensation
We measure all stock-based awards granted to employees and nonemployees based on the fair value on the date of the grant and recognize
compensation expense for those awards over the requisite service period, which is generally the vesting period of the respective award, on a straight-line
basis. The Company recognizes stock-based compensation expense for awards that contain performance-based conditions using the accelerated attribution
method when management determines it is probable that the performance condition will be satisfied. We account for forfeitures as they occur. We estimate
the fair value of stock option grants using the Black-Scholes option pricing model. Prior to our initial public offering, the exercise price for all stock options
granted was at the estimated fair value of the underlying common stock as determined on the date of grant by our board of directors. Stock-based
compensation for restricted stock units is measured based on the market closing price of our common stock on the grant date. Stock-based compensation
expense is recognized on a straight-line basis over the requisite service period, generally four years.
The fair value of each stock option grant is estimated on the date of grant using the Black-Scholes option-pricing model, which requires inputs
based on certain subjective assumptions, including the expected stock price volatility, the expected term of the option, the risk-free interest rate for a period
that approximates the expected term of the option, and our expected dividend yield. We currently estimate our expected share price volatility using a
combination weighting of the historical volatility of publicly traded peer companies and the volatility of our traded share price and expect to continue to do
so until mid-2025. The expected term of our stock options has been determined utilizing the "simplified" method for awards that qualify as "plain-vanilla"
options. The risk-free interest rate is determined by reference to the U.S. Treasury yield curve in effect at the time of grant of the award for time periods
approximately equal to the expected term of the award. Expected dividend yield is based on the fact that we have never paid cash dividends on our
common stock and do not expect to pay any cash dividends in the foreseeable future. The fair value of each restricted common stock award is estimated on
the date of grant based on the fair value of our common stock on that same date.
Compensation expense for purchases under the Employee Stock Purchase Plan is recognized based on the fair value of the common stock
estimated based on the closing price of our common stock as reported on the date of offering, less the purchase discount percentage provided for in the
plan.
Stock-based compensation expense was $21.5 million, $23.2 million and $10.1 million for the years ended December 31, 2023, 2022 and 2021,
respectively. As of December 31, 2023, we had $51.1 million and $10.3 million of unrecognized stock-based compensation costs related to stock options
and Restricted Stock Units (RSUs), which we expect to recognize over a weighted-average period of 2.87 years and 3.61 years for stock options and RSUs,
respectively.
We have not recognized, and we do not expect to recognize in the near future, any tax benefit related to stock-based compensation expense as a
result of the full valuation allowance on our deferred tax assets including deferred tax assets related to our net operating loss carryforwards.
Recent accounting pronouncements
See Note 2 to our consolidated financial statements included in Part I, Item 1, “Notes to Consolidated Financial Statements,” of this Annual
Report on Form 10-K for a description of recent accounting pronouncements applicable to our business. None of these pronouncements had a material
impact on our financial position or results of operations.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
Interest Rate Risk
We are exposed to market risk related to changes in interest rates. We had cash, cash equivalents, short and long-term marketable securities of
$569.3 million as of December 31, 2023, which consisted primarily of money market funds and U.S. Treasury-backed securities which are investment
grade.
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The primary objective of our investment activities is to preserve capital to fund our operations. We also seek to maximize income from our
investments without assuming significant risk. To achieve our objectives, we maintain a portfolio of investments in a variety of securities of high credit
quality and short and long-term duration, according to our board-approved investment policy. Our investments are subject to interest rate risk and could fall
in value if market interest rates increase.
Additionally, the Company has a variable interest rate term loan that is impacted by the increase in interest rates. A hypothetical 10% relative
change in interest rates during any of the periods presented would not have a material impact on our consolidated financial statements.
Foreign Currency Risk
The majority of our transactions occur in U.S. dollars. However, we do have certain transactions that are denominated in currencies other than
the U.S. dollar, primarily the Euro and British Pound, and we therefore are subject to foreign exchange risk. The fluctuation in the value of the U.S. dollar
against other currencies affects the reported amounts of expenses, assets and liabilities primarily associated with a limited number of manufacturing
activities. The effect of a hypothetical 10% change in foreign currency exchange rates applicable to our business would not have had a material impact on
our historical consolidated financial statements for the years ended December 31, 2023, 2022 and 2021.
Inflation Risk
Although we do not believe that inflation has had a material effect on our business, financial position or results of operations to date, we may
experience some effect in the near future (especially if inflation rates continue to rise) due to an impact on the costs to conduct clinical trials, manufacturing
and supply costs, labor costs we incur to attract and retain qualified personnel, and other operational costs. Inflationary costs could adversely affect our
business, financial condition and results of operations.
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Item 8. Financial Statements and Supplementary Data
AKERO THERAPEUTICS, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Report of Independent Registered Accounting Firm (PCAOB ID 34)
Audited Consolidated Financial Statements:
Consolidated Balance Sheets as of December 31, 2023 and 2022
Consolidated Statements of Operations and Comprehensive Loss for the years ended December 31, 2023, 2022 and 2021
Consolidated Statements of Stockholders’ Equity (Deficit) for the years ended December 31, 2023, 2022 and 2021
Consolidated Statements of Cash Flows for the years ended December 31, 2023, 2022 and 2021
Notes to Consolidated Financial Statements
Page
113
115
115
116
117
118
119
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the shareholders and the Board of Directors of Akero Therapeutics, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Akero Therapeutics, Inc. (the "Company") as of December 31, 2023 and
2022, the related consolidated statements of operations and comprehensive loss, stockholders' equity (deficit), and cash flows for each of the three years in
the period ended December 31, 2023, and the related notes (collectively referred to as the "financial statements"). In our opinion, the financial statements
present fairly, in all material respects, the financial position of the Company as of December 31, 2023 and 2022, and the results of its operations and its
cash flows for each of the three years in the period ended December 31, 2023, in conformity with accounting principles generally accepted in the United
States of America.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the
Company's internal control over financial reporting as of December 31, 2023, 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 February 28, 2024, expressed an
unqualified opinion on the Company's internal control over financial reporting.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's
financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the
Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the
PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included
performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures
that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial
statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the
overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current-period audit of the financial statements that was communicated
or required to be communicated to the audit committee and that (1) relates to accounts or disclosures that are material to the financial statements and (2)
involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion
on the financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical
audit matter or on the accounts or disclosures to which it relates.
Accrued Expenses - Research and Development Expenses & Prepaid Expenses - Research and Development Expenses — Refer to Note 2 and 5 to
the financial statements
Critical Audit Matter Description
The Company incurs certain research and development expenses from third-party contract research organizations (“CROs”) and contract
manufacturing organizations (“CMOs”). The Company recognizes and measures these expenses based on the date on which services commence and the
extent of services performed during the applicable reporting period. Depending on the timing of payments to and services provided by the third-parties, the
Company recognizes accrued expenses or prepaid expenses.
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In estimating the extent of services performed, the Company utilizes information supplied by third-party CROs and CMOs and discussions with
Company research and development personnel, pertaining to the progress and status of research and development activities under contract.
We identified accrued and prepaid research and development costs related to CROs and CMOs as a critical audit matter because of the judgments
necessary for the Company to estimate the extent of service performed and the associated expense incurred. A high degree of auditor judgment and an
increased extent of effort was required when auditing the Company’s estimates of the extent of services performed and expenses incurred and evaluating
the results of those procedures.
How the Critical Audit Matter Was Addressed in the Audit
Our audit procedures related to accrued and prepaid research and development expenses included the following, among others:
We evaluated the Company’s overall estimation methodology and assumptions as compared to the evidence obtained.
We tested the design and operating effectiveness of controls over the estimation of CRO and CMO accrued and prepaid expenses.
We evaluated publicly available information (such as press releases and investor presentations) and board of directors’ materials regarding
the status of research and development activities.
We made selections and tested on a sample basis the accrued and prepaid CRO and CMO balances by:
o
o
o
o
o
Obtaining and reading the related contracts to understand key provisions and agree them to the Company’s analysis.
Obtaining and inspecting third-party documents such as service contracts, status reports, and other correspondence received from the
vendors related to the services provided and comparing them to the Company’s schedule of estimated expenses incurred to date.
Obtaining and inspecting confirmations from select vendors confirming the accuracy and completeness of the data and information
provided to the Company.
Testing the mathematical accuracy of the underlying data used in the estimates of the services provided.
Inspecting meeting minutes between the Company’s finance team and clinical and manufacturing operations and corroborating the
progress of research and development activities through inquiry with the Company’s clinical operations and manufacturing operations
personnel, as well as evaluating third-party vendor information.
We examined subsequent invoices received from vendors and cash disbursements made subsequent to the balance sheet date and inquired of
clinical and manufacturing operations to corroborate the applicable service period in order to evaluate completeness of the accruals.
•
•
•
•
•
/s/ Deloitte & Touche LLP
Morristown, NJ
February 28, 2024
We have served as the Company's auditor since 2018.
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PART I—FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements
Assets
Current assets:
Cash and cash equivalents
Short-term marketable securities
Prepaid expenses and other current assets
Total current assets
Long-term marketable securities
Property and equipment, net
Right of use asset
Other assets, noncurrent
Total assets
Liabilities and Stockholders’ Equity
Current liabilities:
Accounts payable
Accrued expenses and other current liabilities
Total current liabilities
Loan payable, noncurrent
Warrant liability
Operating lease liability, noncurrent
Total liabilities
Commitments and contingencies (Note 12)
Stockholders’ equity:
Akero Therapeutics, Inc.
Consolidated Balance Sheets
(In thousands, except share and per share amounts)
December 31, 2023
December 31, 2022
$
$
$
$
234,207 $
315,803
9,952
559,962
19,283
18
1,008
—
580,271 $
7,038 $
12,090
19,128
24,964
54
819
44,965
6
1,109,126
270
(574,096 )
535,306
580,271 $
249,773
101,676
3,724
355,173
—
47
1,242
108
356,570
7,968
11,115
19,083
9,541
305
1,079
30,008
5
748,857
37
(422,337 )
326,562
356,570
Common stock, $0.0001 par value, 150,000,000 shares authorized as of December 31, 2023 and
December 31, 2022; 55,754,445 and 46,865,206 shares issued and outstanding as of December
31, 2023 and December 31, 2022, respectively
Additional paid-in capital
Accumulated other comprehensive income
Accumulated deficit
Total stockholders’ equity
Total liabilities and stockholders’ equity
The accompanying notes are an integral part of these consolidated financial statements.
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Akero Therapeutics, Inc.
Consolidated Statements of Operations and Comprehensive Loss
(In thousands, except share and per share amounts)
Year ended December 31,
2023
2022
2021
Operating expenses:
Research and development
General and administrative
Total operating expenses
Loss from operations
Interest expense
Interest and other income, net
Net loss
Net unrealized gain (loss) on marketable securities
Comprehensive loss
Net loss per common share, basic and diluted
$
$
$
141,798
31,072
172,870
(172,870 )
(3,099 )
24,210
(151,759 )
233
(151,526 )
(2.89 )
$
$
$
85,284 $
29,872
115,156
(115,156 )
(739 )
3,862
(112,033 )
64
(111,969 ) $
(2.87 ) $
Weighted-average number of shares used in computing net loss per common share,
basic and diluted
52,568,159
38,984,772
The accompanying notes are an integral part of these consolidated financial statements.
81,759
19,127
100,886
(100,886 )
—
109
(100,777 )
(24 )
(100,801 )
(2.89 )
34,827,38
5
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Akero Therapeutics, Inc.
Consolidated Statements of Stockholders’ Equity (Deficit)
(In thousands, except share amounts)
Balances at December 31, 2020
Exercise of stock options
Vesting of restricted stock
Issuance of common stock pursuant to ESPP purchases
Stock-based compensation expense
Net unrealized loss on short-term marketable securities
Net loss
Balances at December 31, 2021
Exercise of stock options
Issuance of common stock pursuant to ESPP purchases
Issuance of common stock pursuant to equity investment by Pfizer, net of issuance
costs
Vested warrants issued pursuant to loan agreement
Issuance of common stock upon closing of follow-on public offering, net of
issuance costs and underwriting fees of $13,800
Stock-based compensation expense
Net unrealized gain on short-term marketable securities
Net loss
Balances at December 31, 2022
Exercise of stock options
Common stock issued for vested restricted stock units
Issuance of common stock pursuant to ESPP purchases
Vested warrants issued pursuant to loan agreement
Issuance of common stock pursuant to At-The-Market ("ATM") offering, net of
issuance costs
Issuance of common stock pursuant to a direct offering, net of issuance costs
Stock-based compensation expense
Net unrealized gain on marketable securities
Net loss
Balances at December 31, 2023
Additional
Paid-In-
Capital
Accumulated
Other
Comprehensive Accumulated
Gain (Loss)
Deficit
Total
Stockholders’
Equity (Deficit)
Common Stock
Amount
$
$
$
Shares
34,741,649
140,128
—
18,950
—
—
—
34,900,727
559,145
33,928
2,525,252
—
8,846,154
—
—
—
46,865,206
593,959
38,641
12,087
—
3,006,052
5,238,500
—
—
—
55,754,445
$
$
$
4
—
—
—
—
—
—
4
—
—
—
—
1
—
—
—
5
—
—
—
—
$
$
$
468,238
750
21
373
10,054
—
—
479,436
5,238
280
24,647
227
215,786
23,243
—
—
748,857
3,267
—
396
330
—
1
—
—
—
6
123,824
210,955
21,497
—
—
1,109,126
117
(3 ) $
—
—
—
—
(24 )
—
(27 ) $
—
—
(209,527 ) $
—
—
—
—
—
(100,777 )
(310,304 ) $
—
—
—
—
—
—
64
—
37
—
—
—
—
—
—
—
233
—
270
—
—
—
—
—
$
(112,033 )
(422,337 ) $
—
—
—
—
—
—
—
—
$
(151,759 )
(574,096 )
$
258,712
750
21
373
10,054
(24 )
(100,777 )
169,109
5,238
280
24,647
227
215,787
23,243
64
(112,033 )
326,562
3,267
—
396
330
123,824
210,956
21,497
233
(151,759 )
535,306
$
The accompanying notes are an integral part of these consolidated financial statements.
$
$
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Akero Therapeutics, Inc.
Consolidated Statements of Cash Flows
(In thousands)
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss
Adjustments to reconcile net loss to net cash used in operating activities:
Stock-based compensation expense
Depreciation
Non-cash lease expense
Net amortization of premiums and discounts on short-term investments
Amortization of debt issuance costs and discount
Fair value change in warrant liability
Write-off of deferred offering costs
Unrealized foreign exchange gain and loss
Changes in operating assets and liabilities:
Prepaid expenses and other assets
Accounts payable
Accrued expenses and other current liabilities
Operating lease liability
Net cash used in operating activities
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of short-term and long-term marketable securities
Proceeds from maturities of short-term marketable securities
Net cash (used in) provided by investing activities
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from the exercise of stock options
Proceeds from the issuance of common stock pursuant to employee stock purchase plan purchases
Proceeds from the issuance of common in a follow-on public offering
Proceeds from the issuance of common stock pursuant to the ATM offering
Proceeds from the issuance of common stock pursuant to registered direct offering
Proceeds from the issuance of common stock pursuant to private offering
Proceeds from loan payable
Payment of debt and equity issuance costs
Net cash provided by financing activities
Net (decrease) increase in cash, cash equivalents and restricted cash
Cash, cash equivalents and restricted cash at the beginning of the period
Cash, cash equivalents and restricted cash at the end of the period
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid for interest
NON-CASH INVESTING AND FINANCING INFORMATION:
Change in net unrealizable gain (loss) on marketable securities
Warrant liability costs reclassified to additional paid-in equity on vested warrants issued
Debt and equity issuance costs included in accounts payable and accrued expenses
and other current liabilities
Deferred offering costs reclassified to additional paid-in equity
$
$
$
$
$
$
2023
Year ended December 31,
2022
2021
$
(151,759 )
$
(112,033 ) $
(100,777 )
21,497
29
234
(9,554 )
448
79
337
(8 )
(6,740 )
(645 )
946
(231 )
(145,367 )
(433,123 )
209,500
(223,623 )
3,267
396
—
124,212
211,217
—
15,000
(776 )
353,316
(15,674 )
249,881
234,207
$
23,243
43
217
(12 )
204
264
—
16
2,112
968
(7,333 )
(206 )
(92,517 )
(101,446 )
37,621
(63,825 )
5,016
280
216,200
—
—
25,000
10,000
(864 )
255,632
99,290
150,591
249,881 $
10,054
41
203
1,066
—
—
—
5
(2,101 )
3,273
8,737
(182 )
(79,681 )
(43,561 )
85,841
42,280
750
373
—
—
—
—
—
(521 )
602
(36,799 )
187,390
150,591
2,483
$
441 $
—
233
330
$
$
—
364
$
$
64 $
— $
285 $
150 $
(24 )
—
—
—
The accompanying notes are an integral part of these consolidated financial statements.
118
Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
1. Nature of the business and basis of presentation
Akero Therapeutics, Inc., together with its wholly owned subsidiary Akero Securities Corporation, (“Akero” or the “Company”) is a clinical-
stage company dedicated to developing transformational treatments for patients with serious metabolic diseases marked by high unmet medical need,
including metabolic dysfunction-associated steatohepatitis, or MASH, formerly known as non-alcoholic steatohepatitis, or NASH, a disease without any
approved therapies. MASH is a severe form of metabolic dysfunction-associated steatotic liver disease, or MASLD, formerly known as nonalcoholic fatty
liver disease, or NAFLD, characterized by inflammation and fibrosis in the liver that can progress to cirrhosis, liver failure, cancer and death. The
Company's lead product candidate, efruxifermin, or EFX, is an analog of fibroblast growth factor 21, or FGF21, which is an endogenously expressed
hormone that protects against cellular stress and regulates metabolism of lipids, carbohydrates and proteins throughout the body. The Company has
initiated a Phase 3 program called SYNCHRONY, for which the first two of three planned clinical trials evaluating EFX have begun screening. EFX is also
being evaluated in two ongoing, 96-week Phase 2b clinical trials in patients with biopsy-confirmed MASH: the HARMONY study in patients with pre-
cirrhotic MASH (F2-F3 fibrosis) and the SYMMETRY study in patients with cirrhotic MASH (F4 fibrosis, compensated). Based on statistically significant
fibrosis regression and MASH resolution among patients with biopsy-confirmed pre-cirrhotic MASH, as well as a trend toward fibrosis improvement and
statistically significant MASH resolution among patients with cirrhosis due to MASH, the Company believes EFX has the potential, if approved, to be an
important medicine for treating MASH.
The Company is subject to risks and uncertainties common to early-stage companies in the biotechnology industry, including, but not limited to,
completion and success of clinical testing, development by competitors of new technological innovations, compliance with governmental regulations,
dependence on key personnel and protection of proprietary technology and the ability to secure additional capital to fund operations. EFX will require
extensive clinical testing prior to regulatory approval and commercialization. These efforts require significant amounts of additional capital, adequate
personnel, and infrastructure and extensive compliance-reporting capabilities. Even if the Company’s drug development efforts are successful, it is
uncertain when, if ever, the Company will realize significant revenue from product sales.
Basis of presentation
The accompanying consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the
United States of America (“GAAP”) and include the accounts of the Company after elimination of all intercompany accounts and transactions. All
adjustments necessary for the fair presentation of the Company’s consolidated financial statements for the periods presented have been reflected.
Liquidity
In accordance with Accounting Standards Update (“ASU”) No. 2014-15, Disclosure of Uncertainties about an Entity’s Ability to Continue as a
Going Concern (Subtopic 205-40), the Company has evaluated whether there are certain conditions and events, considered in the aggregate, that raise
substantial doubt about the Company’s ability to continue as a going concern within one year after the date that the consolidated financial statements are
issued.
Since its inception, the Company has raised $1,040,200 in capital funds, including $105,800 in proceeds from its initial public offering (“IPO”)
in June 2019, $818,900 in proceeds from the sales of common stock in equity offerings between 2020 and 2023, which includes a $25,000 equity
investment from Pfizer, Inc. in 2022, $90,500 in proceeds from the sale of redeemable convertible preferred stock and $25,000 in venture debt borrowings.
The Company has incurred recurring losses since its inception, including net losses of $151,759, $112,033 and $100,777 for the years ended December 31,
2023, 2022 and 2021, respectively. In addition, as of December 31, 2023, the Company had an accumulated deficit of $574,096. The Company expects to
continue to generate operating losses for the foreseeable future. As of the issuance date of these consolidated financial statements, the Company expects
that its existing cash, cash equivalents, short and long-term marketable securities of $569,293 as of December 31, 2023, will be sufficient to fund its
operating expenses and capital expenditure requirements for at least 12 months from the issuance date of these consolidated financial statements. The
Company expects that it will require additional funding to complete the clinical
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
development of EFX, commercialize EFX, if it receives regulatory approval, and pursue in-licenses or acquisitions of other product candidates.
If the Company is unable to obtain funding, the Company will be forced to delay, reduce or eliminate some or all of its research and development
programs, product portfolio expansion or commercialization efforts, which could adversely affect its business prospects, or the Company may be unable to
continue operations. Although management continues to pursue these plans, there is no assurance that the Company will be successful in obtaining
sufficient funding on terms acceptable to the Company to fund continuing operations, if at all.
2. Summary of significant accounting policies
Operating segment information
Operating segments are defined as components of an enterprise for which separate and discrete information is available for evaluation by the
chief operating decision-maker in deciding how to allocate resources and assess performance. The Company has one operating segment. The Company’s
focus is the research and development of treatments for patients with serious metabolic diseases marked by high unmet medical need, including MASH, a
disease without any approved therapies. The Company’s chief operating decision maker, its chief executive officer, manages the Company’s operations on a
consolidated basis for the purpose of allocating resources.
Use of estimates
The preparation of the Company's consolidated financial statements in conformity with GAAP requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the consolidated
financial statements, and the reported amounts of expenses during the reporting period. Significant estimates and assumptions reflected in these
consolidated financial statements include, but are not limited to, the recognition of research and development expenses, stock-based compensation expense,
warrant liabilities and the valuation allowance for deferred tax assets. The Company bases its estimates on historical experience, known trends and other
market-specific or other relevant factors that it believes to be reasonable under the circumstances. On an ongoing basis, management evaluates its estimates
when there are changes in circumstances, facts and experience. Changes in estimates are recorded in the period in which they become known. Actual
results could differ from those estimates.
Cash and cash equivalents
The Company considers all highly liquid investments with original maturities of three months or less at the time of purchase to be cash
equivalents. Cash equivalents consist primarily of amounts invested in money market accounts.
Short and long-term marketable securities
The Company invests in short and long-term marketable securities, primarily money market funds, commercial paper, U.S. treasury securities
and corporate debt securities. The Company continually evaluates the credit ratings of its investment portfolio and underlying securities. The Company
invests in accordance with its investment policy and invests at the date of purchase in securities with high ratings from top rating agencies. The Company
classifies its short and long-term marketable securities as available-for-sale securities and reports them at fair value in short and long-term marketable
securities on the consolidated balance sheets with related unrealized gains and losses included within accumulated other comprehensive gain (loss) on the
consolidated balance sheets. The amortized cost of marketable securities is adjusted for amortization of premiums and accretion of discounts to maturity,
which is included in other income on the consolidated statements of operations and comprehensive loss. When the fair value is below the amortized cost of
a marketable security, the Company reviews and determines whether the impairment is due to credit-related factors or noncredit-related factors. The credit-
related impairment amount is recognized in other income on the consolidated statements of operations and comprehensive loss, with a corresponding
allowance for credit losses account in the consolidated balance sheet. Subsequent improvements in expected credit losses are recognized as a reversal of an
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
amount in the allowance account. If the Company has the intent to sell the security or it is more likely than not that the Company will be required to sell the
security prior to recovery of its amortized cost basis, then the allowance for the credit loss is written-off and the excess of the amortized cost basis of the
asset over its fair value is recorded in the consolidated statements of operations. There were no credit losses recorded during the years ended December 31,
2023, 2022 and 2021.
Restricted cash
As of December 31, 2022, the Company was required to maintain a separate cash balance of $108 for the benefit of the landlord in connection
with the Company’s Gateway office space lease in South San Francisco, California (the “Gateway Lease”), which is classified within other assets (non-
current) on the consolidated balance sheets (see Note 12). The Company was not required to maintain a separate cash balance for the benefit of the landlord
as of December 31, 2023.
Concentrations of credit risk
Financial instruments that potentially subject the Company to concentrations of credit risk consist principally of cash, cash equivalents, short and
long-term marketable securities. Periodically, the Company maintains deposits in accredited financial institutions in excess of federally insured limits. The
Company deposits its cash investments in financial institutions that it believes have high credit quality and has not experienced any losses on such accounts
and does not believe it is exposed to any unusual credit risk beyond the normal credit risk associated with commercial banking relationships. At December
31, 2023, all of the Company's cash, cash equivalents, short and long-term investments were held at four accredited financial institutions.
As of December 31, 2022, the Company held cash deposits at Silicon Valley Bank ("SVB") in excess of government insured limits. On March
10, 2023, SVB was closed by the California Department of Financial Protection and Innovation, and the Federal Deposit Insurance Corporation (“FDIC”)
was appointed as receiver. No losses were incurred by the Company on deposits that were held at SVB. Management believes that the Company is not
currently exposed to significant credit risk as the vast majority of the Company’s deposits were either owned directly by the Company and held in custody
at a third-party financial institution or, subsequent to March 10, 2023, have been transferred to a third-party financial institution. On March 27, 2023, SVB
was acquired by First-Citizen BancShares, Inc ("First-Citizen"). As of December 31, 2023, the Company did not have any significant deposits on account
at or relationships with SVB or First-Citizen.
Leases
The Company determines whether an arrangement is or contains a lease at inception by assessing whether the arrangement contains an identified
asset and whether the Company has the right to control the identified asset. Right-of-use, or ROU, assets represent the Company’s right to use an
underlying asset for the lease term and lease liabilities represent the Company’s obligation to make lease payments arising from the lease. Lease liabilities
are recognized at the lease commencement date based on the present value of future lease payments over the lease term. ROU assets are based on the
measurement of the lease liability and are further adjusted by any lease payments made prior to or on lease commencement, lease incentives received and
initial direct costs incurred, as applicable. The Company has elected to not recognize leases with a lease term of one year or less on its balance sheet.
Operating lease costs included in the measurement of the lease are recognized on a straight-line basis over the lease term. Variable lease costs are expensed
as incurred as an operating expense.
The Company determines the lease classification and the present value of future lease payments at the time of the lease commencement using an
incremental borrowing rate that it estimates based upon the Company’s credit risk and term of the lease. The interest rate implicit in lease contracts has not
historically been readily determinable and the Company must therefore use the appropriate incremental borrowing rate to measure its leases. To estimate
the incremental borrowing rate, a credit rating applicable to the Company is estimated using a synthetic credit rating analysis since the Company does not
currently have a rating agency-based credit rating.
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
Research and development costs
Research and development costs are expensed as incurred. Research and development expenses consist of costs incurred to discover, research
and develop drug candidates, including personnel expenses, stock-based compensation expense, third-party license fees and external costs including fees
paid to consultants, contract manufacturing organizations, or CMOs, and clinical research organizations, or CROs, in connection with drug product
manufacturing, nonclinical studies and clinical trials, and other related clinical trial fees, such as for investigator grants, patient screening, laboratory work,
clinical trial database management, clinical trial material management and statistical compilation and analysis. Non-refundable prepayments for goods or
services that will be used or rendered for future research and development activities are recorded as prepaid expenses. Such amounts are recognized as an
expense as the goods are delivered or the related services are performed, or until it is no longer expected that the goods will be delivered or the services
rendered.
Foreign currency transaction gains and losses related to the purchase of contract manufacturing services are included as a component of research
and development expense.
Costs incurred in obtaining technology licenses are charged immediately to research and development expense if the technology licensed has not
reached technological feasibility and has no alternative future uses.
Accrued and prepaid research and development expenses
The Company has entered into various research and development and other agreements with commercial firms, researchers and others for
provisions of goods and services. These agreements are generally cancelable, and the related costs are recorded as research and development expenses are
incurred. The Company makes estimates of accrued and prepaid research and development expenses as of each balance sheet date in the consolidated
financial statements based on facts and circumstances known at that time. When evaluating the adequacy of the accrued liabilities and the appropriateness
of the prepaid expenses, the Company analyzes progress of the studies or clinical trials, including the phase or completion of events, invoices received and
contracted costs. Significant judgments and estimates are made in determining the accrued and prepaid balances at the end of any reporting period. Actual
results could differ materially from the Company's estimates.
Stock-based compensation
The Company makes stock-based awards from its stock compensation plans (see Note 8). The Company measures all stock-based awards
granted to employees and nonemployees based on the fair value on the date of the grant and recognizes compensation expense for those awards over the
requisite service period, which is generally the vesting period of the respective award, on a straight-line basis. The Company recognizes stock-based
compensation expense for awards that contain performance-based conditions using the accelerated attribution method when management determines it is
probable that the performance condition will be satisfied. The Company accounts for forfeitures as they occur. Stock-based compensation for restricted
stock units is measured based on the market closing price of our common stock on the grant date. Stock-based compensation expense is recognized on a
straight-line basis over the requisite service period, generally four years.
The fair value of each stock option grant is estimated on the date of grant using the Black-Scholes option-pricing model, which requires inputs
based on certain subjective assumptions, including the expected stock price volatility, the expected term of the option, the risk-free interest rate for a period
that approximates the expected term of the option, and the Company's expected dividend yield. The Company currently estimates its share price volatility
using a combination weighting of the historical volatility of publicly traded peer companies and the volatility of its traded share price and expects to
continue to do so until mid-2025. The expected term of the Company's stock options has been determined utilizing the "simplified" method for awards that
qualify as "plain-vanilla" options. The risk-free interest rate is determined by reference to the U.S. Treasury yield curve in effect at the time of grant of the
award for time periods approximately equal to the expected term of the award. Expected dividend yield is based on the fact that the Company has never
paid cash dividends on common stock and does not expect to pay any cash dividends in the foreseeable future.
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
The fair value of each common stock award is estimated on the date of grant based on the fair value of the Company's common stock on that same date.
Compensation expense for purchases under the Employee Stock Purchase Plan is recognized based on the fair value of the common stock
estimated based on the closing price of our common stock as reported on the date of offering, less the purchase discount percentage provided for in the
plan.
The Company classifies stock-based compensation expense in its consolidated statement of operations and comprehensive loss in the same
manner in which the award recipient's payroll costs are classified or in which the award recipient's service payments are classified.
Loan Payable
Loan Payable represents the Loan and Security Agreement, dated June 15, 2022 (“Loan Agreement”) with Hercules Capital, Inc. (“Hercules”),
which the Company has accounted for as a debt financing arrangement. Interest expense is accrued using the effective interest rate method over the
estimated period the loan will be repaid. Loan issuance costs have been recorded as a debt discount in the consolidated balance sheets and are being
amortized and recorded as interest expense throughout the life of the Loan Agreement using the effective interest rate method. The Company considered
whether there were any embedded features in the Loan Agreement that require bifurcation and separate accounting as derivative financial instruments
pursuant to Accounting Standards Codification ("ASC") Topic 815, Derivatives and Hedging.
Warrant Liabilities
The Company accounts for warrants anticipated to be issued in the future under the Loan Agreement as liabilities and measures them at fair
value using the Black-Scholes valuation model. The warrants are subject to remeasurement at each prospective balance sheet date, with any changes in the
fair value recorded in the consolidated statements of operations.
Income taxes
The Company accounts for income taxes using the asset and liability method, which requires the recognition of deferred tax assets and liabilities
for the expected future tax consequences of events that have been recognized in the consolidated financial statements or in the Company's tax returns.
Deferred tax assets and liabilities are determined based on the difference between the consolidated financial statement and tax basis of assets and liabilities
using enacted tax rates in effect for the year in which the differences are expected to reverse. Changes in deferred tax assets and liabilities are recorded in
the provision for income taxes. The Company assesses the likelihood that its deferred tax assets will be recovered from future taxable income and, to the
extent it believes, based upon the weight of available evidence, that it is more likely than not that all or a portion of the deferred tax assets will not be
realized, a valuation allowance is established through a charge to income tax expense. Potential for recovery of deferred tax assets is evaluated by
estimating the future taxable profits expected and considering prudent and feasible tax planning strategies.
The Company accounts for uncertainty in income taxes recognized in the consolidated financial statements by applying a two-step process to
determine the amount of tax benefit to be recognized. First, the tax position must be evaluated to determine the likelihood that it will be sustained upon
external examination by the taxing authorities. If the tax position is deemed more-likely-than-not to be sustained, the tax position is then assessed to
determine the amount of benefit to recognize in the consolidated financial statements. The amount of the benefit that may be recognized is the largest
amount that has a greater than 50% likelihood of being realized upon ultimate settlement. The provision for income taxes includes the effects of any
resulting tax reserves, or unrecognized tax benefits, that are considered appropriate as well as the related net interest and penalties.
Net loss per share
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
Basic net loss per share is calculated by dividing the net loss by the weighted average number of shares of common stock outstanding during the
period, without consideration of common stock equivalents. Diluted net loss per share is the same as basic net loss per share, since the effects of potentially
dilutive securities are antidilutive given the Company’s net loss.
Comprehensive loss
Comprehensive loss includes net loss as well as other changes in stockholders' equity (deficit) that result from transactions and economic events
other than those with stockholders. The Company’s comprehensive loss is comprised of net loss and changes in unrealized gains and losses on its short and
long-term marketable securities.
Recently adopted accounting pronouncements
As of December 31, 2023, and for the year then ended, there were no recently adopted accounting standards that had a material impact on the
Company’s consolidated financial statements. There were no recently issued accounting standards not yet adopted which would have a material effect on
the Company’s consolidated financial statements.
Recently Issued Accounting Standards Not Yet Adopted
In December 2023, the Financial Accounting Standards Board (“FASB”), issued Accounting Standards Update (“ASU”) No. 2023-09, Income
Taxes (Topic 740), Improvements to Income Tax Disclosures, to enhance the transparency and decision usefulness of income tax disclosures. The
enhancement will provide information to better assess how an entity’s operations and related tax risks and tax planning and operational opportunities affect
its tax rate and prospects for future cash flows. Investors currently rely on the rate reconciliation table and other disclosures, including total income taxes
paid, to evaluate income tax risks and opportunities. ASU No. 2023-09 is effective for fiscal years beginning after December 15, 2024 and early adoption is
permitted. The Company is currently evaluating the impact ASU No. 2023-09 will have on its consolidated financial statements and related disclosures.
In November 2023, the FASB, issued ASU No. 2023-07, Segment Reporting (Topic 280), Improvements to Reportable Segment Disclosures, to
improve reportable segment disclosure requirements. The amendment introduced new requirements to disclose significant segment expenses regularly
provided to the chief operating decision maker (“CODM”) and extend certain annual disclosures to interim periods. Entities with a single reportable
segment must apply ASC 280 in its entirety, are permitted to report more than one measure of segment profit or or loss under certain conditions and are
required to disclose the title and position of the CODM. ASU No. 2023-07 is effective for fiscal years beginning after December 15, 2023 and interim
periods within fiscal years after December 15, 2024 and early adoption is permitted. The Company is currently evaluating the impact ASU No. 2023-07
will have on its consolidated financial statements and related disclosures.
3. Fair value measurements
Certain assets and liabilities of the Company are carried at fair value under GAAP. Fair value is defined as the exchange price that would be
received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly
transaction between market participants on the measurement date. Valuation techniques used to measure fair value must maximize the use of observable
inputs and minimize the use of unobservable inputs. Financial assets and liabilities carried at fair value are to be classified and disclosed in one of the
following three levels of the fair value hierarchy, of which the first two are considered observable and the last is considered unobservable:
•
Level 1—Quoted prices in active markets for identical assets or liabilities.
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
•
•
Level 2—Observable inputs (other than Level 1 quoted prices), such as quoted prices in active markets for similar assets or liabilities,
quoted prices in markets that are not active for identical or similar assets or liabilities, or other inputs that are observable or can be
corroborated by observable market data.
Level 3—Unobservable inputs that are supported by little or no market activity that are significant to determining the fair value of the assets
or liabilities, including pricing models, discounted cash flow methodologies and similar techniques.
The following is a summary of our financial assets and liabilities measured at fair value on a recurring basis as of December 31, 2023 and 2022:
Money market funds
U.S. Treasury securities
U.S. Government agency securities
Commercial paper
Corporate debt securities
Total assets
Warrant liabilities
Total liabilities
Money market funds
U.S. Treasury securities
Corporate debt securities
U.S. Government agency securities
Commercial paper
Total assets
Warrant liabilities
Total liabilities
Total
Level 1
Level 2
Level 3
December 31, 2023
206,879 $
117,307
133,297
68,708
15,774
541,965 $
206,879 $
117,307
—
—
—
324,186 $
— $
—
133,297
68,708
15,774
217,779 $
54 $
54 $
— $
— $
— $
— $
Total
Level 1
Level 2
Level 3
December 31, 2022
137,286 $
58,721
5,476
62,955
27,738
292,176 $
137,286 $
58,721
—
—
—
196,007 $
— $
—
5,476
62,955
27,738
96,169 $
—
—
—
—
—
—
54
54
—
—
—
—
—
—
305 $
305 $
— $
— $
— $
— $
305
305
$
$
$
$
$
$
$
$
Corporate debt securities were valued by the Company using quoted prices in active markets for similar securities, which represent a Level 2
measurement within the fair value hierarchy.
The carrying values of the Company’s prepaid expenses and other current assets, accounts payable and accrued expenses approximate their fair
values due to the short-term nature of these assets and liabilities. During the years ended December 31, 2023 and 2022, there were no transfers between
Level 1, Level 2 and Level 3.
The Loan Payable is classified as a Level 3 liability. As of December 31, 2023, the carrying value of the Loan Payable, approximates its fair
value. The Company estimated the fair value of the warrant liabilities using the Black-Scholes model based on key assumption and inputs (see Note 6). The
Company utilizes a probability assessment to estimate the likelihood of vesting for the remaining Loan Agreement warrants and allocated the probability of
occurrence percentage to the fair values calculated.
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
4. Short and long-term marketable securities
The following is a summary of short and long-term marketable securities as of December 31, 2023 and 2022:
Money market funds
U.S. Treasury securities
U.S. Government agency securities
Commercial paper
Corporate debt securities
Cash equivalents
Short-term marketable securities
Long-term marketable securities
Money market funds
U.S. Treasury securities
Corporate debt securities
U.S. Government agency securities
Commercial paper
Cash equivalents
Short-term marketable securities
Gross unrealized
gains
December 31, 2023
Gross unrealized
losses
Amortized cost
$
206,879 $
117,058
133,279
68,707
15,773
541,696 $
$
— $
255
78
10
1
344 $
Credit losses
—
$
(6 )
(60 )
(9 )
—
(75 ) $
— $
—
—
—
—
— $
Gross unrealized
gains
December 31, 2022
Gross unrealized
losses
Amortized cost
$
137,286 $
58,698
5,478
62,939
27,739
292,140 $
$
— $
23
—
15
—
38 $
Credit losses
$
—
—
(2 )
—
—
(2 ) $
$
$
— $
—
—
—
—
— $
$
$
Fair value
206,879
117,307
133,297
68,708
15,774
541,965
206,879
315,803
19,283
541,965
Fair value
137,286
58,721
5,476
62,954
27,739
292,176
190,500
101,676
292,176
The following table presents the contractual maturities of our short and long-term marketable securities as of December 31, 2023 and December
31, 2022.
Due within one year
Due after one year through five years
Total
December 31, 2023
December 31, 2022
$
$
315,803
19,283
335,086
$
$
101,676
—
101,676
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
5. Accrued expenses and other current liabilities
The following is a summary of accrued expenses and other current liabilities as of December 31, 2023 and 2022:
Accrued external research and development expenses
Accrued employee compensation and benefits
Accrued legal and professional fees
Short-term lease liability and other
6. Loan Payable and Warrant Liability
December 31, 2023
December 31, 2022
$
$
10,041 $
1,296
231
522
12,090 $
9,789
804
197
325
11,115
On June 15, 2022, the Company entered into a Loan and Security Agreement (“Loan Agreement”) with Hercules Capital, Inc. (“Hercules”), for
an aggregate principal amount of $100,000 (“Term Loan”). Pursuant to the Loan Agreement, the Term Loan is available to the Company in four tranches,
subject to certain terms and conditions.
Under the terms of the Loan Agreement, the Company received $10,000 upon closing, $15,000 was borrowed in March of 2023 and $30,000
remains available to the Company to borrow at its sole discretion until March 15, 2024. An additional $45,000 may become available to the Company at
Hercules' sole discretion.
The Term Loan will mature on January 1, 2027 (the “Maturity Date”). The Term Loan bears interest at a variable annual rate equal to the greater
of (a) 7.65% and (b) the Prime Rate (as reported in the Wall Street Journal) plus 3.65% (the “Interest Rate”). The Company may make payments of interest
only through July 1, 2025 (the “interest-only period”). After the interest-only period, the principal balance and related interest will be required to be repaid
in equal monthly installments and continuing until the Maturity Date.
The Loan Agreement contains customary closing fees, events of default, and representations, warranties and covenants, including a financial
covenant requiring the Company to maintain a minimum cash balance in relation to the outstanding principal balance of the Term Loan. The Loan
Agreement is secured by most of the Company's assets, including its bank and investment accounts. The Loan Agreement provides for a prepayment charge
equal to 3% of the outstanding principal balance of the Term Loan if prepayment is made within the first twelve months after closing, 2% if within the
second twelve months after closing and 1% thereafter. In addition, the Loan Agreement provides for an End of Term Charge that will be the greater of
5.85% of the outstanding principal balance or $1,463, which is recognized as a debt discount and is being accreted into the amortization of debt issuance
costs and discount using the effective interest rate method over the term of the loan payable.
Upon closing, the Company issued warrants to Hercules to purchase shares of the Company’s common stock, par value $0.0001 per share
("common stock"). The amount of shares that may be purchased for the Warrants will not exceed 1.5% multiplied by the greater of Tranche I and the
aggregate original amount of the term loan advances, divided by the exercise price of the Warrants.
The Company was in compliance with all covenants of the Loan Agreement as of December 31, 2023.
The Company determined in accordance with ASC 480-10 that the initial tranche one advance of $10,000, the additional Term Loan advances
available under tranches one, two, three and four and the warrants issued upon closing shall be accounted for as freestanding financial instruments as they
are legally detachable and separately exercisable. The Company also determined in accordance with ASC 815-10 that the additional Term Loan advances
available under tranches one, two, three and four do not qualify as derivative instruments and that the value associated with these commitments is
immaterial.
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
Upon closing, the Company issued to Hercules warrants to purchase 36,718 shares of Company’s common stock and recognized the initial
warrants at their relative fair value of $227 in shareholders equity. In accordance with ASC 815-40, the additional remaining warrants to purchase shares of
the Company’s common stock at the closing of the Loan Agreement were recognized at their fair value of $41 as warrant liabilities given the variable
settlement amount of the warrant shares. The additional remaining warrants under the Loan Agreement are considered an outstanding instrument at close of
the Loan Agreement. The total fair value of $268 associated with these equity and liability classified warrants, is recognized as a debt discount and is being
accreted into the amortization of debt issuance costs and discount using the effective interest rate method over the term of the loan payable. The Company
reassesses the fair value of the warrant liability at the end of each prospective reporting period.
In March 2023, the Company borrowed an additional $15,000 and issued warrants to Hercules to purchase an additional 9,180 shares of
Company's common stock. The fair value associated with these additional warrants of $330 were reclassified from warrant liability to additional paid in
capital.
The warrant liabilities were valued at $54 and $305 as of December 31, 2023 and 2022, respectively. The change in fair value of the warrant
liability of $79 from December 31, 2022 to December 31, 2023 arising from remeasurement was recorded in the statements of operations.
Future principal debt payments on the currently outstanding loan payable as of December 31, 2023 and 2022 are as follows (in thousands):
2023
2024
2025
2026
2027
Total principal outstanding
End of term charge
Total principal outstanding and end of term charge
Unamortized discount and issuance costs
Loan Payable
Loan Payable - current
Loan Payable - noncurrent
Loan Payable
Year Ended December 31,
2023
— $
—
7,343
16,118
1,539
25,000
1,463
26,463
(1,499 )
24,964 $
— $
24,964
24,964 $
2022
—
1,710
3,725
4,169
396
10,000
1,170
11,170
(1,629 )
9,541
—
9,541
9,541
$
$
$
$
The Company estimated the fair value of the warrant liability as of December 31, 2023 using probability assumptions of achieving the future
milestones and using the Black-Scholes model based on the following key assumptions:
Expected term (in years)
Expected volatility
Risk-free interest rate
Expected dividend yield
Year Ended December 31,
2023
2022
5.5
83.22 %
3.84 %
0.00 %
6.5
77.29 %
4.18 %
0.00 %
On February 28, 2024 the Company amended the Hercules Loan Agreement to increase the total amount of borrowings available to $150,000
and to change the conditions under which the remaining borrowings will become available. In connection with this amendment, the Company borrowed an
additional $10,000 under the Loan Agreement (see Notes 7 and 13).
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7. Stockholder’s equity (deficit)
Common stock
Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
As of December 31, 2023 and 2022, the Company’s certificate of incorporation, as amended and restated, authorized the Company to issue
150,000,000 shares of $0.0001 par value common stock. Each share of common stock entitles the holder to one vote on all matters submitted to a vote of
the Company’s stockholders. The holders of common stock, voting exclusively and as a separate class, have the exclusive right to vote for the election of
directors of the Company. Common stockholders are entitled to receive dividends, as may be declared by the board of directors. Through December 31,
2023, no cash dividends had been declared or paid.
On June 24, 2019, the Company completed its IPO at which time the Company issued 6,612,500 shares of common stock, including the exercise
in full by the underwriters of their option to purchase up to 862,500 additional shares of common stock, at a public offering price of $16.00 per share. The
Company received $98,394, net of underwriting discounts and commissions, but before deducting offering costs paid by the Company, which were $2,942.
Upon the closing of the IPO, all outstanding shares of convertible preferred stock converted into 21,056,136 shares of common stock.
On July 10, 2020, the Company completed a follow-on public offering at which time the Company issued 6,012,390 shares of common stock,
including the exercise in full by the underwriters of their option to purchase up to 784,224 additional shares of common stock, at a public offering price of
$36.00 per share. The Company received $203,460 net of underwriting discounts and commissions, but before deducting offering costs paid by the
Company.
On May 18, 2021, the Company filed a Form S-3 Registration Statement and the accompanying prospectus activating an At-The-Market
("ATM"), facility by entering into a sales agreement with J.P. Morgan Securities LLC, relating to shares of the Company’s common stock offered. Pursuant
to the terms of the sales agreement, the Company may offer and sell shares of common stock, having an aggregate price of up to $100,000, from time to
time. The Company reserved 5,000,000 shares of common stock related to the ATM offering. In March 2023, the Company terminated the sales agreement
with J.P. Morgan Securities LLC and separately entered into a sales agreement with Jefferies LLC (the "Sales Agreement"). Pursuant to the Sales
Agreement, the Company filed a prospectus supplement on March 17, 2023, under which the Company may offer and sell shares of common stock, having
an aggregate value of up to $200,000. In April and May 2023, the Company sold 3,006,052 shares of common stock under the Sales Agreement, at an
average price of $42.38 per share. The Company received net proceeds of $123,824, after deducting sales agent commissions and issuance costs incurred
by the Company of approximately $3,578.
On June 15, 2022, the Company entered into a securities purchase agreement for the sale of 2,525,252 shares of the Company's common stock to
Pfizer Inc. at $9.90 per share in a registered direct offering conducted without an underwriter or placement agent and pursuant to the Company’s effective
shelf registration statement on Form S-3ASR and a related prospectus supplement filed with the SEC. The offering closed on June 17, 2022 for net
proceeds of $24,647, after deducting offering costs paid by the Company.
On September 19, 2022, the Company completed a follow-on public offering at which time the Company issued 8,846,154 shares of common
stock, including the exercise in full by the underwriters of their option to purchase up to 1,153,846 additional shares of common stock, at a public offering
price of $26.00 per share. The Company received $216,200 net of underwriting discounts and commissions of $13,800, but before deducting offering costs
incurred by the Company.
On May 16, 2023, the Company entered into an underwriting agreement (the "Underwriting Agreement") with Jefferies LLC, ("Jefferies"), as a
representative of the several underwriters, pursuant to which the Company agreed to issue and sell 5,238,500 shares of the Company's common stock at
$42.00 per share in a registered direct offering pursuant to the Company’s effective shelf registration statement on Form S-3ASR and a related prospectus
supplement
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
filed with the SEC. The offering closed on May 16, 2023. The Company received net proceeds of $210,956, after deducting underwriters commissions and
offering costs incurred by the Company of approximately $9,061.
As of December 31, 2023 and 2022, there were 55,754,445 and 46,865,206 shares of common stock issued and outstanding, respectively.
The following shares of common stock were reserved for issuance as follows:
Options outstanding under the 2018 Stock Option and Grant Plan
Options outstanding under the 2019 Stock Option and Incentive Plan
Restricted stock units outstanding under the 2019 Stock Option and Incentive Plan
Warrants to purchase common stock associated with Loan Agreement
Options available for future grant
Warrants available for future grant
Common stock available for ATM program
2019 Employee Stock Purchase Plan
December 31, 2023
December 31, 2022
1,114,189
5,785,788
371,952
45,898
1,917,356
137,700
2,708,234
1,586,224
13,667,341
1,633,173
4,146,831
129,131
36,718
2,038,142
146,880
5,000,000
1,187,508
14,318,383
Undesignated preferred stock
The Company’s fourth amended and restated certificate of incorporation authorizes the Company to issue up to 10,000,000 shares of
undesignated preferred stock, par value $0.0001 per share. There were no undesignated preferred shares issued or outstanding as of December 31, 2023.
Warrants Associated with Loan Agreement
In connection with the entry into the Loan Agreement, the Company issued to Hercules warrants to purchase shares of the Company’s common
stock. The amount of shares that may be purchased for the Warrants will not exceed 1.5% multiplied by the greater of Tranche I and the aggregate original
amount of the term loan advances, divided by the exercise price of the Warrants. Upon execution of the Loan Agreement on June 15, 2022, the Company
issued 36,718 warrants to purchase shares of the Company’s common stock and recorded the initial warrants at their relative fair value in shareholder's
equity. In March of 2023, the Company issued an additional 9,180 warrants to purchase shares of the Company’s common stock to Hercules in connection
with an additional $15,000 borrowing (see Note 6).
On February 28, 2024 the Company amended the Hercules Loan Agreement to increase the total amount of borrowings available to $150,000
and to change the conditions under which the remaining borrowings will become available. In connection with this amendment, the Company borrowed an
additional $10,000 under the loan facility. In connection with the $10,000 borrowed at the time of the amendment, the Company will issue 18,359
additional warrants to purchase shares of the Company’s common stock to Hercules (see Notes 6 and 13).
8. Stock-based awards
2018 Stock option and grant plan
The Company’s 2018 Stock Option and Grant Plan (the “2018 Plan”) provided for the Company to grant incentive stock options or nonqualified
stock options, restricted stock awards and other stock-based awards to employees, directors and consultants of the Company. The 2018 Plan was
administered by the board of directors or, at the discretion of the board of directors, by a committee of the board of directors. The exercise prices, vesting
and other restrictions were determined at the discretion of the board of directors, or its committee if so delegated.
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
The total number of shares of common stock that could have been issued under the 2018 Plan was 3,071,960 shares, of which 107,635 shares
remained available for grant on June 18, 2019, the date that the Company’s 2019 Stock Option and Incentive Plan (the “2019 Plan”) became effective.
Upon the effectiveness of the 2019 Plan, the 107,635 remaining shares available under the 2018 Plan were transferred and became available for issuance
under the 2019 Plan. Shares of common stock underlying outstanding awards under the 2018 Plan that are forfeited, cancelled, held back upon exercise or
settlement of an award to satisfy the exercise price or tax withholding, reacquired by the Company prior to vesting, satisfied without the issuance of stock,
expire or are otherwise terminated (other than by exercise) will be added to the shares of common stock available for issuance under the 2019 Plan.
2019 Stock option and incentive plan
The 2019 Plan was adopted and approved by the Company’s board of directors in May 2019 and by the Company’s stockholders in June 2019.
The 2019 Plan became effective on June 18, 2019 and replaced the Company’s 2018 Plan on that date. The 2019 Plan allows the board of directors or the
compensation committee of the board of directors to make equity-based incentive awards to the Company’s officers, employees, directors or other key
persons (including consultants). The number of shares initially reserved for issuance under the 2019 Plan was 2,572,457, which included the 107,635
shares transferred from the 2018 Plan, and shall be cumulatively increased on each January 1 by 4% of the number of shares of the Company’s common
stock outstanding on the immediately preceding December 31 or such lesser number of shares determined by the Company’s board of directors or
compensation committee of the board of directors. The 2019 Plan was increased by 1,396,029 shares on January 1, 2022 and by 1,874,608 shares on
January 1, 2023.
The 2019 Plan is administered by the board of directors or, at the discretion of the board of directors, by a committee of the board of directors.
The exercise prices, vesting and other restrictions are determined at the discretion of the board of directors, or its committee if so delegated, except that the
exercise price per share of stock options may not be less than 100% of the fair market value of the share of common stock on the date of grant and the term
of stock option may not be greater than ten years. All incentive options granted to any person possessing more than 10% of the total combined voting
power of all classes of shares may not have an exercise price of less than 110% of the fair market value of the common stock on the grant date. Stock
options granted to employees, officers, members of the board of directors and consultants will typically vest over a four-year period.
Shares that are expired, terminated, surrendered or canceled under the 2019 Plan without having been fully exercised will be available for future
awards.
2019 Employee stock purchase plan
The 2019 Employee Stock Purchase Plan (the “2019 ESPP”) was adopted and approved by the Company’s board of directors in May 2019 and
by the Company’s stockholders in June 2019. The 2019 ESPP became effective on June 18, 2019, at which time 273,869 shares were reserved for issuance.
The 2019 ESPP provides that the number of shares reserved and available for issuance will automatically increase each January 1, beginning on January 1,
2020 and each January 1 through January 1, 2029, by the least of (i) 1% of the outstanding number of shares of the Company’s common stock on the
immediately preceding December 31, (ii) 410,803 shares or (iii) such number of shares as determined by the compensation committee. The 2019 ESPP was
increased by 349,007 shares on January 1, 2022 and by 410,803 shares on January 1, 2023.
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Stock option valuation
Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
The assumptions that the Company used to determine the grant-date fair value of stock options granted to employees, directors and consultants as
follows, presented on a weighted average basis:
Expected term (in years)
Expected volatility
Weighted average risk-free interest rate
Expected dividend yield
Stock options
Year Ended December 31,
2023
2022
2021
5.95
81.89 %
4.19 %
0.00 %
5.30
74.59 %
2.71 %
0.00 %
5.77
72.17 %
1.19 %
0.00 %
The following table summarizes the Company’s stock option activity since December 31, 2022:
Balance outstanding, December 31, 2022
Options granted
Options exercised
Options cancelled
Balance outstanding, December 31, 2023
Vested and expected to vest, December 31, 2023
Exercisable, December 31, 2023
Weighted-
Average
Exercise
Price per
Share
Weighted-
Average
remaining
contractual
term (years)
Aggregate
Intrinsic
Value
(000's)
18.88
28.29
5.50
49.74
22.35
22.35
18.32
7.80 $
207,611
7.67 $
7.67 $
6.69 $
35,133
35,133
28,508
Number
of Options
5,780,004 $
1,720,882 $
(593,959 ) $
(6,950 ) $
6,899,977 $
6,899,977 $
4,126,549 $
The aggregate intrinsic value of stock options is calculated as the difference between the exercise price of the stock options and the fair value of
the Company’s common stock for those stock options that had exercise prices lower than the fair value of the Company’s common stock.
The weighted average grant-date fair value per share of stock options granted during the years ended December 31, 2023, 2022 and 2021 was
$28.29, $28.76 and $13.98, respectively.
Awards with performance-based vesting conditions granted under the 2019 Plan
In December 2021, the Company granted 610,546 stock options to management at an exercise price of $21.10, which vest upon the achievement
on or before December 31, 2022 of three pre-determined milestones regarding progress related to the HARMONY study, progress related to the
SYMMETRY study, and progress related to availability of drug product for use in Phase 3 clinical trials. One-third of the options vest upon achievement of
each of the milestones. In January 2022, the Company granted an additional 248,376 stock options to Company employees with the same performance-
based milestones and vesting terms at an exercise price of $21.70. In September 2022, two of the three performance-based awards milestones were
achieved and were deemed vested. In December 2022, the third portion of the performance-based awards milestones was achieved and was deemed vested.
During the year ended December 31, 2022, the Company recognized $10,487 of related stock compensation expense, based upon management's estimates
of the probabilities of the milestones being achieved and the fully vesting of the performance awards. During the year ended December 31, 2023, the
Company did not have any outstanding performance awards or recognize any performance-based stock compensation expense.
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Restricted Stock Units
Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
The 2019 Plan allows for the grants of Restricted Stock Units (RSUs). Generally, the RSUs are subject to a four-year vesting period of which the
Company has designated to vest on a quarterly basis over the remaining vesting term. In December 2022, the Company granted 129,131 RSUs to executive
management with a total grant date fair value of $5,546. In 2023, the Company granted 281,462 RSUs to executive and non-executive employees with a
total grant date fair value of $24.03.
The following table summarizes the Company’s RSUs activity since December 31, 2022:
Balance outstanding, December 31, 2022
Granted
Vested
Cancelled or forfeited
Balance outstanding, December 31, 2023
Weighted-
Average
Grant Date
Underlying
shares
Fair Value per
Share
129,131 $
281,462 $
(38,641 ) $
— $
371,952 $
42.95
24.03
43.94
—
28.53
Weighted-
Average
remaining
contractual
term (years)
Aggregate
Intrinsic
Value
(000's)
2.07 $
7,076
1.98 $
8,685
The weighted average grant-date fair value per share of RSUs granted during the years ended December 31, 2023 and 2022 was $24.03 and
$42.95, respectively.
Stock-based compensation
The following table summarizes the Company’s stock-based compensation expense during the years ended December 31, 2023, 2022 and 2021:
Classified within research and development expense
Classified within general and administrative expense
Total stock-based compensation expense
Year Ended December 31,
2023
2022
2021
$
$
7,579
13,918
21,497
$
$
8,096
15,147
23,243
$
$
3,054
7,000
10,054
As of December 31, 2023, total unrecognized compensation cost related to unvested stock options and RSUs was $51,121 and 10,331,
respectively. These unvested stock options and RSUs are expected to be recognized over a weighted average period of 2.87 years and 3.61 years
respectively.
9. Amgen license agreement
In June 2018, the Company entered into a license agreement (the “Amgen Agreement”) with Amgen, Inc. (“Amgen”) pursuant to which the
Company was granted an exclusive license to certain patents and intellectual property related to a long-acting FGF21 analog in order to commercially
develop, manufacture, use and distribute FGF21 as a treatment for MASH and other serious metabolic diseases. The Amgen Agreement provides the
Company with exclusive global rights to the licensed products and the right to grant sublicenses that cover EFX to third parties.
In exchange for these rights, the Company made an upfront payment of $5,000 and issued 2,653,333 shares of Series A Preferred Stock with a
fair value of $1,353 to Amgen. Amgen was also entitled to maintain a 10% ownership interest of the outstanding shares of the Company’s common stock,
on a fully diluted and converted basis, through the second closing of the Company’s Series A Preferred Stock financing. In November 2018, in connection
with the second
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
closing of the Company’s Series A Preferred Stock financing, the Company issued 3,205,128 shares of Series A Preferred Stock to Amgen for a total value
of $7,404, satisfying its anti-dilution obligation under the Amgen Agreement.
Under the Amgen Agreement, the Company made a milestone payment in the third quarter of 2019 of $2,500 in connection with dosing the first
patient in the BALANCED study, a second milestone payment of $7,500 was paid in December 2023 with dosing the first patient in our Phase 3
SYNCHRONY program, and is obligated to pay Amgen up to $30,000 in connection with marketing approvals, and aggregate milestone payments of up to
$75,000 upon the achievement of specified commercial milestones for all products licensed under the Amgen Agreement.
Under the Amgen Agreement, the Company is obligated to pay Amgen tiered royalties ranging from a low to high single-digit percentages on
annual net sales of the licensed products, beginning on the first commercial sale of such licensed products in each country and expiring on a country-by-
country basis on the latest of (i) the expiration of the last valid patent claim covering such licensed products in such country, (ii) the loss of regulatory
exclusivity in such country, and (iii) ten years after the first commercial sale of such licensed product in such country. The royalty payments are subject to
reduction under specified conditions set forth in the Amgen Agreement.
The Company is solely responsible for all development, manufacturing, and commercial activities and costs of the licensed products, including
clinical studies or other tests necessary to support the use of a licensed product. The Company is also responsible for costs related to the filing, prosecution
and maintenance of the licensed patent rights.
The Amgen Agreement will remain in effect until the expiration of the royalty term in all countries for all licensed products. The Amgen
Agreement may be terminated by either party with at least 90 days' notice in the event of material breach by the other party that remains uncured for 90
days, by either party for insolvency or bankruptcy of the other party and immediately by Amgen if the Company challenges the licensed patents. The
Company may also terminate the Amgen Agreement with 90 days' written notice for discretionary reasons such as scientific, technical, regulatory or
commercial issues, as defined in the Amgen Agreement.
During the year ended December 31, 2023, the Company recorded $7,500 in research and development expense under the Amgen license in
connection with dosing the first patient in the Phase 3 SYNCHRONY program. There was no expense recorded during the years ended December 31, 2022
and 2021.
10. Income taxes
During the years ended December 31, 2023, 2022 and 2021, the Company recorded no income tax benefits for the net operating losses incurred
or for the research and development tax credits generated in each period due to its uncertainty of realizing a benefit from those items. All of the Company’s
operating losses since inception have been generated in the United States.
A summary of the Company’s current and deferred tax provision is as follows:
Current income tax provision:
Federal
State
Total current income tax provision
Deferred income tax benefit:
Federal
State
Total deferred income tax benefit
Change in deferred tax asset valuation allowance
Total provision for income taxes
2023
Year Ended December 31,
2022
2021
$
$
$
—
—
—
40,292
28,079
68,371
(68,371 )
—
$
$
—
—
—
27,269
14,568
41,837
(41,837 )
—
$
—
—
—
23,352
7,274
30,626
(30,626 )
—
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
A reconciliation of the U.S. federal statutory income tax rate to the Company’s effective income tax rate is as follows:
Federal statutory income tax rate
State income taxes, net of federal benefit
Research and development tax credits
Other permanent differences
Change in deferred tax asset valuation allowance
Effect of Section 382 limitation
Effective income tax rate
Net deferred tax assets as of December 31, 2023 and 2022 consisted of the following:
Deferred tax assets:
Net operating loss carry forwards
Research and development tax credit carry forwards
License fees
Stock based compensation
Capitalized research and experimentation costs
Accruals, reserves and other
Valuation allowance
Net deferred tax assets
Deferred tax liabilities:
Prepaid expenses
Net deferred tax liabilities
Year Ended December 31,
2023
21.0 %
18.5
2.4
2.6
(44.5 )
-
- %
2022
21.0 %
13.0
2.4
0.8
(37.
2021
21.0 %
7.2
2.0
(0.1 )
2 )
-
- %
(30.1 )
-
- %
December 31,
2023
2022
$
$
$
$
88,219
12,846
5,545
14,286
58,610
242
179,748
(177,061 )
2,687
(2,687 )
(2,687 )
68,450
7,704
3,355
8,974
20,803
191
109,477
(108,690 )
787
(787 )
(787 )
As of December 31, 2023, the Company had U.S. federal and state net operating loss carryforwards of $284,344 and $413,182, respectively,
which may be available to offset future taxable income and begin to expire in 2037. The federal net operating loss carryforwards include $281,900, which
may be carried forward indefinitely. As of December 31, 2023, the Company also had U.S. federal and state research and development tax credit
carryforwards of $14,379 and $2,355, respectively, which may be available to offset future tax liabilities and begin to expire in 2033. During the year ended
December 31, 2023, gross deferred tax assets, before valuation allowance, increased by $68,371, due to the operating loss incurred by the Company during
that period.
Utilization of the U.S. federal and state net operating loss carryforwards and research and development tax credit carryforwards may be subject
to a substantial annual limitation under Sections 382 and 383 of the Internal Revenue Code of 1986, and corresponding provisions of state law, due to
ownership changes that have occurred previously or that could occur in the future. These ownership changes may limit the amount of carryforwards that
can be utilized annually to offset future taxable income or tax liabilities. In general, an ownership change, as defined by Section 382, results from
transactions increasing the ownership of certain stockholders or public groups in the stock of a corporation by more than 50% over a three‑year period. The
annual limitation is determined by multiplying the value of the Company's stock at the time of such ownership change by the applicable long-term tax-
exempt rate. Such limitations may result in expiration of a portion of the NOL carryforwards before utilization. As of December 31, 2023, the Company
determined that ownership changes occurred on March 24, 2017, June 7, 2018 and July 8, 2020. As a result of the ownership changes, approximately
$2,118 and $3,632 of the NOLs will expire unutilized for federal and state
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
purposes, respectively. The ability of the Company to use its remaining NOL carryforwards may be further limited if the Company experiences a Code
Section 382 ownership change as a result of future changes in its stock ownership.
The Company’s research and development credits are subject to Code Section 383 and are limited due to the ownership changes that the
Company has experienced. As of December 31, 2023, the Company has derecognized approximately $87 and $43 of gross federal and state research and
development credits, respectively. The Company has not derecognized any of the California research and development credit-related deferred tax assets
because the credits do not expire.
The Company has evaluated the positive and negative evidence bearing upon its ability to realize its deferred tax assets at each reporting period.
In doing so, the Company has considered its history of cumulative net losses incurred and its lack of commercialization of any products or generation of
any revenue from product sales and has concluded that it is more likely than not that the Company will not realize the benefits of the deferred tax assets.
Accordingly, a full valuation allowance has been recorded against the net deferred tax assets as of December 31, 2023 and 2022. Management reevaluates
the positive and negative evidence at each reporting period.
Changes in the valuation allowance for deferred tax assets during the years ended December 31, 2023 and 2022 related primarily to the increase
in net operating loss carryforwards and research and development tax credit carryforwards and were as follows:
Valuation allowance as of January 1,
Decreases recorded as a benefit to income tax provision
Valuation allowance as of December 31,
2023
(108,690 )
(68,371 )
(177,061 )
$
$
2022
(66,853 )
(41,837 )
(108,690 )
$
$
As of December 31, 2023, the Company had gross unrecognized tax benefits of $3,394, none of which if recognized, would reduce the effective
tax rate in a future period, due to the Company's full valuation allowance on U.S. net deferred tax assets. The Company’s policy is to record interest and
penalties related to income taxes as part of its income tax provision. As of December 31, 2023, the Company had not accrued interest or penalties related to
uncertain tax positions and no amounts had been recognized in the Company’s consolidated statements of operations and comprehensive loss. For the year
ended December 31, 2023, the Company will file income tax returns in the U.S., California, Connecticut, Colorado, Florida, Illinois, Kentucky, Maryland,
Massachusetts, New York, New Jersey, North Carolina, Pennsylvania and Virginia, as prescribed by the tax laws of the jurisdictions in which it operates.
The Company is subject to examination by federal and state jurisdictions, where applicable. There are currently no pending tax examinations. The
Company is open to future tax examination under statute from 2019 to the present.
A reconciliation of the beginning and ending unrecognized tax benefits for the years ended December 31, 2023, 2022 and 2021 is as follows
Balance at December 31, 2020
Increases related to prior year tax positions
Increases related to current year tax positions
Balance at December 31, 2021
Increases related to prior year tax positions
Increases related to current year tax positions
Balance at December 31, 2022
Increases related to prior year tax positions
Increases related to current year tax positions
Balance at December 31, 2023
$
$
644
66
603
1,313
51
746
2,110
223
1,061
3,394
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
Beginning in 2022, the Tax Cuts and Jobs Act of 2017 eliminates the option to deduct research and development expenditures in the period
incurred and requires amortization over five years or fifteen years pursuant to IRC Section 174. The Company is projected to remain in a taxable loss
position even after the capitalization of R&D expenditures, and thus the new requirement is not expected to have a material impact on the Company’s
financial position, results of operations or cash flows in 2023.
On September 8, 2023, the IRS released an advance version of Notice 2023-63 (“Notice”) which provides interim guidance to clarify the
capitalization and amortization of specified research and experimental (“SRE”) expenditures under IRC Section 174, as amended by TCJA in 2017. The
Notice addresses issues related to short tax years and the definition of the midpoint of the taxable year, the types of costs that constitute SRE expenditures
including allocation methods, software development, research performed under contract, dispositions of property, and the treatment of SRE expenditures
for long-term contract rules under section 460. The Notice also announces that the Treasury Department and the IRS intend to issue proposed regulations
providing rules consistent with the guidance in the Notice applicable for tax years ending after September 8, 2023, and until then taxpayers may rely on the
interim guidance in the notice, provided the taxpayer applies all of the rules in a consistent manner. The Company does not anticipate the guidance in the
Notice to have material impact on the tax provision and will continue to monitor the development of the proposed regulations.
Accordingly, the Company is estimating 2023 and 2022 capitalization of U.S R&D expenditures net of 2023 and 2022 amortization of
approximately $65,437 and $57,658 (an addback to estimated 2023 and 2022 US taxable income), respectively. Additionally, the requirement to capitalize
and amortize foreign R&D expenses over 15 years resulted in 2023 and 2022 capitalization of R&D expenditures (net of amortization) of $65,899 and
$14,728, respectively.
On August 16, 2022, the IRA was signed into law. The IRA includes implementation of a new alternative minimum tax, an excise tax on stock
buybacks, and significant tax incentives for energy and climate initiatives, among other provisions. The Company is evaluating the provisions included
under the IRA and does not expect the provisions to have a material impact to the Company’s consolidated financial statements.
All tax returns will remain open for examination by the federal and state taxing authorities for three and four years, respectively, from the date of
utilization of any net operating loss carryforwards or research and development credits.
11. Net loss per share
Basic and diluted net loss per share attributable to common stockholders was calculated as follows:
Numerator:
Net loss
Denominator:
Weighted average common shares outstanding, basic and diluted
Net loss per share, basic and diluted
2023
Year Ended December 31,
2022
2021
$
$
(151,759 )
$
(112,033 )
$
(100,777 )
52,568,159
(2.89 )
$
38,984,772
(2.87 )
34,827,385
$
(2.89 )
The Company excluded 8,127 shares of restricted common stock, presented on a weighted average basis, from the calculations of basic net loss
per share for the year 2021 because those shares had not vested. The were no restricted common stock for the years ended December 31, 2023 and 2022.
The Company’s potentially dilutive securities, which include stock options, warrants and unvested restricted common stock, have been excluded
from the computation of diluted net loss per share as the effect would be to reduce
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
the net loss per share. Therefore, the weighted average number of common shares outstanding used to calculate both basic and diluted net loss per share is
the same. The Company excluded the following potential common shares, presented based on amounts outstanding at each period end, from the
computation of diluted net loss per share for the periods indicated because including them would have had an anti-dilutive effect:
Options to purchase common stock
Unvested restricted stock units
Warrants to purchase common stock
Warrants available for future grant
12. Commitments and contingencies
Operating lease
2023
Years ended December 31,
2022
2021
6,899,977
371,952
45,898
137,700
7,455,527
5,780,004
129,131
36,718
146,880
6,092,733
5,221,094
—
—
—
5,221,094
In February 2020, the Company entered into a seven-year agreement to occupy 6,647 square feet of office space in South San Francisco,
California. The lease commenced on July 10, 2020 when the Company took occupancy of the leased space and the lease was determined to be operating
classified. Under the agreement, the Company is required to make approximately $2,300 in total minimum payments during the term. The Company is also
required to pay its proportionate share of building operating and tax costs after the first year under lease which are not included in the measurement of the
lease and treated as variable lease cost and expensed when incurred.
As of December 31, 2023, maturities of the Company’s operating lease liability was as follows:
2024
2025
2026
2027
Total future minimum lease payments
Less imputed interest
Present value of operating lease liabilities
$
$
331
341
351
208
1,231
(152 )
1,079
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
As of December 31, 2023, the total lease liability was $1,079, of which $819 was noncurrent and $260 was short-term and classified within
“Accrued expenses and other current liabilities” on the consolidated balance sheet.
For the years ended December 31, 2023, 2022 and 2021, the components of operating lease cost were as follows:
Statement of Operations Classification:
General and administrative expense
General and administrative expense
General and administrative expense
Lease cost:
Operating lease cost
Short-term lease cost
Variable operating lease cost
Total operating lease cost
Other information:
Cash paid for amounts included in the
measurement of operating lease liability
Weighted average remaining lease term (years)
Weighted average discount rate
$
$
$
2023
Year Ended December 31,
2022
2021
324
161
37
522
$
$
324 $
58
58
440 $
324
—
17
341
$
321
3.6
7.6 %
312 $
4.6
7.6 %
303
5.6
7.6 %
Research and manufacturing and other commitments
The Company has entered into agreements with contract research organizations and contract manufacturing organizations to provide services in
connection with its nonclinical studies and clinical trials and to manufacture clinical development materials. As of December 31, 2023, the Company had
non-cancelable purchase and other commitments under these agreements totaling $30,878.
Indemnification agreements
In the ordinary course of business, the Company may provide indemnification of varying scope and terms to vendors, lessors, business partners
and other parties with respect to certain matters including, but not limited to, losses arising out of breach of such agreements or from intellectual property
infringement claims made by third parties. In addition, the Company has entered into indemnification agreements with members of its board of directors
and its executive officers that will require the Company, among other things, to indemnify them against certain liabilities that may arise by reason of their
status or service as directors or officers. The maximum potential amount of future payments the Company could be required to make under these
indemnification agreements is, in many cases, unlimited. To date, the Company has not incurred any material costs as a result of such indemnifications. The
Company is not currently aware of any indemnification claims and has not accrued any liabilities related to such obligations in its consolidated financial
statements as of December 31, 2023.
Legal proceedings
The Company is not a party to any litigation and does not have contingency reserves established for any litigation liabilities. At each reporting
date, the Company evaluates whether or not a potential loss amount or a potential range of loss is probable and reasonably estimable under the provisions
of the authoritative guidance that addresses accounting for contingencies. The Company expenses as incurred the costs related to such legal proceedings.
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Akero Therapeutics, Inc.
Notes to Consolidated Financial Statements
(Amounts in thousands, except share and per share data)
13. Subsequent event
The Company evaluated subsequent events through the issuance date.
On February 28, 2024, the Company amended the Hercules Loan Agreement to increase the total amount of borrowings available to $150,000
and to change the conditions under which the remaining borrowings will become available. In connection with this amendment, the Company borrowed an
additional $10,000 under the loan facility. In connection with the $10,000 borrowed at the time of the amendment, the Company will issue 18,359
additional warrants to purchase shares of the Company’s common stock to Hercules (see Notes 6 and 7).
On February 14, 2024, the Company raised $10,603 in net proceeds through the sale of 500,000 shares of common stock under its ATM facility
at an average price of $21.75 per share.
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Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Our management, with the participation and supervision of our Chief Executive Officer and our Chief Financial Officer, have evaluated the
effectiveness of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e)) under the Exchange Act as of the end of December
31, 2023 on Form 10-K. Disclosure control and procedures include, without limitation, controls and procedures designed to ensure that information we are
required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods
specified in SEC rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer
and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.
Based on that evaluation, our Chief Executive Officer and our Chief Financial Officer have concluded that, as of the end of December 31, 2023,
our disclosure controls and procedures were effective at the reasonable assurance level.
Management’s Report on Internal Control Over Financial Reporting
Management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rules 13a-15(f)) and
15d-15(f) under the Exchange Act. Our internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of consolidated financial statements for external purposes in accordance with generally accepted accounting
principles and includes those policies and procedures that:
•
•
•
Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets
of the company;
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
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.
Under the supervision and with the participation of management and our Chief Executive Officer and our Chief Financial Officer, we evaluated
the effectiveness of our internal control over financial reporting as of December 31, 2023, based on the framework set forth by the Committee of
Sponsoring Organizations of the Treadway Commission (“COSO”) in Internal Control—Integrated Framework (2013 Framework). Based on the results of
our evaluation under that framework, we concluded that our internal control over financial reporting was effective as of December 31, 2023.
Deloitte & Touche LLP, an independent registered public accounting firm, has audited the Company’s financial statements included in this report
on this 2023 Form 10-K and issued its report on the effectiveness of the Company’s internal control over financial reporting as of December 31, 2023,
which is included herein.
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Changes in Internal Control over Financial Reporting
There were no changes 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 quarter ended December 31, 2023 that have materially affected, or are reasonably likely to materially affect, our internal control over
financial reporting.
Inherent Limitation on the Effectiveness of Internal Control.
The effectiveness of any system of internal control over financial reporting, including ours, is subject to inherent limitations, including the
exercise of judgment in designing, implementing, operating, and evaluating the controls and procedures, and the inability to eliminate misconduct
completely. Accordingly, any system of internal control over financial reporting, including ours, no matter how well designed and operated, can only
provide reasonable, not absolute assurances. In addition, 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. We intend to
continue to monitor and upgrade our internal controls as necessary or appropriate for our business but cannot assure you that such improvements will be
sufficient to provide us with effective internal control over financial reporting.
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the shareholders and the Board of Directors of Akero Therapeutics, Inc.
Opinion on Internal Control over Financial Reporting
We have audited the internal control over financial reporting of Akero Therapeutics, Inc. (the “Company”) as of December 31, 2023, based on
criteria established in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway
Commission (COSO). In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December
31, 2023, based on criteria established in Internal Control — Integrated Framework (2013) issued by COSO.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the
consolidated financial statements as of and for the year ended December 31, 2023, of the Company and our report dated February 28, 2024, expressed an
unqualified opinion on those financial statements.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the
effectiveness of internal control over financial reporting, included in the accompanying Management’s Report on Internal Control over Financial Reporting.
Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm
registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the
applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining
an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and
operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the
circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s
internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail,
accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded
as necessary to permit preparation of financial statements in accordance with generally
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accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management
and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition
of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any
evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree
of compliance with the policies or procedures may deteriorate.
/s/ Deloitte & Touche LLP
Morristown, NJ
February 28, 2024
Item 9B. Other Information.
On February 28, 2024, we entered into the Second Amendment (the “Amendment”) to the Loan and Security Agreement, dated as of June 15,
2022 with Hercules Capital, Inc. to, among other things, increase the total amount of borrowings available to us to up to $150.0 million and to change the
conditions under which the remaining borrowings will become available.
The foregoing summary of the Amendment does not purport to be complete and is qualified in its entirety by the full text of the Amendment, a
copy of which will be filed with our Quarterly Report on Form 10-Q for the quarter ending March 31, 2024.
The following table describes contracts, instructions or written plans for the sale or purchase of our securities adopted by our directors and
certain officers during the quarter ended December 31, 2023, each of which is intended to satisfy the affirmative defense conditions of Exchange Act Rule
10b5-1(c), referred to as Rule 10b5-1 trading plans.
Name and Title
Date and Action Taken
Jonathan Young,
Chief Operating Officer
Plan adopted on December 27,
2023
Duration of Trading
Arrangement
276 days
Aggregate Number of Securities to be sold
or purchased
30,000
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections.
Not applicable.
PART III
Item 10. Directors, Executive Officers and Corporate Governance
Except as set forth below, the information required by this item is incorporated by reference from our definitive Proxy Statement to be filed with
the SEC in connection with our 2024 Annual Meeting of Stockholders within 120 days after the end of the fiscal year ended December 31, 2023.
We have adopted a Code of Business Conduct and Ethics that applies to all of our directors, officers and employees, including our principal
executive officer and principal financial officer. The Code of Business Conduct and Ethics is posted on our website at https://ir.akerotx.com/corporate-
governance/documents-charters.
We intend to satisfy the disclosure requirement under Item 5.05 of Form 8-K regarding an amendment to, or waiver from, a provision of this
Code of Business Conduct and Ethics by posting such information on our website, at the address and location specified above and, to the extent required by
the listing standards of The NASDAQ Global Select Stock Market, by filing a Current Report on Form 8-K with the SEC, disclosing such information.
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Item 11. Executive Compensation.
The information called for by this item is incorporated by reference from our definitive Proxy Statement to be filed with the SEC in connection
with our 2024 Annual Meeting of Stockholders within 120 days after the end of the fiscal year ended December 31, 2023.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
The information called for by this item is incorporated by reference from our definitive Proxy Statement to be filed with the SEC in connection
with our 2024 Annual Meeting of Stockholders within 120 days after the end of the fiscal year ended December 31, 2023.
Item 13. Certain Relationships and Related Transactions, and Director Independence.
The information called for by this item is incorporated by reference from our definitive Proxy Statement to be filed with the SEC in connection
with our 2024 Annual Meeting of Stockholders within 120 days after the end of the fiscal year ended December 31, 2023.
Item 14. Principal Accounting Fees and Services
The information called for by this item is incorporated by reference from our definitive Proxy Statement to be filed with the SEC in connection
with our 2024 Annual Meeting of Stockholders within 120 days after the end of the fiscal year ended December 31, 2023.
Part IV
Item 15. Exhibits, Financial Statement Schedules
(a) The following documents are filed as part of this Annual Report on Form 10-K:
1)
The consolidated financial statements filed as part of this Annual Report on Form 10-K are listed in the “Index to Consolidated
Financial Statements” under Part II, Item 8 of this Annual Report on Form 10-K.
2) No schedules are submitted because they are not applicable, not required or because information is included in the consolidated
financial statements or the notes thereto.
3)
The exhibits required by Item 601 of Regulation S-K and Item 15(b) of this Annual Report on Form 10‑K are listed in the Exhibit
Index immediately preceding the signature page of this Annual Report on Form 10‑K. The exhibits listed in the Exhibit Index are
incorporated by reference herein.
Item 16. Form 10-K Summary
The Company has elected not to include summary information.
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Exhibit
Number
3.1
3.2
4.1
4.2
10.1#
10.2#
10.3#
10.4#
10.5#
10.6#
10.7#
10.8#
10.9**
10.10#
EXHIBIT INDEX
Exhibit Description
Fourth Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 of the
Registrant’s Current Report on Form 8-K (File No. 001-38944) filed on June 24, 2019)
Amended and Restated Bylaws of the Registrant and the amendments thereto, as currently in effect (incorporated by reference to
Exhibit 3.2 of the Registrant’s Current Report on Form 8-K (File No. 001-38944) filed on March 12, 2021)
Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 of the Registrant’s Registration Statement on Form S-
1/A (File No. 333-231747) filed on June 10, 2019)
Description of Securities (incorporated by reference to Exhibit 4.2 of the Registrant’s Annual Report on Form 10-K (File No. 001-
38944) filed on March 17, 2023)
2018 Stock Option and Grant Plan, as amended, and form of award agreements thereunder (incorporated by reference to Exhibit 10.1
of the Registrant’s Registration Statement on Form S-1 (File No. 333-231747) filed on May 24, 2019)
2019 Stock Option and Grant Plan, and form of award agreements thereunder. (incorporated by reference to Exhibit 10.2 of the
Registrant’s Registration Statement on Form S-1/A (File No. 333-231747) filed on June 10, 2019)
2019 Employee Stock Purchase Plan. (incorporated by reference to Exhibit 10.3 of the Registrant’s Registration Statement on Form S-
1/A (File No. 333-231747) filed on June 10, 2019)
Form of Indemnification Agreement between the Registrant and each of its directors and executive officers (incorporated by reference
to Exhibit 10.4 of the Registrant’s Registration Statement on Form S-1 (File No. 333-231747) filed on May 24, 2019)
2019 Senior Executive Cash Bonus Plan (incorporated by reference to Exhibit 10.5 of the Registrant’s Registration Statement on Form
S-1 (File No. 333-231747) filed on May 24, 2019)
Form of Amended and Restated Employment Agreement for Executive Officers (incorporated by reference to Exhibit 10.8 of the
Registrant’s Registration Statement on Form S-1/A (File No. 333-231747) filed June 10, 2019)
Amended and Restated Employment Agreement for Andrew Cheng (incorporated by reference to Exhibit 10.9 of the Registrant’s
Registration Statement on Form S-1/A (File No. 333-231747) filed June 10, 2019)
Amended and Restated Employment Agreement for William White (incorporated by reference to Exhibit 10.10 of the Registrant’s
Registration Statement on Form S-1/A (File No. 333-231747) filed on June 10, 2019)
Exclusive License Agreement, by and between the Registrant and Amgen Inc., dated June 7, 2018 (incorporated by reference to
Exhibit 10.9 of the Registrant’s Registration Statement on Form S-1 (File No. 333-231747) filed on May 24, 2019)
Amended and Restated Non-Employee Director Compensation Policy (incorporated by reference to Exhibit 10.10 of the Registrant’s
Annual Report on Form 10-K (File No. 001-38944) filed on February 25, 2022).
145
Table of Contents
Exhibit
Number
10.11
10.12**
Office Lease between Gateway Center LP and the Registrant, dated as of February 14, 2020 (incorporated by reference to Exhibit
10.12 of the Registrant’s Annual Report on Form 10-K (File No. 001-38944) filed on March 16, 2020)
Exhibit Description
Loan and Security Agreement dated as of June 15, 2022 by and between the Registrant and Hercules Capital, Inc. (Incorporated by
reference to Exhibit 10.2 of the Registrant’s Quarterly Report on Form 10-Q (File No. 001-38944 filed on August 5, 2022).
10.13
Warrant, dated June 15, 2022 by and between the Registrant and Hercules Private Global Venture Growth Fund I L.P. (Incorporated by
reference to Exhibit 10.3 of the Registrant’s Quarterly Report on Form 10-Q (File No. 001-38944 filed on August 5, 2022).
10.14
Warrant, dated June 15, 2022 by and between the Registrant and Hercules Capital, Inc. (Incorporated by reference to Exhibit 10.4 of
the Registrant’s Quarterly Report on Form 10-Q (File No. 001-38944 filed on August 5, 2022).
21.1
23.1*
24.1*
31.1*
31.2*
32.1+
List of Subsidiaries of the Registrant (incorporated by reference to Exhibit 21.1 of the Registrant's Annual Report on Form 10-K (File
No. 001-38944) filed on February 25, 2022)
Consent of Deloitte & Touche LLP, independent registered public accounting firm
Power of Attorney (included on the signatures pages hereto)
Certification of Principal Executive Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as
amended
Certification of Principal Financial Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as
amended
Certification of Principal Executive Officer and Principal Financial Officer Pursuant to 18 U.S.C. Section 1350, as adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
97.1#*
Compensation Recovery Policy effective September 13, 2023
101.INS*
Inline XBRL Instance Document - the instance document does not appear in the Interactive Data File because XBRL tags are
embedded within the Inline XBRL document
101.SCH*
Inline XBRL Taxonomy Extension Schema With Embedded Linkbase Documents
104*
Cover Page Interactive Data File (embedded within the Inline XBRL document)
# Indicates a management contract or any compensatory plan, contract or arrangement.
* Filed herewith.
** Portions of this exhibit (indicated by asterisks) have been omitted pursuant to Item 601(b)(10) of Regulation S-K.
+ The certifications furnished in Exhibit 32.1 hereto are deemed to be furnished with this Annual Report on Form 10-K and will not be deemed to be
“filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, except to the extent that the Registrant specifically incorporates it
by reference.
146
Table of Contents
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.
any redsucSIGNATURES
AKERO THERAPEUTICS, INC.
Date: February 29, 2024
By:
/s/ ANDREW CHENG
Andrew Cheng, M.D., Ph.D.
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes and appoints Andrew Cheng, Jonathan Young, and William White, and each of them, with full
power of substitution and resubstitution and full power to act without the other, as his or her true and lawful attorney-in-fact and agent to act in his or her name, place and
stead and to execute in the name and on behalf of each person, individually and in each capacity stated below, and to file any and all amendments to this annual report on
Form 10-K and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing, ratifying and confirming all that said attorneys-in-
fact and agents or any of them or their or his substitute or substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this Annual Report on Form 10-K has been signed by the following persons in the capacities indicated
below and on the dates indicated:
Signature
Title
/s/ ANDREW CHENG
Andrew Cheng, M.D., Ph.D.
Chief Executive Officer, President
and Director (Principal Executive Officer)
/s/ WILLIAM WHITE
William White
/s/ JUDY CHOU
Judy Chou, Ph.D.
/s/ SETH L. HARRISON
Seth L. Harrison, M.D.
/s/ JANE P. HENDERSON
Jane P. Henderson
/s/ TOM HEYMAN
Tom Heyman
/s/ MARK IWICKI
Mark Iwicki
/s/ GRAHAM WALMSLEY
Graham Walmsley, M.D., Ph.D
/s/YUAN XU
Yuan Xu, Ph.D
Executive Vice President, Chief Financial Officer
and Head of Corporate Development
(Principal Financial and Accounting Officer)
Director
Director
Director
Director
Director
Director
Director
147
Date
February 29, 2024
February 29, 2024
February 29, 2024
February 29, 2024
February 29, 2024
February 29, 2024
February 29, 2024
February 29, 2024
February 29, 2024
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in Registration Statement Nos. 333-232234, 333-237220, 333-254454, 333-263194, and 333-270662 on Form
S-8 and No. 333-256229 on Form S-3ASR of our report dated February 28, 2024 relating to the financial statements of Akero Therapeutics, Inc. appearing
in this Annual Report on Form 10-K for the year ended December 31, 2023.
Exhibit 23.1
/s/ Deloitte & Touche LLP
Morristown, NJ
February 28, 2024
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO EXCHANGE ACT RULES 13a-14(a) AND 15d-14(a),
AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
EXHIBIT 31.1
I, Andrew Cheng, certify that:
1. I have reviewed this Annual Report on Form 10-K of Akero Therapeutics, Inc.;
2. 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;
3. 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;
4. The registrant’s other certifying officer(s) 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) 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;
(b) 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 generally accepted accounting principles;
(c) 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
(d) 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(s) 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 functions):
(a) 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
(b) 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: February 29, 2024
/s/ ANDREW CHENG
Andrew Cheng, M.D., Ph.D.
President and Chief Executive Officer
(Principal Executive Officer)
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO
RULES 13A-14(A) AND 15D-14(A) UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
EXHIBIT 31.2
I, William White, certify that:
1. I have reviewed this Annual Report on Form 10-K of Akero Therapeutics, Inc.;
2. 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;
3. 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;
4. The registrant’s other certifying officer(s) 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) 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;
(b) 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 generally accepted accounting principles;
(c) 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
(d) 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(s) 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 functions):
(a) 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
(b) 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: February 29, 2024
/s/ WILLIAM WHITE
William White
Executive Vice President, Chief Financial Officer and Head of Corporate
Development
(Principal Financial and Accounting Officer)
CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
EXHIBIT 32.1
I, Andrew Cheng, certify pursuant to Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”) and Section 1350 of
Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350), as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that the annual Report
on Form 10-K of Akero Therapeutics, Inc. for the year ended December 31, 2023, fully complies with the requirements of Section 13(a) or 15(d) of the
Exchange Act and that the information contained in such Annual Report on Form 10-K fairly presents, in all material respects, the financial condition and
result of operations of Akero Therapeutics, Inc.
Dated: February 29, 2024
/s/ ANDREW CHENG
Andrew Cheng, M.D., Ph.D.
President and Chief Executive Officer
(Principal Executive Officer)
I, William White, certify pursuant to Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”) and Section 1350 of
Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350), as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that the Annual
Report on Form 10-K of Akero Therapeutics, Inc. for the year ended December 31, 2023, fully complies with the requirements of Section 13(a) or 15(d) of
the Exchange Act and that the information contained in such Annual Report on Form 10-K fairly presents, in all material respects, the financial condition
and result of operations of Akero Therapeutics, Inc.
Dated: February 29, 2024
/s/ WILLIAM WHITE
William White
Executive Vice President, Chief Financial Officer and Head of Corporate
Development
(Principal Financial and Accounting Officer)
AKERO THERAPEUTICS, INC. COMPENSATION RECOVERY POLICY
Adopted as of September 13, 2023
EXHIBIT 97.1
Akero Therapeutics, Inc., a Delaware corporation (the “Company”), has adopted a Compensation Recovery Policy (this “Policy”) as described below.
1.
Overview
The Policy sets forth the circumstances and procedures under which the Company shall recover Erroneously Awarded Compensation from Covered
Persons (as defined below) in accordance with rules issued by the United States Securities and Exchange Commission (the “SEC”) under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and the Nasdaq Stock Market. Capitalized terms used and not otherwise defined herein shall
have the meanings given in Section 3 below.
2.
Compensation Recovery Requirement
In the event the Company is required to prepare a Financial Restatement, the Company shall recover reasonably promptly all Erroneously Awarded
Compensation with respect to such Financial Restatement.
3.
Definitions
a.
b.
c.
d.
e.
f.
g.
“Applicable Recovery Period” means the three completed fiscal years immediately preceding the Restatement Date for a Financial
Restatement. In addition, in the event the Company has changed its fiscal year: (i) any transition period of less than nine months
occurring within or immediately following such three completed fiscal years shall also be part of such Applicable Recovery Period and
(ii) any transition period of nine to 12 months will be deemed to be a completed fiscal year.
“Applicable Rules” means any rules or regulations adopted by the Exchange pursuant to Rule 10D-1 under the Exchange Act and any
applicable rules or regulations adopted by the SEC pursuant to Section 10D of the Exchange Act.
“Board” means the Board of Directors of the Company.
“Committee” means the Compensation Committee of the Board or, in the absence of such committee, a majority of independent
directors serving on the Board.
“Covered Person” means any Executive Officer. A person’s status as a Covered Person with respect to Erroneously Awarded
Compensation shall be determined as of the time of receipt of such Erroneously Awarded Compensation regardless of the person’s
current role or status with the Company (e.g., if a person began service as an Executive Officer after the beginning of an Applicable
Recovery Period, that person would not be considered a Covered Person with respect to Erroneously Awarded Compensation received
before the person began service as an Executive Officer, but would be considered a Covered Person with respect to Erroneously
Awarded Compensation received after the person began service as an Executive Officer where such person served as an Executive
Officer at any time during the performance period for such Erroneously Awarded Compensation).
“Effective Date” means October 2, 2023.
“Erroneously Awarded Compensation” means the amount of any Incentive-Based Compensation received by a Covered Person on or
after the Effective Date and during the Applicable Recovery Period that exceeds the amount that otherwise would have been received by
the Covered Person had such compensation been determined based on the restated amounts in a Financial Restatement, computed
without regard to any taxes paid. Calculation of Erroneously Awarded Compensation with
1
respect to Incentive-Based Compensation based on stock price or total shareholder return, where the amount of Erroneously Awarded
Compensation is not subject to mathematical recalculation directly from the information in a Financial Restatement, shall be based on a
reasonable estimate of the effect of the Financial Restatement on the stock price or total shareholder return upon which the Incentive-
Based Compensation was received, and the Company shall maintain documentation of the determination of such reasonable estimate
and provide such documentation to the Exchange in accordance with the Applicable Rules. Incentive-Based Compensation is deemed
received, earned, or vested when the Financial Reporting Measure is attained, not when the actual payment, grant, or vesting occurs.
“Exchange” means the Nasdaq Stock Market LLC.
“Executive Officer” means any person who served the Company in any of the following roles at any time during the performance
period applicable to Incentive- Based Compensation such person received during service in such role: the president, principal financial
officer, principal accounting officer (or if there is no such accounting officer the controller), any vice president in charge of a principal
business unit, division, or function (such as sales, administration, or finance), any other officer who performs a policy making function,
or any other person who performs similar policy making functions for the Company. Executive officers of parents or subsidiaries of the
Company may be deemed executive officers of the Company if they perform such policy making functions for the Company.
“Financial Reporting Measures” mean measures that are determined and presented in accordance with the accounting principles used in
preparing the Company’s financial statements, any measures that are derived wholly or in part from such measures (including, for
example, a non-GAAP financial measure), and stock price and total shareholder return.
“Incentive-Based Compensation” means any compensation provided, directly or indirectly, by the Company or any of its subsidiaries
that is granted, earned, or vested based, in whole or in part, upon the attainment of a Financial Reporting Measure.
h.
i.
j.
k.
l. A “Financial Restatement” means a restatement of previously issued financial statements of the Company due to the material
noncompliance of the Company with any financial reporting requirement under the securities laws, including any required restatement
to correct an error in previously-issued financial statements that is material to the previously-issued financial statements or that would
result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period.
m. “Restatement Date” means, with respect to a Financial Restatement, the earlier to occur of: (i) the date the Board or the Audit
Committee of the Board concludes, or reasonably should have concluded, that the Company is required to prepare the Financial
Restatement or (ii) the date a court, regulator or other legally authorized body directs the Company to prepare the Financial
Restatement.
4.
Exception to Compensation Recovery Requirement
The Company may elect not to recover Erroneously Awarded Compensation pursuant to this Policy if the Committee determines that recovery would be
impracticable, and one or more of the following conditions, together with any further requirements set forth in the Applicable Rules, are met: (i) the
direct expense paid to a third party, including outside legal counsel, to assist in enforcing this Policy would exceed the amount to be recovered, and the
Company has made a reasonable attempt to recover such Erroneously Awarded Compensation; or (ii) recovery would likely cause an otherwise tax-
qualified retirement plan to fail to be so qualified under applicable regulations.
5.
Tax Considerations
To the extent that, pursuant to this Policy, the Company is entitled to recover any Erroneously Awarded Compensation that is received by a Covered
Person, the gross amount received (i.e., the amount the Covered Person
2
received, or was entitled to receive, before any deductions for tax withholding or other payments) shall be returned by the Covered Person.
6.
Method of Compensation Recovery
The Committee shall determine, in its sole discretion, the method for recovering Erroneously Awarded Compensation hereunder, which may include,
without limitation, any one or more of the following:
a.
b.
c.
d.
e.
f.
requiring reimbursement of cash Incentive-Based Compensation previously paid;
seeking recovery of any gain realized on the vesting, exercise, settlement, sale, transfer or other disposition of any equity-
based awards;
cancelling or rescinding some or all outstanding vested or unvested equity-based awards;
adjusting or withholding from unpaid compensation or other set-off;
cancelling or offsetting against planned future grants of equity-based awards; and/or
any other method permitted by applicable law or contract.
Notwithstanding the foregoing, a Covered Person will be deemed to have satisfied such person’s obligation to return Erroneously Awarded
Compensation to the Company if such Erroneously Awarded Compensation is returned in the exact same form in which it was received; provided that
equity withheld to satisfy tax obligations will be deemed to have been received in cash in an amount equal to the tax withholding payment made.
7.
Policy Interpretation
This Policy shall be interpreted in a manner that is consistent with the Applicable Rules and any other applicable law. The Committee shall take into
consideration any applicable interpretations and guidance of the SEC in interpreting this Policy, including, for example, in determining whether a
financial restatement qualifies as a Financial Restatement hereunder. To the extent the Applicable Rules require recovery of Incentive-Based
Compensation in additional circumstances besides those specified above, nothing in this Policy shall be deemed to limit or restrict the right or
obligation of the Company to recover Incentive-Based Compensation to the fullest extent required by the Applicable Rules.
8.
Policy Administration
This Policy shall be administered by the Committee. The Committee shall have such powers and authorities related to the administration of this Policy
as are consistent with the governing documents of the Company and applicable law. The Committee shall have full power and authority to take, or
direct the taking of, all actions and to make all determinations required or provided for under this Policy and shall have full power and authority to take,
or direct the taking of, all such other actions and make all such other determinations not inconsistent with the specific terms and provisions of this
Policy that the Committee deems to be necessary or appropriate to the administration of this Policy. The interpretation and construction by the
Committee of any provision of this Policy and all determinations made by the Committee under this policy shall be final, binding and conclusive.
9.
Compensation Recovery Repayments not Subject to Indemnification
Notwithstanding anything to the contrary set forth in any agreement with, or the organizational documents of, the Company or any of its subsidiaries,
Covered Persons are not entitled to indemnification for Erroneously Awarded Compensation or for any claim or loss arising out of or in any way
related to Erroneously Awarded Compensation recovered under this Policy.
3