UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
Form 10-K
(Mark One)
x
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
o
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2019
or
For the transition period from to
Commission file number: 001-35867
Chimerix, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
2505 Meridian Parkway, Suite 100
Durham, North Carolina
(Address of Principal Executive Offices)
33-0903395
(I.R.S. Employer
Identification No.)
27713
(Zip Code)
(919) 806-1074
(Registrant’s Telephone Number, Including Area Code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock, par value $0.001 per share
CMRX
The Nasdaq Global Market
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. Yes o No x
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for
such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this
chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes x No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the registrant’s knowledge, in
definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See
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 o
Non-accelerated filer o
Accelerated filer x
Smaller reporting company x
Emerging growth company o
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. o
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Securities Exchange Act of 1934). Yes o No x
The aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant based upon the closing price of its Common Stock on The Nasdaq Global
Market on June 28, 2019 was $137,028,331.
The number of outstanding shares of the registrant’s common stock, par value $0.001 per share, as of February 21, 2020 was 61,740,646.
DOCUMENTS INCORPORATED BY REFERENCE
Document Description
Portions of the registrant’s notice of annual meeting of stockholders and proxy statement to be filed pursuant to Regulation 14A
within 120 days after registrant’s fiscal year end of December 31, 2019 are incorporated by reference into Part III of this
report………………………………………………………
10-K Part
III
CHIMERIX, INC.
FORM 10-K
For the Fiscal Year Ended December 31, 2019
Table of Contents
PART I
Item 1
Item 1A
Item 1B
Item 2
Item 3
Item 4
PART II
Item 5
Item 6
Item 7
Item 7A
Item 8
Item 9
Item 9A
Item 9B
PART III
Item 10
Item 11
Item 12
Item 13
Item 14
PART IV
Item 15
Signatures
Business
Risk Factors
Unresolved Staff Comments
Properties
Legal Proceedings
Mine Safety Disclosures
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Selected Financial Data
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
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
Exhibits, Financial Statement Schedules
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Forward-Looking Statements
PART I
This Annual Report on Form 10-K (Annual Report) may contain “forward-looking statements” within the meaning of the federal securities laws made
pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Our actual results could differ materially from those
anticipated in these forward-looking statements as a result of various factors, including those set forth below under Part I, Item 1A, “Risk Factors” in this
Annual Report. Except as required by law, we assume no obligation to update these forward-looking statements, whether as a result of new information,
future events or otherwise. These statements, which represent our current expectations or beliefs concerning various future events that are subject to risks and
uncertainties, may contain words such as “may,” “will,” “expect,” “anticipate,” “intend,” “plan,” “believe,” “estimate” or other words indicating future
results. Such statements may include, but are not limited to, statements concerning the following:
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the initiation, cost, enrollment, timing, progress and results of our research and development activities, preclinical studies and future clinical
trials;
our ability to obtain and maintain regulatory approval of our current and future product candidates, and any related restrictions, limitations,
and/or warnings in the label of an approved product candidate;
our ability to obtain funding for our operations;
our plans to research, develop and commercialize our future product candidates;
our strategic alliance partners’ election to pursue development and commercialization;
our ability to attract collaborators with development, regulatory and commercialization expertise;
our ability to obtain and maintain intellectual property protection for our future product candidates;
the size and growth potential of the markets for our current and future product candidates, and our ability to serve those markets;
our ability to successfully commercialize our current and future product candidates;
the rate and degree of market acceptance of our current and future product candidates;
our ability to develop sales and marketing capabilities, whether alone or with potential future collaborators;
regulatory developments in the United States and foreign countries;
the performance of our third-party suppliers and manufacturers;
the success of competing therapies that are or become available;
the loss of key scientific or management personnel;
our use of the proceeds from our public offerings; and
the accuracy of our estimates regarding expenses, future revenues, capital requirements and need for additional financing.
Market, Industry and Other Data
This Annual Report contains estimates, projections and other information concerning our industry, our business and relevant markets, including data
regarding the estimated size of relevant antiviral markets, patient populations, projected diagnosis rates and the perceptions and preferences of patients and
physicians regarding certain therapies, as well as data regarding market research and estimates. Information that is based on estimates, forecasts, projections,
market research or similar methodologies is inherently subject to uncertainties and actual events or circumstances may differ materially from events and
circumstances that are assumed in this information. Unless otherwise expressly stated, we obtained this industry, business, market and other data from reports,
research surveys, studies and similar data prepared by market research firms and other third parties, industry, medical and general publications, government
data and similar sources that we believe to be reliable. In some cases, we do not expressly refer to the sources from which this data is derived. In that regard,
when we refer to one or more sources of this type of data in any paragraph, you should assume that other data of this type appearing in the same paragraph are
derived from the same sources, unless otherwise expressly stated or the context otherwise requires.
ITEM 1. BUSINESS
Chimerix Overview
Chimerix is a development-stage biopharmaceutical company dedicated to accelerating the advancement of innovative medicines that make a meaningful
impact in the lives of patients living with cancer and other serious diseases. Our two clinical-stage development programs are dociparstat sodium (DSTAT)
and brincidofovir (BCV).
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Dociparstat sodium (DSTAT)
In July 2019, we entered into a Development and License Agreement, or the License Agreement, with Cantex Pharmaceuticals (Cantex), pursuant to which
we acquired exclusive worldwide rights to develop and commercialize DSTAT for all indications; the planned lead indication is for the first line treatment of
acute myeloid leukemia (AML) in combination with cytotoxic chemotherapy. Under the terms of the License Agreement, we are responsible for, and bear the
costs of, worldwide development and commercialization of DSTAT. As consideration for the exclusive license, Cantex received an upfront payment of $30.0
million and 10.0 million shares of Chimerix stock. Cantex is also eligible to receive milestone payments up to $202.5 million upon the receipt of product
approvals in the United States, the European Union and Japan and sales milestone payments up to $385 million upon achievement of specified net sales
levels. We also agreed to pay Cantex tiered royalties based on percentage of net sales beginning at 10% and not to exceed the high teens.
DSTAT is a potential first-in-class glycosaminoglycan compound derived from porcine heparin that has low anticoagulant activity but retains the ability to
inhibit activities of several key proteins implicated in the retention and viability of AML blasts and leukemic stem cells in the bone marrow during
chemotherapy (e.g., CXCL12, selectins, HMGB1, elastase). Mobilization of AML blasts and leukemic stem cells from the bone marrow has been associated
with enhanced chemosensitivity and may be a primary mechanism accounting for the observed increases in event-free survival (EFS) using a composite
definition of induction success (CR + CRi), relapse-free survival and overall survival (OS) in Phase 2 with DSTAT versus placebo. Randomized Phase 2 data
suggests that DSTAT may also accelerate platelet recovery post chemotherapy via inhibition of platelet factor 4, a negative regulator of platelet production
that impairs platelet recovery following chemotherapy.
Collectively, DSTAT’s inhibition of these proteins has the potential to benefit patients in two ways:
•
•
Reverse quiescence and inhibit chemotherapy resistance pathways
Accelerate platelet recovery following chemotherapy
DSTAT amplified the efficacy of standard 7+3 induction therapy in a randomized Phase 2 trial, extending event-free survival, relapse-free survival and overall
survival. This study also suggested that DSTAT may have a positive effect on platelet recovery. In contrast to other AML treatment options, these benefits
came without significant additional toxicity.
When combined with chemotherapy, DSTAT has the potential to eliminate AML blasts and the difficult to treat quiescent leukemic stem cells, potentially
enabling higher cure rates. Overall, it appears that DSTAT plus chemotherapy may generate deeper and more durable responses as illustrated graphically
below.
Figure 1: Schematic representation of leukemic blast counts over time. In the above hypothetical, Patients 2 through 5 are all assumed to achieve a
morphologic complete response (CR); however, their outcomes vary significantly. DSTAT has the potential to generate deeper responses to chemotherapy and
sensitize quiescent leukemic stem cells to chemotherapy, thereby enabling higher cure rates.
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With multiple potential mechanisms at play, it is difficult to know which ones are critical in driving DSTAT's observed efficacy, but there is reason to believe
the four shown below are among the most important. Multiple activities involving leukemia sequestration in marrow and chemoresistance may be particularly
relevant in a disease with significant heterogeneity like AML. This may provide an advantage relative to other therapies with singular targets (e.g., CXCR4
inhibitors, E-selectin inhibitors).
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CXCL12: recruits and retains AML in marrow; involved in relapse/leukemic stem cell (LSC) persistence
Elastase: involved in adhesion/resistance of AML/LSCs
HMGB1: promotes resistance to chemotherapy
PF4: negatively regulates platelet generation
Patent protection for DSTAT is currently expected to extend through 2033 in major markets, with the potential for protection through 2038 in the U.S. in the
event of full patent term restoration.
DSTAT has received Orphan Drug and Fast Track designation from the U.S. Food and Drug Administration (FDA) for the treatment of AML.
Brincidofovir (BCV)
BCV is an oral antiviral in development as a medical countermeasure for the treatment of smallpox. It is being developed under the FDA Animal Efficacy
Rule, which allows for testing of investigational drugs in animal models to support the effectiveness of treatments against diseases that are not ethical or
feasible to study in humans.
Composition of matter coverage for brincidofovir in the U.S. is currently expected to extend to October 2034.
BCV has received Fast Track designation and Orphan Drug Designation from the FDA for the treatment of smallpox.
We are collaborating with the Biomedical Advanced Research and Development Authority (BARDA) for the development of BCV as a potential medical
countermeasure for smallpox. Efficacy is to be demonstrated via two animal models under the FDA’s Animal Efficacy Rule. In 2019, independent
experiments were performed in two lethal animal models of smallpox. In these studies, either rabbits or mice were inoculated with rabbitpox or ectromelia
virus, respectively, to determine the survival benefit of BCV in animals acutely infected with these orthopoxviruses. These animal models are being studied in
connection with the FDA Animal Rule to determine the utility of BCV as a medical countermeasure against the human orthopoxvirus disease, smallpox.
Animals were randomized to receive either placebo or BCV treatment at varying intervals post infection. In both studies, animals that received BCV,
regardless of time post-infection, demonstrated a statistically significant survival advantage relative to placebo.
We anticipate submitting our new drug application (NDA) to the FDA for the treatment of smallpox in mid-2020.
Prior to May 2019, we had been developing oral and intravenous BCV for the treatment and prevention of multiple DNA viruses. In May 2019, we decided to
discontinue both the oral and IV development programs of BCV in adenovirus (AdV) and the associated clinical trials.
In September 2019, we entered into a license agreement for certain rights to BCV with SymBio Pharmaceuticals. Under the terms of the agreement SymBio
received exclusive worldwide rights to develop, manufacture and commercialize BCV in all human indications, excluding the prevention and treatment of
orthopoxviruses, which includes smallpox. Also, per the agreement, we received an upfront payment of $5 million plus potential clinical, regulatory and
commercial milestones of up to $180 million. In addition, we are eligible to receive double-digit royalties on net sales of BCV worldwide.
Our Strategy
The principal components of our business strategy are to:
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Develop DSTAT for AML. Following an End of Phase 2 meeting with the FDA in early 2020, we have incorporated FDA's feedback on key
elements of a proposed Phase 3 trial in first-line AML patients and have since submitted a full protocol for final FDA review. Subject to
finalization of the protocol with FDA, we plan to initiate a Phase 3 trial mid-year with DSTAT in combination with standard chemotherapy
(cytarabine plus anthracycline or “7+3”) in newly diagnosed AML patients. The primary endpoint of the proposed trial will be overall survival
(OS). The FDA has indicated that event-free survival (EFS) using complete response with hematologic recovery to define induction success
(CR), is acceptable as an endpoint for regulatory approval. Other endpoints to be evaluated in the proposed trial include: minimal residual
disease (MRD), relapse-free survival (RFS), time to hematologic recovery, and
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induction response. In order to supplement the previously collected data from the pilot and Phase 2 trials and provide additional evidence of
DSTAT’s mechanism of action, the Phase 3 trial includes an early assessment of comparative CR and MRD rates among the first 80 evaluable
patients. This data is expected to be unblinded, reported publicly, and available for ongoing analysis of later endpoints. Prior to potential
unblinding, this data will be reviewed by an independent Data Monitoring Committee (DMC). The DMC will have the discretion to maintain
blinding of the data from this early assessment in the event the DSTAT arm shows exceptional advantages to the control arm on CR and MRD,
at certain pre-specified thresholds, which would allow inclusion of these patients in the final analysis. We intend to initiate the Phase 3 trial in
mid-2020 with a targeted full enrollment of approximately 570 patients.
Develop BCV as a countermeasure for smallpox. In 2019, we announced positive top-line results from both the rabbitpox and mouse
ectromelia (or “mousepox”) virus studies, in which examined BCV efficacy in two different animal models of human smallpox conducted under
the Animal Efficacy Rule. Data from these studies and other supporting confirmatory analyses are intended to address the requirement under the
FDA’s Animal Efficacy Rule for two different animal models of efficacy. A pre-NDA meeting with the FDA is currently scheduled and we
expect to announce the results from that meeting following receipt of meeting minutes early in the second quarter of 2020. Contingent upon
final audited results of the two key animal efficacy studies, along with preparing data necessary to bridge to a recommended human dose, we
intend to submit an NDA for BCV for the treatment of smallpox in mid-2020.
Seek opportunities to in-license other development programs. We continue to review transactions designed to build our product candidate
pipeline, including, but not limited to, merger or acquisition transactions, issuing or transferring shares of common stock, or the license,
purchase or sale of specific assets, in addition to other potential actions aimed at maximizing stockholder value. There can be no assurance that
this review will result in the identification or consummation of any additional transaction.
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Significant Agreements
BARDA
In February 2011, we entered into a contract with the Biomedical Advanced Research and Development Authority (BARDA) for the advanced development
of brincidofovir as a medical countermeasure in the event of a smallpox release. BARDA is a division of the U.S. Department of Health and Human Services
(DHHS) in the Office of the Assistant Secretary for Preparedness and Response that supports the advanced research and development, manufacturing,
acquisition and stockpiling of medical countermeasures. The scope of work for the contract includes preclinical, clinical and manufacturing development
activities that fall into the following areas: non-clinical animal efficacy studies; clinical activities; manufacturing activities; and all associated regulatory,
quality assurance, management, and administrative activities.
Under the contract, BARDA reimburses our costs, plus pays us a fixed fee, for the research and development of brincidofovir as a treatment of smallpox
infections. The contract consists of an initial performance period, referred to as the base performance segment which ended on May 31, 2013, plus up to four
extension periods, referred to as option segments, each of which may be exercised at BARDA’s sole discretion. We must complete agreed upon milestones
and deliverables in each discrete work segment before the next option segment is eligible to be exercised. Under the contract as currently in effect, if each
follow-on option segment is exercised by BARDA, we may receive up to $75.8 million in expense reimbursement and $5.3 million in fees.
We substantially completed the first option segment of the contract on August 28, 2014. In September 2014, we were awarded a contract extension for a
second option segment providing an additional $17.0 million. In August 2016, the contract was amended to provide an additional $535,000, in December
2017 the contract was amended to increase funding by an additional $4.1 million, and in January 2019 the contract was amended to increase funding by an
additional $2.3 million for the performance of the second option segment, which is scheduled to end on May 31, 2020. On September 11, 2015, BARDA
exercised option segment three, which provided approximately $12.9 million in funding for the performance of the segment. In December 2017, BARDA
decreased the scope of this segment by removing a potential second pivotal ectromelia virus study which decreased the funding of this option segment by $1.3
million to a total award of $11.6 million; option segment three is scheduled to end on May 31, 2020. Of the $75.8 million expense reimbursement and $5.3
million in fees that we may receive, approximately $74.3 million in expense reimbursement and fees has been funded. As of December 31, 2019, of the $74.3
of total funding, we had invoiced an aggregate of $70.1 million with respect to the base performance segment and the first three extension periods.
Pursuant to the contract, Chimerix and the U.S. government share the rights to any inventions made in the performance of our work under the contract.
Specifically, the U.S. government retains a nonexclusive, nontransferable, irrevocable, paid up license to any invention made in the performance of our work
under the contract, provided, however, that the U.S. government may, under certain circumstances, including circumstances involving public health and
safety, license such inventions to third parties without our consent. There have been no inventions made to date under the BARDA contract.
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The contract may be terminated by BARDA ten days after giving us notice of a material default which remains uncured for ten days. In addition, BARDA is
also permitted under applicable law to terminate the contract if it is in the U.S. government’s best interest.
There are no RFPs for procurement of a smallpox antiviral pertaining to brincidofovir that are currently pending.
In the event a new RFP is issued we will likely submit a proposal. In the event that our proposal is chosen (potentially among several competing proposals)
and before we can enter into a contract we must negotiate its terms, including the price and delivery schedule. In addition, as a governmental agency,
BARDA’s ability to enter into a contract is subject to continued funding for this purpose, which can change at any time. We remain in discussions with
BARDA regarding the potential to supply brincidofovir to the Strategic National Stockpile, however, there can be no assurances regarding any such
procurement.
License and Development Agreement with Cantex Pharmaceuticals, Inc.
On July 26, 2019, the Company entered into a License and Development Agreement with Cantex pursuant to which the Company acquired exclusive
worldwide rights to develop and commercialize, for any and all uses, a glycosaminoglycan compound known as DSTAT, which is currently being studied for
the treatment of acute myeloid leukemia. Under the terms of the license agreement, the Company is responsible for, and bears the costs of, worldwide
development and commercialization of DSTAT. In connection with the transaction, Cantex assigned to the Company all of its rights under its DSTAT supply
agreements, including its bulk API agreement with Scientific Protein Laboratories LLC (SPL), pursuant to which SPL will exclusively produce DSTAT for
the Company through October 2030.
In consideration for the license rights, the Company made an upfront cash payment of $30.0 million to Cantex and issued to Cantex 10.0 million shares of its
common stock. For the twelve months ended December 31, 2019, the Company recognized $65.0 million of acquired in-process research and development
expenses for the $30.0 million upfront cash payment, the fair value of the 10.0 million shares of common stock issued to Cantex and $0.1 million of
transaction costs. The license agreement obligates the Company to pay Cantex regulatory milestone payments of up to $202.5 million upon receipt of product
approvals in the United States, the European Union and Japan, and sales milestone payments of up to $385.0 million upon achievement of specified net sales
levels. The Company also agreed to pay Cantex tiered royalties based on percentages of net sales beginning at 10% and not to exceed the high teens.
SymBio Pharmaceuticals
On September 30, 2019, the Company entered into a license agreement with Symbio for the exclusive worldwide rights to develop, manufacture and
commercialize BCV for all human indications, excluding the prevention and treatment of orthopoxviruses, including smallpox. Under the terms of the license
agreement, SymBio will be responsible for, and bear the future costs of, worldwide development and commercialization of BCV in the licensed indications.
Either party may terminate the license agreement upon the occurrence of a material breach by the other party (subject to standard cure periods), or upon
certain events involving the bankruptcy or insolvency of the other party. SymBio may also terminate the license agreement without cause on a country-by-
country basis upon ninety days' prior notice.
In exchange for the license to BCV rights, the Company received an upfront payment of $5.0 million in October of 2019. In addition, the Company is eligible
to receive up to $180.0 million in clinical, regulatory and commercial milestones worldwide, as well as low double-digit royalties and additional milestones
based on commercial sales. At December 31, 2019, the Company had recognized $4.9 million in revenue and has a $0.1 million deferred revenue balance
recorded in Accrued liabilities.
University of Michigan
In 2006, the Company entered into a license agreement with The Regents of the University of Michigan (UM) under which the Company obtained an
exclusive, worldwide license to UM’s patent rights in certain inventions (UM Patent Rights) related to certain compounds originally synthesized at UM.
Under the license agreement, the Company is permitted to research, develop, manufacture and commercialize products utilizing the UM Patent Rights, and to
sublicense such rights subject to certain sublicensing fees and royalty payments.
In consideration for the rights granted to the Company, under the license agreement as amended in December 2016, the Company paid UM $50,000 in fees in
2016 and in January 2017 issued UM an aggregate of 33,058 shares of its common stock. In connection with the Company’s commercialization or
sublicensing of certain products covered by the license agreement, including CMX521,
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the Company could be required to pay royalties on net sales of such products ranging from 0.25% to 2%. Beginning in 2024, the Company is also subject to
certain minimum annual royalty payments.
The UM license agreement requires that the Company use commercially reasonable efforts to develop and make commercially available licensed products as
soon as practicable. Specifically, the Company has agreed to make the first commercial sale of a licensed product by June of 2026. UM may terminate the
license agreement if the Company materially breaches the license agreement. The Company is currently in compliance with its milestone requirements.
Commercial Operations
We anticipate that our first approval will be BCV for the treatment of smallpox. The U.S. government is the largest source of development and procurement
funding for academic and biopharmaceutical companies contracting biodefense research or developing vaccines, anti-infectives and immunotherapies directed
at potential agents of bioterror or biowarfare. U.S. government spending on biodefense programs includes development funding awarded by the National
Institute of Allergy and Infectious Diseases, BARDA and the Department of Defense (“DoD”), and procurement of countermeasures by BARDA, the Centers
for Disease Control and Prevention and the DoD. For the fiscal year ending September 30, 2020, the budget for the DHHS provides approximately $2.7
billion to the Public Health and Social Services Emergency Fund within the Office of the Secretary to strengthen DHHS's biodefense and emergency
preparedness capacity. In addition to the U.S. government, we believe that potential additional markets for the sale of biodefense countermeasures include:
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•
•
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foreign governments, including both defense and public health agencies;
non-governmental organizations and multinational companies, including transportation and security companies;
healthcare providers, including hospitals and clinics; and
state and local governments, which may be interested in these products to protect, among others, emergency responders, such as police, fire and
emergency medical personnel.
If BCV is approved by the FDA, it is not expected to be approved for sale beyond the Strategic National Stockpile. The Company would likely need to meet
additional regulatory requirements before sales were made in the U.S. beyond the Strategic National Stockpile.
If DSTAT is approved for the treatment of AML, we believe it is possible for us to commercialize DSTAT in the United States. We anticipate that this would
entail a relatively small commercial infrastructure, which may include a contract sales force, partner sales force, or an internally developed commercial
organization.
Outside of the United States, subject to obtaining necessary marketing approvals, we may seek to commercialize DSTAT ourselves or through distribution or
other collaboration arrangements. If we elect to develop DSTAT for other hematologic indications, we would plan to do so selectively either on our own or by
establishing alliances with one or more pharmaceutical company collaborators, depending on, among other things, the applicable indications, the related
development costs, reimbursement complexities and our available resources.
Competition
Our industry is highly competitive and subject to rapid and significant technological change. While we believe that our therapeutic experience, scientific and
commercial knowledge provide us with competitive advantages, we will face competition from large and small pharmaceutical and biotechnology companies,
including specialty pharmaceutical and generic drug companies, and other emerging technologies.
We believe that the key competitive factors that will affect the commercial success of DSTAT, BCV and our other product candidates are the efficacy, safety
and tolerability profile and the risk:benefit trade-off compared to alternative therapies or procedures. Securing market access and reimbursement will be an
important element of product uptake and market penetration. Our commercial opportunity could be negatively impacted if our competitors develop or market
products or other technologies that are more effective, better tolerated, safer, more convenient or have greater market access than DSTAT and BCV, or obtain
regulatory approval for their products more rapidly than we do. In addition, our ability to compete will be affected by the availability of generic products.
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If approved, DSTAT would compete with a number of existing products, new products in development and other types of combination therapies in
development for first line AML including generic drugs such as standard 7+3 (cytarabine plus anthracycline) chemotherapy, alternative non-chemo based
therapy regimens and other 7+3 combination therapies that target specific mutations. Select products that are currently used, or being developed for use, to
treat AML include but are not limited to:
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•
•
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Standard 7+3 (cytarabine plus anthracycline) with or without targeted agents (including but not limited to the experimental treatment
uproleselan, Mylotarg®, IDH1 and IDH2 inhibitors (enasidenib and ivosidenib), FLT-3 inhibitors (midostaurin and gilteritinib), and other
targeted agents such as gemtuzumab, glasdegib, and venetoclax));
Vyxeos® and combinations with Vyxeos;
Hypomethylating agents or low dose cytarabine with or without venetoclax; and
Other consolidation and maintenance therapies (including hypomethylating agents, venetoclax, and stem cell transplantation).
Clinical trials with these alternatives have the potential to compete for and thus slow enrollment in the DSTAT clinical development program, with resulting
impacts on the time to Phase 3 results (and thus time to market). Competition for patients and/or evolutions in the standard of care could render the
completion of Phase 3 clinical development not feasible. Even if DSTAT clinical trials are successful, we anticipate that we will face intense and increasing
competition as new products enter the market, as advanced technologies become available and as increasing numbers of generic formulations of currently
branded products become available.
Changes in the health care system may limit our ability to price DSTAT, BCV and our other product candidates at a level that would allow recovery of our
research and development costs and may impede our ability to generate or maintain a profit.
We believe that DSTAT and BCV have potential benefits over existing and potential competitive products as described in more detail under
“Business - Dociparstat sodium” and “Business - Brincidofovir”, respectively. As a result, we believe that these products should be well positioned to gain
adoption if we obtain the required regulatory approvals. However, even with those benefits, we may not be able to make promotional claims that these
products are superior to competing products without conducting additional studies, which delivers differentiated data. See “Risk Factors - Risks Related to
Commercialization of Our Product Candidates.”
Our Intellectual Property
We strive to protect and enhance the proprietary technologies we believe are important to our business, including by seeking and maintaining 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. 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.
Our success will depend significantly on our ability to obtain and maintain patent and other proprietary protection for commercially important technology,
inventions and know-how related to our business, defend and enforce our patents, maintain licenses to our intellectual property owned by third parties,
preserve the confidentiality of our trade secrets and operate without infringing the valid and enforceable patents and proprietary rights of third parties.
We believe that we have a strong intellectual property position and substantial know-how relating to the development and commercialization of our lipid
conjugate technology platform, DSTAT and our compound chemical library (Chimerix Chemical Library).
Antiviral Patent Portfolio
At February 15, 2020, our worldwide antiviral patent portfolio included:
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81 patents or patent applications that we own or have in-licensed from academic institutions, related to brincidofovir, and other antivirals, which
represented a decrease over the number of patents in our patent portfolio at the end of fiscal year 2018;
This includes 54 US and foreign exclusively and jointly owned patents and 27 US and foreign applications related to brincidofovir, and other
antivirals. Granted European and Eurasian patents are counted as one patent and have been validated throughout Europe and Eurasia;
Three jointly-owned patents and 3 jointly-owned patent applications related to our agreement with UM regarding our proprietary Chemical Library;
and
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One international patent application owned exclusively by Chimerix directed to a morphic form of a compound from the Chemical Library.
In 2015, U.S. Patent No. 8,962,829 covering a method of synthesis and the commercial morphic form of brincidofovir was issued to Chimerix. With the
addition of this patent, composition of matter coverage for brincidofovir in the U.S. is expected to extend to October 2034.
DSTAT Patent Portfolio
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36 patents or patent applications that we own or have in-licensed from Cantex, related to DSTAT;
This includes 19 US and foreign issued patents and 17 US and foreign applications related to DSTAT
Patent protection for DSTAT is expected to extend through 2033, with the potential for 2038 in the U.S. in the event of full patent term restoration.
Patents generally have a term of twenty years from the date they are filed. As our patent portfolio has been built over time, the remaining terms of the
individual patents across our patent portfolio vary. We believe that our patents and patent applications are important for maintaining the competitive
differentiation of our lipid-antiviral-conjugate technology platform and the Chimerix Chemical Library, enhancing our freedom of action to sell our antivirals,
upon appropriate regulatory approvals, in markets in which we choose to participate, and maximizing our return on research and development investments.
No single patent is in itself essential to the conduct of our business as a whole.
We also seek to expand our intellectual property portfolio through licensing intellectual property from third parties as we deem appropriate. We have granted,
and will continue to grant to others, licenses under our patents when we consider these arrangements to be in our interest.
Manufacturing
We do not own or operate, and we do not expect to own or operate, facilities for product manufacturing, storage and distribution, or testing. In the past, we
have relied on third-party manufacturers for supply of our product candidates, DSTAT and BCV, as well as our other product candidates.
We expect that in the future we will rely on such manufacturers for supply of drug substance and drug product that will be used in clinical trials of DSTAT, as
well as for commercial purposes should DSTAT or BCV be approved. In July 2019, we were assigned Cantex’s rights under a supply agreement with
Scientific Protein Labs (SPL) pursuant to which SPL will exclusively produce DSTAT drug substance for us through October 2030 (the Supply Agreement).
We have agreed that SPL will be our exclusive provider of DSTAT during the term of the Supply Agreement. In addition, in July 2019 we were assigned
Cantex’s rights under a supply agreement with Pyramid Laboratories Inc. (Pyramid) pursuant to which Pyramid will provide DSTAT finished drug product to
us. When produced on a commercial scale, we expect that cost-of-goods-sold relating to DSTAT and BCV will generally be in-line with that of other heparin-
derived molecules and small-molecule pharmaceutical compounds, respectively.
The manufacturing process for brincidofovir drug substance is relatively straight-forward and generally in-line with other small molecule pharmaceutical
compounds in terms of cost and complexity. The process is robust and reproducible, does not require dedicated reactors or specialized equipment, uses
common synthetic chemistry and readily available materials, including off-the-shelf and made-to-order starting materials, and is readily transferable.
Our current drug substance supply chain for brincidofovir involves various contractors that supply the raw materials for the drug substance process, a contract
manufacturer for an intermediate, and a contract manufacturer for the drug substance. We have a validated large-scale drug substance manufacturing process
at our selected contractor that will produce the potential procurement supply of drug substance. Manufacturers of drug components must meet certain FDA
qualifications with respect to manufacturing standards. At present, we have qualified only one firm as a supplier of drug substance. We continually assess our
manufacturing needs and may seek to engage additional qualified vendors as circumstances dictate. Changes in our requirements may require revalidation of
the manufacturing process at a different scale and potentially at a different contractor depending on the necessary scale, infrastructure and technical
capabilities. To ensure continuity in our supply chain, we plan to establish supply arrangements with alternative suppliers for certain portions of our supply
chain, as appropriate.
Our BCV drug products (tablets and oral suspension) are also manufactured under contract. We have completed development and transfer of our suspension
and tablet manufacturing process to our selected contractor that will produce potential procurement supplies.
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Manufacturing is subject to extensive regulations that impose various procedural and documentation requirements, which govern record keeping,
manufacturing processes and controls, personnel, quality control and quality assurance, among others. Our systems and contractors are required to be in
compliance with these regulations, and this is assessed regularly through monitoring of performance and a formal audit program. We have personnel with
extensive technical, manufacturing, analytical and quality experience and strong project management discipline to oversee contract manufacturing and testing
activities, and to compile manufacturing and quality information for our regulatory submissions.
Government Regulation and Product Approval
Government authorities in the United States, at the federal, state and local level, and government authorities of member states of the EU and other countries
extensively regulate, among other things, the research, development, testing, manufacture, quality control, approval, labeling, packaging, storage, record-
keeping, promotion, advertising, distribution, post-approval monitoring and reporting, marketing and export and import of products such as those we are
developing. Any product candidate that we develop must be approved by the FDA or EMA before it may be legally marketed in the United States or EU and
in other countries by the responsible national regulatory agency before it may be legally marketed.
U.S. Drug Development Process
In the United States, the FDA regulates drugs under the Federal Food, Drug and Cosmetic Act (FDCA), and implementing regulations. Drugs are also subject
to other federal, state and local statutes and regulations. The process of obtaining regulatory approvals and the subsequent compliance with appropriate
federal, state, local and foreign statutes and regulations require the expenditure of substantial time and financial resources. Failure to comply with the
applicable U.S. requirements at any time during the product development process, FDA approval process or after FDA approval, may subject an applicant to
administrative or judicial civil or criminal sanctions. FDA sanctions could include refusal to approve pending applications, withdrawal of an approval, clinical
hold, warning letters, product recalls, product seizures, total or partial suspension of production or distribution, injunctions, fines, refusals of government
contracts, debarment, restitution, disgorgement or civil or criminal penalties. Any agency or judicial enforcement action, whether before or after the FDA
approval process, could have a material adverse effect on us. The process required by the FDA before a drug may be marketed in the United States generally
involves the following:
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completion of nonclinical laboratory tests, animal studies and formulation studies according to good laboratory practices (GLP), or other
applicable regulations;
submission to the FDA of an application for an IND, which must become effective before human clinical trials may begin;
performance of adequate and well-controlled human clinical trials according to the FDA’s regulations commonly referred to as current good
clinical practices (GCPs), to establish the safety and efficacy of the proposed drug for its intended use;
submission to the FDA of a NDA for a new drug;
satisfactory completion of an FDA inspection of the manufacturing facility or facilities where the drug is produced to assess compliance with the
FDA’s current good manufacturing practice standards (cGMP), to assure that the facilities, methods and controls are adequate to preserve the
drug’s identity, strength, quality and purity;
potential FDA inspection of the nonclinical and clinical trial sites that generated the data in support of the NDA; and FDA review of the NDA.
The lengthy process of seeking required approvals and the continuing need for compliance with applicable statutes and regulations require the expenditure of
substantial resources and approvals are inherently uncertain.
Before testing any compounds with potential therapeutic value in humans, the drug candidate enters the preclinical testing stage. Preclinical tests, also
referred to as nonclinical studies, include laboratory evaluations of product chemistry, toxicity and formulation, as well as animal studies to assess the
potential safety and activity of the drug candidate. The conduct of the preclinical tests must comply with federal regulations and requirements including GLP.
The sponsor must submit the results of the preclinical tests, together with manufacturing information, analytical data, any available clinical data or literature
and a proposed clinical protocol to the FDA as part of the IND. The IND automatically becomes effective 30 days after receipt by the FDA, unless the FDA
places the clinical trial on a clinical hold within that 30-day time period. In such a case, the IND sponsor and the FDA must resolve any outstanding concerns
before the clinical trial can begin. The FDA may also impose clinical holds on a drug candidate at any time before or during clinical trials due to safety
concerns or non-compliance. Accordingly, we cannot be sure that submission of an IND will result in the FDA allowing clinical trials to begin, or that, once
begun, issues will not arise that suspend or terminate such trial.
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Clinical trials involve the administration of the drug candidate to healthy subjects or affected patients under the supervision of qualified investigators,
generally physicians not employed by or under the trial sponsor’s control. Clinical trials are conducted under protocols detailing, among other things, the
objectives of the clinical trial, dosing procedures, subject selection and exclusion criteria, and the parameters to be used to monitor subject safety. Each
protocol must be submitted to the FDA as part of the IND. Patients not meeting protocol inclusion and exclusion criteria may be considered for our expanded
access program under the IND. Clinical trials must be conducted in accordance with the FDA’s regulations comprising the good clinical practices
requirements. Further, each clinical trial must be reviewed and approved by an independent institutional review board (IRB), at or servicing each institution at
which the clinical trial will be conducted. An IRB is charged with protecting the welfare and rights of trial participants and considers such items as whether
the risks to individuals participating in the clinical trials are minimized and are reasonable in relation to anticipated benefits. The IRB also approves the form
and content of the informed consent that must be signed by each clinical trial subject or his or her legal representative and must monitor the clinical trial until
completed.
Human clinical trials are typically conducted in three sequential phases that may overlap or be combined:
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Phase 1. The drug is initially introduced into healthy human subjects and tested for safety, dosage tolerance, absorption, metabolism,
distribution and excretion. In the case of some products for severe or 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 patients.
Phase 2. The drug is evaluated in a limited patient population to identify possible adverse effects and safety risks, to preliminarily evaluate the
efficacy of the product for specific targeted diseases and to determine dosage tolerance, optimal dosage and dosing schedule.
Phase 3. Clinical trials are undertaken to further evaluate dosage, clinical efficacy and safety in an expanded patient population at
geographically dispersed clinical trial sites. These clinical trials are intended to establish the overall risk/benefit ratio of the product and provide
an adequate basis for product labeling. Generally, two adequate and well-controlled Phase 3 clinical trials are required by the FDA for approval
of an NDA.
Post-approval clinical trials, sometimes referred to as Phase 4 clinical trials, may be conducted after initial marketing approval. These clinical trials are used
to gain additional experience from the treatment of patients in the intended therapeutic indication.
Annual progress reports detailing the results of the clinical trials must be submitted to the FDA and written IND safety reports must be promptly submitted to
the FDA and the investigators for serious and unexpected adverse events or any finding from tests in laboratory animals that suggests a significant risk for
human subjects. 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
or its 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 drug has been associated with unexpected serious harm to patients.
Concurrent with clinical trials, companies usually complete additional animal studies and must also develop additional information about the chemistry and
physical characteristics of the drug as well as 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 drug candidate and, among other things, must
develop methods for testing the identity, strength, quality and purity of the final drug. Additionally, appropriate packaging must be selected and tested and
stability studies must be conducted to demonstrate that the drug candidate does not undergo unacceptable deterioration over its shelf life.
U.S. Review and Approval Processes
The results of product development, nonclinical studies and clinical trials, along with descriptions of the manufacturing process, analytical tests conducted on
the chemistry of the drug, proposed labeling and other relevant information are submitted to the FDA as part of an NDA requesting approval to market the
product. The submission of an NDA is subject to the payment of substantial user fees; a waiver of such fees may be obtained under certain limited
circumstances.
In addition, under the Pediatric Research Equity Act (PREA), an NDA or supplement to an NDA must contain data to assess the safety and effectiveness 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 data or full or partial waivers. Unless otherwise required by
regulation, PREA does not apply to any drug for an indication for which orphan designation has been granted.
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The FDA reviews all NDAs submitted to determine if they are substantially complete before it accepts them for filing; this initial review period prior to
accepting the NDA for filing is 2 months in duration. Once the submission is accepted for filing, the FDA begins an in-depth review of the NDA. Under the
goals and policies agreed to by the FDA under the Prescription Drug User Fee Act (PDUFA), the FDA has 10 months from the date of accepting the NDA for
filing in which to complete its initial review of a standard NDA and respond to the applicant, and six months for a priority NDA. The FDA does not always
meet its PDUFA goal dates for standard and priority NDAs. The review process and the PDUFA goal date may be extended if the FDA requests or the NDA
sponsor otherwise provides additional information or clarification regarding information already provided in the submission without prior agreement reached
at a pre-submission meeting.
After the NDA submission is accepted for filing, the FDA reviews the NDA to determine, among other things, whether the proposed product is safe and
effective for its intended use, and whether the product is being manufactured in accordance with cGMP to assure and preserve the product’s identity, strength,
quality and purity. The FDA may refer applications for novel drug or biological products or drug or biological products which present difficult questions of
safety or efficacy to an advisory committee, typically a panel that includes clinicians and other experts, for review, evaluation and a recommendation as to
whether the application should be approved and under what conditions. The FDA is not bound by the recommendations of an advisory committee, but it
considers such recommendations carefully when making decisions. During the drug approval process, the FDA also will determine whether a risk evaluation
and mitigation strategy (REMS), is necessary to assure the safe use of the drug. If the FDA concludes a REMS is needed, the sponsor of the NDA must
submit a proposed REMS. The FDA will not approve the NDA without a REMS, if required.
Before approving an NDA, the FDA will inspect the facilities at which the product is manufactured. The FDA will not approve the 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 an NDA, the FDA will typically inspect one or more clinical sites to assure that the
clinical trials were conducted in compliance with IND study requirements. If major issues with trial conduct are identified at a site, data collected from that
site can be determined to be unacceptable for supporting the application. 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.
The NDA review and approval process is lengthy and difficult and the FDA may refuse to approve an NDA if the applicable regulatory criteria are not
satisfied or may require additional clinical data or other data and information. Even if such data and information is submitted, the FDA may ultimately decide
that the NDA does not satisfy the criteria for approval. Data obtained from clinical trials are not always conclusive and the FDA may interpret data differently
than we interpret the same data. The FDA will issue a complete response letter if the agency decides not to approve the NDA. The complete response letter
usually describes all of the specific deficiencies in the NDA identified by the FDA. The deficiencies identified may be minor, for example, requiring labeling
changes, or major, for example, requiring additional clinical trials. Additionally, the complete response letter may include recommended actions that the
applicant might take to place the application in a condition for approval. If a complete response letter is issued, the applicant may either resubmit the NDA,
addressing all of the deficiencies identified in the letter, or withdraw the application.
If a product receives regulatory approval, the approval may be significantly limited to specific diseases and dosages or the indications for use may otherwise
be limited, which could restrict the commercial value of the product. Further, the FDA may require that certain contraindications, warnings or precautions be
included in the product labeling. In addition, the FDA may require post marketing clinical trials, sometimes referred to as Phase 4 clinical trials testing, which
involves clinical trials designed to further assess a drug’s safety and effectiveness and may require testing and surveillance programs to monitor the safety of
approved products that have been commercialized.
Orphan Drug Designation
Our investigational agent, DSTAT, has been granted an orphan drug designation for the treatment of AML. In addition, BCV has been granted orphan drug
designation for the treatment of smallpox. Under the Orphan Drug Act, the FDA may grant orphan designation to a drug or biological product intended to
treat a rare disease or condition, which is generally a disease or condition that affects fewer than 200,000 individuals in the United States, or more than
200,000 individuals in the United States and for which there is no reasonable expectation that the cost of developing and making a drug or biological product
available in the United States for this type of disease or condition will be recovered from sales of the product. Orphan product designation must be requested
before submitting an NDA. After the FDA grants orphan product designation, the identity of the therapeutic agent and its potential orphan use are disclosed
publicly by the FDA. Orphan product designation does not convey any advantage in or shorten the duration of the regulatory review and approval process.
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If a product that has orphan designation subsequently receives the first FDA approval for the disease or condition for which it has such designation, the
product is entitled to orphan product exclusivity, which means that the FDA may not approve any other applications to market the same drug or biological
product for the same indication for seven years, except in limited circumstances, such as a showing of clinical superiority to the product with orphan
exclusivity. Competitors, however, may receive approval of different products for the indication for which the orphan product has exclusivity or obtain
approval for the same product but for a different indication for which the orphan product has exclusivity. Orphan product exclusivity also could block the
approval of a product for seven years if a competitor obtains approval of the same drug or biological product as defined by the FDA or if a drug candidate is
determined to be contained within the competitor’s product for the same indication or disease. If a drug or biological product designated as an orphan product
receives marketing approval for an indication broader than what is designated, it may not be entitled to orphan product exclusivity.
Expedited Development and Review Programs
The FDA has a number of programs that are intended to expedite or facilitate the process for reviewing new drugs and biological products for serious
conditions that meet certain criteria. Specifically, new drugs and biological products are eligible for Fast Track, Breakthrough Therapy, and/or Priority
Review designation if they are intended to treat a serious or life-threatening condition and demonstrate the potential to address unmet medical needs for the
condition. Fast Track designation applies to the combination of the product and the specific indication for which it is being studied. Our investigational
agents, DSTAT and BCV, have been granted Fast Track designation.
Breakthrough Therapy designation is for a drug that is intended to treat a serious condition and preliminary clinical evidence indicates that the drug may
demonstrate substantial improvement on a clinically significant endpoint(s) over available therapies.
Unique to Fast Track and Breakthrough Therapy products, the FDA may consider for review sections of the NDA on a rolling basis before the complete
application is submitted, if the sponsor provides a schedule for the submission of the sections of the NDA, the FDA agrees to accept sections of the NDA and
determines that the schedule is acceptable, and the sponsor pays any required user fees upon submission of the first section of the NDA.
Any product submitted to the FDA for marketing approval, including Fast Track and Breakthrough Therapy programs, may also be eligible for other types of
FDA programs intended to expedite development and review, such as priority review and accelerated approval. Any product is eligible for priority review if it
has the potential to provide safe and effective therapy where no satisfactory alternative therapy exists or a significant improvement in the treatment, diagnosis
or prevention of a disease compared to marketed products. The FDA will attempt to direct additional resources to the evaluation of an application for a new
drug or biological product designated for priority review in an effort to facilitate the review. Additionally, a product may be eligible for accelerated approval.
Drug or biological products studied for their safety and effectiveness in treating serious or life-threatening illnesses and that provide meaningful therapeutic
benefit over existing treatments may receive accelerated approval, which means that they may be approved on the basis of adequate and well-controlled
clinical trials 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 a clinical endpoint other than survival or irreversible morbidity. As a condition of approval, the FDA may require that a sponsor of a drug or
biological product receiving accelerated approval perform adequate and well-controlled post-marketing clinical trials to establish safety and efficacy for the
approved indication. In addition, the FDA currently requires as a condition for accelerated approval pre-review of promotional materials, which could
adversely impact the timing of the commercial launch of the product. Fast Track, Breakthrough, and Priority Review designations and accelerated approval do
not change the standards for approval but may expedite the development or approval process.
Emergency Use Authorization
The Emergency Use Authorization (EUA) authority allows FDA to facilitate availability and unapproved uses of medical countermeasures (MCMs) needed to
prepare for and respond to chemical, biological, radiological, and nuclear (CBRN) emergencies. The EUA authority is separate from use of a drug under an
investigational application (IND). As a first step, the Secretary of HHS makes the declaration of emergency or threat justifying authorization of emergency
use. Then the FDA Commissioner authorizes the emergency use of an unapproved medical product or an unapproved use of an approved medical product for
certain emergency circumstances. This allows an MCM to be used in an emergency to diagnose, treat, or prevent serious or life-threatening diseases or
conditions caused by a CBRN agent when there are no adequate, approved, and available alternatives. A formal request to issue an EUA is generally
submitted by government sponsors (e.g., HHS or the Department of Defense (DoD)) but not until the Secretary of HHS has issued the declaration. An EUA
request includes a summary of the available scientific evidence regarding the product's safety and effectiveness, risks (including an adverse event profile) and
benefits, and any available, approved alternatives to the product. Also included are manufacturing information and Fact sheets which are comparable to an
FDA-approved package insert.
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Animal Efficacy Rule
FDA permits the approval of certain drugs and biologics that are intended to reduce or prevent serious or life-threatening conditions based on evidence of
safety from clinical trial(s) in healthy subjects and effectiveness from appropriate animal studies when human efficacy studies are not ethical or feasible.
These regulations, which are known as the “Animal Rule”, authorize the FDA to rely on animal studies to provide evidence of a product’s effectiveness under
circumstances where there is a reasonably well-understood mechanism for the activity of the agent. Under these requirements, and with the FDA’s prior
agreement, drugs used to reduce or prevent the toxicity of chemical, biological, radiological or nuclear substances may be approved for use in humans based
on evidence of effectiveness derived from appropriate animal studies and any additional supporting data. Products evaluated under this rule must demonstrate
effectiveness through pivotal animal studies, which are generally equivalent in design and robustness to Phase 3 clinical studies. The animal study endpoint
must be clearly related to the desired benefit in humans and the information obtained from animal studies must allow for selection of an effective dose in
humans. Safety under this rule is established under preexisting requirements, including safety studies in both animals (toxicology) and humans. Products
approved under the Animal Rule are subject to additional requirements including post-marketing study requirements, restrictions imposed on marketing or
distribution or requirements to provide information to patients.
Post-Approval Requirements
Any drug products for which we or our strategic alliance partners receive FDA approvals are subject to continuing regulation by the FDA, including, among
other things, record-keeping requirements, reporting of adverse experiences with the product, providing the FDA with updated safety and efficacy
information, product sampling and distribution requirements, complying with certain electronic records and signature requirements and complying with FDA
promotion and advertising requirements. These promotion and advertising agreements include, among others, standards for direct-to-consumer advertising,
promoting drugs for uses or in patient populations that are not described in the drug’s approved labeling (known as “off-label use”), industry-sponsored
scientific and educational activities, and promotional activities involving the internet. Failure to comply with FDA requirements can have negative
consequences, including adverse publicity, enforcement letters from the FDA, mandated corrective advertising or communications with doctors, and civil or
criminal penalties. Although physicians may prescribe legally available drugs for off-label uses, manufacturers may not market or promote such off-label
uses.
We will rely, and expect to continue to rely, on third parties for the production of clinical and commercial quantities of any products that we may
commercialize. Our strategic alliance partners may also utilize third parties for some or all of a product we are developing with such strategic alliance partner.
Manufacturers of our products are required to comply with applicable FDA manufacturing requirements contained in the FDA’s cGMP regulations. cGMP
regulations require among other things, quality control and quality assurance as well as the corresponding maintenance of records and documentation. Drug
manufacturers and other entities involved in the manufacture and distribution of approved drugs 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 compliance with cGMP and other
laws. Accordingly, manufacturers must continue to expend time, money, and effort in the area of production and quality control to maintain cGMP
compliance. Discovery of problems with a product after approval may result in restrictions on a product, manufacturer, or holder of an approved NDA,
including withdrawal of the product from the market. In addition, changes to the manufacturing process generally require prior FDA approval before being
implemented and other types of changes to the approved product, such as adding new indications and additional labeling claims, are also subject to further
FDA review and approval.
The FDA also may require post-marketing testing, known as Phase 4 testing, risk minimization action plans and surveillance to monitor the effects of an
approved product or place conditions on an approval that could restrict the distribution or use of the product.
U.S. Patent Term Restoration and Marketing Exclusivity
Depending upon the timing, duration and specifics of the FDA approval of the use of our drug candidates, some of our United States patents may be eligible
for limited patent term extension under the Drug Price Competition and Patent Term Restoration Act of 1984, commonly referred to as the Hatch-Waxman
Amendments. The Hatch-Waxman Amendments permit a patent 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 an NDA, plus the time between the submission date of an NDA and the approval of that application. 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. The United States
Patent and Trademark Office, in consultation with the FDA, reviews and
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approves the application for any patent term extension or restoration. In the future, we may apply for restoration of patent term for one of our currently owned
or licensed patents 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 NDA.
Market exclusivity provisions under the FDCA can also delay the submission or the approval of certain applications of other companies seeking to reference
another company’s NDA. The FDCA provides a five-year period of non-patent marketing exclusivity within the United States to the first applicant to obtain
approval of an NDA for a new chemical entity. A drug is a new chemical entity if the FDA has not previously approved any other new drug containing the
same active moiety, which is the molecule or ion responsible for the action of the drug substance. During the exclusivity period, the FDA may not accept for
review an abbreviated new drug application (ANDA), or a 505(b)(2) NDA submitted by another company for another version of such drug where the
applicant does not own or have a legal right of reference to all the data required for approval. However, an application may be submitted after four years if it
contains a certification of patent invalidity or non-infringement to one of the patents listed with the FDA by the innovator NDA holder. The FDCA also
provides three years of marketing exclusivity for an NDA, or supplement to an existing NDA if new clinical investigations, other than bioavailability studies,
that were conducted or sponsored by the applicant are deemed by the FDA to be essential to the approval of the application, for example new indications,
dosages or strengths of an existing drug. This three-year exclusivity covers only the conditions associated with the new clinical investigations and does not
prohibit the FDA from approving ANDAs for drugs containing the original active agent. Five-year and three-year exclusivity will not delay the submission or
approval of a full NDA. However, an applicant submitting a full NDA would be required to conduct or obtain a right of reference to all of the preclinical
studies and adequate and well-controlled clinical trials necessary to demonstrate safety and effectiveness. Pediatric exclusivity is another type of regulatory
market exclusivity in the United States. Pediatric exclusivity, if granted, adds six months to existing exclusivity periods and patent terms. 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 trial in
accordance with an FDA-issued “Written Request” for such a trial.
US Health Care Laws
Our operations may be subject to federal and state health care laws and regulations including, without limitation: anti-kickback statutes, false claims statutes,
patient data privacy and security laws, and physician payment transparency laws and regulations, many of which may become more applicable if our product
candidates are approved and we begin commercialization. If our operations are found to be in violation of any of these laws or regulations, we may be subject
to penalties, including significant administrative, civil and criminal penalties, damages, fines, disgorgement, imprisonment, exclusion from participation in
federal healthcare programs, and 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, as well as contractual damages, reputational harm, diminished profits and future earnings, and the
curtailment or restructuring of our operations.
Reimbursement / Health Reform
Sales of pharmaceutical products depend in significant part on the availability of third-party reimbursement. Third-party payers include government health
programs such as Medicare and Medicaid, managed care providers, private health insurers and other organizations. These third-party payers are increasingly
challenging the price and examining the cost-effectiveness of medical products and services, including prescription drugs. In addition, significant uncertainty
exists as to the reimbursement status of newly approved prescription drugs and other healthcare products. We may need to conduct expensive
pharmacoeconomic studies in order to demonstrate the cost-effectiveness of any of our products that is successfully developed and approved. Our product
candidates may not be considered cost-effective. It is time consuming and expensive to seek reimbursement from third-party payers. Reimbursement may not
be available or sufficient to allow the sale of any of our products that is successfully developed and approved on a competitive and profitable basis.
The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), established the Medicare Part D program to provide a voluntary
prescription drug benefit to Medicare beneficiaries. Under Part D, Medicare beneficiaries may enroll in prescription drug plans offered by private entities to
provide coverage of outpatient prescription drugs. Part D plans include both stand-alone prescription drug benefit plans and prescription drug coverage as a
supplement to Medicare Advantage plans. Unlike Medicare Parts A and B, Part D coverage is not standardized. Part D prescription drug plan sponsors are not
required to pay for all covered Part D drugs, and each Part D prescription drug plan can develop its own drug formulary that identifies which drugs it will
cover and at what tier or level. However, Part D prescription drug formularies must include drugs within each therapeutic category and class of covered Part
D drugs, although not necessarily all of the drugs within each category or class. Any formulary used by a Part D prescription drug plan must be developed and
reviewed by a pharmacy and therapeutic committee.
Government payment for some of the costs of prescription drugs may increase demand for any of our products that is successfully developed and approved.
However, any negotiated prices for our products covered by a Part D prescription drug plan will likely
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be lower than the prices we might otherwise obtain. Moreover, although the MMA applies only to drug benefits for Medicare beneficiaries, private payers
often follow Medicare coverage policy and payment limitations in setting their own payment rates. Accordingly, any reduction in payment that results from
the MMA may result in a similar reduction in payments from non-governmental payers.
We expect that there will continue to be a number of federal and state proposals to implement governmental pricing controls and limit the growth of
healthcare costs, including the cost of prescription drugs. Currently, Medicare is prohibited from negotiating directly with pharmaceutical companies for
drugs. However, the U.S. Congress may in the future consider legislation that would lift the ban on federal negotiations.
The American Recovery and Reinvestment Act of 2009 provides funding for the federal government to compare the effectiveness of different treatments for
the same illness. A plan for the research would be developed by the U.S. Department of Health and Human Services (DHHS), Agency for Healthcare
Research and Quality and the National Institutes of Health, and periodic reports on the status of the research and related expenditures would be made to the
U.S. Congress. Although the results of the comparative effectiveness studies are not intended to mandate coverage policies for public or private payers, it is
not clear whether research would have any effect on the sales of any of our products that are successfully developed and approved, if the product or the
condition that it is intended to treat becomes the subject of a study. It is also possible that comparative effectiveness research demonstrating benefits of a
competitor’s product could adversely affect the sales of any of our products that is successfully developed and approved. If third-party payers do not consider
our products to be cost-effective compared to other available therapies, they may not cover our products after approval as a benefit under their plans or, if they
do, the level of payment may not be sufficient to allow us to sell our products on a profitable basis.
The Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (collectively, ACA), has had a
significant impact on the health care industry. The ACA was enacted in an effort to expand coverage for the uninsured while at the same time containing
overall healthcare costs. Among other things, the ACA expanded and increased industry rebates for drugs covered under Medicaid programs and made
changes to the coverage requirements under the Medicare Part D program. However, there remains judicial and Congressional challenges to certain aspects of
the ACA, as well as efforts by the Trump administration to repeal and replace certain aspects of the ACA, and we expect such challenges to continue. Since
January 2017, President Trump has signed two Executive Orders and other directives designed to delay the implementation of certain provisions of the ACA
or otherwise circumvent some of the requirements for health insurance mandated by the ACA. Concurrently, Congress has considered legislation that would
repeal or repeal and replace all or part of the ACA. While Congress has not passed comprehensive repeal legislation, two bills affecting the implementation of
certain taxes under the ACA have been enacted. Legislation enacted in 2017 (H.R. 1, “An Act to provide for reconciliation pursuant to titles II and V of the
concurrent resolution on the budget for fiscal year 2018”), informally titled the Tax Cuts and Jobs Act of 2017, or Tax Act, includes a provision repealing,
effective January 1, 2019, the tax-based shared responsibility payment imposed by the ACA on certain individuals who fail to maintain qualifying health
coverage for all or part of a year that is commonly referred to as the “individual mandate.” In addition, the 2020 federal spending package permanently
eliminated, effective January 1, 2020, the ACA-mandated “Cadillac” tax on high-cost employer-sponsored health coverage and medical device tax and,
effective January 1, 2021, also eliminates the health insurer tax. The Bipartisan Budget Act of 2018, or the BBA, among other things, amended the ACA,
effective January 1, 2019, to close the coverage gap in most Medicare drug plans, and also increases in 2019 the percentage that a drug manufacturer must
discount the cost of prescription drugs from 50 percent to 70 percent. In December 2018, the Centers for Medicare & Medicaid Services, or CMS, published a
new final rule permitting further collections and payments to and from certain ACA qualified health plans and health insurance issuers under ACA risk
adjustment program in response to the outcome of federal district court litigation regarding the method CMS uses to determine this risk adjustment. On
December 14, 2018, a Texas U.S. District Court Judge ruled that ACA is unconstitutional in its entirety because the “individual mandate” was repealed by
Congress as part of the Tax Act. Additionally, on December 18, 2019, the U.S. Court of Appeals for the 5th Circuit upheld the District Court ruling that the
individual mandate was unconstitutional and remanded the case back to the District Court to determine whether the remaining provisions of the ACA are
invalid as well. It is unclear how this decision, subsequent appeals, and other efforts to repeal and replace ACA will impact ACA.
The Physician Payment Sunshine Act (Sunshine Act), which was enacted as part of ACA, requires covered manufacturers of drugs covered under Medicare,
Medicaid or the Children’s Health Insurance Program to report annually to the Secretary of the DHHS payments or other transfers of value made by that
entity, or by a third party as directed by that entity, to physicians, as defined by such law, and teaching hospitals, or to third parties on behalf of physicians or
teaching hospitals, during the course of the preceding calendar year. Failure to submit required information may result in significant civil monetary penalties
for all payments, transfers of value or ownership or investment interests not reported in an annual submission.
If not preempted by the ACA, several states and local jurisdictions require pharmaceutical manufacturers to report expenses relating to the marketing and
promotion of pharmaceutical products and to report gifts and payments to individual physicians in the states.
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Other states prohibit providing various other marketing related activities. Still other states require the posting of information relating to clinical studies and
their outcomes. In addition, some states, such as California, Nevada and Massachusetts, require pharmaceutical manufacturers to implement compliance
programs or marketing codes. In addition, certain states and local jurisdictions require registration of pharmaceutical sales representatives. Currently, several
additional states are considering similar proposals. Compliance with these laws is difficult and time consuming, and companies that do not comply with these
state laws face civil penalties.
There has also been increasing legislative and enforcement interest in the United States with respect to drug pricing practices, including several recent
Congressional inquiries and proposed and enacted federal and state legislation designed to, among other things, increase drug pricing transparency, reduce the
cost of drugs under Medicare, review relationships between pricing and manufacturer patient assistance programs, and reform government program drug
reimbursement methodologies. At the federal level, the Trump administration’s budget proposal for fiscal year 2020 contains additional drug price control
measures that could be enacted during the budget process or in other future legislation, including, for example, measures to permit Medicare Part D plans to
negotiate the price of certain drugs under Medicare Part B, to allow some states to negotiate drug prices under Medicaid and to eliminate cost sharing for
generic drugs for low-income patients. Further, the Trump administration released a "Blueprint" to lower drug prices and reduce out-of-pocket costs of drugs.
This “Blueprint” contains additional proposals to increase manufacturer competition, increase the negotiating power of certain federal healthcare programs,
incentivize manufacturers to lower the list price of their products and reduce the out-of-pocket costs of drug products paid by consumers. The U.S.
Department of Health and Human Services has solicited feedback on some of these measures and has implemented other measures under its existing
authority. For example, in May 2019, CMS issued a final rule to allow Medicare Advantage plans the option to use step therapy for Part B drugs beginning
January 1, 2020. This final rule codified CMS’s policy change that was effective January 1, 2019. Although a number of these and other measures may
require additional authorization to become effective, Congress and the Trump administration have each 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. Such reform efforts are likely to continue the pressure on pharmaceutical pricing, especially under the Medicare program, and may also
increase our regulatory burdens and operating costs.
In some foreign countries, the proposed pricing for a drug must be approved before it may be lawfully marketed. The requirements governing drug pricing
vary widely from country to country. For example, the EU provides options for its member states to restrict the range of medicinal products for which their
respective national health insurance systems provide reimbursement and to control the prices of medicinal products for human use. A member state may
approve a specific price for the medicinal product or it may instead adopt a system of direct or indirect controls on the profitability of the company placing the
medicinal product on the market. There can be no assurance that any country that has price controls or reimbursement limitations for pharmaceutical products
will allow favorable reimbursement and pricing arrangements for any of our products for which we receive marketing approval. Historically, the price
structures for products launched in the EU do not follow those of the United States and tend to be significantly lower.
Europe / Rest of World Government Regulation
In addition to regulations in the United States, we and our strategic alliance partners will be subject to a variety of regulations in other jurisdictions governing,
among other things, clinical trials and any commercial sales and distribution of our products.
Whether or not we or our collaborators 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 trial application prior to the commencement of human clinical trials. In the EU, for example, a
clinical trial application (CTA), must be submitted to each country’s national health authority and an independent ethics committee, much like the FDA and
IRB, respectively. Once the CTA is approved in accordance with a country’s requirements, the particular clinical trial may proceed. Under the new Regulation
on Clinical Trials, which is expected to take effect in 2020, there will be a centralized application procedure where one national authority takes the lead in
reviewing the application and the other national authorities have only a limited involvement. Any substantial changes to the trial protocol or other information
submitted with the clinical trial applications must be notified to or approved by the relevant competent authorities and ethics committees.
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 are conducted in accordance with GCP and the applicable regulatory requirements and the ethical principles that have their origin in the
Declaration of Helsinki.
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To obtain regulatory approval of an investigational drug or biological product under EU regulatory systems, we or our strategic alliance partners must submit
a marketing authorization application. The application used to file the NDA or a Biologics License Application in the United States is similar to the
application dossier (eCTD) required in the EU.
For other countries outside of the EU, such as countries in Eastern Europe, Latin America or Asia, the requirements governing the conduct of clinical trials,
product licensing, pricing and reimbursement vary from country to country. In all cases, again, the clinical trials are conducted in accordance with GCP and
the applicable regulatory requirements and the ethical principles that have their origin in the Declaration of Helsinki.
If we or our strategic alliance partners 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 and criminal prosecution.
EU Review and Approval Process
In the EU, there are two main routes for authorizing the marketing of medicines, a centralized route and a national route. The centralized procedure
is compulsory for certain types of medicinal products which are produced by biotechnology processes, advanced therapy medicinal products and for those
which are designated as orphan medicinal products. Besides the products falling under the mandatory scope, the centralized procedure is also optional for
medicinal products that constitute a significant therapeutic, scientific or technical innovation i.e. new active substances or other medicinal products that
constitute a significant therapeutic, scientific or technical innovation, that contain an active substance not authorized in the European Union before 20 May
2004 or for which a centralized procedure would be in the interest of patients.
Under the centralized authorization procedure, pharmaceutical companies submit a single marketing-authorization application to the EMA. EMA’s Committee
for Medicinal Products for Human Use (CHMP) carries out a scientific assessment of the application and makes a recommendation to the European
Commission whether the medicine should be marketed or not. If authorization is granted by the European Commission, the centralized marketing
authorization is valid in all EU Member States as well as in the European Economic Area (EEA) countries Iceland, Liechtenstein and Norway.
Additionally, medicines that belong to at least one of the below categories may be granted a conditional market authorization (CMA).
A CMA may be granted if: (1) the CHMP finds that the benefit-risk balance of the product is positive, (2) it is likely that the applicant will be able to provide
comprehensive data, (3) the unmet medical needs will be fulfilled, and (4) the benefit to public health of the medicinal product’s immediate availability on the
market outweighs the risks due to need for further data.
CMAs are valid for one year and can be renewed annually. The CMA holder will be required to complete specific obligations (to complete ongoing or new
studies, and in some cases additional activities) with a view to providing comprehensive data confirming that the benefit-risk balance is positive. Once
comprehensive data on the product have been obtained, the CMA may be converted into a full marketing authorization (not subject to specific obligations).
Initially, this is valid for five years, but can be renewed for unlimited validity.
Orphan Designation in the EU
In order to qualify for Orphan Designation, a medicine must meet the following criteria:
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it must be intended for the treatment, prevention or diagnosis of a disease that is life-threatening or chronically debilitating;
the prevalence of the condition in the EU must not be more than 5 in 10,000 or it must be unlikely that marketing of the medicine would
generate sufficient returns to justify the investment needed for its development; and
no satisfactory method of diagnosis, prevention or treatment of the condition concerned can be authorized, or, if such a method exists, the
medicine must be of significant benefit to those affected by the condition.
EMA is responsible for reviewing applications from sponsors for orphan designation. The EMA’s Committee for Orphan Medicinal Products (COMP),
through its network of experts, examines applications for Orphan Designation and issues an opinion to EMA. The evaluation process takes approximately of
90 days from validation. Once EMA receives COMP’s opinion, EMA sends it to the European Commission, which is responsible for granting the Orphan
Designation.
At the time a sponsor of a marketing application files for marketing authorization for a medicine that has received Orphan Designation, the sponsor must also
submit a report on the maintenance of the Orphan Designation in parallel. EMA uses this report to determine whether the medicine can maintain its status as
an orphan medicine and benefit from the extended market exclusivity
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applicable to orphan products. Market exclusivity is linked to the maintenance of the Orphan Designation when the medicine receives a marketing
authorization for the indication concerned.
If it is determined that a medicine still meets the criteria for Orphan Designation at the time of marketing approval, that medicine may benefit from a period
of ten years market exclusivity in the EU. This incentive is intended to protect orphan medicines from market competition with similar medicines with similar
indications once they are approved, and fundamentally to encourage the development of medicines for rare diseases.
The applicant is obliged to submit an annual report to the EMA every year after their medicine has been granted orphan designation. The annual report needs
provide information on the status of the development of the medicine, such as a review of ongoing clinical studies, a description of the investigation plan for
the coming year and any anticipated or current problems in the process, difficulties in testing and potential changes that may have an impact on the medicine’s
orphan designation.
The European Commission is responsible for granting market exclusivity for orphan medicines. Market exclusivity is linked to each specific Orphan
Designation for which a marketing authorization has been granted.
The period of market exclusivity is extended by two years for medicines that also have complied with an agreed pediatric investigation plan (PIP). Each
orphan designation for a product linked to a separate orphan condition is eligible for a two-year extension if this is accounted for in the PIP. The extension is
granted by the European Commission based on the positive compliance check from the Pediatric Committee and opinion from the CHMP.
Brexit and the Regulatory Framework in the United Kingdom
On June 23, 2016, the electorate in the United Kingdom, or UK, voted in favor of leaving the EU, commonly referred to as “Brexit” and the United Kingdom
officially withdrew from the EU on January 31, 2020. The United Kingdom and the EU are currently in a transition period during which the United Kingdom
and the EU are negotiating additional arrangements, including their future trading arrangement. The United Kingdom has stated that it wants the transition
period to expire, and the future trading terms to be agreed, by December 31, 2020.
Since the regulatory framework for pharmaceutical products in the United Kingdom covering quality, safety and efficacy of pharmaceutical products, clinical
trials, marketing authorization, commercial sales and distribution of pharmaceutical products is derived from EU directives and regulations, immediately
following Brexit, it is expected that the United Kingdom’s regulatory regime will remain aligned with EU regulations. It remains to be seen how, if at all,
Brexit will impact regulatory requirements for product candidates and products in the United Kingdom. In the longer term, Brexit could materially impact the
future regulatory regime which applies to products and the approval of product candidates in the United Kingdom.
Environmental, Health and Safety Regulations
We are subject to various environmental, health and safety regulations, including those governing laboratory procedures and the handling, use, storage,
treatment and disposal of hazardous substances. From time to time, and in the future, our operations may involve the use of hazardous materials.
Employees
As of December 31, 2019, we had 43 full-time employees. Of these employees, 32 employees are engaged in research and development activities and 11
employees are engaged in finance, legal, human resources, facilities and general management. We have no collective bargaining agreements with our
employees and we have not experienced any work stoppages. We consider our relations with our employees to be good.
Corporate Information
We were incorporated in the State of Delaware in April 2000. Our corporate headquarters are located at 2505 Meridian Parkway, Suite 100, Durham, North
Carolina 27713 in a facility we lease encompassing approximately 24,862 square feet of office space. The leases for this facility expire in February 2021. We
separately lease laboratory space in Durham, North Carolina, encompassing a total of approximately 7,925 square feet. The lease for this laboratory space in
Durham expires in July 2021.
Our corporate website address is www.chimerix.com. Our filings with the Securities and Exchange Commission are available free of charge through our
website as soon as reasonably practicable after being electronically filed with or furnished to the SEC. The
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information contained on, or that can be accessed through, our website is not part of this Annual Report, and the inclusion of our website address in this
Annual Report is an inactive textual reference only.
ITEM 1A. RISK FACTORS
Except for the historical information contained herein or incorporated by reference, this Annual Report and the information incorporated by reference
contains forward-looking statements that involve risks and uncertainties. These statements include projections about our research, development and
commercialization efforts, our accounting and finances, plans and objectives for the future, future operating and economic performance and other statements
regarding future performance. These statements are not guarantees of future performance or events. Our actual results may differ materially from those
discussed here. Factors that could cause or contribute to differences in our actual results include those discussed in the following section, as well as those
discussed in Part II, Item 7 entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and elsewhere throughout
this Annual Report and in any other documents incorporated by reference into this Annual Report. You should consider carefully the following risk factors,
together with all of the other information included or incorporated in this Annual Report. Each of these risk factors, either alone or taken together, could
adversely affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our common stock. There
may be additional risks that we do not presently know of or that we currently believe are immaterial which could also impair our business and financial
position.
An investment in shares of our common stock involves a high degree of risk. You should carefully consider the following information about these risks,
together with the other information appearing elsewhere in this Annual Report, before deciding to invest in our common stock. The occurrence of any of the
following risks could have a material adverse effect on our business, financial condition, results of operations and future growth prospects. In these
circumstances, the market price of our common stock could decline, and you may lose all or part of your investment.
Risks Related to Our Financial Condition and Need For Additional Capital
We are evaluating external assets to build our pipeline of product candidates and there can be no assurance that we will be successful in identifying or
completing a transaction for a candidate, that any such transaction will result in additional value for our stockholders or that the process will not have an
adverse impact on our business.
In early 2019, we initiated a review of external assets that could be added to our pipeline of product candidates. In July 2019, in connection with this process,
we entered into a License and Development Agreement with Cantex Pharmaceuticals, Inc. (Cantex) pursuant to which we acquired exclusive worldwide
rights to develop and commercialize, for any and all uses, a glycosaminoglycan compound known as dociparstat (DSTAT), which is currently being studied
for the treatment of acute myeloid leukemia (AML) and, potentially, other serious diseases. Under the terms of the license agreement, we are responsible for,
and bear the future costs of, worldwide development and commercialization of DSTAT. These costs will be substantial, and we may require additional capital
in order to pursue the development and commercialization of DSTAT as planned. Moreover, the anticipated benefits of our license to DSTAT may never be
realized due to the various risks and uncertainties associated with drug development detailed elsewhere in the following risk factors.
In addition to DSTAT, we may in-license or acquire additional assets, engage in a merger or acquisition transaction, issue additional shares of our common
stock, or engage in other potential actions designed to maximize stockholder value. Our continuing review of external assets may not result in the
identification or consummation of any transaction. The process of reviewing external opportunities may be time consuming and disruptive to our business
operations and, if we are unable to effectively manage the process, our business, financial condition and results of operations could be adversely affected. We
could incur substantial expenses associated with identifying, evaluating, negotiating, and consummating potential transactions. There can be no assurance that
any potential additional transaction, if consummated, will provide greater value to our stockholders than that reflected in the current price of our common
stock. In addition, once any potential additional transaction is consummated, we are likely to incur substantial costs associated with future development and
testing of any new product candidate, which may require us to raise additional capital.
We have incurred significant losses since our inception. We anticipate that we will continue to incur significant losses for the foreseeable future, and we
may never achieve or maintain profitability.
We are a biopharmaceutical company focused primarily on developing DSTAT for the treatment of AML and brincidofovir (BCV) for the treatment of
smallpox. We have incurred significant net losses in each year since our inception, including net losses of $112.6 million, $69.5 million and $71.0 million for
the twelve months ended December 31, 2019, 2018 and 2017, respectively. As of December 31, 2019, we had an accumulated deficit of approximately $668.8
million.
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To date, we have financed our operations primarily through the sale of equity securities and, to a lesser extent, through government funding, licensing fees
and debt. We have devoted most of our financial resources to research and development, including our preclinical development activities and clinical trials.
We have not completed development of any product candidates. We may continue to incur losses and negative cash flows for the foreseeable future. The size
of any loss will depend, in part, on the rate of future expenditures and our ability to generate revenues. In particular, we expect to incur substantial expenses
as we seek to:
initiate development and manufacturing activities of DSTAT for the treatment of AML and other potential indications;
continue the development of BCV for the treatment of smallpox as a medical countermeasure;
obtain regulatory approvals for DSTAT and BCV;
scale-up manufacturing capabilities to commercialize DSTAT and BCV in the event we receive regulatory approval;
identify and in-license additional product candidates to expand our research and development pipeline;
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• maintain, expand and protect our intellectual property portfolio; and
•
continue our internal research and development efforts and seek to discover additional product candidates.
To become and remain profitable, we must succeed in developing and eventually commercializing products with significant market potential. This will
require us to be successful in a range of challenging activities, including acquiring or discovering product candidates, completing preclinical testing and
clinical trials of our product candidates, obtaining regulatory approval for these product candidates, and manufacturing, marketing and selling those products
for which we may obtain regulatory approval. We are only in the preliminary stages of some of these activities.
To date, we have not obtained regulatory approval for any product candidate, and none of our product candidates have been commercialized. We may never
succeed in developing or commercializing any product candidate. If we do not successfully develop or commercialize any product candidate, or if revenues
from any products that do receive regulatory approvals are insufficient, we will not achieve profitability and our business may fail. Even if we successfully
obtain regulatory approval to market a product candidate in the United States, our revenues are also dependent upon the size of markets outside of the United
States, as well as our ability to obtain market approval and achieve commercial success outside of the United States.
Even 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 depress the value of our company and could impair our ability to raise capital, expand our business, diversify our product offerings or
continue our operations. A decline in the value of our company could cause you to lose all or part of your investment.
Our ability to generate future revenues from product sales is uncertain and depends upon our ability to successfully develop, obtain regulatory approval
for, and commercialize product candidates.
Our ability to generate revenue and achieve profitability depends on our ability, alone or with collaborators, to successfully complete the development, obtain
the necessary regulatory approvals and commercialize product candidates. We may not generate revenues from product sales for the foreseeable future. Our
ability to generate future revenues from product sales depends heavily on our success in:
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obtaining favorable results for and advancing the development of DSTAT for the treatment of AML and BCV for the treatment of smallpox;
obtaining United States and foreign regulatory approval(s) for DSTAT and BCV;
generating, licensing or otherwise acquiring a pipeline of product candidates which progress to clinical development, regulatory approval, and
commercialization.
Conducting preclinical testing and clinical trials is a time-consuming, expensive and uncertain process that takes years to complete, and we may never
generate the necessary data required to obtain regulatory approval and achieve product sales. Our anticipated development costs would likely increase if we
do not obtain favorable results or if development of any product candidate is delayed. In particular, we would likely incur higher costs than we currently
anticipate if development of any product candidate is delayed because we are required by the FDA or foreign regulatory authorities to perform studies or trials
in addition to those that we currently anticipate, or we decide to conduct additional studies or trials for strategic reasons.
Because of the numerous risks and uncertainties associated with pharmaceutical product development, we are unable to predict with certainty the timing or
amount of any increase in our anticipated development costs that will result should any additional trials be necessary.
In addition, any product candidate, if approved, may not achieve commercial success. Our commercial revenues, if any, will be derived from sales of products
that we may not be commercially available for a number of years, if at all. Even if any product candidate is approved for commercial sale, we anticipate
incurring significant costs in connection with commercialization. As a
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result, we cannot assure you that we will be able to generate revenues from sales of any approved product candidate, or that we will achieve or maintain
profitability even if we do generate sales.
If we fail to obtain additional financing, we could be forced to delay, reduce or eliminate our product development programs, seek corporate partners for
the development of our product development programs or relinquish or license on unfavorable terms, our rights to technologies or product candidates.
Developing pharmaceutical products, including conducting preclinical studies and clinical trials, is a time-consuming, expensive and uncertain process that
takes years to complete. We believe that our existing capital available to fund operations will enable us to fund our current operating expenses and capital
requirements for at least the next twelve months. Changing circumstances beyond our control may cause us to consume capital more rapidly than we currently
anticipate, and our clinical trials may encounter technical, enrollment or other difficulties that could increase our development costs more than we expected,
or because the FDA or foreign regulatory authorities require us to perform studies or trials in addition to those that we currently anticipate.
In July 2019, we entered into a License and Development Agreement with Cantex in which we acquired an exclusive worldwide license to develop and
commercialize DSTAT. We plan to initiate a Phase 3 clinical trial of DSTAT for the treatment of AML in mid-2020 subject to finalization of the protocol with
FDA.
We are also pursuing additional external opportunities to build our pipeline of product candidates, and we may need to raise additional funds if we identify
additional product candidates other than DSTAT and BCV, which we may obtain through one or more equity offerings, debt financings, government or other
third-party funding, strategic alliances and licensing or collaboration arrangements.
Securing additional financing may divert our management from our day-to-day activities, which may adversely affect our ability to develop and
commercialize DSTAT, BCV, or any other product candidate. In addition, we cannot guarantee that future financing will be available in sufficient amounts or
on terms acceptable to us, if at all. If we are unable to raise additional capital when required or on acceptable terms, we may be required to:
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significantly delay, scale back or discontinue the development or commercialization of DSTAT, BCV or any other product candidate;
seek corporate partners for DSTAT, BCV, or any other product candidate at an earlier stage than otherwise would be desirable or on terms that
are less favorable than might otherwise be available; or
relinquish or license on unfavorable terms, our rights to technologies or product candidates 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 will be prevented from pursuing development and
commercialization efforts, which will have a material adverse effect on our business, operating results and prospects and on our ability to develop our product
candidates.
Risks Related to Clinical Development and Regulatory Approval
Our product candidates, DSTAT and BCV, are still under clinical development for the treatment of AML and other potential indications, and smallpox,
respectively, and may not obtain regulatory approval or be successfully commercialized.
We have not marketed, distributed or sold any products. Our product candidates are DSTAT, which we are developing for the treatment of AML and other
potential indications and BCV, which we continue to develop for the treatment of smallpox as a medical countermeasure. We plan to initiate a Phase 3 clinical
trial of DSTAT for the treatment of AML in mid-2020 subject to finalization of the protocol with FDA.
There is no guarantee that our current or future clinical trials will be approved by regulators, and no guarantee that they will be completed or, if completed,
will be successful, or if successful, will result in an approval for the sale of any of our product candidates. The success of each of DSTAT and BCV will
depend on several factors, including the following:
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acceptance of data from our studies of oral BCV in animal models, including analyses necessary to bridge to a recommended human dose, by
the FDA and foreign regulatory bodies;
working with the FDA on the design and conduct of a pivotal Phase 3 clinical trial to support approval of DSTAT;
receipt of marketing approvals from the FDA and corresponding regulatory authorities outside the United States;
establishing manufacturing capabilities necessary for a registration trial and commercialization of DSTAT;
establishing commercial manufacturing capabilities for BCV;
acceptance of the product, if approved for marketing;
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effectively competing with other therapies;
a continued acceptable safety profile of the product following approval; and
obtaining, maintaining, enforcing and defending intellectual property rights and claims.
If we do not achieve one or more of these factors in a timely manner or at all, we could experience significant delays or an inability to successfully
commercialize DSTAT and BCV, which would materially harm our business.
We have never obtained regulatory approval for a drug and we may be unable to obtain, or may be delayed in obtaining, regulatory approval for DSTAT
and BCV.
We have never obtained regulatory approval for a drug. It is possible that the FDA and/or foreign health authorities, such as the EMA, may refuse to accept
our NDA (or corresponding foreign application) for substantive review or may conclude after review of our data that our application is insufficient to obtain
regulatory approval of DSTAT, BCV or both.
Through our continuing development contract with BARDA, we recently completed the in-life segment of our second rabbitpox efficacy study as well as a
pivotal efficacy study in the mouse model (ectromelia virus). We believe that efficacy data from these models could support the approval of BCV for the
treatment of smallpox. The data from these trials is subject to on-going confirmatory studies and audit. In addition, we are preparing data necessary to bridge
to a recommended human dose.
In July, we entered into a license agreement with Cantex where we acquired an exclusive license to global development and commercialization rights to
DSTAT. We plan to initiate a Phase 3 clinical trial of DSTAT for the treatment of AML in mid-2020 subject to finalization of the protocol with FDA.
We have not yet reached agreement with the FDA or foreign regulators regarding the adequacy of these planned studies, for either DSTAT or BCV, with
respect to a potential approval for marketing. We may be required to conduct additional clinical, nonclinical or manufacturing validation studies and submit
those data before reconsideration of our application occurs. Depending on the extent of these or any other required studies, approval of any NDA or
application that we submit may be delayed by several years, or may require us to expend more resources than we have available. It is also possible that
additional studies, if performed and completed, may not be considered sufficient by the FDA and/or foreign health authorities to approve our NDA or foreign
application.
Any delay in obtaining, or an inability to obtain, regulatory approvals could prevent us from generating revenues and achieving and sustaining profitability. If
any of these outcomes occur, we may be forced to abandon our development efforts for DSTAT and BCV, which would have a material adverse effect on our
business and could potentially cause us to cease operations.
We depend on the successful completion of clinical trials for our product candidates, including DSTAT and BCV. The positive clinical results obtained
for our product candidates in prior clinical studies may not be repeated in future clinical studies.
Before obtaining regulatory approval for the sale of our product candidates, including DSTAT and BCV, we must conduct extensive clinical trials to
demonstrate the safety and efficacy of our product candidates. Clinical testing is expensive, difficult to design and implement, can take many years to
complete and is uncertain as to outcome. A failure of one or more of our clinical trials can occur at any stage of testing. The outcome of preclinical testing and
early clinical trials may not be predictive of the success of later clinical trials, and interim results of a clinical trial do not necessarily predict final results.
Moreover, preclinical and clinical data are often susceptible to varying interpretations and analyses, and many companies that have believed their product
candidates performed satisfactorily in preclinical studies and clinical trials have nonetheless failed to obtain marketing approval for their products.
We may experience a number of unforeseen events during, or as a result of, clinical trials or animal efficacy studies for our product candidates, that could
adversely affect the completion of our clinical trials, including:
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regulators or institutional review boards may not authorize us or our investigators to commence a clinical trial or conduct a clinical trial at a
prospective trial site;
clinical trials of our product candidates may produce negative or inconclusive results, and we may decide, or regulators may require us, to
conduct additional clinical trials or abandon product development programs;
animal efficacy studies of our product candidates may produce negative or inconclusive results, and we may decide, or regulators may require us
to conduct additional animal efficacy studies or abandon development programs;
we might be required to change one of our clinical research organizations (CROs) during ongoing clinical programs;
the number of subjects required for clinical trials of our product candidates may be larger than we anticipate, enrollment in these clinical trials
may be insufficient or slower than we anticipate, or subjects may drop out of these clinical trials at a higher rate than we anticipate;
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our third-party contractors may fail to comply with regulatory requirements or meet their contractual obligations to us in a timely manner, or at
all;
we may have to suspend or terminate clinical trials of our product candidates for various reasons, including a finding that the subjects are being
exposed to unacceptable health risks;
regulators or institutional review boards may require that we or our investigators suspend or terminate clinical research for various reasons,
including noncompliance with regulatory requirements;
the cost of clinical trials of our product candidates may be greater than we anticipate;
we may encounter agency or judicial enforcement actions which impact our clinical trials;
the supply or quality of our product candidates or other materials necessary to conduct clinical trials of our product candidates may be
insufficient or inadequate; or
our product candidates may have undesirable side effects or other unexpected characteristics, causing us or our investigators to suspend or
terminate the trials.
We do not know whether any clinical trials we may conduct will demonstrate adequate efficacy and safety to result in regulatory approval to market our
product candidates, including DSTAT and BCV. If later stage clinical trials do not produce favorable results, our ability to obtain regulatory approval for
either or both of DSTAT and BCV may be adversely impacted.
Delays in clinical trials are common and have many causes, and any delay could result in increased costs to us and jeopardize or delay our ability to
obtain regulatory approval and commence product sales.
Clinical testing is expensive, difficult to design and implement, can take many years to complete, and is uncertain as to outcome. We may experience delays
in clinical trials at any stage of development and testing of our product candidates. Our planned clinical trials may not begin on time, have an effective design,
enroll a sufficient number of subjects, or be completed on schedule, if at all.
Events which may result in a delay or unsuccessful completion of clinical trials, including our currently planned or future clinical trials for either DSTAT,
BCV or both, include:
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inability to raise funding necessary to initiate or continue a trial;
delays in obtaining, or failure to obtain, regulatory approval of Investigational New Drug applications or to commence a trial;
delays in reaching agreement with the FDA and foreign health authorities on final trial design;
imposition of a clinical hold following an inspection of our clinical trial operations or trial sites by the FDA or other regulatory authorities;
delays caused by disagreements with existing CROs and/or clinical trial sites;
delays in reaching agreement on acceptable terms with prospective CROs and clinical trial sites;
delays in obtaining, or failure to obtain, required IRB or ethics committee (EC) approvals covering each site;
delays in recruiting suitable patients to participate in a trial;
delays in having subjects complete participation in a trial or return for post-treatment follow-up;
delays caused by subjects dropping out of a trial due to side effects or otherwise;
clinical sites declining to participate or dropping out of a trial to the detriment of enrollment;
agency or judicial enforcement actions against us;
time required to add new clinical sites; and
delays by our contract manufacturers to produce and deliver sufficient supply of clinical trial materials.
If initiation or completion of any of our clinical trials for our product candidates, including either DSTAT or BCV, are delayed for any of the above reasons,
our development costs may increase, our approval process could be delayed, any periods during which we may have the exclusive right to commercialize our
product candidates may be reduced and our competitors may have more time to bring products to market before we do. Any of these events could impair our
ability to generate revenues from product sales and impair our ability to generate regulatory and commercialization milestones and royalties, all of which
could have a material adverse effect on our business.
Our product candidates may cause adverse effects or have other properties that could delay or prevent their regulatory approval or limit the scope of any
approved label or market acceptance.
Adverse events (AEs) caused by our product candidates could cause us, other reviewing entities, clinical study sites or regulatory authorities to interrupt,
delay or halt clinical studies and could result in the denial of regulatory approval. For example, subjects enrolled in our clinical trials for BCV have
experienced gastrointestinal AEs and liver-related safety laboratory value changes. In addition, BCV is related to the approved drug cidofovir, a compound
which has been shown to result in significant renal toxicity and impairment following use. As a second example, subjects enrolled in clinical trials for DSTAT
have experienced febrile
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neutropenia and liver enzyme elevations. If an unacceptable frequency and/or severity of AEs are reported in our clinical trials for our product candidates, our
ability to obtain regulatory approval for product candidates may be negatively impacted.
If any of our approved products cause serious or unexpected side effects prior to or after receiving market approval, a number of potentially significant
negative consequences could result, including:
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regulatory authorities may approve the product only with a risk evaluation and mitigation strategy (REMS), potentially with restrictions on
distribution and other elements to assure safe use (ETASU);
regulatory authorities may withdraw their approval of the product or impose restrictions on its distribution in a form of a modified REMS;
regulatory authorities may require the addition of labeling statements, such as warnings or contraindications;
we may be required to change the way the product is administered or to conduct additional clinical studies;
we could be sued and held liable for harm caused to patients; and
our reputation may suffer.
Any of these events could prevent us from achieving or maintaining market acceptance of the affected product candidate and could substantially increase the
costs of commercializing our product candidates.
After the completion of our clinical trials, we cannot predict whether or when we will obtain regulatory approval to commercialize any of our product
candidates and we cannot, therefore, predict the timing of any future revenue from DSTAT or BCV.
We cannot commercialize our product candidates, including DSTAT and BCV, until the appropriate regulatory authorities have reviewed and approved the
product candidate. The regulatory agencies may not complete their review processes in a timely manner, or we may not be able to obtain regulatory approval
for either of our product candidates. Additional delays in the United States may result if either DSTAT or BCV is brought before an FDA advisory committee,
which could recommend restrictions on approval or recommend non-approval of the product candidate. In the EU context, an Oral Explanation during MAA
review could extend approval timelines and result in a Negative Opinion. A re-examination procedure is available in the EU whereby a Negative Opinion
could be over-turned and become a Positive Opinion. New rapporteurs would be selected for the product. In addition, we may experience delays or rejections
based upon additional government regulation from future legislation or administrative action, or changes in regulatory agency policy during the period of
product development, clinical studies and the review process. As a result, we cannot predict when, if at all, we will receive any future revenue from
commercialization of any of our product candidates.
Even if we obtain regulatory approval for DSTAT and BCV, we will still face extensive regulatory requirements and our products may face future
development and regulatory difficulties.
Even if we obtain regulatory approval, the granting authority may still impose significant restrictions on the indicated uses, distribution or marketing of our
product candidates, including DSTAT and BCV, or impose ongoing requirements for potentially costly post-approval studies or post-market surveillance. For
example, the labeling ultimately approved for our product candidates, including DSTAT and BCV, will likely include restrictions on use due to the specific
patient population and manner of use in which the drug was evaluated and the safety and efficacy data obtained in those evaluations. In addition, the
distribution of DSTAT and BCV may be tightly controlled through a REMS with ETASU, which are required medical interventions or other actions
healthcare professionals need to execute prior to prescribing or dispensing the drug to the patient. Some actions may also be required in order for the patient
to continue on treatment. For example, the label for BCV may be required to include a boxed warning, or “black box,” regarding BCV being carcinogenic,
teratogenic and impairing fertility in animal studies. The BCV labeling may also include warnings or black boxes pertaining to gastrointestinal AEs or liver-
related safety laboratory value changes.
DSTAT, BCV and any other product candidates will also be subject to additional ongoing regulatory requirements governing the labeling, packaging, storage,
distribution, safety surveillance, advertising, promotion, record-keeping and reporting of safety and other post-market information. In the United States, the
holder of an approved NDA is obligated to monitor and report AEs and any failure of a product to meet the specifications in the NDA. The holder of an
approved NDA must also submit new or supplemental applications and obtain FDA approval for certain changes to the approved product, product labeling or
manufacturing process. If a REMS is required, the NDA holder may be required to monitor and evaluate those in the healthcare system who are responsible
for implementing ETASU measures. Advertising and promotional materials must comply with FDA rules and are subject to FDA review, in addition to other
potentially applicable federal and state laws. Moreover, EU and member countries impose strict restrictions on the promotion and marketing of drug products.
The off-label promotion of medicinal products is prohibited in the U.S., EU and in other territories. The promotion of medicinal products that are not subject
to a marketing authorization is also prohibited in the EU. Violations of the rules governing the promotion of medicinal products in the EU and in other
territories could be penalized by administrative measures, fines and imprisonment.
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In addition, manufacturers of drug products and their facilities are subject to payment of user fees and continual review and periodic inspections by regulatory
authorities for compliance with cGMP, and adherence to commitments made in the application. If we, or a regulatory agency, discover previously unknown
problems with a product, such as quality issues or AEs of unanticipated severity or frequency, or problems with the facility where the product is
manufactured, a regulatory agency may impose restrictions relative to that product or the manufacturing facility, including requiring recall or withdrawal of
the product from the market or suspension of manufacturing.
If we fail to comply with applicable regulatory requirements following approval of any product candidates, a regulatory agency may:
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issue an untitled or warning letter asserting that we are in violation of the law;
seek an injunction or impose civil or criminal penalties or monetary fines;
suspend or withdraw regulatory approval;
suspend any ongoing clinical trials;
refuse to approve a pending application or supplements to an application submitted by us;
recall and/or seize product; or
refuse to allow us to enter into supply contracts, including government contracts.
Any government investigation of alleged violations of law could require us to expend significant time and resources in response and could generate negative
publicity. The occurrence of any event or penalty described above may inhibit our ability to commercialize DSTAT, BCV and any other product candidates
and inhibit our ability to generate revenues.
Obtaining FDA approval for any one of our products in the United States does not mean we will ever obtain approval for or commercialize DSTAT, BCV,
or any other products outside of the United States, nor does approval of any of our products outside the United States mean we will ever obtain approval
for or commercialize any other products inside the United States, all of which could limit our ability to realize their full market potential.
In order to market any products outside of the United States, we must establish and comply with numerous and varying regulatory requirements on a country-
by-country basis regarding safety and efficacy. Approval by the FDA does not ensure approval by regulatory authorities in other countries or jurisdictions. In
addition, clinical trials conducted in one country may not be accepted by regulatory authorities in other countries, and regulatory approval in one country does
not guarantee regulatory approval in any other country. Approval processes vary among countries and can involve additional product testing and validation
and additional administrative review periods. Seeking foreign regulatory approval could result in difficulties and costs for us and require additional preclinical
studies or clinical trials which could be costly and time consuming. Regulatory requirements can vary widely from country to country and could delay or
prevent the introduction of our products in those countries. We do not have any product candidates approved for sale in any jurisdiction, including
international markets, and we do not have experience in obtaining regulatory approval in any markets. If we fail to comply with regulatory requirements in
international markets or to obtain and maintain required approvals, or if regulatory approvals in international markets are delayed, our target market will be
reduced and our ability to realize the full market potential of our products will be unrealized.
Conversely, approval by regulatory authorities outside the United States, such as the European Commission, does not ensure approval by the FDA. Moreover,
clinical trials conducted outside the United States may not be accepted by the FDA.
Coverage and adequate reimbursement may not be available for our current or any future product candidates, which could make it difficult for us to sell
profitably, if approved.
Market acceptance and sales of any product candidates that we commercialize, if approved, will depend in part on the extent to which coverage and adequate
reimbursement will be available from third-party payers, including government health administration authorities, managed care organizations and private
health insurers. Third-party payers decide which therapies they will pay for and establish reimbursement levels. Third-party payers in the United States often
rely upon Medicare coverage policy and payment limitations in setting their own coverage and reimbursement policies. However, decisions regarding the
extent of coverage and amount of reimbursement to be provided for any product candidates that we develop will be made on a payer-by-payer basis. One
payer’s determination to provide coverage for a drug does not assure that other payers will also provide coverage and adequate reimbursement for the drug.
Additionally, a third-party payer’s decision to provide coverage for a therapy does not imply that an adequate reimbursement rate will be approved. Third-
party payers 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. We cannot be sure that coverage and reimbursement in the United States or elsewhere will be
available for any product that we may develop, and any reimbursement that may become available may be decreased or eliminated in the future.
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Our relationships with investigators, health care professionals, consultants, third-party payers, and customers may be subject to applicable anti-kickback,
fraud and abuse and other healthcare laws and regulations, which could expose us to criminal sanctions, civil penalties, contractual damages,
reputational harm and diminished profits and future earnings.
Healthcare providers, physicians and others play a primary role in the recommendation and prescribing of any products for which we obtain marketing
approval. Our current business operations and future arrangements with investigators, healthcare professionals, consultants, third-party payers and customers
may expose us to broadly applicable fraud and abuse and other healthcare laws and regulations. These laws may constrain the business or financial
arrangements and relationships through which we research, market, sell and distribute our products for which we obtain marketing approval. Restrictions
under applicable federal and state healthcare laws and regulations, include, but are not limited to, the following:
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the federal healthcare anti-kickback statute which prohibits, among other things, persons or entities from knowingly and willfully soliciting,
offering, receiving or paying remuneration (including any kickback, bribe or rebate), directly or indirectly, overtly or covertly, in cash or in kind,
to induce or reward either the referral of an individual for, or the purchase, lease, order or recommendation of, any good, facility, item or service,
for which payment may be made, in whole or in part, under federal healthcare programs such as Medicare and Medicaid;
the federal civil and criminal false claims laws, including the Federal Civil False Claims Act (False Claims Act) which permit private
individuals to bring a civil action on behalf of the federal government to enforce certain of these laws thought civil whistleblower or qui tam
actions and the Federal Civil Monetary Penalties Act, which prohibit, among other things, individuals or entities from knowingly presenting, or
causing to be presented, to the federal government, claims for payment or approval that are false or fraudulent or from knowingly making a false
statement to improperly avoid, decrease or conceal an obligation to pay money to the federal government;
the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) which, among other things, imposes criminal liability for
knowingly and willfully executing, or attempting to execute, a scheme to defraud any healthcare benefit program or to obtain, by means of false
or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any healthcare
benefit program, regardless of the payer (e.g., public or private) and knowingly or willfully falsifying, concealing or covering up by any trick or
device a material fact or making any materially false statement in connection with the delivery of, or payment for, healthcare benefits, items or
services relating to healthcare matters;
HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act (HITECH) and their implementing
regulations, and as amended again by the final HIPAA omnibus rule, Modifications to the HIPAA Privacy, Security, Enforcement, and Breach
Notification Rules Under HITECH and the Genetic Information Nondiscrimination Act; Other Modifications to HIPAA, published in January
2013, which imposes certain obligations, including mandatory contractual terms, with respect to safeguarding the privacy, security and
transmission of individually identifiable health information without appropriate authorization by entities subject to the rule, such as health plans,
healthcare clearinghouses and certain healthcare providers, as well as their business associates;
the General Data Protection Regulation (GDPR), which impose obligations on companies in relation to the handling of personal data of
individuals within the EU, along with related national legislation;
• mandated physician payments reporting laws and/or requirements throughout global jurisdictions, including EU member states, in which we
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conduct research and development and/or other business activities;
the FDCA which prohibits, among other things, the adulteration or misbranding of drugs and devices;
the federal transparency law, enacted as part of the Patient Protection and Affordable Care Act, as amended by the Health Care and Education
Reconciliation Act of 2010 (collectively, the ACA), and its implementing regulations, which requires manufacturers of drugs, devices,
biologicals and medical supplies to report to the Centers for Medicare & Medicaid Services (CMS) information related to payments and other
transfers of value made to physicians, as defined by such law, and teaching hospitals, as well as ownership and investment interests held by
physicians and their immediate family members; and
analogous state laws and regulations, including: state anti-kickback and false claims laws, which may apply to our business practices, including
but not limited to, research, distribution, sales and marketing arrangements and claims involving healthcare items or services reimbursed by state
governmental and non-governmental third-party payers, including private insurers; state laws that require pharmaceutical companies to comply
with the pharmaceutical industry’s voluntary compliance guidelines and the relevant compliance guidance promulgated by the federal
government; state and local laws that require the registration of pharmaceutical sales representatives; state laws and regulations that require
manufacturers to file reports relating to pricing and marketing information, which requires tracking gifts and other remuneration and items of
value provided to healthcare professionals and entities; and state laws governing the privacy and security of health information, many of which
differ from each other in significant ways and often are not preempted by HIPAA.
Efforts to ensure that our business arrangements with third parties comply with applicable healthcare laws and regulations involve substantial costs. It is
possible that governmental authorities will conclude that our business practices do not comply with current
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or future statutes, regulations, agency guidance or case law involving applicable fraud and abuse or other healthcare laws and regulations. If our operations
are found to be in violation of any of these or any other health regulatory 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, 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, exclusion from government funded healthcare
programs, such as Medicare and Medicaid, and the curtailment or restructuring of our operations, any of which could adversely affect our ability to operate
our business and our financial results. Any action against us for violation of these laws, even if we successfully defend against it, could cause us to incur
significant legal expenses and/or divert our management’s attention from the operation of our business. If any of the physicians or other providers or entities
with whom we expect to do business are found to be not in compliance with applicable laws, they also may be subject to criminal, civil or administrative
sanctions, including, but not limited to, exclusions from government funded healthcare programs, which could also materially affect our business.
Recently enacted and future legislation may increase the difficulty and cost for us to obtain marketing approval of and commercialize our product
candidates and affect the prices we may obtain.
In the United States and some foreign jurisdictions, there have been a number of legislative and regulatory changes and proposed changes regarding the
healthcare system that could prevent or delay marketing approval of our product candidates, restrict or regulate post-approval activities and affect our ability
to profitably sell any products for which we obtain marketing approval.
In the United States, the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Medicare Modernization Act) changed the way
Medicare covers and pays for pharmaceutical products. The legislation expanded Medicare coverage for drug purchases by the elderly and introduced a new
reimbursement methodology based on average sales prices for physician-administered drugs. In addition, this legislation provided authority for limiting the
number of drugs that will be covered in any therapeutic class. Cost reduction initiatives and other provisions of this legislation could decrease the coverage
and price that we receive for any approved products. While the Medicare Modernization Act applies only to drug benefits for Medicare beneficiaries, private
payers often follow Medicare coverage policy and payment limitations in setting their own reimbursement rates. Therefore, any reduction in reimbursement
that results from the Medicare Modernization Act may result in a similar reduction in payments from private payers.
Additionally, in March 2010, the ACA was enacted to broaden access to health insurance, reduce or constrain the growth of healthcare spending, enhance
remedies against fraud and abuse, add new transparency requirements for health care and health insurance industries, impose new taxes and fees on the health
industry and impose additional health policy reforms. The ACA revises the definition of “average manufacturer price” for reporting purposes, which could
increase the amount of Medicaid drug rebates to states. Further, the new law imposes a significant annual fee on companies that manufacture or import
branded prescription drug products. New provisions affecting compliance have also been enacted, which may affect our business practices with health care
practitioners. However, there have been, and continue to be, judicial and Congressional challenges to certain aspects of the ACA, as well as recent efforts by
the Trump administration to repeal and replace certain aspects of the ACA, and we expect such challenges to continue. Since January 2017, President Trump
has signed two Executive Orders and other directives designed to delay the implementation of certain provisions of the ACA or otherwise circumvent some of
the requirements for health insurance mandated by the ACA. Concurrently, Congress has considered legislation that would repeal or repeal and replace all or
part of the ACA. While Congress has not passed comprehensive repeal legislation, several bills affecting the implementation of certain taxes under the ACA
have been enacted. The Tax Cuts and Jobs Act of 2017 (Tax Act) includes a provision repealing, effective January 1, 2019, the tax-based shared responsibility
payment imposed by the ACA on certain individuals who fail to maintain qualifying health coverage for all or part of a year that is commonly referred to as
the “individual mandate.” In addition, the 2020 federal spending package permanently eliminated, effective January 1, 2020, the ACA-mandated “Cadillac”
tax on high-cost employer-sponsored health coverage and medical device tax and, effective January 1, 2021, also eliminates the health insurer tax. The
Bipartisan Budget Act of 2018, or the BBA, among other things, amended the ACA, effective January 1, 2019, to close the coverage gap in most Medicare
drug plans, and also increases in the percentage that a drug manufacturer must discount the cost of prescription drugs from 50 percent to 70 percent. In
December 2018, CMS published a new final rule permitting further collection and payments to and from certain ACA qualified health plans and health
insurance issuers under the ACA risk adjustment program in response to the outcome of federal district court litigation regarding the method CMS uses to
determine this risk adjustment. On December 14, 2018, a Texas U.S. District Court Judge ruled that ACA is unconstitutional in its entirety because the
“individual mandate” was repealed by Congress as part of the Tax Act. Additionally, on December 18, 2019, the U.S. Court of Appeals for the 5th Circuit
upheld the District Court ruling that the individual mandate was unconstitutional and remanded the case back to the District Court to determine whether the
remaining provisions of the ACA are invalid as well. It is unclear how this decision, future decisions, subsequent appeals, and other efforts to repeal and
replace ACA will impact ACA and our business. Congress also could consider additional legislation to repeal or repeal and replace other elements of the
ACA.
Legislative and regulatory proposals have also been made to expand post-approval requirements and restrict sales and promotional activities for
pharmaceutical products.
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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. At the federal level, the Trump administration’s budget proposal for
fiscal year 2020 contains additional drug price control measures that could be enacted during the 2020 budget process or in other future legislation, including,
for example, measures to permit Medicare Part D plans to negotiate the price of certain drugs under Medicare Part B, to allow some states to negotiate drug
prices under Medicaid and to eliminate cost sharing for generic drugs for low-income patients. Further, the Trump administration released a "Blueprint" to
lower drug prices and reduce out-of-pocket costs of drugs. This "Blueprint" contains additional proposals to increase manufacturer competition, increase the
negotiating power of certain federal healthcare programs, incentivize manufacturers to lower the list price of their products and reduce the out-of-pocket costs
of drug products paid by consumers. The U.S. Department of Health and Human Services (DHHS) has solicited feedback on some of these measures and has
implemented other measures under its existing authority. For example, in May 2019, CMS issued a final rule to allow Medicare Advantage plans the option to
use step therapy for Part B drugs beginning January 1, 2020. This final rule codified CMS's policy change that was effective January 1, 2019. Although a
number of these, and other measures may require additional authorization to become effective, Congress and the Trump administration have each 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. Such reform efforts are likely to continue the pressure on pharmaceutical pricing, especially
under the Medicare program, and may also increase our regulatory burdens and operating costs.
Healthcare reform measures that may be adopted in the future may result in more rigorous coverage criteria, lower reimbursement, and additional downward
pressure on the price that we receive for any future approved product. We cannot predict what healthcare reform initiatives may be adopted in the future.
Risks Related to Our Reliance on Third Parties
We rely on third-party manufacturers to produce our preclinical and clinical drug supplies, and we intend to rely on third parties to produce commercial
supplies of any approved product candidates.
We do not own or operate, and we do not expect to own or operate, facilities for product manufacturing, storage and distribution, or testing with respect to
either DSTAT or BCV. In the past, we have relied on third-party manufacturers for supply of our preclinical and clinical drug supplies. We expect that in the
future we will continue to rely on such manufacturers for drug supply that will be used in clinical trials of both DSTAT and BCV, and for commercialization
of any of our product candidates that receive regulatory approval.
In July 2019, we were assigned Cantex’s rights under a supply agreement with Scientific Protein Laboratories LLC (SPL) pursuant to which SPL will
exclusively produce DSTAT for us through October 2030. We have agreed that SPL will be our exclusive provider of DSTAT bulk drug substance during the
term of the agreement.
Our reliance on third-party manufacturers entails risks, including:
inability to meet our product specifications and quality requirements consistently;
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• manufacturing and product quality issues related to scale-up of manufacturing;
costs and validation of new equipment and facilities required for scale-up;
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inability to negotiate manufacturing agreements with third parties under commercially reasonable terms;
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termination or nonrenewal of manufacturing agreements with third parties in a manner or at a time that is costly or damaging to us;
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reliance on a limited number of sources, and in some cases, single sources for product components, such that if we are unable to secure a
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sufficient supply of these product components, we will be unable to manufacture and sell our product candidates in a timely fashion, in
sufficient quantities or under acceptable terms;
lack of qualified backup suppliers for those components that are currently purchased from a sole or single source supplier;
operations of our third-party manufacturers or suppliers could be disrupted by conditions unrelated to our business or operations, including the
bankruptcy of the manufacturer or supplier;
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carrier disruptions or increased costs that are beyond our control; and
failure to deliver our products under specified storage conditions and in a timely manner.
Any of these events could lead to clinical study delays, failure to obtain regulatory approval or impact our ability to successfully commercialize our products.
Some of these events could be the basis for FDA or equivalent foreign regulator action, including injunction, recall, seizure, or total or partial suspension of
production. As an example, we source a significant number of materials used in the manufacture of our products from China; the severity of the recent
coronavirus outbreak could make access to our existing supply chain difficult or impossible and could materially impact our business.
We rely on limited sources of supply for the drug components for each of DSTAT and BCV, and any disruption in the chain of supply for either of these
product candidates may cause delays in their development and commercialization.
Manufacturing of drug components is subject to certain FDA and comparable foreign qualifications with respect to manufacturing standards. We have
validated the BCV drug substance manufacturing process at our selected contractor that will produce the commercial supply and possible procurement supply
of drug substance. We have selected our BCV commercial and possible procurement tablet and suspension manufacturers to optimize tablet and suspension
formulation production to meet forecasted commercial and procurement demand. There can be no assurance that such transfer to the selected vendors will be
successful. We plan to validate the DSTAT drug substance and drug product processes prior to regulatory approval. It is our expectation that only one supplier
of drug substance and one supplier of drug product will be qualified as vendors for both DSTAT and BCV with the FDA. If supply from an approved vendor
is interrupted, there could be a significant disruption in commercial supply. An alternative vendor would need to be qualified through an NDA supplement
which could result in further delay. The FDA or other regulatory agencies outside of the United States may also require additional studies if a new drug
substance or drug product supplier is relied upon for commercial production.
These factors could cause the delay of clinical trials, regulatory submissions, required approvals or commercialization of DSTAT and BCV, and cause us to
incur additional costs. As an example, we source a significant number of materials used in the manufacture of our products from China; an increase in the
severity of the recent coronavirus outbreak could make access to our existing supply chain difficult or impossible and could materially impact our business. If
our suppliers fail to deliver the required commercial quantities of active pharmaceutical ingredient on a timely basis and at commercially reasonable prices,
and we are unable to secure one or more replacement suppliers capable of production at a substantially equivalent cost, our clinical trials for DSTAT and BCV
may be delayed, which could inhibit our ability to generate revenues.
Manufacturing issues may arise that could increase product and regulatory approval costs or delay commercialization of DSTAT and BCV.
We have a validated process for drug substance and drug product production for BCV.
We plan to validate DSTAT drug substance and drug product processes prior to approval at our selected vendors. It is our expectation that only one supplier of
drug substance and one supplier of drug product will be qualified as vendors for DSTAT with the FDA.
The validation processes, along with ongoing stability studies and analyses we are conducting, may reveal difficulties in our processes which could require
resolution in order to proceed with our planned clinical trials and obtain regulatory approval for the commercial marketing of DSTAT and BCV. In the future,
we may identify significant impurities, which could result in increased scrutiny by the regulatory agencies, delays in clinical program and regulatory approval
for DSTAT and BCV, increases in our operating expenses, or failure to obtain or maintain approval for either DSTAT, BCV or both.
We depend on SymBio for developing and commercializing BCV for human diseases other than orthopoxviruses, including smallpox.
In 2019, we entered into a licensing arrangement with SymBio, whereby SymBio is responsible for the future development and commercialization of BCV.
Under this arrangement, SymBio is responsible for conducting preclinical studies and clinical trials, obtaining required regulatory approvals for BCV in non-
orthopox indications (e.g. smallpox), and manufacturing and commercializing BCV in those indications. Our right to receive milestone payments under the
licensing agreement depends on the achievement of certain development, regulatory and commercial milestones by SymBio and our ability to receive
royalties under the agreement depends on SymBio's successful commercialization of BCV in the licensed indications.
The development and commercialization of the non-orthopox uses of BCV in humans and our ability to receive potential milestones and royalty payments
under the license agreement with SymBio, would be adversely affected if SymBio:
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lacks or does not devote sufficient time and resource to the development and commercialization of BCV;
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lacks or does not devote sufficient capital to fund the development and commercialization of BCV;
develops, either alone or with others, products that compete with BCV;
fails to gain the requisite regulatory approvals for BCV;
does not successfully commercialize BCV;
does not conduct its activities in a timely manner;
terminates its license with us;
does not effectively pursue and enforce intellectual property rights relating to BCV; or
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We have limited or no control over the occurrence of any of the foregoing. Furthermore, disagreements with SymBio could lead to litigation or arbitration,
which could be time-consuming and expensive. If any of these issues arise, it may delay the development and commercialization milestones and royalties
based on further development and sales of BCV.
We rely on third parties to conduct, supervise and monitor our clinical studies and related data, and if those third parties perform in an unsatisfactory
manner, it may harm our business.
We rely on CROs and clinical trial sites to ensure the proper and timely conduct of our clinical trials. While we have agreements governing their activities, we
have limited influence over their actual performance. We have relied and plan to continue to rely upon CROs to monitor and manage data for our ongoing
clinical programs for DSTAT, BCV and any other product candidates, as well as the execution of nonclinical studies. We control only certain aspects of our
CROs’ activities. Nevertheless, we are responsible for ensuring that each of our studies is conducted in accordance with the applicable protocol, legal,
regulatory and scientific standards and our reliance on CROs does not relieve us of our regulatory responsibilities.
We and our CROs are required to comply with the FDA’s guidance for clinical trials conducted within the jurisdiction of the United States (or the foreign
regulatory authority equivalent for clinical trials conducted outside the jurisdiction of the United States), which follows the International Council for
Harmonization Good Clinical Practice (ICH GCP), which are regulations and guidelines enforced by the FDA for all of our product candidates in clinical
development. The FDA enforces the ICH GCP through periodic inspections of trial sponsors, principal investigators and clinical trial sites. If we or our CROs
fail to comply with the ICH GCP, the clinical data generated in our clinical trials may be deemed unreliable and the FDA may require us to perform additional
clinical trials before approving our marketing applications.
Our CROs are not our employees, and we cannot control whether or not they devote sufficient time and resources to our ongoing clinical and nonclinical
programs. These CROs may also have relationships with other commercial entities, including our competitors, for whom they may also be conducting clinical
studies, or other drug development activities which could harm our competitive position. We face the risk of potential unauthorized disclosure or
misappropriation of our intellectual property by CROs, which may reduce our trade secret protection and allow our potential competitors to access and exploit
our proprietary technology.
If our CROs do not successfully carry out their contractual duties or obligations, fail to meet expected deadlines, 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 any 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 DSTAT, BCV or any other
product candidates. Disagreements with our CROs over contractual issues, including performance, compliance or compensation could lead to termination of
CRO agreements and/or delays in our clinical program and risks to the accuracy and usability of clinical data. As a result, our financial results and the
commercial prospects for DSTAT, BCV and any other product candidates that we develop would be harmed, our costs could increase, and our ability to
generate revenues could be delayed.
Risks Related to Commercialization of Our Product Candidates
The commercial success of DSTAT, BCV and any other product candidates will depend upon the acceptance of these products by the medical community,
including physicians, patients, pharmacists and health care payers.
If any of our product candidates, including DSTAT and BCV, receive marketing approval, they may nonetheless not gain sufficient market acceptance by
physicians, patients, healthcare payers and others in the medical community. If these products do not achieve an adequate level of market acceptance, we may
not generate significant product revenues and we may not become profitable. The degree of market acceptance of any of our product candidates, including
DSTAT and BCV, will depend on a number of factors, including:
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demonstration of clinical safety and efficacy in our clinical trials;
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relative convenience, ease of administration and acceptance by physicians, patients, pharmacists and health care payers;
prevalence and severity of any AEs;
limitations or warnings contained in the FDA-approved labeling from Regulatory Authorities such as the FDA and EMA for the relevant
product candidate;
availability, efficacy and safety of alternative treatments;
price and cost-effectiveness;
effectiveness of our or any future collaborators’ or competitor’s sales and marketing strategies;
ability to obtain hospital formulary approval;
ability to ensure availability for product through appropriate channels;
ability to maintain adequate inventory; and
ability to obtain and maintain sufficient third-party coverage and adequate reimbursement, which may vary from country to country.
If we are unable to establish sales and marketing capabilities or enter into agreements with third parties to market and sell our product candidates, we
may be unable to generate any revenue.
We currently do not have an organization for the sales and distribution of pharmaceutical products. The cost of establishing and maintaining such an
organization may exceed the cost-effectiveness of doing so. In order to market any products that may be approved, including DSTAT and BCV, we must
establish our sales, marketing, managerial and other non-technical capabilities or make arrangements with third parties to perform these services. We may
enter into strategic partnerships with third parties to commercialize our product candidates, including BCV.
Our strategy for DSTAT is to establish a specialty sales force and/or collaborate with third parties to promote the product to healthcare professionals and third-
party payers in the United States and elsewhere. We may elect to launch with a contract sales organization and utilize accompanying commercial support
services provided by a contract sales organization. Our future collaboration partners, if any, may not dedicate sufficient resources to the commercialization of
our product candidates or may otherwise fail in their commercialization due to factors beyond our control. If we are unable to establish effective
collaborations to enable the distribution and sale of our product candidates to healthcare professionals and in geographical regions, including the United
States, that are not covered by our own marketing and sales force, or if our potential future collaboration partners do not successfully commercialize our
product candidates, our ability to generate revenues from product sales, including sales of DSTAT, will be adversely affected.
Establishing an internal or contract sales force involves many challenges, including:
recruiting and retaining talented people;
training employees that we recruit;
establishing compliance standards;
setting the appropriate system of incentives;
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ensuring that appropriate support functions are in place to support sales force organizational needs; and
integrating a new business unit into an existing corporate architecture.
If we are unable to establish our own sales force or negotiate a strategic partnership for the commercialization of DSAT and BCV in any markets, we may be
forced to delay the potential commercialization of DSTAT and BCV in those markets, reduce the scope of our sales or marketing activities for DSAT and
BCV in those markets or undertake the commercialization activities for DSTAT and BCV in those markets at our own expense. If we elect to increase our
expenditures to fund commercialization activities ourselves, we will 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 will not be able to bring DSTAT and BCV to market or generate product revenue. Limited or lack of funding
will impede our ability to achieve successful commercialization.
If we are unable to establish adequate sales, marketing and distribution capabilities, whether independently or with third parties, we may not be able to
generate sufficient product revenue and may not become profitable. We will be competing with many companies that currently have extensive and well-
funded marketing and sales operations. Without an internal team or the support of a third party to perform marketing and sales functions, we may be unable to
compete successfully against these more established companies.
In addition, there are risks involved with both establishing our own sales and marketing capabilities and entering into arrangements with third parties to
perform these services. For example, recruiting and training a sales force 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
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marketing 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 sales, marketing and market access personnel.
If we obtain approval to commercialize any products outside of the United States, a variety of risks associated with international operations could
materially adversely affect our business.
If our product candidates are approved for commercialization, we may enter into agreements with third parties to market those product candidates outside the
United States. We expect that we will be subject to additional risks related to entering into international business relationships, including:
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different regulatory requirements for drug approvals in the EU and other foreign countries;
reduced protection for intellectual property rights;
unexpected changes in tariffs, trade barriers and regulatory and labor requirements;
economic weakness, including inflation, or political instability in particular foreign economies and markets;
compliance with tax, employment, immigration and labor laws for employees living or traveling abroad;
foreign taxes, including withholding of payroll taxes;
foreign currency fluctuations, which could result in increased operating expenses and reduced revenues, and other obligations incident to doing
business in another country;
differing payer reimbursement regimes, governmental payers or patient self-pay systems and price controls;
workforce uncertainty in countries where labor unrest is more common than in the United States;
production shortages resulting from any events affecting raw material supply or manufacturing capabilities abroad;
regulatory risks associated with cross-border transportation of animal-sourced material;
business interruptions resulting from geopolitical actions, including war and terrorism, or natural disasters including earthquakes, typhoons,
floods and fires; and
regulatory and compliance risks that relate to maintaining accurate information and control over activities that may fall within the purview of the
U.S. Foreign Corrupt Practices Act, its books and records provisions or its anti‑bribery provisions, or similar anti‑bribery or anti‑corruption laws
and regulations.
We have limited experience in these areas. In addition, there are complex regulatory, tax, labor and other legal requirements imposed by both the EU and
many of the individual countries in Europe with which we will need to comply. Many U.S.-based biopharmaceutical companies have found the process of
marketing their own products outside the United States to be very challenging.
We face competition from other biotechnology and pharmaceutical companies and our operating results will suffer if we fail to compete effectively.
The biotechnology and pharmaceutical industries are intensely competitive. We have competitors both in the United States and internationally, including
major multinational pharmaceutical companies, biotechnology companies and universities and other research institutions.
Many of our competitors have substantially greater financial, technical, commercial and other resources, such as larger research and development staff,
stronger intellectual property portfolios and experienced marketing and manufacturing organizations and established sales forces. Additional mergers and
acquisitions in the biotechnology and pharmaceutical industries may result in even more resources being concentrated in our competitors.
Competition may increase further as a result of advances in the commercial applicability of technologies and greater availability of capital for investment in
these industries. Our competitors may succeed in developing, acquiring or licensing, on an exclusive basis, drug products that are more effective or less costly
than DSTAT and BCV or any other drug candidate that we are currently developing or that we may develop.
We will face competition from other drugs currently approved or that will be approved in the future for the same indications. Therefore, our ability to compete
successfully will depend largely on our ability to:
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discover and develop medicines that are superior to other products in the market;
demonstrate through our clinical trials that our product candidates, including DSTAT and BCV, are differentiated from existing and future
therapies;
attract qualified scientific, product development and commercial personnel;
obtain and successfully defend and enforce patent and/or other proprietary protection for our medicines and technologies;
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obtain required regulatory approvals;
successfully collaborate with pharmaceutical companies in the discovery, development and commercialization of new medicines;
deliver a competitive value proposition compared to established competition and/or competitors who will enter the market before or after any of
our product candidates, including DSTAT and BCV; and
negotiate competitive pricing and reimbursement with third-party payers.
The availability of our competitors’ products could affect the price we are able to charge, for DSTAT, BCV, and any other product candidate we develop. The
inability to compete with existing or subsequently introduced drug products would have a material adverse impact on our business, financial condition and
prospects.
Established pharmaceutical companies may invest heavily to accelerate discovery and development of novel compounds or to in-license novel compounds
that could make our product candidates, including DSTAT and BCV, less competitive. In addition, any new product that competes with an approved product
must demonstrate compelling advantages in efficacy, convenience, tolerability and safety in order to overcome price competition and to be commercially
successful. Accordingly, our competitors may succeed in obtaining patent protection, receiving FDA approval or discovering, developing and
commercializing medicines before we do, which would have a material adverse impact on our business.
We may expend our limited resources to pursue a particular product candidate or indication and fail to capitalize on product candidates or indications
that may be more profitable or for which there is a greater likelihood of success.
The success of our business depends primarily upon our ability to identify, develop and commercialize product candidates. Because we have limited financial
and managerial resources, we focus on research programs and product candidates for specific indications. As a result, we may forego or delay pursuit of
opportunities with other product candidates or other indications that later prove to have greater commercial potential.
Our research programs may initially show promise in identifying potential product candidates, yet fail to yield product candidates for clinical development for
a number of reasons, including:
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our research methodology or that of our collaboration partners may be unsuccessful in identifying potential product candidates;
our potential product candidates may be shown to have harmful side effects or may have other characteristics that may make the products
unmarketable or unlikely to receive marketing approval; and
our collaboration partners may change their development profiles for potential product candidates or abandon a therapeutic area.
If any of these events occur, we may be forced to abandon our development efforts for a program or programs, which would have a material adverse effect on
our business and could potentially cause us to cease operations. Research programs to identify new product candidates require substantial technical, financial
and human resources. We may focus our research efforts and resources on potential programs or product candidates that ultimately prove to be unsuccessful.
If we do not accurately evaluate the commercial potential or target market for a particular product candidate, we may relinquish valuable rights to that product
candidate through collaboration, licensing or other royalty arrangements in cases in which it would have been advantageous for us to retain sole development
and commercialization rights.
Risks Related to Our Intellectual Property
If we are unable to obtain or protect intellectual property rights related to our products and product candidates, we may not be able to compete effectively
in our market.
We rely upon a combination of patents, trade secret protection and confidentiality agreements to protect the intellectual property related to our products and
product candidates. The strength of patents in the biotechnology and pharmaceutical field involves complex legal and scientific questions and can be
uncertain. The patent applications that we own or in-license may fail to result in issued patents with claims that cover the products in the United States or in
other countries. If this were to occur, early generic competition could be expected against DSTAT, BCV, and any other product candidates we may develop.
There is no assurance that all of the potentially relevant prior art relating to our patents and patent applications has been found, which can invalidate a patent
or prevent a patent from issuing based on a pending patent application. Even if patents do successfully issue, third parties may challenge their validity,
enforceability, scope or ownership, which may result in such patents, or our rights to such patents, being narrowed or invalidated.
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Furthermore, even if they are unchallenged, our patents and patent applications may not adequately protect our intellectual property or prevent others from
designing around our claims. If the patent applications we hold or license with respect to DSTAT and BCV fail to issue or if their breadth or strength of
protection is threatened, it could dissuade companies from collaborating with us to develop, and threaten our ability to commercialize, our products. We
cannot offer any assurances about which, if any, patents will issue or whether any issued patents will be found not invalid and not unenforceable, will go
unthreatened by third parties or will adequately protect our products and product candidates. Further, if we encounter delays in regulatory approvals, the
period of time during which we could market DSTAT and BCV under patent protection could be reduced. Since patent applications in the United States and
most other countries are confidential for a period of time after filing, and some remain so until issued, we cannot be certain that we or our licensors were the
first to file any patent application related to DSTAT, BCV or any other product candidates. Furthermore, if third parties have filed such patent applications, an
interference proceeding in the United States can be provoked by a third party or instituted by us to determine who was the first to invent any of the subject
matter covered by the patent claims of our applications. An unfavorable outcome could require us to cease using the related technology or to attempt to
license it from the prevailing party, which may not be possible. In addition to the protection afforded by patents, we rely on trade secret protection and
confidentiality agreements to protect proprietary know-how that is not patentable, processes for which patents are difficult to enforce and other elements of
our drug discovery and development processes that involve proprietary know-how, information or technology that is not covered by patents. Although we
expect all of our employees to assign their inventions to us, and all of our employees, consultants, advisors and any third parties who have access to our
proprietary know-how, information or technology to enter into confidentiality agreements, we cannot provide any assurances that all such agreements have
been duly executed, that such agreements provide adequate protection and will not be breached, that our trade secrets and other confidential proprietary
information will not otherwise be disclosed or that competitors will not otherwise gain access to our trade secrets or independently develop substantially
equivalent information and techniques. If we are unable to prevent material disclosure of the non-patented intellectual property related to our technologies to
third parties, and there is no guarantee that we will have any such enforceable trade secret protection, we may not be able to establish or maintain a
competitive advantage in our market, which could materially adversely affect our business, results of operations and financial condition.
Further, the laws of some foreign countries do not protect patents and other proprietary rights to the same extent or in the same manner as the laws of the
United States. As a result, we may encounter significant problems in protecting and defending our intellectual property abroad. We may also fail to pursue or
obtain patents and other intellectual property protection relating to our products and product candidates in all foreign countries.
Finally, certain of our activities and our licensors’ activities have been funded, and may in the future be funded, by the U.S. federal government. When new
technologies are developed with U.S. federal government funding, the government obtains certain rights in any resulting patents, including a nonexclusive
license authorizing the government to use the invention for non-commercial purposes. These rights may permit the government to disclose our confidential
information to third parties and to exercise “march-in” rights to use or allow third parties to use our patented technology. The government can exercise its
march-in rights if it determines that action is necessary because we fail to achieve practical application of the U.S. government-funded technology, because
action is necessary to alleviate health or safety needs, to meet requirements of federal regulations or to give preference to U.S. industry. In addition, U.S.
government-funded inventions must be reported to the government, U.S. government funding must be disclosed in any resulting patent applications, and our
rights in such inventions may be subject to certain requirements to manufacture products in the United States.
Third-party claims of intellectual property infringement may prevent or delay our development and commercialization efforts or otherwise affect our
business.
Our commercial success depends in part on our avoiding infringement and other violations of the patents and proprietary rights of third parties. There is a
substantial amount of litigation, both within and outside the United States, involving patent and other intellectual property rights in the biotechnology and
pharmaceutical industries, including patent infringement lawsuits, interferences, oppositions and inter party reexamination proceedings before the United
States Patent and Trademark Office (U.S. PTO) and its foreign counterparts. Numerous U.S. and foreign issued patents and pending patent applications,
which are owned by third parties, exist in the fields in which we and our collaborators are developing product candidates. As the biotechnology and
pharmaceutical industries expand and more patents are issued, and as we gain greater visibility and market exposure as a public company, the risk increases
that our product candidates or other business activities may be subject to claims of infringement of the patent and other proprietary rights of third parties.
Third parties may assert that we are employing their proprietary technology without authorization. There may be third-party patents or patent applications
with claims to materials, formulations, methods of manufacture or methods for treatment related to the use or manufacture of DSTAT, BCV and/or any other
product candidates. Because patent applications can take many years to issue, there may be currently pending patent applications which may later result in
issued patents that our product candidates may infringe. In addition, third parties may obtain patents in the future and claim that use of our technologies
infringes upon these patents. If any third-party patents were held by a court of competent jurisdiction to cover the manufacturing process of any of our
product candidates, any molecules formed during the manufacturing process or any final product itself, the holders of any such patents may be able to block
our ability to commercialize such product
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candidate unless we obtained a license under the applicable patents, or until such patents expire.
Similarly, if any third-party patent were held by a court of competent jurisdiction to cover aspects of our formulations, processes for manufacture or methods
of use, including combination therapy, the holders of any such patent may be able to block our ability to develop and commercialize the applicable product
candidate unless we obtained a license or until such patent expires. In either case, such a license may not be available on commercially reasonable terms or at
all. In addition, we may be subject to claims that we are infringing other intellectual property rights, such as trademarks or copyrights, or misappropriating the
trade secrets of others, and to the extent that our employees, consultants or contractors use intellectual property or proprietary information owned by others in
their work for us, disputes may arise as to the rights in related or resulting know-how and inventions.
Parties making claims against us may obtain injunctive or other equitable relief, which could effectively block our ability to further develop and
commercialize one or more of our product candidates. 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. In the event of a successful infringement or other intellectual property claim
against us, we may have to pay substantial damages, including treble damages and attorneys’ fees for willful infringement, obtain one or more licenses from
third parties, pay royalties or redesign our affected products, which may be impossible or require substantial time and monetary expenditure. We cannot
predict whether any such license would be available at all or whether it would be available on commercially reasonable terms. Furthermore, even in the
absence of litigation, we may need to obtain licenses from third parties to advance our research or allow commercialization of our product candidates, and we
have done so from time to time. We may fail to obtain any of these licenses at a reasonable cost or on reasonable terms, if at all. In that event, we would be
unable to further develop and commercialize one or more of our product candidates, which could harm our business significantly. We cannot provide any
assurances that third-party patents do not exist which might be enforced against our products or product candidates, resulting in either an injunction
prohibiting our sales, or, with respect to our sales, an obligation on our part to pay royalties and/or other forms of compensation to third parties.
We may be involved in lawsuits to protect or enforce our patents, the patents of our licensors and licensees or our other intellectual property rights, which
could be expensive, time consuming and unsuccessful.
Competitors may infringe or otherwise violate our patents, the patents of our licensors or our other intellectual property rights. To counter infringement or
unauthorized use, we may be required to file legal claims, which can be expensive and time-consuming. In addition, in an infringement proceeding, a court
may decide that a patent of ours or our licensors is not valid or is unenforceable, or may refuse to stop the other party from using the technology at issue on
the grounds that our patents do not cover the technology in question. An adverse result in any litigation or defense proceedings could put one or more of our
patents at risk of being invalidated or interpreted narrowly and could put our patent applications at risk of not issuing. The initiation of a claim against a third
party may also cause the third party to bring counterclaims against us.
We may not be able to prevent, alone or with our licensors, misappropriation of our intellectual property rights, particularly in countries where the laws may
not protect those rights as fully as in the United States. Our business could be harmed if in a litigation the prevailing party does not offer us a license on
commercially reasonable terms. Any litigation or other proceedings to enforce our intellectual property rights may fail, and even if successful, may result in
substantial costs and distract our management and other employees.
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. 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 our common stock.
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 fees on any issued patent are due to be paid to the U.S. PTO and foreign patent agencies in several stages over the lifetime of the patent.
The U.S. PTO and various foreign governmental patent agencies require compliance with a number of procedural, documentary, fee payment and other
similar provisions during the patent application process.
While an inadvertent lapse can in many 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, but are not limited to, 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
licensors that control the prosecution and maintenance of our licensed patents fail to maintain the patents and patent applications covering our product
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candidates, we may lose our rights and our competitors might be able to enter the market, which would have a material adverse effect on our business.
Risks Related to Our United States Government Contracts and Grants
There can be no assurances that we will be able to enter into a contract with BARDA to act as the sole supplier for the procurement of BCV for the
treatment of smallpox.
In April 2015, BARDA posted a notice of intent to use other than full and open competition to award a sole source contract to us for the procurement of BCV
for the treatment of smallpox. In May 2015, BARDA posted an approved justification for the use of other than full and open competition for the contract. In
July 2015, BARDA issued a RFP entitled “2015 Procurement of a Second Smallpox Antiviral Drug for the Strategic National Stockpile.” In August 2015, we
submitted a response to the RFP and we subsequently engaged in discussions with BARDA regarding our response. The issuance of that RFP did not
culminate with agreement for the sole source supply of BCV for the Strategic National Stockpile (SNS).
We remain in discussions with BARDA regarding the potential to supply BCV to the SNS, however, there can be no assurances that a future RFP for BCV
procurement will be issued.
Furthermore, in the event that BARDA issues an RFP for procurement of a smallpox antiviral therapeutic, there can be no assurance that we would reach
agreement with BARDA on terms related to the manufacture and delivery of BCV to the SNS. Among the material terms to be negotiated and agreed to are:
price, volume, and payment and delivery schedules, as we currently do not have BCV commercial product in inventory that would be available for immediate
delivery.
Unfavorable provisions in government contracts, including our contract with BARDA, may harm our business, financial condition and operating results.
United States government contracts typically contain unfavorable provisions and are subject to audit and modification by the government at its sole
discretion, which will subject us to additional risks. For example, under our contract with BARDA, the U.S. government has the power to unilaterally:
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audit and object to any BARDA contract-related costs and fees on grounds that they are not allowable under the FAR, and require us to
reimburse all such costs and fees;
suspend or prevent us for a set period of time from receiving new contracts or extending our existing contract based on violations or suspected
violations of laws or regulations;
claim nonexclusive, nontransferable rights to product manufactured and intellectual property developed under the BARDA contract and may,
under certain circumstances, such as circumstances involving public health and safety, license such inventions to third parties without our
consent;
cancel, terminate or suspend our BARDA contract based on violations or suspected violations of laws or regulations;
terminate our BARDA contract in whole or in part for the convenience of the government for any reason or no reason, including if funds
become unavailable to the applicable governmental agency;
reduce the scope and value of our BARDA contract;
decline to exercise an option to continue the BARDA contract;
direct the course of a development program in a manner not chosen by the government contractor;
require us to perform the option segments even if doing so may cause us to forego or delay the pursuit of other opportunities with greater
commercial potential;
take actions that result in a longer development timeline than expected; and
change certain terms and conditions in our BARDA contract.
The U.S. government also has the right to terminate the BARDA contract if termination is in the government’s interest, or if we default by failing to perform
in accordance with the milestones set forth in the contract. Termination-for-convenience provisions generally enable us to recover only our costs incurred or
committed (plus a portion of the agreed fee) and settlement expenses on the work completed prior to termination. Except for the amount of services received
by the government, termination-for-default provisions do not permit recovery of fees.
In addition, we must comply with numerous laws and regulations that affect how we conduct business with the United States government. Among the most
significant government contracting regulations that affect our business are:
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FAR, and agency-specific regulations supplements to the FAR, which comprehensively regulate the procurement, formation, administration and
performance of government contracts and implement federal procurement policy in
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numerous areas, such as employment practices, protection of the environment, accuracy and retention periods of records, recording and charging
of costs, treatment of laboratory animals and human subject research;
business ethics and public integrity obligations, which govern conflicts of interest and the hiring of former government employees, restrict the
granting of gratuities and funding of lobbying activities and incorporate other requirements such as the Anti-Kickback Act and the Foreign
Corrupt Practices Act;
export and import control laws and regulations; and
laws, regulations and executive orders restricting the use and dissemination of information classified for national security purposes and the
exportation of certain products and technical data.
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Furthermore, we may be required to enter into agreements and subcontracts with third parties, including suppliers, consultants and other third-party
contractors, in order to satisfy our contractual obligations pursuant to our agreements with the U.S. government. Negotiating and entering into such
arrangements can be time-consuming and we may not be able to reach agreement with such third parties. Any such agreement must also be compliant with
the terms of our government contract. Any delay or inability to enter into such arrangements or entering into such arrangements in a manner that is non-
compliant with the terms of our contract, may result in violations of our contract.
As a result of these unfavorable provisions, we must undertake significant compliance activities. The diversion of resources from commercial programs to
these compliance activities, as well as the exercise by the U.S. government of any rights under these provisions, could materially harm our business.
Our business is subject to audit by the U.S. government, including under our contract with BARDA, and a negative audit could adversely affect our
business.
United States government agencies, such as the DHHS, routinely audit and investigate government contractors and recipients of federal grants, including our
contract with BARDA. These agencies review a contractor’s performance under its contracts, cost structure and compliance with applicable laws, regulations
and standards.
The DHHS can also review the adequacy of, and a contractor’s compliance with, its internal control systems and policies, including the contractor’s
purchasing, property, estimating, compensation and management information systems. Any costs found to be improperly allocated to a specific contract will
not be reimbursed, while such costs already reimbursed must be refunded. If an audit uncovers improper or illegal activities, we may be subject to civil and
criminal penalties and administrative sanctions, including:
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termination of contracts;
forfeiture of profits;
suspension of payments;
fines; and
suspension or prohibition from conducting business with the U.S. government.
In addition, we could suffer serious reputational harm if allegations of impropriety were made against us by the U.S. government, which could adversely
affect our business.
Agreements with government agencies may lead to claims against us under the Federal False Claims Act, and these claims could result in substantial
fines and other penalties.
The biopharmaceutical industry is, and in recent years has been, under heightened scrutiny as the subject of government investigations and enforcement
actions. Our BARDA contract is subject to substantial financial penalties under the Federal Civil Monetary Penalties Act and the False Claims Act. The False
Claims Act imposes liability on any person who, among other things, knowingly presents, or causes to be presented, a false record or statement material to a
false or fraudulent claim paid or approved by the government. Under the False Claims Act’s “whistleblower” provisions, private enforcement of fraud claims
against businesses on behalf of the U.S. government has increased due in part to amendments to the False Claims Act that encourage private individuals to
sue on behalf of the government. These whistleblower suits, known as qui tam actions, may be filed by private individuals, including present and former
employees. The False Claims Act provides for treble damages and significant civil monetary penalties per false claim. If our operations are found to be in
violation of any of these laws, or any other governmental regulations that apply to us, we may be subject to penalties, including civil, criminal and
administrative penalties, damages, fines, exclusion from the Medicare and Medicaid programs, and the curtailment or restructuring of our operations. Any
penalties, damages, fines, exclusions, curtailment, or restructuring of our operations could adversely affect our ability to operate our business and our
financial results.
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We may not realize the expected benefits of our cost-saving initiatives.
Risks Related to Our Business Operations and Industry
As a consequence of terminating development activities related to the oral and IV programs for BCV, in 2019 we initiated a reduction to our workforce across
our entire organization that resulted in a remaining workforce of approximately 40 full-time employees. The principal objective of the reduction in workforce
was to enable us to focus our financial resources on the continued development of BCV for smallpox and the evaluation of external opportunities to build our
pipeline of product candidates, including our recently completed transaction with Cantex described above.
In connection with the reduction in workforce that took place in 2019, we recorded an aggregate charge related to one-time termination benefits of
approximately $3.3 million in 2019. If we experience excessive unanticipated inefficiencies or incremental costs in connection with restructuring activities,
such as unanticipated inefficiencies caused by reducing headcount, we may be unable to meaningfully realize cost savings and we may incur expenses in
excess of what we anticipate. Either of these outcomes could prevent us from meeting our strategic objectives and could adversely impact our results of
operations and financial condition.
Increasing demand for compassionate use of our unapproved therapies could result in losses.
Recent media attention to individual patients' expanded access requests has resulted in the introduction of legislation at the local and national level referred to
as "Right to Try" laws, such as the Right to Try Act, which are intended to give patients access to unapproved therapies. New and emerging legislation
regarding expanded access to unapproved drugs for life-threatening illnesses could negatively impact our business in the future. In addition, during 2014, we
were the target of an active and disruptive social media campaign related to a request for access to BCV. If we experience similar social media campaigns in
the future, we may experience significant disruption to our business which could result in losses.
A possible consequence of both activism and legislation in this area is the need for us to initiate an unanticipated expanded access program or to make DSTAT
or BCV more widely available sooner than anticipated. We are a small company with limited resources and unanticipated trials or access programs could
result in diversion of resources from our primary goals.
In addition, patients who receive access to unapproved drugs through compassionate use or expanded access programs have life-threatening illnesses and
have exhausted all other available therapies. The risk for serious adverse events in this patient population is high which could have a negative impact on the
safety profile of DSTAT and BCV, which could cause significant delays or an inability to successfully commercialize DSTAT and BCV, which could
materially harm our business. We may also need to restructure or pause ongoing compassionate use and/or expanded access programs in order to perform the
controlled clinical trials required for regulatory approval and successful commercialization of DSTAT and BCV, which could prompt adverse publicity or
other disruptions related to current or potential participants in such programs. The BCV compassionate use program is expected to end in mid-2020 when this
current clinical supply is no longer available.
If we fail to comply with the extensive legal and regulatory requirements affecting the health care industry, we could face increased costs, delays in the
development of our product candidates, penalties and a loss of business.
Our activities, and the activities of our collaborators, partners and third-party providers, are subject to extensive government regulation and oversight both in
the United States and in foreign jurisdictions. The FDA and comparable agencies in other jurisdictions directly regulate many of our most critical business
activities, including the conduct of preclinical and clinical studies, product manufacturing, advertising and promotion, product distribution, adverse event
reporting and product risk management. States increasingly have been placing greater restrictions on the marketing practices of healthcare companies. In
addition, pharmaceutical and biotechnology companies have been the target of lawsuits and investigations alleging violations of government regulations,
including claims asserting submission of incorrect pricing information, impermissible off-label promotion of pharmaceutical products, payments intended to
influence the referral of federal or state healthcare business, submission of false claims for government reimbursement, antitrust violations, violations of the
Foreign Corrupt Practices Act, or violations related to environmental matters. Violations of governmental regulation may be punishable by criminal, civil and
administrative sanctions, including fines and civil monetary penalties and exclusion from participation in government programs, including Medicare and
Medicaid. In addition to penalties for violation of laws and regulations, we could be required to delay or terminate the development of our product candidates,
or we could be required to repay amounts we received from government payers, or pay additional rebates and interest if we are found to have miscalculated
the pricing information we have submitted to the government. Whether or not we have complied with the law, an investigation into alleged unlawful conduct
could increase our expenses, damage our reputation, divert management time and attention and adversely affect our business.
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Our future success depends on our ability to retain key executives and to attract, retain and motivate qualified personnel.
We are highly dependent on the principal members of our executive team. While we have entered into employment agreements or offer letters with each of
our executive officers, any of them could leave our employment at any time, as all of our employees are “at will” employees. To help attract, retain, and
motivate qualified employees, we use share-based incentive awards such as employee stock options and restricted stock units. Due to the decline in our stock
price that has occurred since December 2015, a large percentage of the options held by our employees are underwater. As of December 31, 2019,
approximately 99% of all outstanding options had an exercise price above the closing price of the stock on that date. As a result, the current situation provides
a considerable challenge to maintaining employee motivation, as well as creating a serious threat to retention until a recovery commences. If our share-based
compensation ceases to be viewed as a valuable benefit, our ability to attract, retain, and motivate employees could be weakened, which could harm our
results of operations.
We do not maintain “key person” insurance for any of our executives or other employees. Recruiting and retaining other qualified employees for our business,
including scientific and technical personnel, will also be critical to our success. There is currently a shortage of appropriately skilled executives in our
industry, which is likely to continue. We also experience competition for the hiring of scientific and clinical personnel from universities and research
institutions. As a result, competition for skilled personnel is intense and the turnover rate can be high. We may not be able to attract and retain personnel on
acceptable terms given the competition among numerous pharmaceutical and biotechnology companies for similar personnel. In addition, failure of any of our
clinical studies may make it more challenging to recruit and retain qualified personnel. The inability to recruit or loss of the services of any executive or key
employee may adversely affect the progress of our research, development and commercialization objectives.
In addition, we rely on consultants and advisors, including scientific and clinical advisors, to assist us in formulating our research and development and
commercialization strategy. Our consultants and advisors may be employed by employers other than us and may have commitments under consulting or
advisory contracts with other entities that may limit their availability to us, which could also adversely affect the progress of our research, development and
commercialization objectives.
Potential product liability lawsuits against us could cause us to incur substantial liabilities and to limit commercialization of any products that we may
develop.
The use of our product candidates, including DSTAT and BCV, in clinical studies and the sale of any products for which we obtain marketing approval
exposes us to the risk of product liability claims. Product liability claims might be brought against us by consumers, health care providers, pharmaceutical
companies or others selling or otherwise coming into contact with our products. On occasion, large judgments have been awarded in class action lawsuits
based on drugs that had unanticipated adverse effects. If we cannot successfully defend against product liability claims, we could incur substantial liability
and costs. In addition, regardless of merit or eventual outcome, product liability claims may result in:
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impairment of our business reputation and significant negative media attention;
withdrawal of participants from our clinical studies;
significant costs to defend the related litigation;
distraction of management’s attention from our primary business;
substantial monetary awards to patients or other claimants;
inability to commercialize our product candidates, including DSTAT and BCV; and
decreased demand for our product candidates, if approved for commercial sale.
We currently carry $15 million in product liability insurance covering our clinical trials. Our current product liability insurance coverage may not be sufficient
to reimburse us for any expenses or losses we may suffer. Moreover, insurance coverage is becoming increasingly expensive and in the future we may not be
able to maintain insurance coverage at a reasonable cost or in sufficient amounts to protect us against losses due to liability. If and when we obtain marketing
approval for our product candidates, we intend to expand our insurance coverage to include the sale of commercial products; however, we may be unable to
obtain product liability insurance on commercially reasonable terms or in adequate amounts. A successful product liability claim or series of claims brought
against us could cause our stock price to decline and, if judgments exceed our insurance coverage, could adversely affect our results of operations and
business.
Legal, political and economic uncertainty surrounding the exit of the United Kingdom, from the European Union may be a source of instability in
international markets, create significant currency fluctuations, adversely affect our operations and pose additional risks to our business, revenue,
financial condition, and results of operations.
Following the result of a referendum in 2016, the United Kingdom left the European Union on January 31, 2020, commonly referred to as Brexit. Pursuant to
the formal withdrawal arrangements agreed between the United Kingdom and the European
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Union, the United Kingdom will be subject to the Transition Period until December 31, 2020 during which European Union rules will continue to apply.
Negotiations between the United Kingdom and the European Union are expected to continue in relation to the customs and trading relationship between the
United Kingdom and the European Union following the expiry of the Transition Period.
The lack of clarity over which EU laws and regulations will continue to be implemented in the United Kingdom after the Transition Period (including
financial laws and regulations, tax and free trade agreements, intellectual property rights, data protection laws, supply chain logistics, environmental, health
and safety laws and regulations, immigration laws and employment laws) may negatively impact foreign direct investment in the United Kingdom, increase
costs, depress economic activity and restrict access to capital.
The uncertainty concerning the United Kingdom’s legal, political and economic relationship with the European Union after the Transition Period may be a
source of instability in the international markets, create significant currency fluctuations, and/or otherwise adversely affect trading agreements or similar
cross-border co-operation arrangements (whether economic, tax, fiscal, legal, regulatory or otherwise).
These developments, or the perception that any of them could occur, have had, and may continue to have, a significant adverse effect on global economic
conditions and the stability of global financial markets, and could significantly reduce global market liquidity and limit the ability of key market participants
to operate in certain financial markets. In particular, it could also lead to a period of considerable uncertainty in relation to the United Kingdom’s financial
and banking markets, as well as on the regulatory process in Europe. Asset valuations, currency exchange rates and credit ratings may also be subject to
increased market volatility.
If the United Kingdom and the European Union are unable to negotiate acceptable withdrawal terms or if other EU Member States pursue withdrawal,
barrier-free access between the United Kingdom and other EU Member States or among the European Economic Area, or EEA, overall could be diminished
or eliminated. The long-term effects of Brexit will depend on any agreements (or lack thereof) between the United Kingdom and the European Union and, in
particular, any arrangements for the United Kingdom to retain access to EU markets after the Transition Period.
Such a withdrawal from the European Union is unprecedented, and it is unclear how the United Kingdom’s access to the European single market for goods,
capital, services and labor within the European Union, or single market, and the wider commercial, legal and regulatory environment, will impact us.
Risks Related To Our Common Stock
The market price of our common stock is likely to be volatile, and you may not be able to resell your shares at or above your purchase price.
The trading price of our common stock has been volatile, and is likely to continue to be volatile for the foreseeable future. Our stock price is subject to wide
fluctuations in response to a variety of factors, including the following:
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results of clinical trials of our product candidates or those of our competitors;
any delay in filing an application for any of our product candidates and any adverse development or perceived adverse development with respect
to regulatory review of that application;
failure to successfully develop and commercialize our product candidates, including DSTAT and BCV;
termination of any of our license or collaboration agreements;
any agency or judicial enforcement actions against us;
inability to obtain additional funding;
regulatory or legal developments in the United States and other countries applicable to our product candidates;
adverse regulatory decisions;
changes in the structure of healthcare payment systems;
inability to obtain adequate product supply for our product candidates, or the inability to do so at acceptable prices;
introduction of new products, services or technologies by our competitors;
failure to meet or exceed financial projections we provide to the public;
failure to meet or exceed the estimates and projections of the investment community;
changes in the market valuations of similar companies;
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• market conditions in the pharmaceutical and biotechnology sectors, and the issuance of new or changed securities analysts’ reports or
recommendations;
announcements of significant acquisitions, strategic partnerships, joint ventures or capital commitments by us or our competitors;
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significant lawsuits (including patent or stockholder litigation), and disputes or other developments relating to proprietary rights (including
patents, litigation matters and our ability to obtain patent protection for our technologies);
additions or departures of key scientific or management personnel;
sales of our common stock by us or our stockholders in the future;
trading volume of our common stock;
general economic, industry and market conditions; and
the other factors described in this “Risk Factors” section.
In addition, the stock market in general, and The Nasdaq Global Market in particular, have experienced extreme price and volume fluctuations that have often
been unrelated or disproportionate to the operating performance of these companies. Broad market and industry factors may negatively affect the market price
of our common stock, regardless of our actual operating performance.
Our principal stockholders and management own a significant percentage of our stock and will be able to exert significant control over matters subject to
stockholder approval.
Based upon shares of common stock outstanding as of December 31, 2019, our then executive officers, directors, 5% stockholders (known to us through
available information) and their affiliates beneficially owned approximately 29% of our voting stock. Therefore, these stockholders have the ability to
substantially influence us through this ownership position. For example, these stockholders, if they choose to act together, may be able to influence the
election of directors, amendments of our organizational documents, or approval of any merger, sale of assets, or other major corporate transaction. This
concentration of voting power could delay or prevent an acquisition of our company on terms that other stockholders may desire.
Failure to establish and maintain adequate finance infrastructure and accounting systems and controls could impair our ability to comply with the
financial reporting and internal controls requirements for publicly traded companies.
As a public company, we operate in an increasingly demanding regulatory environment, which requires us to comply with the Sarbanes-Oxley Act of 2002,
and the related rules and regulations of the Securities and Exchange Commission, expanded disclosure requirements, accelerated reporting requirements and
more complex accounting rules. Company responsibilities required by the Sarbanes-Oxley Act include establishing and maintaining corporate oversight and
adequate internal control over financial reporting and disclosure controls and procedures. Effective internal controls are necessary for us to produce reliable
financial reports and are important to help prevent financial fraud.
Our compliance with Section 404 of the Sarbanes-Oxley Act has required and will continue to require that we incur substantial accounting expense and
expend significant management efforts. In this or future years, our testing, or the subsequent testing by our independent registered public accounting firm,
may reveal deficiencies in our internal controls that we would be required to remediate in a timely manner so as to be able to comply with the requirements of
Section 404 of the Sarbanes-Oxley Act each year. If we are not able to comply with the requirements of Section 404 of the Sarbanes-Oxley Act in a timely
manner each year, we could be subject to sanctions or investigations by the Securities and Exchange Commission, The Nasdaq Stock Market or other
regulatory authorities which would require additional financial and management resources and could adversely affect the market price of our common stock.
Furthermore, if we cannot provide reliable financial reports or prevent fraud, our business and results of operations could be harmed and investors could lose
confidence in our reported financial information.
Future sales and issuances of our common stock or rights to purchase common stock, including pursuant to our equity incentive plans, could result in
additional dilution of the percentage ownership of our stockholders and could cause our stock price to fall.
We expect that significant additional capital will be needed in the future to continue our planned operations. To the extent we raise additional capital by
issuing equity securities, our stockholders may experience substantial dilution. We may sell common stock, convertible securities or other equity securities in
one or more transactions at prices and in a manner we determine from time to time. If we sell common stock, convertible securities or other equity securities
in more than one transaction, investors may be materially diluted by subsequent sales. Such sales may also result in material dilution to our existing
stockholders, and new investors could gain rights superior to our existing stockholders.
In July 2019, we entered into a license agreement with Cantex where we acquired an exclusive license to global development and commercialization rights to
DSTAT. As partial consideration for our rights under the license agreement, we issued to Cantex 10,000,000 shares of our common stock. We are continuing
to review additional potential transactions to add to our pipeline of product candidates, and these transactions could involve the issuance of additional shares
of common stock or other equity securities.
Pursuant to our 2013 Equity Incentive Plan (the 2013 Plan), our management is authorized to grant stock options to our employees, directors and consultants.
The number of shares available for future grant under our 2013 Plan will automatically increase on
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January 1st each year, through January 1, 2023, by an amount equal to 4.0% of all shares of our capital stock outstanding as of December 31st of the
preceding calendar year, subject to the ability of our board of directors to take action to reduce the size of such increase in any given year. In addition, our
board of directors may grant or provide for the grant of rights to purchase shares of our common stock pursuant to the terms of our 2013 Employee Stock
Purchase Plan (ESPP). The number of shares of our common stock reserved for issuance under our ESPP will automatically increase on January 1st each
year, through January 1, 2023, by an amount equal to the lesser of 422,535 shares or one percent of all shares of our capital stock outstanding as of December
31st of the preceding calendar year, subject to the ability of our board of directors to take action to reduce the size of such increase in any given year. Unless
our board of directors elects not to increase the number of shares underlying our 2013 Plan and ESPP each year, our stockholders may experience additional
dilution, which could cause our stock price to fall.
We have broad discretion in the use of the net proceeds from our financing transactions and may not use them effectively.
Our management has broad discretion in the application of the net proceeds from our financing transactions. Because of the number and variability of factors
that will determine our use of the net proceeds from our financing transactions, their ultimate use may vary substantially from their currently intended use.
The failure by our management to apply these funds effectively could result in financial losses that could have a material adverse effect on our business, cause
the price of our common stock to decline and delay the development of our product candidates. Pending their use, we have invested the net proceeds from our
financing transactions in short-term, investment-grade, interest-bearing securities. These investments may not yield a favorable return to our stockholders.
Volatility in our stock price could subject us to securities class action litigation.
In the past, securities class action litigation has often been brought against a company following a decline in the market price of its securities. This risk is
especially relevant for us because pharmaceutical companies have experienced significant stock price volatility in recent years. If we face such litigation, it
could result in substantial costs and a diversion of management’s attention and resources, which could harm our business.
Comprehensive tax reform could adversely affect our business and financial condition.
On December 22, 2017, President Trump signed into law the Tax Act which significantly revises the Internal Revenue Code of 1986, as amended. The Tax
Act, among other things, contains significant changes to corporate taxation, including reduction of the corporate tax rate from a top marginal rate of 35% to a
flat rate of 21%, limitation of the tax deduction for interest expense to 30% of adjusted earnings (except for certain small businesses), limitation of the
deduction for net operating losses generated in taxable years beginning after December 31, 2017, to 80% of current year taxable income, elimination of most
carrybacks of net operating losses arising in taxable years ending after December 31, 2017, one time taxation of offshore earnings at reduced rates regardless
of whether they are repatriated, elimination of U.S. tax on foreign earnings (subject to certain important exceptions), immediate deductions for certain new
investments instead of deductions for depreciation expense over time, and modifying or repealing many business deductions and credits. Notwithstanding the
reduction in the corporate income tax rate, the overall impact of the Tax Act is uncertain and our business and financial condition could be adversely
affected. In addition, it is uncertain if and to what extent various states will conform to the Tax Act. The impact of this tax reform on holders of our common
stock is also uncertain and could be adverse. We urge our stockholders to consult with their legal and tax advisors with respect to this legislation and the
potential tax consequences of investing in or holding our common stock.
Our effective tax rate may fluctuate, and we may incur obligations in tax jurisdictions in excess of accrued amounts.
Our effective tax rate is derived from a combination of applicable tax rates in the various places that we operate. In preparing our financial statements, we
estimate the amount of tax that will become payable in each of such places. Nevertheless, our effective tax rate may be different than experienced in the past
due to numerous factors, including passage of the Tax Act, the results of examinations and audits of our tax filings, our inability to secure or sustain
acceptable agreements with tax authorities, changes in accounting for income taxes and changes in tax laws. Any of these factors could cause us to experience
an effective tax rate significantly different from previous periods or our current expectations and may result in tax obligations in excess of amounts accrued in
our financial statements.
Our ability to use our net operating loss carryforwards and certain other tax attributes may be limited.
Our U.S. net operating loss, or NOL, carryforwards generated in tax years ending on or prior to December 31, 2017, are only permitted to be carried forward
for 20 years under applicable U.S. tax law. Under the Tax Act, our federal NOLs generated in tax years ending after December 31, 2017, may be carried
forward indefinitely, but the deductibility of such federal NOLs generated in tax years beginning after December 31, 2017, is limited. It is uncertain if and to
what extent various states will conform to the Tax Act. In addition, under Sections 382 and 383 of the Internal Revenue Code of 1986, as amended, and
corresponding provisions
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of state law, if a corporation undergoes an “ownership change,” which is generally defined as a greater than 50% change, by value, in its equity ownership
over a three-year period, the corporation’s ability to use its pre-change NOL carryforwards and other pre-change U.S. tax attributes (such as research tax
credits) to offset its post-change income or taxes may be limited. We have determined that a Section 382 ownership change occurred in 2002 and 2007
resulting in limitations of at least $64,000 and $762,000, respectively, of losses incurred prior to the respective ownership change dates. In addition, we have
determined that another Section 382 ownership change occurred in 2013 with our IPO, our most recent private placement and other transactions that have
occurred since 2007, resulting in a limitation of at least $6.7 million of losses incurred prior to the ownership change date. We may also experience ownership
changes in the future as a result of subsequent shifts in our stock ownership. As a result, our pre-2018 NOL carryforwards may expire prior to being used, and
our NOL carryforwards generated in 2018 and thereafter will be subject to a percentage limitation. In addition, it is possible that we have in the past
undergone, and in the future may undergo, additional ownership changes that could limit our ability to use all of our pre-change NOLs and other pre-change
tax attributes (such as research tax credits) to offset our post-change income or taxes. Similar provisions of state tax law may also apply to limit our use of
accumulated state tax attributes. In addition, at the state level, there may be periods during which the use of NOLs is suspended or otherwise limited, which
could accelerate or permanently increase state taxes owed. As a result, we may be unable to use all or a material portion of our NOLs and other tax attributes.
Because we do not anticipate paying any cash dividends on our common stock in the foreseeable future, capital appreciation, if any, would be your sole
source of gain.
We have never declared or paid any cash dividends on our common stock. We currently anticipate that we will retain any 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. As a result, capital
appreciation, if any, of our common stock would be your sole source of gain on an investment in our common stock for the foreseeable future.
Provisions in our corporate charter documents and under Delaware law could make it more difficult for a third party to acquire us or increase the cost of
acquiring us, even if doing so would benefit our stockholders and may prevent attempts by our stockholders to replace or remove our current
management.
Some provisions of our charter documents and Delaware law may have anti-takeover effects that could discourage an acquisition of us by others, even if an
acquisition would be beneficial to our stockholders and may prevent attempts by our stockholders to replace or remove our current management. These
provisions include:
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authorizing the issuance of “blank check” preferred stock, the terms of which may be established and shares of which may be issued without
stockholder approval which could be used to institute a “poison pill” that would work to dilute the stock ownership of a potential hostile
acquirer, effectively preventing acquisitions that have not been approved by our board of directors;
allowing the authorized number of our directors to be changed only by resolution of our board of directors;
limiting the removal of directors;
creating a staggered board of directors;
requiring that stockholder actions must be effected at a duly called stockholder meeting and prohibiting stockholder actions by written consent;
eliminating the ability of stockholders to call a special meeting of stockholders; and
establishing advance notice requirements for nominations for election to the board of directors or for proposing matters that can be acted upon at
duly called stockholder meetings.
The amendment of any of these provisions, with the exception of the ability of our board of directors to issue shares of preferred stock and designate any
rights, preferences and privileges thereto, would require the affirmative vote of the holders of at least 66 2/3 percent of the voting power of all of our then
outstanding common stock.
These provisions may frustrate or prevent any attempts by our stockholders to replace or remove our current management by making it more difficult for
stockholders to replace members of our board of directors, which is responsible for appointing the members of our management. In addition, we are subject to
Section 203 of the Delaware General Corporation Law, which generally prohibits a Delaware corporation from engaging in any of a broad range of business
combinations with an interested stockholder for a period of three years following the date on which the stockholder became an interested stockholder, unless
such transactions are approved by our board of directors. This provision could have the effect of delaying or preventing a change of control, whether or not it
is desired by or beneficial to our stockholders. Further, other provisions of Delaware law may also discourage, delay or prevent someone from acquiring us or
merging with us.
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Risks Related to Information Technology
Significant disruptions of information technology systems or breaches of data security could adversely affect our business.
Our business is increasingly dependent on critical, complex, and interdependent information technology (IT) systems, including Internet-based systems, to
support business processes as well as internal and external communications. The size and complexity of our IT systems make us potentially vulnerable to IT
system breakdowns, malicious intrusion, and computer viruses, which may result in the impairment of our ability to operate our business effectively.
In addition, our systems are potentially vulnerable to data security breaches-whether by employees or others-which may expose sensitive data to unauthorized
persons. Such data security breaches could lead to the loss of trade secrets or other intellectual property, or could lead to the public exposure of personal
information (including sensitive personal information) of our employees, clinical trial patients, customers, business partners and others.
Any such disruption or security breach could result in legal proceedings, liability under laws that protect the privacy of personal information, regulatory
penalties, disruptions to our operations and collaborations, and damage to our reputation, which could harm our business and results of operations.
Increasing use of social media could give rise to liability, breaches of data security, or reputational damage.
We and our employees are increasingly utilizing social media tools as a means of communication both internally and externally. Despite our efforts to monitor
evolving social media communication guidelines and comply with applicable rules, there is risk that the use of social media by us or our employees to
communicate about our products or business may cause us to be found in violation of applicable laws and regulations. In addition, our employees may
knowingly or inadvertently make use of social media in ways that may not comply with our social media policy or other legal or contractual requirements,
which may give rise to liability, lead to the loss of trade secrets or other intellectual property, or result in public exposure of personal information of our
employees, clinical trial patients, customers, and others. Furthermore, negative posts or comments about us or our products in social media could seriously
damage our reputation, brand image, and goodwill.
ITEM 1B. UNRESOLVED STAFF COMMENTS
None.
ITEM 2. PROPERTIES
Our corporate headquarters are located at 2505 Meridian Parkway, Suite 100, Durham, North Carolina 27713 in a facility we lease encompassing
approximately 24,862 square feet of office space. The leases for this facility expire in February 2021.We separately lease laboratory space in Durham, North
Carolina, encompassing a total of approximately 7,925 square feet. The lease for this laboratory space in Durham expires in July 2021.
We believe that our property and equipment are generally well maintained and in good operating condition.
ITEM 3. LEGAL PROCEEDINGS
None.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
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PART II
ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF
EQUITY SECURITIES
Stock Performance Graph(1)
The following graph shows a comparison from December 31, 2013 through December 31, 2019 of the cumulative total return for our common stock, the
Nasdaq Biotechnology Index (NBI) and the Nasdaq Composite Index (CCMP). The graph assumes an initial investment of $100 on December 31, 2013. The
comparisons in the graph below are based upon historical data and are not intended to forecast or be indicative of possible future performance of our common
stock or Indexes.
Comparison of Cumulative Total Return*
Among Chimerix, Inc., the Nasdaq Biotechnology Index and the Nasdaq Composite Index
(1) This section is not “soliciting material,” is not deemed “filed” with the SEC and is not to be incorporated by reference in any of our filings under the
Securities Act or the Exchange Act whether made before or after the date hereof and irrespective of any general incorporation language in any such filing.
* Assuming the investment of $100 on 12/31/2013 (and the reinvestment of dividends thereafter) in each of (i) Chimerix, Inc.’s common stock, (ii) the
Nasdaq Biotechnology Index and (iii) the Nasdaq Composite Index.
Stockholders
As of February 21, 2020, there were 33 stockholders of record of our common stock, which excludes stockholders whose shares were held in nominee or
street name by brokers. The actual number of common stockholders is greater than the number of record holders, and includes stockholders who are
beneficial owners, but whose shares are held in street name by brokers and other nominees. This number of holders of record also does not include
stockholders whose shares may be held in trust by other entities.
Dividend Policy
We have never declared or paid any cash dividends on our common stock. We currently intend to retain all available funds and any future earnings to support
our operations and finance the growth and development of our business. We do not intend to pay cash dividends on our common stock for the foreseeable
future. Any future determination related to our dividend policy will be made at the discretion of our board of directors and will depend upon, among other
factors, our results of operations, financial condition, capital requirements, contractual restrictions, business prospects and other factors our board of directors
may deem relevant.
Recent Sales of Unregistered Securities
None.
47
Securities Authorized for Issuance Under Equity Compensation Plans
Information about our equity compensation plans is incorporated herein by reference to Item 12 of Part III of this Annual Report.
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
We did not purchase any of our securities during the period covered by this Annual Report.
ITEM 6. SELECTED FINANCIAL DATA
The following selected consolidated financial data should be read together with our consolidated financial statements and related notes and “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” appearing elsewhere in this Annual Report. The selected financial data in this
section are not intended to replace our consolidated financial statements and the related notes. Our historical results are not necessarily indicative of the
results that may be expected in the future.
We derived the following selected Consolidated Statement of Operations and Comprehensive Loss Data for the years ended December 31, 2019, 2018, and
2017 and the selected Consolidated Balance Sheet Data as of December 31, 2019 and 2018 from our audited consolidated financial statements and related
notes appearing elsewhere in this Annual Report (in thousands, except share and per share data).
Consolidated Statement of Operations and Comprehensive
Loss Data
2019
2018
2017
2016
2015
Years Ended December 31,
Revenues:
Contract revenue
Collaboration and licensing revenue
Total revenues
Operating expenses:
Research and development
General and administrative
Acquired in-process research and development
Total operating expenses
Loss from operations
Other (expense) income:
Interest income and other, net
Net loss
Net loss per share, basic and diluted
$
7,604 $
7,216 $
4,494 $
5,702 $
4,915
12,519
42,288
21,169
65,045
128,502
(115,983)
—
7,216
55,239
23,582
—
78,821
(71,605)
—
4,494
49,448
27,148
—
76,596
(72,102)
—
5,702
58,647
25,007
—
83,654
(77,952)
9,214
1,548
10,762
97,717
31,296
—
129,013
(118,251)
3,407
2,131
1,118
1,562
879
$
$
(112,576) $
(69,474) $
(70,984) $
(76,390) $
(117,372)
(2.03) $
(1.43) $
(1.51) $
(1.65) $
(2.67)
Weighted-average shares outstanding, basic and diluted
55,501,973
48,593,435
46,963,430
46,267,064
43,878,326
Consolidated Balance Sheet Data
Cash and cash equivalents
Short-term investments, available-for-sale (1)
Working capital
Long-term investments (1)
Total assets
Accumulated deficit
Years Ended December 31,
2019
2018
2017
2016
2015
$
16,901 $
81,106 $
18,548 $
51,463 $
96,574
108,865
—
105,424
176,492
—
119,376
190,714
132,972
143,337
76,731
235,230
180,558
226,360
47,407
286,770
20,605
199,729
208,658
124,040
355,992
(668,838)
(556,262)
(486,788)
(415,804)
(339,414)
Total stockholders’ equity (deficit)
$
109,952 $
177,604 $
221,810 $
276,224 $
335,459
(1)
Further details of investments is available in "Notes to Consolidated Financial Statements, Note 1. Fair Value of Financial Instruments" in Item 8 of
this Annual Report.
48
ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction with “Selected Financial Data” and our financial statements and related notes included
elsewhere in this Annual Report. This discussion and analysis and other parts of this Annual Report contain forward-looking statements based upon current
beliefs, plans and expectations that involve risks, uncertainties and assumptions, such as statements regarding our plans, objectives, expectations, intentions
and projections. Our actual results and the timing of selected events could differ materially from those anticipated in these forward-looking statements as a
result of several factors, including those set forth under “Risk Factors” and elsewhere in this Annual Report. You should carefully read the “Risk Factors”
section of this Annual Report to gain an understanding of the important factors that could cause actual results to differ materially from our forward-looking
statements. Please also see the section entitled “Forward-Looking Statements.”
Overview
Chimerix is a development-stage biopharmaceutical company dedicated to accelerating the advancement of innovative medicines that make a meaningful
impact in the lives of patients living with cancer and other serious diseases. The two clinical-stage development programs are dociparstat sodium (DSTAT)
and brincidofovir (BCV).
Dociparstat sodium is a potential first-in-class glycosaminoglycan compound derived from porcine heparin that has low anticoagulant activity but retains the
ability to inhibit activities of several key proteins implicated in the retention and viability of AML blasts and leukemic stem cells in the bone marrow during
chemotherapy (e.g., CXCL12, selectins, HMGB1, elastase). Mobilization of AML blasts and leukemic stem cells from the bone marrow has been associated
with enhanced chemosensitivity and may be a primary mechanism accounting for the observed increases in event free survival (EFS) and overall survival
(OS) in a Phase 2 study with DSTAT versus placebo. Data from a randomized Phase 2 study suggests that DSTAT may also accelerate platelet recovery post
chemotherapy via inhibition of platelet factor 4, a negative regulator of platelet production that impairs platelet recovery following chemotherapy.
BCV is a lipid conjugate viral DNA polymerase inhibitor in development as a medical countermeasure for smallpox. We expect to continue our evaluation of
external innovation in order to license, acquire or otherwise gain access to molecules that further broaden our pipeline of investigational agents in cancer or
other serious diseases.
Recent Developments
Dociparstat for First-Line Acute Myeloid Leukemia (AML)
In July 2019, we entered into a License and Development Agreement with Cantex Pharmaceuticals, Inc. (Cantex) pursuant to which we acquired exclusive
worldwide rights to develop and commercialize DSTAT, for any and all uses. DSTAT is a potential first-in-class glycosaminoglycan compound derived from
porcine heparin that has low anticoagulant activity, but retains the ability to inhibit activities of several key proteins implicated in the retention and viability of
AML blasts and leukemic stem cells in the bone marrow during chemotherapy (e.g., CXCL12, selectins, HMGB1, elastase). Under the terms of the license
agreement, we will be responsible for, and bear the future costs of, worldwide development and commercialization of DSTAT.
In consideration for the license rights, we made an upfront cash payment of $30.0 million and issued 10,000,000 shares of our common stock to Cantex. The
license agreement obligates us to pay Cantex regulatory milestone payments of up to $202.5 million upon receipt of product approvals in the United States,
the European Union and Japan, and sales milestone payments of up to $385.0 million upon achievement of specified net sales levels. We also agreed to pay
Cantex tiered royalties based on percentages of net sales beginning at 10% and not to exceed the high teens.
DSTAT has received Fast Track and Orphan Drug Designations from the U.S. Food and Drug Administration (FDA) for the treatment of AML.
Earlier this year, we conducted an end of Phase 2 meeting with the FDA related to the Company’s development of DSTAT in AML. Following that meeting,
we incorporated FDA's feedback on key elements of a proposed Phase 3 clinical trial and have since submitted a full protocol for final FDA review. We plan
to initiate a Phase 3 trial mid- year of DSTAT in combination with standard chemotherapy (cytarabine plus anthracycline, or “7+3”) in newly diagnosed AML
patients. The proposed Phase 3 trial will be a randomized, blinded trial of approximately 570 newly diagnosed AML patients. The trial will include patients
60 years of age and older who have an intermediate or adverse genetic risk profile. It will also include patients between 18 and 60 years old who have an
adverse genetic risk profile. Patients will be randomized 1:1 to receive DSTAT in combination with standard cytarabine plus anthracycline (7+3) induction
and cytarabine consolidation chemotheraphy or will receive standard of care (7+3) induct
49
ion and consolidation chemotherapy alone. Patients with FLT-3 mutations will be allowed in the study and will be eligible to receive midostaurin.
The primary endpoint of the proposed trial will be overall survival (OS). In addition, the FDA has indicated that event-free survival (EFS) using complete
response with hematologic recovery to define induction success (CR), is acceptable as an endpoint for regulatory approval. Other endpoints to be evaluated in
the proposed trial include: minimal residual disease (MRD), relapse-free survival (RFS), time to hematologic recovery, and induction response.
In order to supplement the previously reported data from pilot and Phase 2 studies and provide additional evidence of DSTAT’s mechanism of action, the
proposed Phase 3 trial includes an early assessment of comparative CR and MRD rates among the first 80 evaluable patients. This data is expected to be
unblinded, reported publicly, and available for ongoing analysis of later endpoints. Prior to potential unblinding, this data will be reviewed by an independent
Data Monitoring Committee (DMC). The DMC will have the discretion to maintain blinding of the data from this early assessment in the event the DSTAT
arm shows exceptional advantages to the control arm on CR and/or MRD, at certain pre-specified thresholds, which would allow inclusion of these patients in
the final analysis.
We expect to incur approximately $15 million in clinical trial expenses up to and including this early assessment.
BCV Oral Treatment for Smallpox
In January, we presented data in support of BCV as a potential treatment for smallpox at the 2020 American Society for Microbiology (ASM) Biothreats
Meeting in Arlington, Virginia. The presentations highlighted independent experiments performed in two lethal animal models of smallpox. In these studies,
either rabbits or mice were inoculated with rabbitpox or ectromelia virus, respectively, to determine the survival benefit of BCV in animals acutely infected
with these orthopoxviruses. Animals were randomized to receive either placebo or BCV treatment at varying intervals post infection. In both studies, animals
that received BCV, regardless of time post-infection, demonstrated a statistically significant survival advantage relative to placebo.
Data from these studies are intended to address the requirement under the FDA Animal Efficacy Rule for two different animal models of efficacy. This rule
allows for testing of investigational drugs in animal models to support the effectiveness of the drug in diseases for which human clinical studies are not ethical
or feasible. We are collaborating with the Biomedical Advanced Research and Development Authority (BARDA) for the development of BCV as a potential
medical countermeasure for smallpox
The Company intends to submit marketing applications for BCV as a medical countermeasure against smallpox in mid-2020.
Appointment of Dr. Pratik Multani to Board of Directors
On February 21, 2020, the Board appointed Pratik S. Multani, M.D., to serve as a Class II director of the Company. Dr. Multani currently serves as Chief
Medical Officer of ORIC Pharmaceuticals and brings more than 20 years of experience advancing oncology products from the clinic through regulatory
approval. Prior to joining ORIC Pharmaceuticals, Dr. Multani served as Chief Medical Officer of Ignyta, which was acquired by Roche in 2017. Before
joining Ignyta, Dr. Multani was Chief Medical Officer of Fate Therapeutics, and prior to that held multiple leadership positions at Kalypsys, Kanisa, and
Salmedix. Dr. Multani started his biotech career at Biogen Idec, where he was involved with the development of both Zevalin and Rituxan for treatment of
Non-Hodgkin Lymphoma. Earlier in his career, Dr. Multani held academic and clinical positions at Harvard Medical School and at Massachusetts General
Hospital. His postdoctoral training included a fellowship in hematology and oncology at Dana-Farber Cancer Institute and an internship and residency in
internal medicine at Massachusetts General Hospital. Dr. Multani received an M.D. from Harvard Medical School and an M.S. in clinical epidemiology from
Harvard School of Public Health.
On February 21, 2020, James M. Daly notified Chimerix of his resignation as a member of the Board and as a member of all committees of the Board on
which he serves, effective immediately.
Business Development Review
In addition to our recently completed transaction with Cantex, management is continuing to conduct a review and assessment of potential transaction
opportunities with the goal of building our product candidate pipeline, including, but not limited to, licensing, merger or acquisition transactions, issuing or
transferring shares of common stock, or the license, purchase or sale of specific assets, in addition to other potential actions aimed at maximizing stockholder
value. There can be no assurance that this review will result in the identification or consummation of any additional transaction.
50
Financial Overview
Revenues
To date, we have not generated any revenue from product sales. All of our revenue to date has been derived from a government grant and contract and the
receipt of up-front proceeds under our collaboration and license agreements.
In February 2011, we entered into a contract with BARDA, a U.S. governmental agency that supports the advanced research and development,
manufacturing, acquisition, and stockpiling of medical countermeasures. The contract originally consisted of an initial performance period, referred to as the
base performance segment, which ended on May 31, 2013, plus up to four extension periods, referred to as option segments. Subsequent option segments to
the contract are not subject to automatic renewal and are not exercisable at Chimerix’s discretion. The contract is a cost-plus fixed fee development contract.
Under the contract as currently in effect, we may receive up to $75.8 million in expense reimbursement and $5.3 million in fees if all remaining option
segments are exercised. We are currently performing under the second and third option segments of the contract during which we may receive up to a total of
$23.9 million and $14.1 million in expense reimbursement and fees, respectively. The second and third option segments are scheduled to end on May 31,
2020. As of December 31, 2019, of the total funding the Company had invoiced an aggregate of $70.1 million with respect to the base performance segment
and the first three option segments. Under the BARDA contract, we recognized revenue of $7.6 million, $7.2 million, and $4.5 million during the twelve
months ended December 31, 2019, 2018, and 2017, respectively.
In September 2019, we entered into a license agreement with SymBio for worldwide rights to develop, manufacture and commercialize BCV in all human
indications, excluding the use for treatment of orthopoxviruses, including smallpox. Under the contract, we received a $5.0 million upfront payment in
October 2019 and could receive up to an additional $180.0 million in potential regulatory and commercial milestones. As of December 31, 2019, we
recognized $4.9 of revenue under this agreement. The remainder of the upfront payment will be recognized when the inventory transfer and technical
assistance performance obligations are complete, which is expected to occur in the first half of 2020. The revenue from regulatory and commercial milestones
and royalties from net sales will be recognized upon occurrence of the triggering events.
In the future, we may generate revenue from a combination of product sales, license fees, milestone payments and royalties from the sales of products
developed under licenses of our intellectual property. We expect that any revenue we generate will fluctuate from quarter to quarter as a result of the timing
and amount of license fees, milestone and other payments, and the amount and timing of payments that we receive upon the sale of our products, to the extent
any are successfully commercialized. If we fail to complete the development of our product candidates in a timely manner or obtain regulatory approval for
them, our ability to generate future revenue, and our results of operations and financial position, would be materially adversely affected.
Research and Development Expenses
Since our inception, we have focused our resources on our research and development activities, including conducting preclinical studies and clinical trials,
manufacturing development efforts and activities related to regulatory filings for our product candidates. We recognize research and development expenses as
they are incurred. Costs for certain development activities are recognized based on an evaluation of the progress to completion of specific tasks using
information and data provided to us by our vendors. We cannot determine with certainty the duration and completion costs of the current or future clinical
studies of our product candidates. Our research and development expenses consist primarily of:
•
•
•
•
•
fees paid to consultants and contract research organizations (CROs), including in connection with our preclinical 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;
salaries and related overhead expenses, which include stock option, restricted stock unit (RSU) and employee stock purchase program
compensation and benefits, for personnel in research and development functions;
payments to third-party manufacturers, which produce, test and package our drug substance and drug product (including continued testing of
process validation and stability);
costs related to legal and compliance with regulatory requirements; and
license fees for and milestone payments related to licensed products and technologies.
51
The table below summarizes our research and development expenses for the periods indicated (in thousands). Our direct research and development expenses
consist primarily of external costs, such as fees paid to investigators, consultants, central laboratories and CROs, in connection with our clinical trials,
preclinical development, and payments to third-party manufacturers of drug substance and drug product. We typically use our employee and infrastructure
resources across multiple research and development programs.
Direct research and development expenses
Research and development personnel costs - excluding stock-based compensation
Research and development personnel costs - stock-based compensation
Indirect research and development expenses
Total research and development expenses
Years Ended December 31,
2019
2018
2017
$
$
22,101 $
31,325 $
12,705
4,089
3,393
13,488
5,343
5,083
42,288 $
55,239 $
24,734
13,490
7,047
4,177
49,448
The successful development of product candidates is highly uncertain. At this time, we cannot reasonably estimate the nature, timing or costs of the efforts
that will be necessary to complete the development of any product candidates or the period, if any, in which material net cash inflows from any product
candidates may commence. This is due to the numerous risks and uncertainties associated with our business, as detailed in Part I, Item IA, “Risk Factors” in
this Annual Report on Form 10-K and in our other filings with the SEC.
Dociparstat sodium (DSTAT)
In July of 2019, we acquired DSTAT from Cantex Pharmaceuticals. In connection with the transaction we recorded a total of $65.0 million in expense. This is
comprised of a $30.0 million upfront payment, $34.9 million in stock-based compensation and $0.1 million in transaction costs. As we continue to focus on
the development of DSTAT for first-line treatment of AML patients, we expect research and development expense to increase. We plan to initiate a Phase 3
trial in AML in mid-2020 subject to finalization of the protocol with the FDA.
Brincidofovir
We are developing BCV for the treatment of smallpox. Under our cost-plus-fixed fee BARDA contract and additional costs we are not seeking reimbursement
for from BARDA, we incurred expense in connection with the development of orthopoxvirus animal models, the demonstration of efficacy and
pharmacokinetics of BCV in the animal models, the conduct of an open label clinical safety study for subjects with DNA viral infections, and the manufacture
and process validation of bulk drug substance and BCV 100 mg tablets. In addition, we have incurred additional supportive costs for the development of BCV
for smallpox that we are not seeking reimbursement for from BARDA.
Historically, the majority of our research and development efforts have been focused on completing our Phase 3 trial of BCV for prevention of CMV in HCT
recipients (SUPPRESS), our trial of BCV as a treatment for AdV (AdVise), the AdAPT study in pediatric HCT recipients and our other clinical and
preclinical studies and other work needed to provide sufficient data supporting the safety, tolerability and efficacy of BCV for approval in the United States
and equivalent health authority approval outside the United States. In May 2019, we discontinued both the oral and IV development programs of BCV in
AdV and the associated clinical trials.
General and Administrative Expenses
General and administrative expenses consist primarily of salaries and related costs for employees in executive, finance, investor relations, information
technology, legal, human resources, business development and administrative support functions, including share-based compensation expenses and benefits.
Other significant general and administrative expenses include costs related to accounting and legal services, costs of various consultants, director and officer
liability insurance, occupancy costs and information systems.
Interest Income and Other, Net
Interest income and other, net consists primarily of interest earned on our cash, cash equivalents, short-term investments and long-term investments and
decreases in fair value as well as realized losses of our investment in ContraVir Pharmaceuticals common stock.
52
Share-based Compensation
The Financial Accounting Standards Board (FASB) authoritative guidance requires that share-based payment transactions with employees be recognized in
the financial statements based on their fair value and recognized as compensation expense over the vesting period. Total consolidated share-based
compensation expense of $9.5 million, $13.1 million and $16.1 million was recognized in the years ended December 31, 2019, 2018 and 2017, respectively.
The share-based compensation expense recognized included expense for stock options, RSUs and our employee stock purchase plan purchase rights.
We estimate the fair value of our share-based awards to employees and directors using the Black-Scholes pricing model. This estimate is affected by our stock
price as well as assumptions including the expected volatility, expected term, risk-free interest rate, expected dividend yield, expected rate of forfeiture and
the fair value of the underlying common stock on the date of grant.
For performance-based RSUs, we begin to recognize the expense when it is deemed probable that the performance-based goal will be met. We evaluate the
probability of achieving performance-based goals on a quarterly basis.
Critical Accounting Policies and Significant Judgments and Estimates
Our management’s discussion and analysis of financial condition and results of operations is based on our audited consolidated financial statements, which
have been prepared in accordance with generally accepted accounting principles in the United States of America (GAAP). The preparation of these
consolidated financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses.
On an ongoing basis, we evaluate these estimates and judgments. We base our estimates on historical experience and on various assumptions that we believe
to be reasonable under the circumstances. These estimates and assumptions form the basis for making judgments about the carrying values of assets and
liabilities and the recording of revenues and expenses that are not readily apparent from other sources. Actual results and experiences may differ materially
from these estimates. In addition, our reported financial condition and results of operations could vary if new accounting standards are enacted that are
applicable to our business.
Our significant accounting policies are described in Note 1 to our audited consolidated financial statements for the year ended December 31, 2019 included in
this Annual Report. We believe that our accounting policies relating to revenue recognition, research and development prepaids and accruals, investments and
share-based compensation are the most critical to understanding and evaluating our reported financial results. We have identified these policies as critical
because they both are important to the presentation of our financial condition and results of operations and require us to make judgments and estimates on
matters that are inherently uncertain and may change in future periods. For more information regarding these policies, you should refer to Note 1 to our
audited consolidated financial statements included in this Annual Report.
Revenue Recognition
The Company’s revenues generally consist of (i) contract revenue - revenue generated under federal contracts, and (ii) collaboration and licensing revenue -
revenue related to non-refundable upfront fees, royalties and milestone payments earned under license agreements. Revenue is recognized in accordance with
the criteria outlined in Accounting Standards Codification (ASC) 606 issued by the Financial Accounting Standards Board (FASB). Following this accounting
pronouncement, a five-step approach is applied for recognizing revenue, including (1) identify the contract with a customer; (2) identify the performance
obligations in the contract; (3) determine the transaction price; (4) allocate the transaction price to the performance obligations in the contract; and (5)
recognize revenue when, or as, the entity satisfies a performance obligation.
Biomedical Advanced Research and Development Authority (BARDA)
In February 2011, the Company entered into a contract with BARDA for the advanced development of brincidofovir as a medical countermeasure in the event
of a smallpox release. Under the contract, the Company may receive up to $75.8 million in expense reimbursement and $5.3 million in fees over the
performance of 1 base segment and 4 option segments. Exercise of each option segment is solely at the discretion of BARDA. Currently, option segments 1
through 3 have been exercised. The Company assessed the services in accordance with the authoritative guidance and concluded that there is a potential of 5
separate contracts (1 base segment and four option segments) within this agreement, each of which has a single performance obligation. The transaction price
for each segment, based on the transaction price as defined in each segment contract, is allocated to the single performance obligation for each contract. The
transaction price is recognized over time by measuring the progress toward complete satisfaction of the performance obligation. For reimbursable expenses,
this occurs as qualifying research activities are conducted based on invoices from company vendors. For the fixed fee, the progress toward complete
satisfaction is estimated based on the costs incurred to date relative to the total estimated costs per the terms of each contract. The Company typically invoices
BARDA monthly as costs are incurred. Any amounts received in advance of performance are recorded as deferred revenue until earned.
53
SymBio Pharmaceuticals
On September 30, 2019, the Company entered into a license agreement with SymBio for the exclusive worldwide rights to develop, manufacture and
commercialize BCV for all human indications, excluding the prevention and treatment of orthopoxviruses, including smallpox. Under the terms of the license
agreement, SymBio will be responsible for, and bear the future costs of, worldwide development and commercialization of BCV in the licensed indications.
Either party may terminate the license agreement upon the occurrence of a material breach by the other party (subject to standard cure periods), or upon
certain events involving the bankruptcy or insolvency of the other party. SymBio may also terminate the license agreement without cause on a country-by-
country basis upon ninety days' prior notice.
In exchange for the license to BCV rights, the Company received an upfront payment of $5.0 million in October of 2019. In addition, the Company is eligible
to receive up to $180.0 million in clinical, regulatory and commercial milestones worldwide, as well as low double-digit royalties and additional milestones
based on commercial sales. At December 31, 2019, the Company had recognized $4.9 million in revenue and has a $0.1 million deferred revenue balance
recorded in Accrued liabilities.
From our inception through December 31, 2019, we have not generated any revenue from product sales. For the same period, we have generated $130.9
million in government grant and contract revenue and license revenue.
Research and Development Prepaids and Accruals
As part of the process of preparing financial statements, we are required to estimate our expenses resulting from our obligation under contracts with vendors
and consultants and clinical site agreements in connection with our research and development efforts. The financial terms of these contracts are subject to
negotiations which vary contract to contract and may result in payment flows that do not match the periods over which materials or services are provided to
us under such contracts.
Our objective is to reflect the appropriate research and development expenses in our financial statements by matching those expenses with the period in which
services and efforts are expended. We account for these expenses according to the progress of our research and development efforts. We determine prepaid
and accrual estimates through discussion with applicable personnel and outside service providers as to the progress or state of communication of clinical
trials, or other services completed. We adjust our rate of research and development expense recognition if actual results differ from our estimates. We make
estimates of our prepaid and accrued expenses as of each balance sheet date in our financial statements based on facts and circumstances known at that time.
Although we do not expect our estimates to be materially different from amounts actually incurred, our understanding of status and timing of services
performed relative to the actual status and timing of services performed may vary and may result in us reporting amounts that are too high or too low for any
particular period. Through December 31, 2019, there had been no material adjustments to our prior period estimates of prepaid and accruals for research and
development expenses. Our research and development prepaids and accruals are dependent upon the timely and accurate reporting of contract research
organizations and other third-party vendors.
Acquired In-Process Research and Development (IPR&D) Expense
We have acquired and may continue to acquire the rights to develop and commercialize new drug candidates. In accordance with Accounting Standards
Codification, or ASC, Subtopic 730-10-25, Accounting for Research and Development Costs, the up-front payments to acquire a new drug compound, as well
as future milestone payments when paid or payable, are immediately expensed as acquired IPR&D in transactions other than a business combination provided
that the drug has not achieved regulatory approval for marketing and, absent obtaining such approval, has no alternative future use. Upon obtaining regulatory
approval for marketing, any subsequent milestone payments may be capitalized and amortized over the life of the asset.
Investments
Investments consist primarily of commercial paper, corporate bonds, U.S. Treasury securities and stock of a U.S. corporation. We invest in high-credit quality
investments in accordance with our investment policy which minimizes the probability of loss.
Available-for-sale debt securities are carried at fair value as determined by quoted market prices, with the unrealized gains and losses, net of tax, reported as a
separate component of stockholders’ deficit. Realized gains and losses are determined using the specific identification method and transactions are recorded
on a settlement date basis in interest income (expense) and other, net. Investments with original maturities beyond three months at the date of purchase and
which mature on, or less than twelve months from, the balance sheet date are classified as short-term. Investments with a maturity beyond twelve months
from the balance sheet date are classified as long-term. We periodically review available-for-sale debt securities for other-than-temporary declines
54
in fair value below the cost basis and whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. We
evaluate, among other things, the duration and extent to which the fair value of a security is less than its cost; the financial condition of the issuer and any
changes thereto; and our intent to sell, or whether we will more likely than not be required to sell, the security before recovery of our amortized cost basis.
Any such declines in value judged to be other-than-temporary on available-for-sale securities are reported in other-than-temporary impairment of investment.
Prior to the fourth quarter of 2017, unrealized gains and losses in equity investments were reported as a separate component of stockholders’ equity. For the
year ended December 31, 2017, we determined the decline in value for our investment in ContraVir common stock to be other-than temporary. As such,
during the fourth quarter of 2017, we reclassified a loss of $1.2 million from accumulated other comprehensive loss, net in the Consolidated Balance Sheets to
interest income and other, net in the Consolidated Statements of Operations and Comprehensive Loss. During 2018 and 2019, changes in the fair value of
equity investments were recorded to interest income and other, net in the Consolidated Statements of Operations and Comprehensive Loss.
Valuation of Share-Based Compensation
We record the fair value of share-based awards issued as of the grant date as compensation expense. We recognize compensation expense over the requisite
service period, which is equal to the vesting period.
Share-based compensation expense includes stock options, RSUs and employee stock purchase plan purchase rights and has been reported in our
Consolidated Statements of Operations and Comprehensive Loss as follows (in thousands):
Income Statement Classification:
Research and development expense
General and administrative expense
Total stock-based compensation expense
Years Ended December 31,
2019
2018
2017
$
$
4,089 $
5,439
9,528 $
5,343 $
7,731
13,074 $
7,047
9,063
16,110
RSU compensation expense is based on the grant-date fair value of our common stock.
We calculate the fair value of share-based compensation awards using the Black-Scholes option-pricing model. The Black-Scholes option-pricing model
requires the use of subjective assumptions, including volatility of our common stock, the expected term of our stock options, the risk-free interest rate for a
period that approximates the expected term of our stock options and the fair value of the underlying common stock on the date of grant. In applying these
assumptions, we considered the following factors:
• We use historical volatility data to estimate the volatility of our common stock price.
• We use historical exercise data to estimate expected term.
• We determine the risk-free interest rate by reference to implied yields available from U.S. Treasury securities with a remaining term equal to
the expected life assumed at the date of grant.
The assumed dividend yield is based on our expectation of not paying dividends for the foreseeable future.
•
• We estimate forfeitures based on our historical analysis of actual stock option forfeitures.
The assumptions used in the Black-Scholes option-pricing model for the years ended December 31, 2019, 2018, and 2017 are set forth below:
Stock Options
Expected volatility
Expected term (in years)
Weighted-average risk-free interest rate
Expected dividend yield
Weighted-average fair value per option
Years Ended December 31,
2019
2018
2017
88.77%
6.0
2.42%
—%
85.83%
5.9
2.52%
—%
$
1.71
$
3.43
$
85.51%
5.9
2.02%
—%
3.71
55
Employee Stock Purchase Plan
Expected volatility
Expected term (in years)
Weighted-average risk-free interest rate
Expected dividend yield
Weighted-average option value per share
Utilization of Net Operating Loss Carryforwards
Years Ended December 31,
2019
2018
2017
57.22%
1.23
2.36%
—%
44.01%
1.23
2.56%
—%
$
1.00
$
1.36
$
77.18%
0.97
0.99%
—%
2.65
At December 31, 2019, we had net operating loss carryforwards for federal, state tax purposes of approximately $508.1 million and $384.3 million,
respectively. At December 31, 2018, we had net operating loss carryforwards for federal, state, and foreign tax purposes of approximately $465.3 million,
$353.8 million, and $0.4 million, respectively. In addition, we had tax credit carryforwards for federal tax purposes of approximately $19.6 million as of
December 31, 2019, which begin to expire in 2022. The future utilization of net operating loss and tax credit carryforwards may be limited due to changes in
ownership. In general, if we experience a greater than 50 percent aggregate change in ownership of certain significant stockholders or groups over a three-
year period (a Section 382 ownership change), utilization of our pre-change net operating loss carryforwards is subject to an annual limitation under Section
382 of the Code (and similar state laws). The annual limitation generally is determined by multiplying the value of our stock at the time of such ownership
change (subject to certain adjustments) by the applicable long-term tax-exempt rate. Such limitations may result in expiration of a portion of the pre-change
net operating loss carryforwards before utilization and may be substantial. We have determined that a Section 382 ownership change occurred in 2002 and
2007 resulting in limitations of at least $64,000 and $762,000, respectively, of losses incurred prior to the respective ownership change dates. In addition, we
have determined that another Section 382 ownership change occurred in 2013 with our initial public offering, our private placements and other transactions
that have occurred since 2007, resulting in a limitation of at least $6.7 million of losses incurred prior to the ownership change date. We may also experience
ownership changes in the future as a result of subsequent shifts in our stock ownership. Furthermore, under the Tax Act, federal net operating losses incurred
in 2018 and in future years may be carried forward indefinitely, but the deductibility of such federal net operating losses is limited. It is uncertain if and to
what extent various states will conform to the Tax Act. As a result, if we earn net taxable income, our ability to use our pre-change net operating loss
carryforwards to offset United States federal taxable income may be subject to limitations, which could potentially result in increased future tax liability to us.
56
RESULTS OF OPERATIONS
Comparison of the Years Ended December 31, 2019 and December 31, 2018
The following table summarizes our results of operations for the years ended December 31, 2019 and December 31, 2018, together with the changes in those
items in dollars and percentages (in thousands, except percentages):
Revenues:
Contract revenue
Licensing revenue
Total revenues
Operating expenses:
Research and development
General and administrative
Acquired in-process research and development
Total operating expenses
Loss from operations
Other income:
Interest income and other, net
Net loss
* Not meaningful or not calculable
Revenue
Years Ended December 31,
Dollar Change % Change
2019
2018
Increase/(Decrease)
$
7,604 $
7,216 $
4,915
12,519
42,288
21,169
65,045
128,502
(115,983)
—
7,216
55,239
23,582
—
78,821
(71,605)
388
4,915
5,303
(12,951)
(2,413)
—
49,681
(44,378)
3,407
2,131
1,276
$
(112,576) $
(69,474) $
(43,102)
5.4 %
*
73.5 %
(23.4)%
(10.2)%
*
63.0 %
62.0 %
59.9 %
62.0 %
For the year ended December 31, 2019, contract revenue increased to $7.6 million compared to $7.2 million for the year ended December 31, 2018. The
increase of $0.4 million, or 5.4%, was related to an increase in reimbursable expenses associated with our contract with BARDA. License revenue was $4.9
million for the year ended December 31, 2019 due to our licensing agreement with SymBio.
Research and Development Expenses
For the year ended December 31, 2019, our research and development expenses decreased to $42.3 million compared to $55.2 million for the year ended
December 31, 2018. The decrease of $13.0 million, or 23.4%, was primarily related to the following:
•
•
•
•
•
a decrease of $8.4 million related to the discontinuation of both the oral and IV BCV development programs and CMX521 for norovirus;
a decrease of $2.0 million related to compensation expenses as headcount was reduced as part of the Company’s restructuring activities in May
2019;
a decrease of $1.9 million in oral brincidofovir smallpox program expenses; and
a decrease of $1.5 million in legal fees and operational expenses;
offset by an increase of $1.2 million in DSTAT research and development expenses to initiate and conduct animal studies and to develop and
manufacture clinical trial material.
General and Administrative Expenses
For the year ended December 31, 2019, our general and administrative expenses decreased to $21.2 million compared to $23.6 million for the year ended
December 31, 2018. The decrease of $2.4 million, or 10.2%, was primarily related to the following:
•
•
•
•
a decrease of $2.9 million in commercial readiness costs;
a decrease of $0.8 million related to compensation expense; and
a decrease of $0.6 million in legal fees and operational expenses; offset by
an increase of $1.9 million related to business development expenses and to out-license BCV for non-smallpox indications.
57
Acquired In-Process Research and Development
We recorded $65.0 million of acquired in-process research and development expenses for the year ended December 31, 2019, which included $30.0 million
for an upfront payment to Cantex, $34.9 million related to the fair value of common stock issued to Cantex, and $0.1 million related to Cantex transaction
costs, primarily legal and professional fees.
Interest Income and Other, net
For the year ended December 31, 2019, our interest income and other, net was $3.4 million compared to interest income of $2.1 million for the year ended
December 31, 2018. The increase of $1.3 million was largely attributable to higher interest rates.
Comparison of the Years ended December 31, 2018 and December 31, 2017
The following table summarizes our results of operations for the years ended December 31, 2018 and December 31, 2017, together with the changes in those
items in dollars and percentages (in thousands, except for percentages):
Contract revenue
Operating expenses:
Research and development
General and administrative
Total operating expenses
Loss from operations
Other income:
Interest income and other, net
Net loss
Contract Revenue
Years Ended December 31,
Dollar Change % Change
2018
2017
Increase/(Decrease)
$
7,216 $
4,494 $
2,722
60.6 %
55,239
23,582
78,821
(71,605)
49,448
27,148
76,596
(72,102)
2,131
1,118
$
(69,474) $
(70,984) $
5,791
(3,566)
2,225
497
1,013
1,510
11.7 %
(13.1)%
2.9 %
(0.7)%
90.6 %
(2.1)%
For the year ended December 31, 2018, contract revenue increased to $7.2 million compared to $4.5 million for the year ended December 31, 2017. The
increase of $2.7 million, or 60.6%, was related to an increase in reimbursable expenses associated with our contract with BARDA.
Research and Development Expenses
For the year ended December 31, 2018, our research and development expenses increased to $55.2 million compared to $49.4 million for the year ended
December 31, 2017. The increase of $5.8 million, or 11.7%, was primarily related to the following:
•
•
•
•
•
•
an increase in oral brincidofovir clinical expenses of $3.2 million, which is comprised primarily of a $2.7 million increase related to the
AdAPT clinical study and a $1.5 million increase of supporting bioequivalent and registry studies, primarily offset by a decrease of $1.0
million related to the completion of our AdVance study;
an increase of $2.7 million in oral brincidofovir smallpox program expenses which primarily includes reimbursable BARDA contract expense;
an increase of $1.7 million of supporting research and development expenses; and
an increase of $0.8 million related to IV brincidofovir development; offset by
a decrease of $1.5 million related to compensation expense; and
a decrease of $1.3 million of development costs related to CMX521.
58
General and Administrative Expenses
For the year ended December 31, 2018, our general and administrative expenses decreased to $23.6 million compared to $27.1 million for the year ended
December 31, 2017. The decrease of $3.6 million, or 13.1%, was primarily related to the following:
•
•
•
a decrease of $2.3 million related to compensation expense;
a decrease of $1.0 million in costs related to an indemnification claim settled in 2018; and
a decrease of $0.3 million in global commercial readiness costs.
Interest Income and Other, net
For the year ended December 31, 2018, our interest income and other, net was $2.1 million compared to interest income and other, net of $1.1 million for the
year ended December 31, 2017. The increase of $1.0 million was largely attributable to a reclassification of a loss of $1.2 million from accumulated other
comprehensive loss, net in the Consolidated Balance Sheets to interest income and other, net in the Consolidated Statements of Operations and
Comprehensive Loss in 2017.
LIQUIDITY AND CAPITAL RESOURCES
As of December 31, 2019, we had capital available to fund operations of approximately $113.5 million. Cash in excess of immediate requirements is invested
in accordance with our investment policy, primarily with a view to liquidity and capital preservation. We have incurred losses since our inception in 2000 and
as of December 31, 2019, we had an accumulated deficit of $668.8 million. We may continue to incur losses for the foreseeable future. The size of our losses
will depend, in part, on the rate of future expenditures and our ability to generate revenues.
On November 8, 2017, we entered into an at-the-market (ATM) sales agreement with Cowen and Company, LLC to sell up to $75 million of our common
stock under a shelf registration statement filed in November 2017. During 2018, we sold an aggregate of 2.8 million shares of common stock pursuant to the
ATM at a weighted average price per share of $4.00 for net offering proceeds of $10.9 million. We did not sell any shares of our common stock pursuant to
the ATM in 2019.
We cannot assure you that adequate funding will be available on terms acceptable to us, if at all. Any additional equity financings will be dilutive to our
stockholders and any additional debt may involve operating covenants that may restrict our business. If adequate funds are not available through these means,
we may be required to curtail significantly one or more of our research or development programs, our pre-launch expenses, and any launch and other
commercialization expenses for any of our products that may receive marketing approval. We cannot assure you that we will successfully develop or
commercialize our products under development or that our products, if successfully developed, will generate revenues sufficient to enable us to earn a profit.
We believe that our existing cash, cash equivalents, and short-term investments will enable us to fund our current operating expenses and capital requirements
for at least the next 12 months. However, changing circumstances beyond our control may cause us to consume capital more rapidly than we currently
anticipate.
Cash Flows
The following table sets forth the significant sources and uses of cash for the periods (in thousands):
Cash sources and uses:
Net cash used in operating activities
Net cash provided by investing activities
Net cash provided by financing activities
Net increase (decrease) in cash and cash equivalents
Operating Activities
Years Ended December 31,
2019
2018
2017
$
$
(75,181) $
(53,725) $
10,631
345
105,095
11,188
(50,125)
16,431
779
(64,205) $
62,558 $
(32,915)
Net cash used in operating activities of $75.2 million for the year ended December 31, 2019 was primarily the result of our $112.6 million net loss and the
change in operating assets and liabilities, offset by the add-back of non-cash expenses. The change in operating assets and liabilities includes a decrease in
accounts payable and accrued liabilities of $4.3 million, an increase of $0.9 million in accounts receivable and an increase in prepaid expenses and other
assets of $0.8 million. Non-cash expenses included add-backs of $34.9 million for the fair value of common stock issued in relation to the Cantex license
agreement, $9.5 million
59
for stock based compensation, $0.6 million of depreciation of property and equipment, $0.3 million for the loss on disposal of assets, offset by $1.8 million of
amortization of discount/premium on investments.
Net cash used in operating activities of $53.7 million for the year ended December 31, 2018 was primarily the result of our $69.5 million net loss, offset by
the change in operating assets and liabilities and the add-back of non-cash expenses. Non-cash expenses included add-backs of $13.1 million for stock-based
compensation, $0.9 million of depreciation of property and equipment, $0.4 million for a loss on the sale of investments, and $0.3 million for a loss on equity
investment, offset by $0.9 million of amortization of discount/premium on investments. The change in operating assets and liabilities includes a decrease in
prepaid expenses and other assets of $0.6 million and a decrease of $1.4 million in accounts receivable.
Net cash used in operating activities of $50.1 million for the year ended December 31, 2017 was primarily the result of our $71.0 million net loss, offset by
the change in operating assets and liabilities and the add-back of non-cash expenses of $16.1 million for stock-based compensation, $1.2 million for an
impairment loss on financial assets and $1.1 million of depreciation of property and equipment. The change in operating assets and liabilities includes a
decrease in accounts payable and accrued liabilities of $3.1 million, offset by an increase in prepaid expenses and other assets of $0.2 million and an increase
of $0.1 million in accounts receivable due to a decrease in reimbursable expenses related to our contract with BARDA.
Investing Activities
Net cash provided by investing activities of $10.6 million during the year ended December 31, 2019 was primarily the result of maturities and sales of short-
term investments, offset by purchases of short-term investments. Net cash provided by investing activities of $105.1 million during the year ended
December 31, 2018 was primarily the result of maturities and sales of short-term investments, offset by purchases of short-term and long-term investments.
Net cash provided by investing activities of $16.4 million during the year ended December 31, 2017 was primarily the result of maturities and sales of short-
term investments, offset by purchases of long-term investments.
Financing Activities
Net cash provided by financing activities of $0.3 million for the year ended December 31, 2019 was primarily the result of $0.4 million from the exercise of
stock options and purchases under the ESPP. Net cash provided by financing activities of $11.2 million for the year ended December 31, 2018 was primarily
the result of $10.9 million in proceeds from the issuance of common stock, $0.7 million from the exercise of stock options and purchases under the ESPP,
offset by $0.4 million in payments of deferred offering costs. Net cash provided by financing activities of $0.8 million for the year ended December 31, 2017
was primarily the result of $0.8 million from the exercise of stock options and purchases under the ESPP.
Future Funding Requirements
To date, we have not generated any revenue from product sales. We do not know when, or if, we will generate any revenue from product sales. We do not
expect to generate significant revenue from product sales unless and until we obtain regulatory approval of and commercialize brincidofovir or any of our
other product candidates. At the same time, we expect our expenses to increase in connection with our ongoing development activities, particularly as we
continue the research, development and clinical trials of, and seek regulatory approval for, our product candidates. Furthermore, subject to obtaining
regulatory approval of any of our product candidates, we expect to incur significant commercialization expenses for product sales, marketing, manufacturing
and distribution. We anticipate that we will need substantial additional funding in connection with our continuing operations. Based upon our current
operating plan, we believe that our existing cash, cash equivalents and short-term investments, will enable us to fund our operating expenses and capital
requirements for at least the next 12 months. We have based our estimates on assumptions that may prove to be wrong, and we may use our available capital
resources sooner than we currently expect. Because of the numerous risks and uncertainties associated with the development and commercialization of our
product candidates, we are unable to estimate the amounts of increased capital outlays and operating expenditures necessary to complete the development of
our product candidates.
Until such time, if ever, as we can generate substantial revenue from product sales, we expect to finance our cash needs through a combination of equity
offerings, debt financings, government or other third-party funding, marketing and distribution arrangements, or other collaborations, strategic alliances or
licensing arrangements. To the extent that we raise additional capital through the sale of equity or convertible debt securities, the ownership interests of our
common stockholders will be diluted, and the terms of these securities may include liquidation or other preferences that adversely affect the rights of our
common stockholders. Debt financing, if available, may involve agreements that include 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 funds through government or other third-party
funding, marketing and distribution arrangements or other collaborations, strategic alliances or
60
Operating leases (1)
Total
(1)
licensing arrangements with third parties, we may have to relinquish valuable rights to our technologies, future revenue streams, research programs or product
candidates or to grant licenses on terms that may not be favorable to us.
CONTRACTUAL OBLIGATIONS AND COMMITMENTS
The following table summarizes our contractual obligations at December 31, 2019 (in thousands):
Total
$
$
901 $
901 $
Less Than 1
Year
1 – 3 Years
3 – 5 Years
More Than 5 Years
719 $
719 $
182 $
182 $
— $
— $
—
—
Consists of our corporate headquarters lease encompassing 24,862 square feet of office space that expires in February 2021, and our laboratory lease
encompassing a total of approximately 7,925 square feet which is located in Durham, North Carolina and expires in July 2021.
In addition to the amounts set forth in the table above, we have payment obligations under license agreements that are contingent upon future events such as
our achievement of specified development, regulatory and commercial milestones. We will be required to make additional payments when certain milestones
are achieved and we are obligated to pay royalties based on future product sales. As of December 31, 2019, we were unable to estimate the timing or
likelihood of achieving the milestones or making future product sales and, therefore, any related payments are not included in the table above. In connection
with the development and commercialization of DSTAT, in addition to royalties on product sales, we could be required to pay Cantex up to an aggregate of
$587.5 million in milestone payments, assuming the achievement of all applicable milestone events under the license agreement. Under our license agreement
with the University of Michigan, we are required to pay minimum royalties from 2024 through the expiration of the last licensed issued patent (which we
estimate to be $20,000 in the year 2024), but any additional royalties that may be payable under the University of Michigan agreement are not estimable.
Additionally, we enter into contracts in the normal course of business with CROs for clinical trials and clinical supply manufacturing and with vendors for
preclinical research studies and other services and products for operating purposes, which generally provide for termination or cancellation within 30 days of
notice, and therefore are not included in the table above. We also have agreements with our executive officers that require the funding of specific payments, if
certain events occur, such as a change in control or the termination of employment without cause. These potential payment obligations are not included in the
table above.
Off-Balance Sheet Arrangements
During the periods presented, we did not have, nor do we currently have, any off-balance sheet arrangements as defined under SEC rules.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Our primary exposure to market risk is interest income sensitivity, which is affected by changes in the general level of U.S. interest rates. Due to the short-
term duration of our investment portfolio and the low risk profile of our investments, an immediate 10.0% change in interest rates would not have a material
effect on the fair market value of our portfolio. Accordingly, we would not expect our operating results or cash flows to be affected to any significant degree
by the effect of a sudden change in market interest rates on our investment portfolio.
We do not believe that our cash, cash equivalents and available-for-sale investments have significant risk of default or illiquidity. While we believe our cash
and cash equivalents and available-for-sale investments do not contain excessive risk, we cannot provide absolute assurance that in the future our investments
will not be subject to adverse changes in market value. In addition, we maintain significant amounts of cash and cash equivalents at one or more financial
institutions that are in excess of federally insured limits.
Inflation generally affects us by increasing our cost of labor and clinical trial costs. We do not believe that inflation has had a material effect on our results of
operations for the years ended December 31, 2019 or 2018.
61
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Reports of Independent Registered Public Accounting Firm
Consolidated Balance Sheets as of December 31, 2019 and 2018
Consolidated Statements of Operations and Comprehensive Loss for the Years Ended December 31, 2019, 2018 and 2017
Consolidated Statements of Stockholders’ Equity (Deficit) for the Years Ended December 31, 2019, 2018 and 2017
Consolidated Statements of Cash Flows for the Years Ended December 31, 2019, 2018 and 2017
Notes to Consolidated Financial Statements
62
Page
63
65
66
67
68
69
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Shareholders and the Board of Directors of Chimerix, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Chimerix, Inc. (the Company) as of December 31, 2019 and 2018, 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,
2019, and the related notes (collectively referred to as the “consolidated financial statements“). In our opinion, the consolidated financial statements present
fairly, in all material respects, the financial position of the Company at December 31, 2019 and 2018, and the results of its operations and its cash flows for
each of the three years in the period ended December 31, 2019, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company‘s
internal control over financial reporting as of December 31, 2019, based on criteria established in Internal Control-Integrated Framework issued by the
Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) and our report dated February 25, 2020 expressed an unqualified
opinion thereon.
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.
We have served as the Company's auditor since 2008.
Raleigh, North Carolina
February 25, 2020
/s/ Ernst & Young LLP
63
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Shareholders and the Board of Directors of Chimerix, Inc.
Opinion on Internal Control Over Financial Reporting
We have audited Chimerix, Inc.’s internal control over financial reporting as of December 31, 2019, based on criteria established in Internal Control-
Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria). In our
opinion, Chimerix, Inc. (the Company) maintained, in all material respects, effective internal control over financial reporting as of December 31, 2019, based
on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated
balance sheets of Chimerix, Inc. as of December 31, 2019 and 2018, 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, 2019, and the related notes and our report dated February 25,
2020 expressed an unqualified opinion thereon.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of
internal control over financial reporting included in the accompanying Management’s Report on Internal Control over Financial Reporting. Our responsibility
is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the
PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and
regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether effective internal control over financial reporting was maintained in all material respects.
Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and
evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered
necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control Over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over
financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect
the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being
made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or
timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance
with the policies or procedures may deteriorate.
Raleigh, NC
February 25, 2020
/s/ Ernst & Young LLP
64
CHIMERIX, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except share and per share data)
ASSETS
Current assets:
Cash and cash equivalents
Short-term investments, available-for-sale
Accounts receivable
Prepaid expenses and other current assets
Total current assets
Property and equipment, net of accumulated depreciation
Operating lease right-of-use assets
Other long-term assets
Total assets
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable
Accrued liabilities
Total current liabilities
Lease-related obligations
Total liabilities
Stockholders’ equity:
Preferred stock, $0.001 par value, 10,000,000 shares authorized at December 31, 2019 and 2018; no shares issued
and outstanding as of December 31, 2019 and 2018
Common stock, $0.001 par value; 200,000,000 shares authorized at December 31, 2019 and 2018; 61,590,013 and
50,735,279 shares issued and outstanding at December 31, 2019 and 2018, respectively
Additional paid-in capital
Accumulated other comprehensive loss, net
Accumulated deficit
Total stockholders’ equity
Total liabilities and stockholders’ equity
The accompanying notes are an integral part of the consolidated financial statements.
65
December 31,
2019
2018
$
16,901 $
96,574
1,233
3,385
118,093
540
709
34
81,106
105,424
330
2,598
189,458
1,210
—
46
$
$
119,376 $
190,714
2,398 $
6,830
9,228
196
9,424
—
62
4,691
8,275
12,966
144
13,110
—
51
778,693
733,907
35
(668,838)
109,952
$
119,376 $
(92)
(556,262)
177,604
190,714
CHIMERIX, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
(in thousands, except share and per share data)
Revenues:
Contract revenue
Licensing revenue
Total revenues
Operating expenses:
Research and development
General and administrative
Acquired in-process research and development
Total operating expenses
Loss from operations
Other income:
Interest income and other, net
Net loss
Other comprehensive loss:
Unrealized gain (loss) on investments, net
Comprehensive loss
Per share information:
Net loss, basic and diluted
Weighted-average shares outstanding, basic and diluted
Years Ended December 31,
2019
2018
2017
$
7,604 $
7,216 $
4,915
12,519
42,288
21,169
65,045
128,502
(115,983)
3,407
(112,576)
—
7,216
55,239
23,582
—
78,821
(71,605)
2,131
(69,474)
4,494
—
4,494
49,448
27,148
—
76,596
(72,102)
1,118
(70,984)
$
$
127
871
(523)
(112,449) $
(68,603) $
(71,507)
(2.03) $
(1.43) $
(1.51)
55,501,973
48,593,435
46,963,430
The accompanying notes are an integral part of the consolidated financial statements.
66
CHIMERIX, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
(in thousands)
Common
Stock
Additional
Paid-
in Capital
Accumulated Other
Comprehensive
Gain (Loss)
Accumulated
Deficit
Total
Stockholders’
Equity (Deficit)
Balance, December 31, 2016
Share-based compensation
Exercise of stock options
Employee stock purchase plan purchases
University of Michigan stock issuance
Comprehensive loss:
Unrealized loss on investments, net
Net loss
Total comprehensive loss
Balance, December 31, 2017
Share-based compensation
Exercise of stock options
Employee stock purchase plan purchases
Issuance of common stock, net of issuance costs
Comprehensive loss:
Unrealized gain on investments, net
Net loss
Total comprehensive loss
Balance, December 31, 2018
Share-based compensation
Exercise of stock options
Employee stock purchase plan purchases
Issuance of common stock, net of issuance costs
Comprehensive loss:
Unrealized gain on investments, net
Net loss
Total comprehensive loss
Balance, December 31, 2019
$
46 $
692,422 $
(440) $
(415,804) $
1
—
—
—
—
—
47
1
—
—
3
—
—
51
1
—
—
10
—
—
16,109
121
712
150
—
—
709,514
13,073
115
608
10,597
—
—
733,907
9,528
43
325
34,890
—
—
—
—
—
—
—
—
—
—
(523)
—
—
(70,984)
(963)
(486,788)
—
—
—
—
—
—
—
—
871
—
—
(69,474)
(92)
(556,262)
—
—
—
—
127
—
—
—
—
—
—
(112,576)
276,224
16,110
121
712
150
(523)
(70,984)
(71,507)
221,810
13,074
115
608
10,600
871
(69,474)
(68,603)
177,604
9,529
43
325
34,900
127
(112,576)
(112,449)
$
62 $
778,693 $
35 $
(668,838) $
109,952
The accompanying notes are an integral part of the consolidated financial statements.
67
CHIMERIX, 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:
Depreciation of property and equipment
Amortization of discount/premium on investments
Share-based compensation
Fair value of common stock issued for license agreement
Loss on disposition of assets
Loss on sale of investments
Unrealized loss on equity investment
Lease-related amortization
Changes in operating assets and liabilities:
Accounts receivable
Prepaid expenses and other assets
Accounts payable and accrued liabilities
Net cash used in operating activities
Cash flows from investing activities:
Purchases of property and equipment
Purchases of short-term investments
Purchases of long-term investments
Proceeds from sales of short-term investments
Proceeds from maturities of short-term investments
Net cash provided by investing activities
Cash flows from financing activities:
Proceeds from exercise of stock options
Proceeds from employee stock purchase plan
Proceeds from issuance of common stock, net of commissions
Payments of deferred offering costs
Net cash provided by financing activities
Net (decrease) increase in cash and cash equivalents
Cash and cash equivalents:
Beginning of period
End of period
Supplemental disclosure of cash flow information
Non-cash addition to deferred offering costs
Years Ended December 31,
2019
2018
2017
$
(112,576) $
(69,474) $
(70,984)
564
(1,842)
9,528
34,900
264
31
—
(76)
(903)
(777)
(4,294)
(75,181)
860
(852)
13,074
—
5
378
348
(59)
1,352
638
5
1,091
(5)
16,110
—
10
—
1,160
(319)
(83)
(178)
3,073
(53,725)
(50,125)
(158)
(181)
(167,528)
(125,611)
—
13,117
165,200
10,631
43
325
—
(23)
345
(64,205)
(6,031)
111,178
125,740
105,095
115
608
10,867
(402)
11,188
62,558
(151)
—
(162,613)
13,500
165,695
16,431
121
712
—
(54)
779
(32,915)
81,106
18,548
16,901 $
81,106 $
51,463
18,548
— $
22 $
276
$
$
The accompanying notes are an integral part of the consolidated financial statements.
68
CHIMERIX, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1. The Business and Summary of Significant Accounting Policies
Description of Business
Chimerix, Inc. (the Company) is a development-stage biopharmaceutical company dedicated to accelerating the advancement of innovative medicines that
make a meaningful impact in the lives of patients living with cancer and other serious diseases. The Company has two clinical-stage product candidates,
dociparstat sodium (DSTAT) and brincidofovir (BCV). Dociparstat sodium is a potential first-in-class glycosaminoglycan compound derived from porcine
heparin that has low anticoagulant activity but retains the ability to inhibit activities of several key proteins implicated in the retention and viability of AML
blasts and leukemic stem cells in the bone marrow during chemotherapy (e.g., CXCL12, selectins, HMGB1. elastase). Mobilization of AML blasts and
leukemic stem cells from the bone marrow has been associated with enhanced chemosensitivity and may be a primary mechanism accounting for the
observed increases in event-free survival (EFS) and overall survival (OS) in a Phase 2 study with DSTAT versus placebo. Randomized Phase 2 data suggests
that DSTAT may also accelerate platelet recovery post chemotherapy via inhibition of platelet factor 4, a negative regulator of platelet production that impairs
platelet recovery following chemotherapy. BCV is a lipid conjugate DNA polymerase inhibitor in development as a medical countermeasure for smallpox.
The Company expects to continue its evaluation of external innovation in order to license, acquire or otherwise gain access to molecules that further broaden
its pipeline of investigational agents in cancer or other serious diseases.
Basis of Presentation
The consolidated financial statements include the accounts of the Company, and its wholly owned subsidiaries. The accompanying consolidated financial
statements have been prepared in accordance with accounting principles generally accepted in the United States of America (GAAP). The preparation of the
Company’s consolidated financial statements requires estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses,
and the disclosure of contingent assets and liabilities in the consolidated financial statements and accompanying notes. Although these estimates are based on
knowledge of current events and actions the Company may undertake in the future, actual results may ultimately differ from these estimates and assumptions.
Reclassifications
Certain prior period amounts in the accompanying consolidated financial statements have been reclassified to conform to the current year presentation. These
reclassifications had no effect on previously reported net income or stockholders' equity (deficit).
Cash and Cash Equivalents
The Company considers any highly liquid instrument with an original maturity of three months or less at acquisition to be a cash equivalent. Cash equivalents
consist of money market funds, U.S. Treasury securities, commercial paper, and corporate bonds.
Investments
Investments consist primarily of commercial paper, corporate bonds, U.S. Treasury securities and stock of a U.S. corporation. The Company invests in high-
credit quality investments in accordance with its investment policy which minimizes the probability of loss.
Available-for-sale debt securities are carried at fair value as determined by quoted market prices, with the unrealized gains and losses, net of tax, reported as a
separate component of stockholders’ equity. Realized gains and losses are determined using the specific identification method and transactions are recorded
on a settlement date basis in interest income and other, net. For the year ended December 31, 2019, approximately $2,000 of realized gains were reclassified
from accumulated other comprehensive loss, net in the Consolidated Balance Sheets to interest income and other, net in the Consolidated Statements of
Operations and Comprehensive Loss. Investments with original maturities beyond three months at the date of purchase and which mature on, or less than
twelve months from, the balance sheet date are classified as short-term. Investments with a maturity beyond twelve months from the balance sheet date are
classified as long-term.
The Company periodically reviews available-for-sale debt securities for other-than-temporary declines in fair value below the cost basis and whenever events
or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. The Company evaluates, among other things, the duration
and extent to which the fair value of a security is less than its cost; the
69
financial condition of the issuer and any changes thereto; and the Company’s intent to sell, or whether it will more likely than not be required to sell, the
security before recovery of its amortized cost basis. The Company does not intend to sell, and is not likely to be required to sell, the available-for-sale debt
securities in an unrealized loss position before recovery of the amortized cost bases of the debt securities, which may be maturity. Any such declines in value
judged to be other-than-temporary on available-for-sale debt securities are reported in other-than-temporary impairment of investment.
For the year ended December 31, 2018, the Company recorded $348,000 of unrealized loss related to the Company's investment in ContraVir common stock
to interest income and other, net in the Consolidated Statements of Operations and Comprehensive Loss. The Company sold its investment in ContraVir in
September 2019. For the year ended December 31, 2019, the Company recorded $33,000 of realized loss related to the sale of the Company’s investment in
ContraVir common stock to interest income and other, net in the Consolidated Statements of Operations and Comprehensive Loss. The Company recognizes
interest income on an accrual basis in interest income and other, net in the Consolidated Statements of Operations and Comprehensive Loss.
Concentration of Credit Risk
Financial instruments that potentially subject the Company to concentrations of credit risk consist of cash, cash equivalents, short-term investments, long-
term investments and accounts receivable. The Company is exposed to credit risk, subject to federal deposit insurance, in the event of default by the financial
institutions holding its cash and cash equivalents to the extent of amounts recorded on the balance sheets. Accounts receivable represent amounts due from an
agency of the federal government.
Accounts Receivable
Accounts receivable at December 31, 2019 and December 31, 2018 consisted of amounts billed under the Company’s contract with the Biomedical Advanced
Research and Development Authority (BARDA). Receivables under the BARDA contract are recorded as qualifying research activities are conducted and
invoices from the Company’s vendors are received. The Company carries its accounts receivable at cost less an allowance for doubtful accounts. On a
periodic basis, the Company evaluates its accounts receivable and establishes an allowance based on its history of collections and write-offs and the current
status of all receivables. The Company does not accrue interest on trade receivables. If accounts become uncollectible, they will be written off through a
charge to the allowance for doubtful accounts. The Company has not recorded a charge to allowance for doubtful accounts as management believes all
receivables are fully collectible.
Fair Value of Financial Instruments
The carrying amounts of certain financial instruments, including accounts receivable, accounts payable and accrued expenses approximate their fair values
due to the short-term nature of such instruments.
For assets and liabilities recorded at fair value, it is the Company’s policy to maximize the use of observable inputs and minimize the use of unobservable
inputs when developing fair value measurements, in accordance with the fair value hierarchy. Fair value measurements for assets and liabilities where there
exists limited or no observable market data are based primarily upon estimates and are often calculated based on the economic and competitive environment,
the characteristics of the asset or liability and other factors. Therefore, fair value measurements cannot be determined with precision and may not be realized
in an actual sale or immediate settlement of the asset or liability. Additionally, there may be inherent weaknesses in any calculation technique and changes in
the underlying assumptions used, including discount rates and estimates of future cash flows, could significantly affect the calculated current or future fair
values. The Company utilizes fair value measurements to record fair value adjustments to certain assets and liabilities and to determine fair value disclosures.
The Company groups assets and liabilities at fair value in three levels, based on the markets in which the assets and liabilities are traded and the reliability of
the assumptions used to determine fair value. The determination of where an asset or liability falls in the hierarchy requires significant judgment. These levels
are:
•
•
•
Level 1 — Valuations based on unadjusted quoted prices in active markets for identical assets or liabilities that the Company has the ability
to access.
Level 2 — Valuations based on quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or
liabilities in markets that are not active, and models for which all significant inputs are observable, either directly or indirectly.
Level 3 — Valuations based on inputs that are unobservable and significant to the overall fair value measurement.
70
At December 31, 2019, the Company had cash equivalents, including money market funds, and short-term investments, including U.S. Treasury securities. At
December 31, 2018, the Company had cash equivalents, including money market funds and U.S. Treasury securities, and short-term investments, including
U.S. Treasury securities, whose value is based on using quoted market prices. Accordingly, these securities are classified as Level 1.
At December 31, 2018, the Company had short-term investments, including stock of a U.S. corporation. The Company’s investment in ContraVir
Pharmaceuticals (ContraVir) common stock was categorized as a Level 1 asset and had a value based on ContraVir's common stock value at December 31,
2018. The Company sold its investment in ContraVir in September 2019. For the twelve months ended December 31, 2019 the Company recorded a realized
loss related to the Company’s investment in ContraVir common stock of approximately $33,000. For the twelve months ended December 31, 2018 and 2017,
the Company recorded $348,000 and $1,160,000, respectively, of unrealized loss related to the Company’s investment in ContraVir common stock to interest
income and other, net in the Consolidated Statements of Operations and Comprehensive Loss.
At December 31, 2019, the Company had short-term investments, including commercial paper and corporate bonds. At December 31, 2018, the Company had
cash equivalents and short-term investments including commercial paper and corporate bonds. As quoted prices are not available for these securities, they are
valued using independent pricing models or other model-based valuation techniques such as the present value of future cash flows, adjusted for the security’s
credit rating, prepayment assumptions and other factors such as credit loss assumptions. Accordingly, these securities are classified as Level 2.
There was no material re-measurement to fair value of financial assets and liabilities that are not measured at fair value on a recurring basis. For additional
information regarding the Company’s investments, please refer to Note 2, "Investments."
Below is a table that presents information about certain assets measured at fair value on a recurring basis (in thousands):
Cash equivalents
Money market funds
Total cash equivalents
Short-term investments
U.S. Treasury securities
Commercial paper
Corporate bonds
Total short-term investments
Total assets
Fair Value Measurements
December 31, 2019
Quoted Prices in
Active Markets
for Identical Assets
(Level 1)
Significant Other
Observable Inputs
(Level 2)
Significant
Unobservable Inputs
(Level 3)
11,854 $
11,854
22,493
—
—
22,493
34,347 $
— $
—
—
43,119
30,962
74,081
74,081 $
—
—
—
—
—
—
—
Total
$
11,854 $
11,854
22,493
43,119
30,962
96,574
$
108,428 $
71
Cash equivalents
Money market funds
U.S. Treasury securities
Commercial paper
Corporate bonds
Total cash equivalents
Short-term investments
U.S. Treasury securities
Common stock of U.S. corporation
Commercial paper
Corporate bonds
Total short-term investments
Total assets
Prepaid Expenses and Other Current Assets
Total
$
30,726 $
11,482
29,677
4,008
75,893
12,589
38
60,114
32,683
105,424
181,317 $
$
Fair Value Measurements
December 31, 2018
Quoted Prices in
Active Markets
for Identical Assets
(Level 1)
Significant Other
Observable Inputs
(Level 2)
Significant
Unobservable Inputs
(Level 3)
30,726 $
11,482
—
—
42,208
12,589
38
—
—
12,627
54,835 $
— $
—
29,677
4,008
33,685
—
—
60,114
32,683
92,797
126,482 $
—
—
—
—
—
—
—
—
—
—
—
Prepaid expenses and other current assets consisted of the following (in thousands):
Prepaid research and development expenses
Interest receivable
Prepaid insurance
Other prepaid expenses and current assets
Total prepaid expenses and other current assets
Property and Equipment
December 31,
2019
2018
936 $
1,071
323
344
1,782
3,385 $
259
382
886
2,598
$
$
Property and equipment are stated at cost, less accumulated depreciation. Depreciation is determined on a straight-line basis over the estimated useful lives of
the assets, which generally range from three to five years. Leasehold improvements are amortized over the shorter of the useful life of the asset or the term of
the related lease. Maintenance and repairs are charged against expense as incurred.
Impairment of Property and Equipment
The Company evaluates property and equipment for impairment whenever events or changes in circumstances indicate that the carrying value of an asset may
not be recoverable. If the estimated future cash flows (undiscounted and without interest charges) from the use of an asset are less than the carrying value, a
write-down would be recorded to reduce the related asset to its estimated fair value. To date, no such write-downs have occurred.
Leases
At the inception of an arrangement, we determine if an arrangement is, or contains, a lease based on the unique facts and circumstances present in that
arrangement. Lease classification, recognition, and measurement are then determined at the lease commencement date. For arrangements that contain a lease
we (i) identify lease and non-lease components, (ii) determine the consideration in the contract, (iii) determine whether the lease is an operating or financing
lease; and (iv) recognize lease right-of-use (ROU) assets and liabilities. Lease liabilities and their corresponding ROU assets are recorded based on the present
value
72
of lease payments over the expected lease term. The interest rate implicit in lease contracts is typically not readily determinable and as such, we use our
incremental borrowing rate based on the information available at the lease commencement date, which represents an internally developed rate that would be
incurred to borrow, on a collateralized basis, over a similar term, an amount equal to the lease payments in a similar economic environment.
Most leases include options to renew and, or, terminate the lease, which can impact the lease term. The exercise of these options is at our discretion and we do
not include any of these options within the expected lease term as we are not reasonably certain we will exercise these options.
Operating lease assets and liabilities are included on our Consolidated Balance Sheet beginning January 1, 2019. The current portion of our operating lease
liabilities is included in accrued liabilities and the long-term portion is included in lease-related obligations.
Accrued Liabilities
Accrued liabilities consisted of the following (in thousands):
Accrued compensation
Accrued research and development expenses
Other accrued liabilities
Total accrued liabilities
Revenue Recognition
Policy
December 31,
2019
2018
$
$
3,626 $
1,868
1,336
6,830 $
2,469
4,525
1,281
8,275
The Company’s revenues generally consist of (i) contract revenue - revenue generated under federal contracts, and (ii) collaboration and licensing revenue -
revenue related to non-refundable upfront fees, royalties and milestone payments earned under license agreements. Revenue is recognized in accordance with
the criteria outlined in Accounting Standards Codification (ASC) 606 issued by the Financial Accounting Standards Board (FASB). Following this accounting
pronouncement, a five-step approach is applied for recognizing revenue, including (1) identify the contract with a customer; (2) identify the performance
obligations in the contract; (3) determine the transaction price; (4) allocate the transaction price to the performance obligations in the contract; and (5)
recognize revenue when, or as, the entity satisfies a performance obligation.
Biomedical Advanced Research and Development Authority (BARDA)
In February 2011, the Company entered into a contract with BARDA for the advanced development of brincidofovir as a medical countermeasure in the event
of a smallpox release. Under the contract, the Company may receive up to $75.8 million in expense reimbursement and $5.3 million in fees over the
performance of 1 base segment and 4 option segments. Exercise of each option segment is solely at the discretion of BARDA. Currently, option segments 1
through 3 have been exercised. The Company assessed the services in accordance with the authoritative guidance and concluded that there is a potential of 5
separate contracts (1 base segment and four option segments) within this agreement, each of which has a single performance obligation. The transaction price
for each segment, based on the transaction price as defined in each segment contract, is allocated to the single performance obligation for each contract. The
transaction price is recognized over time by measuring the progress toward complete satisfaction of the performance obligation. For reimbursable expenses,
this occurs as qualifying research activities are conducted based on invoices from company vendors. For the fixed fee, the progress toward complete
satisfaction is estimated based on the costs incurred to date relative to the total estimated costs per the terms of each contract. The Company typically invoices
BARDA monthly as costs are incurred. Any amounts received in advance of performance are recorded as deferred revenue until earned. The base segment
and first option segment were completed prior to adoption of ASC 606. The Company is currently performing under the second and third option segments of
the contract during which the Company may receive up to a total of $23.9 million and $14.1 million in expense reimbursement and fees, respectively. The
second and third option segments are scheduled to end on May 31, 2020.
73
SymBio Pharmaceuticals
On September 30, 2019, the Company entered into a license agreement with SymBio Pharmaceuticals Limited (SymBio) for the exclusive worldwide rights
to develop, manufacture and commercialize BCV for all human indications, excluding the prevention and treatment of orthopoxviruses, including smallpox.
The Company assessed the agreement in accordance with the authoritative guidance and concluded that the SymBio contract includes multiple performance
obligations. The SymBio contract has one fixed transaction amount of a $5.0 million upfront payment received in October 2019 and several variable
transaction amounts, up to $180.0 million, due to the Company at certain regulatory and commercial milestones, along with low double-digit royalties, due to
the Company on annual net sales. All variable transaction amounts are fully constrained, therefore the allocated transaction price is $5.0 million. The majority
of the transaction price of the contract has been allocated to the combined performance obligation of the granting of the license to BCV and associated
technology transfer which was recognized when the technology transfer was completed in the fourth quarter of 2019. The remainder of the upfront payment
will be recognized when the inventory transfer and technical assistance performance obligations are complete, which is expected to occur in the first half of
2020. The revenue from regulatory and commercial milestones and royalties from net sales will be recognized upon occurrence of the triggering events or
when those transaction amounts are no longer fully constrained. As of December 31, 2019, the Company had recognized $4.9 million of revenue related to
the upfront payment and $0.1 million remained in deferred revenue as of December 31, 2019.
Research and Development Prepaids and Accruals
As part of the process of preparing financial statements, the Company is required to estimate its expenses resulting from its obligation under contracts with
vendors and consultants and clinical site agreements in connection with its research and development efforts. The financial terms of these contracts are
subject to negotiations which vary contract to contract and may result in payment flows that do not match the periods over which materials or services are
provided to the Company under such contracts.
The Company’s objective is to reflect the appropriate research and development expenses in its financial statements by matching those expenses with the
period in which services and efforts are expended. The Company accounts for these expenses according to the progress of its research and development
efforts. The Company determines prepaid and accrual estimates through discussion with applicable personnel and outside service providers as to the progress
or state of communication of clinical trials, or other services completed. The Company adjusts its rate of research and development expense recognition if
actual results differ from its estimates. The Company makes estimates of its prepaid and accrued expenses as of each balance sheet date in its financial
statements based on facts and circumstances known at that time. Although the Company does not expect its estimates to be materially different from amounts
actually incurred, its understanding of status and timing of services performed relative to the actual status and timing of services performed may vary and may
result in the Company reporting amounts that are too high or too low for any particular period. Through December 31, 2019, there had been no material
adjustments to the Company’s prior period estimates of prepaid and accruals for research and development expenses. The Company’s research and
development prepaids and accruals are dependent upon the timely and accurate reporting of contract research organizations and other third-party vendors.
Research and Development Expenses
Major components of research and development costs include cash compensation, stock based compensation, pre-clinical studies, clinical trial and related
clinical manufacturing, drug development, materials and supplies, legal, regulatory compliance, and fees paid to consultants and other entities that conduct
certain research and development activities on the Company’s behalf. Research and development costs, including upfront fees and milestones paid to contract
research organizations, are expensed as goods are received or services rendered. Costs incurred in connection with clinical trial activities for which the
underlying nature of the activities themselves do not directly relate to active research and development, such as costs incurred for market research and focus
groups linked to clinical strategy as well as costs to build the Company’s brand, are not included in research and development costs but are reflected as
general and administrative costs.
Interest Income and Other, Net
Interest income and other, net consists primarily of interest earned on our cash, cash equivalents, short-term investments and long-term investments and
decreases in fair value as well as realized losses of our investment in ContraVir Pharmaceuticals common stock.
Income Taxes
Deferred tax assets and liabilities are determined based on differences between the financial and tax reporting bases of assets and liabilities and are measured
using enacted tax rates and laws that are expected to be in effect when the differences are expected to
74
reverse. Valuation allowances are established when the Company determines that it is more likely than not that some portion of a deferred tax asset will not be
realized. The Company has incurred operating losses from April 7, 2000 (inception) through December 31, 2019, and therefore has not recorded any current
provision for income taxes.
Additionally, the Company recognizes the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained on
examination by the taxing authorities based on the technical merits of the position. The tax benefit recognized in the financial statements for a particular tax
position is based on the largest benefit that is more likely than not to be realized upon settlement. Accordingly, the Company establishes reserves for uncertain
tax positions.
The FASB Staff Q&A, Topic 740, No. 5, Accounting for Global Intangible Low-Taxed Income (GILTI), states that an entity can make an accounting policy
election to either recognized deferred taxes for temporary basis differences expected to reverse as GILTI in future years or to provide for the tax expense
related to GILTI in the year the tax is incurred as a period expense only. The Company has elected to account for GILTI as a period expense in the year the tax
is incurred.
Share-Based Compensation
The Company measures and recognizes compensation expense for all share-based payment awards made to employees and directors, including employee
stock options, restricted stock units and the employee stock purchase plan purchase rights, based on estimated fair values. The fair value of employee stock
options and employee stock purchase plan purchase rights is estimated on the grant date using the Black-Scholes valuation model. The grant-date fair value
for restricted stock units is based upon the market price of the Company’s common stock on the date of the grant. The value of the portion of the award that is
ultimately expected to vest is recorded as expense over the requisite service periods. For performance-based awards compensation cost is recognized when it
is probable that the performance criteria will be met.
The Company estimates forfeitures at the time of grant and revises those estimates in subsequent periods if actual forfeitures differ from its estimates. The
Company uses historical data to estimate forfeitures and records share-based compensation expense only for those awards that are expected to vest. To the
extent that actual forfeitures differ from the Company’s estimates, the difference is recorded as a cumulative adjustment in the period the estimates were
revised. For the years ended December 31, 2019, 2018 and 2017, the Company applied a forfeiture rate based on the Company’s historical forfeitures.
401(k) Plan
The Company maintains a defined contribution employee retirement plan (“401(k) plan”). For the years ended December 31, 2019, 2018 and 2017, the
Company recognized expenses for matching contributions of $0.3 million, $0.4 million and $0.3 million, respectively.
Basic and Dilutive Net Loss Per Share of Common Stock
Basic net loss per share of common stock is computed by dividing net loss by the weighted-average number of shares of common stock outstanding during
the period, excluding the dilutive effects of warrants to purchase common stock, non-vested restricted stock, stock options, and employee stock purchase plan
purchase rights. Diluted net loss per share of common stock is computed by dividing net loss by the sum of the weighted-average number of shares of
common stock outstanding during the period plus the potential dilutive effects of warrants to purchase common stock, non-vested restricted stock, stock
options, and employee stock purchase plan purchase rights outstanding during the period calculated in accordance with the treasury stock method, but are
excluded if their effect is anti-dilutive. Because the impact of these items is anti-dilutive during the periods of net loss, there was no difference between basic
and diluted loss per share of common stock at December 31, 2019, 2018 and 2017.
The calculation of weighted-average diluted shares outstanding excludes the dilutive effect of non-vested restricted stock, stock options to purchase common
stock, and employee stock purchase plan purchase rights as the impact of such items are anti-dilutive during periods of net loss. Potential common shares
excluded from the calculations were 1,571,356, 749,110, and 1,687,887 for the years ended December 31, 2019, 2018 and 2017, respectively.
Segments
The Company operates in only one segment, pharmaceuticals.
75
Impact of Recently Issued Accounting Standards
In June 2016, the FASB issued ASU 2016-13, Financial Instruments-Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments,
which amends the impairment model by requiring entities to use a forward-looking approach on expected losses to estimate credit losses on certain financial
instruments, including trade receivables and available-for-sale debt securities. The new guidance was originally due to become effective for the Company
beginning in the first quarter of 2020, however the FASB in November 2019 issued ASU 2019-10 which moved the effective date for smaller reporting
companies to the first quarter of 2023. The Company is currently evaluating the potential impact that this standard may have on its consolidated financial
statements.
Impact of Recently Adopted Accounting Standards
In February 2016, the FASB issued Accounting Standards Update (ASU) No. 2016-02, “Leases (Topic 842)”, which has been amended through subsequent
ASUs, and which increases transparency and comparability among companies accounting for lease transactions. The most significant change of this update
requires the recognition of lease assets and liabilities on the balance sheet for lessees for operating lease arrangements with lease terms greater than 12
months. This ASU is effective for financial statements issued for annual periods and interim periods within those annual periods, beginning after December
15, 2018. The Company adopted this standard effective January 1, 2019 using the alternative modified retrospective adoption method allowed by ASU 2018-
11. The Company elected to use the package of three practical expedients which allows the Company not to reassess whether contracts are or contain leases,
lease classification, and whether initial direct costs qualify for capitalization. The Company has completed its assessment of the impact of the standard and
determined that the only material leases that the Company holds are real estate operating leases. Upon adoption of the standard, the Company recorded a right
of use asset of $1.4 million and lease liability of $1.6 million on its consolidated balance sheets with no adjustment to beginning retained earnings in the
period of adoption.
Note 2. Investments
The following tables summarize the Company’s short-term and long-term debt investments (in thousands):
Corporate bonds
Commercial paper
U.S. Treasury securities
Total investments
Corporate bonds
Commercial paper
U.S. Treasury securities
Total investments
December 31, 2019
Gross
Unrealized
Gains
Gross
Unrealized
Losses
Estimated
Fair Value
19 $
14
17
50 $
(9) $
(4)
(2)
(15) $
30,962
43,119
22,493
96,574
Amortized Cost
$
$
30,952 $
43,109
22,478
96,539 $
December 31, 2018
Gross
Unrealized
Gains
Gross
Unrealized
Losses
Estimated
Fair Value
— $
—
—
— $
(41) $
(45)
(3)
32,683
60,114
12,589
(89) $
105,386
Amortized Cost
$
$
32,724 $
60,159
12,592
105,475 $
76
The following tables summarize the Company’s debt investments with unrealized losses, aggregated by investment type and the length of time that individual
investments have been in a continuous unrealized loss position (in thousands, except number of securities):
Less than 12 Months
Greater than 12 Months
Total
December 31, 2019
Corporate bonds
Commercial paper
U.S. Treasury securities
Total
Fair Value
$
9,657 $
10,147
2,994
$
22,798 $
Number of securities with unrealized losses
Unrealized
Loss
Fair Value
Unrealized
Loss
Fair Value
Unrealized
Loss
(9) $
(4)
(2)
(15) $
9
— $
—
—
— $
— $
9,657 $
—
—
— $
—
10,147
2,994
22,798 $
(9)
(4)
(2)
(15)
9
Less than 12 Months
Greater than 12 Months
Total
December 31, 2018
Corporate bonds
Commercial paper
U.S. Treasury securities
Total
Fair Value
$
32,683 $
60,114
12,589
$
105,386 $
Number of securities with unrealized losses
Unrealized
Loss
Fair Value
Unrealized
Loss
Fair Value
Unrealized
Loss
(41) $
(45)
(3)
(89) $
36
— $
—
—
— $
— $
32,683 $
—
—
— $
—
60,114
12,589
105,386 $
(41)
(45)
(3)
(89)
36
The following table summarizes the scheduled maturity for the Company’s debt investments at December 31, 2019 (in thousands):
Maturing in one year or less
Total debt investments
Note 3. Property and Equipment
Property and equipment, net of accumulated depreciation consisted of the following (in thousands):
December 31, 2019
$
$
96,574
96,574
December 31,
2019
2018
Lab equipment
Leasehold improvements
Computer equipment
Office furniture and equipment
Property and equipment
Less accumulated depreciation
$
2,329 $
1,550
1,182
520
5,581
(5,041)
Property and equipment, net of accumulated depreciation
$
540 $
Note 4. Commitments and Contingencies
Leases
2,599
1,550
1,181
520
5,850
(4,640)
1,210
The Company leases its facilities under long-term operating leases that expire at various dates through 2021. The Company generally has options to renew
lease terms on its facilities, which may be exercised at the Company’s sole discretion. In addition,
77
certain lease arrangements may be terminated prior to their original expiration date at the Company’s discretion. The Company evaluates renewal and
termination options at the lease commencement date to determine if it is reasonably certain to exercise the option and has concluded on all operating leases
that it is not reasonably certain that any options will be exercised. The weighted-average remaining lease term for the Company’s operating leases as of
December 31, 2019 was 1.27 years.
Expense related to leases is recorded on a straight-line basis over the lease term. Lease expense under operating leases, including common area maintenance
fees, totaled approximately $724,000 and $692,000, respectively, for the twelve months ended December 31, 2019 and 2018, respectively.
The discount rate implicit within the Company’s leases is generally not determinable and therefore the Company determines the discount rate based on its
incremental borrowing rate based on the information available at commencement date. As of December 31, 2019, the operating lease liabilities reflect a
weighted-average discount rate of 13.06%.
The following table sets forth the operating lease right-of-use assets and liabilities as of December 31, 2019 (in thousands):
Assets
Operating Lease Right-of-Use Assets
Liabilities
Operating Lease Short-term Liabilities (recorded within Accrued liabilities)
Operating Lease Long-term Liabilities (recorded within Lease-related obligations)
Total Operating Lease Liabilities
Operating lease payments over the remainder of the lease terms are as follows (in thousands):
Years Ending December 31,
2020
2021
Total future minimum rental payments
Less amount of lease payments representing interest
Total present value of lease payments
$
$
$
$
$
709
656
179
835
719
182
901
66
835
As of December 31, 2019
As of December 31, 2018, future minimum payments under operating leases under ASC 840 were as follows (in thousands):
Years Ending December 31,
As of December 31, 2018
2019
2020
2021
Total future minimum rental payments
$
$
786
797
235
1,818
For the twelve months ended December 31, 2019 and 2018, the Company made lease payments of approximately $751,000 and $750,000, respectively, which
are included in operating cash flows.
78
Sublease
The Company subleases 3,537 square feet of its office space under a non-cancelable operating lease that expires February 2021. For the twelve months ended
December 31, 2019, the Company recognized approximately $71,000 of income in Interest income and other, net on the Consolidated Statement of
Operations and Comprehensive Loss. For the twelve months ended December 31, 2018, the Company recognized approximately $71,000 of a reduction of
rent expense in operating expenses on the Consolidated Statement of Operations and Comprehensive Loss. Total future minimum rentals under the non-
cancelable operating sublease are presented below (in thousands):
Years Ending December 31,
2020
2021
Total future minimum sublease rentals
Significance of Revenue Source
Minimum
Sublease
Rentals
$
$
81
14
95
The Company is the recipient of federal research contract funds from BARDA. Periodic audits are required under the grant and contract agreements and
certain costs may be questioned as appropriate under the agreements. Management believes that such amounts in the current year, if any, are not significant.
Accordingly, no provision for refundable amounts under the agreements has been made as of December 31, 2019 and 2018.
Note 5. Stockholders’ Equity (Deficit)
Common Stock
The Company’s common stock consists of 200 million authorized shares at December 31, 2019 and 2018, and 61.6 million and 50.7 million shares issued and
outstanding at December 31, 2019 and December 31, 2018, respectively.
Shares Reserved for Future Issuance
The Company has reserved shares of common stock for future issuances as follows:
For exercise of common stock warrants
For exercise of outstanding common stock options
For delivery upon vesting of outstanding restricted stock units
For future equity awards under the 2013 Equity Incentive Plan
For future purchases under the 2013 Employee Stock Purchase Plan
Total shares of common stock reserved for future issuances
Stock Options
December 31,
2019
2018
—
—
8,390,304
6,429,638
1,561,237
1,855,688
2,333,750
656,169
1,587,670
2,120,290
14,140,979
10,793,767
The Company maintains a 2013 Equity Incentive Plan (the 2013 Plan). The 2013 Plan provides for the grant of incentive stock options (ISOs), nonstatutory
stock options (NSOs), stock appreciation rights, restricted stock awards, restricted stock unit (RSU) awards, performance-based stock awards, and other forms
of equity compensation (collectively, stock awards), all of which may be granted to employees, including officers, non-employee directors and consultants of
the Company and its affiliates. Additionally, the 2013 Plan provides for the grant of performance cash awards. ISOs may be granted only to employees. All
other awards may be granted to employees, including officers, and to non-employee directors and consultants. The number of shares of common stock
reserved for issuance under the 2013 Plan will automatically increase on January 1 of each year, continuing through and including January 1, 2023, by 4.0%
of the total number of shares of capital stock outstanding on December 31 of the preceding calendar year, or a lesser number of shares determined by the
Company’s board of directors.
79
The Company estimates the fair value of its share-based awards to employees, directors and consultants using the Black-Scholes option-pricing model. The
Black-Scholes model requires the input of assumptions, including (a) the expected stock price volatility, (b) the calculation of expected term of the award, (c)
the risk-free interest rate and (d) expected dividends. For employee stock options, the Company uses historical exercise data to estimate the expected life. The
risk-free interest rates for the periods within the expected life of the option are based on the U.S. Treasury instrument with a life that is similar to the expected
life of the option grant. The Company has never paid, and does not expect to pay, dividends in the foreseeable future.
The following table illustrates the assumptions for the Black-Scholes model used in determining the fair value of the stock options granted:
Expected volatility
Expected term (in years)
Weighted-average risk-free interest rate
Expected dividend yield
Weighted-average fair value per option
A summary of activity related to the Company’s stock options is as follows:
Years Ended December 31,
2019
2018
2017
88.77%
6.0
2.42%
—%
85.83%
5.9
2.52%
—%
$
1.71
$
3.43
$
85.51%
5.9
2.02%
—%
3.71
Balance, December 31, 2017
Granted
Exercised
Forfeited
Balance, December 31, 2018
Granted
Exercised
Forfeited
Balance, December 31, 2019
Exercisable at December 31, 2019
Vested or expected to vest at December 31, 2019
Number of
Options
Outstanding
Weighted-Average
Exercise Price
Weighted-Average
Remaining
Contractual
Life (in Years)
Total Intrinsic
Value
4,996,661 $
2,050,995
(29,262)
(588,756)
6,429,638 $
4,029,200
(19,284)
(2,049,250)
8,390,304 $
5,004,867 $
8,112,168 $
15.51
4.73
3.93
12.31
12.41
2.31
2.21
9.26
8.36
12.18
8.56
7.59
—
—
—
7.37
—
—
—
7.47 $
6.44 $
7.41 $
15,600
650
12,610
As of December 31, 2019, there was approximately $5.2 million of total unrecognized compensation cost related to non-vested stock options granted under
the 2013 Plan. That compensation cost is expected to be recognized over a weighted-average period of approximately 2.72 years.
Other information regarding the Company’s stock options is as follows (in thousands, except per share data):
Weighted-average grant-date fair value per share of options granted
Total intrinsic value of options exercised
Total fair value of shares vested
80
Years Ended December 31,
2019
2018
2017
$
$
$
1.71 $
10 $
6,798 $
3.43 $
31 $
11,021 $
3.71
48
11,786
The following table summarizes, at December 31, 2019, by price range: (1) for stock option awards outstanding under the 2013 Plan, the number of stock
option awards outstanding, their weighted-average remaining life and their weighted-average exercise price; and (2) for stock option awards exercisable under
the 2013 Plan, the number of stock option awards exercisable and their weighted-average exercise price:
Exercise Price Range ($)
Number
Outstanding
Weighted-Average
Remaining
Contractual Life
(in years)
Exercisable
Weighted-Average
Exercise Price
Number
Weighted-Average
Exercise Price
1.51 to 7.57
7.58 to 8.06
8.07 to 18.75
18.76 to 39.17
39.18 to 53.74
1.51 to 53.74
5,764,618
1,361,550
210,117
462,350
591,669
8,390,304
8.41 $
6.02
4.08
4.50
5.20
7.47 $
3.31
8.06
18.75
24.55
41.81
8.36
2,393,762 $
1,346,969
210,117
462,350
591,669
5,004,867 $
4.21
8.06
18.75
24.55
41.81
12.18
In April 2019, the Company granted stock options covering a total of 1,750,000 shares in connection with the hiring of its Chief Executive Officer and Chief
Business Officer. These grants were non-qualified stock options, have a 10-year term and will vest over four years, with one-fourth vesting on the one-year
anniversary of the grant date and remaining three-fourths vesting over the following three years in equal monthly installments. These stock options are subject
to the terms of the 2013 Plan, but were granted outside of the 2013 Plan, as they constituted inducement grants in accordance with Nasdaq Stock Market
rules.
Employee Stock Purchase Plan
In February 2013, the Company’s board of directors adopted the 2013 Employee Stock Purchase Plan (ESPP), which was subsequently ratified by
stockholders and became effective in April 2013. The purpose of the ESPP is to retain the services of new employees and secure the services of new and
existing employees while providing incentives for such individuals to exert maximum efforts toward the Company’s success and that of its affiliates. The
ESPP initially authorized the issuance of 704,225 shares of common stock pursuant to purchase rights granted to the Company’s employees or to employees
of any of its designated affiliates. The number of shares of common stock reserved for issuance will automatically increase on January 1 of each calendar
year, from January 1, 2014 through January 1, 2023 by the least of (a) 1% of the total number of shares of common stock outstanding on December 31 of the
preceding calendar year, (b) 422,535 shares, or (c) a number determined by the Company’s board of directors that is less than (a) and (b). The ESPP is
intended to qualify as an “employee stock purchase plan” within the meaning of Section 423 of the Internal Revenue Code of 1986. The common stock
reserved for future issuance under the ESPP was automatically increased by an additional 422,535 shares on January 1, 2018 and 2019, bringing the total
number of shares of common stock that may be purchased under the ESPP to 2,648,796 and 3,071,331, respectively.
The Company has reserved a total of 3,071,331 shares of common stock to be purchased under the ESPP, of which 2,333,750 and 2,120,290 shares remained
available for purchase at December 31, 2019 and 2018, respectively. Eligible employees may authorize an amount up to 15% of their salary to purchase
common stock at the lower of a 15% discount to the beginning price of their offering period or a 15% discount to the ending price of each six-month purchase
interval. The ESPP also provides for an automatic reset feature to start participants on a new twenty-four-month participation period in the event that the
common stock market value on a purchase date is less than the common stock value on the first day of the twenty-four month offering period. The Company
issued 209,075 and 163,717 shares of common stock pursuant to the ESPP for the year ended December 31, 2019 and 2018, respectively. Compensation
expense for purchase rights under the ESPP related to the purchase discount and the “look-back” option were determined using a Black-Scholes option
pricing model.
81
The following table illustrates the assumptions for the Black-Scholes model used in determining the fair value of the ESPP purchase rights:
Expected volatility
Expected term (in years)
Weighted-average risk-free interest rate
Expected dividend yield
Weighted-average option value per share
Years Ended December 31,
2019
2018
2017
57.22%
44.01%
77.18%
1.23
2.36%
—%
1.23
2.56%
—%
$
1.00
$
1.36
$
0.97
0.99%
—%
2.65
As of December 31, 2019, the Company had a liability of $0.1 million representing employees' contributions to the ESPP.
Restricted Stock Units
For the years ended December 31, 2019 and 2018, the Company issued RSUs to certain employees which vest based on service criteria. When vested, the
RSU represents the right to be issued the number of shares of the Company’s common stock that is equal to the number of RSUs granted. The grant date fair
value for RSUs is based upon the market price of the Company’s common stock on the date of the grant. The fair value is then amortized to compensation
expense over the requisite service period or vesting term. For the years ended December 31, 2019 and 2018, the Company issued 626,375 and 233,050 shares
of common stock pursuant to the vesting of RSUs, respectively.
A summary of activity related to the Company’s RSUs is as follows:
Balance, December 31, 2018
Granted
Share issuance
Forfeited
Balance, December 31, 2019
Number of
Restricted
Stock Units
Outstanding
Weighted-Average
Grant-Date Fair
Value
656,169 $
1,754,575
(626,375)
(223,132)
1,561,237 $
4.92
2.43
3.51
4.13
2.80
The total unrecognized compensation cost related to the non-vested RSUs as of December 31, 2019 was $3 million and will be recognized over a weighted
average period of approximately 3.00 years.
Stock-based Compensation
For awards with only service conditions and graded-vesting features, the Company recognizes compensation expense on a straight-line basis over the
requisite service period. Total stock-based compensation expense was as follows (in thousands):
Income Statement Classification:
Research and development expense
General and administrative expense
Total stock-based compensation expense
Years Ended December 31,
2019
2018
2017
$
$
4,089 $
5,439
9,528 $
5,343 $
7,731
13,074 $
7,047
9,063
16,110
Cash received from exercises under all share-based payment arrangements for 2019, 2018 and 2017 was $0.4 million, $0.7 million and $0.8 million,
respectively. There was no actual tax benefit realized for the tax deductions from exercises of the share-based payment arrangements during 2019, 2018 or
2017.
On February 5, 2019, Dr. M. Michelle Berrey, the Company’s then President and Chief Executive Officer, resigned. The Company entered into a severance
agreement with Dr. Berrey that provides for severance benefits to her in connection with her resignation. Among other benefits, Dr. Berrey received
accelerated vesting of her outstanding stock options and RSUs as if she had continued
82
service for an additional 15-month period. In addition, Dr. Berrey's vested options were modified to extend her exercise period to May 5, 2020. The Company
recorded a charge of $1.8 million to compensation expense on the date of her resignation related to the acceleration of vesting and the modifications of her
outstanding stock options and RSUs.
In May 2019, related to the Company’s reduction in workforce further discussed in Note 8, certain outstanding stock option and RSU grants received
accelerated vesting as if the service period of the terminated employee continued for an additional 12-month period. In addition, certain vested options were
modified to extend their exercise period for 12 months. The Company recorded a charge of $0.7 million to compensation expense on the date of the reduction
in workforce related to the acceleration of vesting and the modifications of the outstanding stock options and RSUs.
At-The-Market Equity Offering
On November 8, 2017, the Company entered into an at-the-market (ATM) sales agreement with Cowen and Company, LLC to sell up to $75 million of the
Company’s common stock under a shelf registration statement filed in November 2017. During the year ended December 31, 2018, the Company sold 2.8
million shares of common stock at a weighted average price per share of $4.00 for $10.9 million of proceeds net of commissions. The Company did not sell
any shares of common stock pursuant to the ATM in 2019.
Note 6. Income Taxes
No income tax expense or benefit has been recorded for the years ended December 31, 2019, 2018 or 2017. This is due to the establishment of a valuation
allowance against the deferred tax assets generated during those periods. At December 31, 2019, the Company has concluded that it is more likely than not
that the Company may not realize the benefit of its deferred tax assets due to its history of losses. Accordingly, the net deferred tax assets have been fully
reserved.
A reconciliation of the difference between the benefit for income taxes and income taxes at the statutory U.S. federal income tax rate is as follows for the
years ended December 31, 2019, 2018, and 2017 (in thousands, except percentages):
2019
2018
2017
Amount
% of Pretax
Earnings
Amount
% of Pretax
Earnings
Amount
% of Pretax
Earnings
Income tax benefit at statutory rate
$
(23,641)
21.0 % $
(14,590)
21.0 % $
(24,134)
State income taxes
Research and development credits
Foreign rate differential
Permanent items
Provision to return adjustments
Effect of change in federal tax rate
Effect of change in state tax rate
Removal of excess tax benefit
Increase in unrecognized tax benefits
Change in valuation allowance
Net benefit
(1,596)
(1,190)
—
696
937
—
(117)
—
298
24,613
—
$
(792)
(1,798)
2
1,164
621
—
151
—
450
14,792
—
1.4 %
1.1 %
— %
(0.6)%
(0.8)%
— %
0.1 %
— %
(0.3)%
(21.9)%
— % $
83
1.1 %
2.6 %
— %
(1.7)%
(0.9)%
— %
(0.2)%
— %
(0.7)%
(1,090)
(2,039)
60
1,646
1,212
57,950
193
(12,930)
403
(21.2)%
(21,271)
— % $
—
34.0 %
1.5 %
2.9 %
(0.1)%
(2.3)%
(1.7)%
(81.6)%
(0.3)%
18.2 %
(0.6)%
30.0 %
— %
The components of deferred tax assets and liabilities at December 31, 2019 and 2018 were as follows (in thousands):
Deferred tax assets:
Domestic net operating loss carryforwards
Foreign net operating loss carryforwards
Research and development expenses
Capitalized Section 174 expenses
License fees
Research and development credits
Capital Loss Carryforwards
Accrued bonuses
Share-based compensation
Other
Total gross deferred tax assets
Valuation allowance
Total deferred tax assets
Deferred tax liabilities:
Other
Total deferred tax liabilities
December 31,
2019
2018
$
114,292 $
104,708
—
419
24
14,176
14,682
431
751
7,557
456
152,788
(152,629)
159
(159)
(159)
71
1,002
25
—
13,789
—
500
7,144
778
128,017
(128,017)
—
—
—
—
Total deferred tax assets and liabilities, net
$
— $
At December 31, 2019, the Company had net operating loss carryforwards for federal and state tax purposes of approximately $508.1 million and $384.3
million, respectively. At December 31, 2018, the Company had net operating loss carryforwards for federal, state, and foreign tax purposes of approximately
$465.3 million, $353.8 million and $0.4 million, respectively. Federal losses of $408.1 million begin to expire in 2020 and $100.0 million of the federal losses
carryforward indefinitely. The state losses begin to expire in 2020. In addition, the Company has tax credit carryforwards for federal tax purposes of
approximately $19.6 million as of December 31, 2019, which begin to expire in 2022. The Company also has capital loss carryforwards for federal tax
purposes of $1.9 million, which begin to expire in 2022. The future utilization of net operating loss and tax credit carryforwards may be limited due to
changes in ownership. Management has recorded a valuation allowance for all of the deferred tax assets due to the uncertainty of future taxable income.
The Company incorporated a subsidiary in the United Kingdom in 2014. However, the subsidiary has had minimal activity since inception. The subsidiary
was liquidated during 2019, and all related tax attributes have been removed.
The Company incorporated a subsidiary in Ireland during 2018. However, the subsidiary had no activity during both 2018 and 2019 and as such, has no
undistributed earnings.
In general, if the Company experiences a greater than 50% aggregate change in ownership of certain significant stockholders over a three-year period (a
Section 382 ownership change), utilization of its pre-change net operating loss carryforwards is subject to an annual limitation under Section 382 of the
Internal Revenue Code of 1986, as amended (and similar state laws). The annual limitation generally is determined by multiplying the value of the
Company’s stock at the time of such ownership change (subject to certain adjustments) by the applicable long-term tax-exempt rate. Such limitations may
result in expiration of a portion of the net operating loss carryforwards before utilization and may be substantial. The ability of the Company to use its net
operating loss carryforwards may be limited or lost if the Company experiences a Section 382 ownership change in connection with offerings or as a result of
future changes in its stock ownership. Losses from a specific period may be subject to multiple limitations and would generally be limited by the lowest of
those limitations.
The Company has determined that a Section 382 ownership change occurred in 2002, and as such, losses incurred prior to that date are subject to an annual
limitation of at least $64,000. Additionally, the Company has determined that a Section 382 ownership change occurred in 2007, and as such, losses incurred
prior to that date are subject to an annual limitation of at least $762,000. The Company evaluated Section 382 ownership changes subsequent to 2007 through
September 30, 2019 and concluded that a
84
Section 382 ownership change occurred in 2013 as a result of the initial public offering. As such, losses incurred prior to that date are subject to an annual
limitation of at least $6.7 million.
As of December 31, 2017, the Company has adopted ASU 2016-09 which is effective for public companies for annual periods beginning after December 15,
2016. The ASU requires all excess tax benefits and tax deficiencies to be recognized as income tax expense or benefit in the income statement in the year in
which they occur. As such, the Company has grossed up its net operating loss deferred tax asset to include all excess tax benefits as of December 31, 2017.
The Company has determined that there may be a future limitation on the Company’s ability to utilize its entire federal R&D credit carryover. Therefore, the
Company recognized an uncertain tax benefit associated with the federal R&D credit carryover during the years ended December 31, 2019 and 2018, as
follows (in thousands):
Balance at December 31, 2017
Increases related to 2018
Increases related to prior periods
Balance at December 31, 2018
Increases related to 2019
Increases related to prior periods
Balance at December 31, 2019
$
$
3,276
450
—
3,726
297
—
4,023
The Company has determined that it had no other material uncertain tax benefits for the year ended December 31, 2019. As of January 1, 2019, due to the
carry forward of unutilized net operating losses and research and development credits, the Company is subject to U.S. federal and state income tax
examinations for the tax years 2000 through 2019. The Company recognizes accrued interest related to unrecognized tax benefits in interest expense and
penalties in operating expense. No amounts were accrued for the payment of interest and penalties at December 31, 2019.
On December 22, 2017, the Tax Act was enacted into law, which reduced the federal corporate income tax rate to 21% for tax years beginning after December
31, 2017. As a result of the revised tax rate, the Company adjusted its deferred tax assets as of December 31, 2017 by applying the revised 21% rate, which
resulted in a decrease to the deferred tax assets and a corresponding decrease to the valuation allowance of approximately $58 million.
The Tax Act also implements a territorial tax system. Under the territorial tax system, in general, the Company’s foreign earnings will no longer be subject to
tax in the U.S. As part of the transition to the territorial tax system the Tax Act included a mandatory deemed repatriation of all undistributed foreign earnings
that are subject to a U.S. income tax. The Company has determined that the deemed repatriation applicable to the year ended December 31, 2017 does not
result in an additional U.S. income tax liability as it has no undistributed foreign earnings.
The Tax Act subjects a US shareholder to tax on global intangible low-taxed income (GILTI) earned by certain foreign subsidiaries. The FASB Staff Q&A,
Topic 740, No. 5, Accounting for Global Intangible Low-Taxed Income, states that an entity can make an accounting policy election to either recognized
deferred taxes for temporary basis differences expected to reverse as GILTI in future years or to provide for the tax expense related to GILTI in the year the
tax is incurred as a period expense only. Because the Company was evaluating the provision of GILTI as of December 31, 2017, no GILTI-related deferred
amounts were recorded in 2017. The Company has elected to account for GILTI in the year the tax is incurred. The Company does not have a GILTI inclusion
in 2018 or 2019; therefore, no GILTI tax has been recorded for the years ended December 31, 2018 and 2019.
The SEC staff issued Staff Accounting Bulletin No. 118, Income Tax Accounting Implications of the Tax Cuts and Jobs Act (SAB 118) which allows the
Company to record provisional amounts during a measurement period which is similar to the measurement period used when accounting for business
combinations. At December 31, 2017 provisional amounts were recorded related to deferred taxes for stock compensation and the deferred rate change. At
December 31, 2018 the measurement period has ended and the Company's accounting related to the Tax Act is complete. The Company did not make any
measurement-period adjustments related to the provisional items recorded as of December 31, 2017.
Note 7. Significant Agreements
The Regents of the University of California
In May 2002, the Company entered into a license agreement with The Regents of the University of California (UC) under which the Company obtained an
exclusive, worldwide license to UC’s patent rights in certain inventions (the UC Patent Rights) related
85
to lipid-conjugated antiviral compounds and their use, including certain patents relating to BCV. The license agreement was terminated effective September
29, 2019. The termination of the license to the UC Patent Rights does not affect the Chimerix solely-owned patents covering BCV composition of matter that
currently are set to expire in 2034.
Biomedical Advanced Research and Development Authority (BARDA)
In February 2011, the Company entered into a contract with BARDA for the advanced development of brincidofovir as a medical countermeasure in the event
of a smallpox release. Under the contract, BARDA will reimburse the Company, plus pay a fixed fee, for the research and development of brincidofovir as a
broad-spectrum therapeutic antiviral for the treatment of smallpox infections. The contract consists of an initial performance period, referred to as the base
performance segment, plus up to four extension periods, referred to as option segments, each of which may be exercised at BARDA’s sole discretion. The
Company must complete the agreed upon milestones and deliverables in each discrete work segment before the next option segment is eligible to be
exercised. Under the contract as currently in effect, the Company may receive up to $75.8 million in expense reimbursement and $5.3 million in fees.
The Company is currently performing under the second and third option segments of the contract during which the Company may receive up to a total of
$23.9 million and $14.1 million in expense reimbursement and fees, respectively. The second and third option segments are scheduled to end on May 31,
2020. Of the $75.8 million in expense reimbursement and $5.3 million in fees that the Company may receive, approximately $74.3 million in expense
reimbursement and fees has been funded. As of December 31, 2019, of the total funding the Company had invoiced an aggregate of $70.1 million with
respect to the base performance segment and the first three extension periods. For the years ended December 31, 2019, 2018, and 2017, the Company
recognized revenue under this contract of $7.6 million, $7.2 million and $4.5 million, respectively.
License and Development Agreement with Cantex Pharmaceuticals, Inc.
On July 26, 2019, the Company entered into a License and Development Agreement with Cantex Pharmaceuticals, Inc. (Cantex) pursuant to which the
Company acquired exclusive worldwide rights to develop and commercialize, for any and all uses, a glycosaminoglycan compound known as DSTAT, which
is currently being studied for the treatment of acute myeloid leukemia. Under the terms of the license agreement, the Company is responsible for, and bears
the future costs of, worldwide development and commercialization of DSTAT. In connection with the transaction, Cantex assigned to the Company all of its
rights under its DSTAT supply agreements, including its bulk API agreement with Scientific Protein Laboratories LLC (SPL), pursuant to which SPL will
exclusively produce DSTAT for the Company through October 2030.
In consideration for the license rights, the Company made an upfront cash payment of $30.0 million to Cantex and issued to Cantex 10.0 million shares of its
common stock. For the twelve months ended, the Company recognized $65.0 million of acquired in-process research and development expenses for the $30.0
million upfront cash payment, the fair value of the 10.0 million shares of common stock issued to Cantex and $0.1 million of transaction costs. The license
agreement obligates the Company to pay Cantex regulatory milestone payments of up to $202.5 million upon receipt of product approvals in the United
States, the European Union and Japan, and sales milestone payments of up to $385.0 million upon achievement of specified net sales levels. The Company
also agreed to pay Cantex tiered royalties based on percentages of net sales beginning at 10% and not to exceed the high-teens.
SymBio Pharmaceuticals
On September 30, 2019, the Company entered into a license agreement with Symbio for the exclusive worldwide rights to develop, manufacture and
commercialize BCV for all human indications, excluding the prevention and treatment of orthopoxviruses, including smallpox. Under the terms of the license
agreement, SymBio will be responsible for, and bear the future costs of, worldwide development and commercialization of BCV in the licensed indications.
Either party may terminate the license agreement upon the occurrence of a material breach by the other party (subject to standard cure periods), or upon
certain events involving the bankruptcy or insolvency of the other party. SymBio may also terminate the license agreement without cause on a country-by-
country basis upon ninety days prior notice.
In exchange for the license to BCV rights, the Company received an upfront payment of $5.0 million in the fourth quarter of 2019. In addition, the Company
is eligible to receive up to $180.0 million in clinical, regulatory and commercial milestones worldwide, as well as low double-digit royalties and additional
milestones based on commercial sales. At December 31, 2019, the Company had recognized $4.9 million of revenue related to the upfront payment and had
$0.1 million remaining as deferred revenue at December 31, 2019.
86
University of Michigan
In 2006, the Company entered into a license agreement with The Regents of the University of Michigan (UM) under which the Company obtained an
exclusive, worldwide license to UM’s patent rights in certain inventions (UM Patent Rights) related to certain compounds originally synthesized at UM.
Under the license agreement, the Company is permitted to research, develop, manufacture and commercialize products utilizing the UM Patent Rights, and to
sublicense such rights subject to certain sublicensing fees and royalty payments.
In consideration for the rights granted to the Company, under the license agreement as amended in December 2016, the Company paid UM $50,000 in fees in
2016 and in January 2017 issued UM an aggregate of 33,058 shares of its common stock. In connection with the Company’s commercialization or
sublicensing of certain products covered by the license agreement, including CMX521, the Company could be required to pay royalties on net sales of such
products ranging from 0.25% to 2%. Beginning in 2024, the Company is also subject to certain minimum annual royalty payments.
The UM license agreement requires that the Company uses commercially reasonable efforts to develop and make commercially available licensed products as
soon as practicable. Specifically, the Company has agreed to make the first commercial sale of a licensed product by June of 2026. UM may terminate the
license agreement if the Company materially breaches the license agreement. The Company is currently in compliance with its milestone requirements.
Note 8. Restructuring Costs
In May 2019, the Company made the decision to discontinue the development of oral and IV BCV development programs for the treatment of Adenovirus
(AdV) in stem-cell transplant (HCT) patients. The Company’s development efforts with respect to BCV are now focused on the treatment of smallpox. As a
result, the Company restructured its operations, which included a reduction in workforce of 43 full-time employees and the accrual of expenses to close-out
the clinical trials for the oral and IV development programs of BCV in AdV (study 210, study 211, AdAPT) and other supportive BCV development
programs. The Company recorded charges for one-time employee termination benefits of $3.3 million, contract close-out costs of $2.0 million, other BCV
development costs of $0.3 million, and losses on disposals of fixed assets of $0.3 million during the twelve months ended December 31, 2019. The $2.0
million of contract close-out costs were recorded through an increase in liabilities of $1.5 million with the remainder recognized through the expensing of
prepaid balances. As of December 31, 2019, the Company had a clinical trial accrual balance related to the AdAPT, 210 and 211 trial terminations of $27,000
and other development costs accrual balance of $0.1 million, which are expected to be paid during the first quarter of 2020. As of December 31, 2019, the
Company had a severance accrual balance of $0.2 million, which is expected to be fully paid by June 2020.
The following table summarizes the restructuring charges (in thousands) recorded for the twelve months ended December 31, 2019:
Research and development
General and administrative
Interest income and other, net
Total restructuring expenses
Employee
Termination
Benefits
1,437
1,909
—
3,346
Clinical Trial
Close-out Costs
Other
Development Costs
Fixed Asset
Disposals
Total
2,021
—
—
2,021
339
—
—
339
—
—
250
250
3,797
1,909
250
5,956
87
The following table sets forth the accrual activity for employee termination benefits and contract close-out costs (in thousands) for the twelve months ended
December 31, 2019. No additional charges are expected to be incurred.
Balance at January 1, 2019
Accruals
Revised estimates
Payments
Balance at December 31, 2019
Employee
Termination
Benefits
Clinical Trial
Close-out Costs
Other
Development
Costs
Fixed Asset
Disposals
Total
—
3,335
11
(3,163)
183
—
2,131
(621)
(1,483)
27
—
315
24
(229)
110
—
—
250
(250)
—
—
5,781
(336)
(5,125)
320
In addition to the approximately $621,000 of revised estimates to accrued liabilities, the Company revised estimates of prepaid clinical trial balances included
in prepaid expenses and other current assets, which resulted in the reduction of originally estimated clinical trial close-out costs by approximately $196,000
for the twelve months ended December 31, 2019. As of December 31, 2019, prepaid balances of $1.3 million for unused deposits have been reclassed to other
receivables, which is recorded in prepaid expenses and other current assets on the Consolidated Balance Sheet and are expected to be refunded during the first
quarter of 2020.
Note 9. Selected Quarterly Financial Data (Unaudited)
The following financial information reflects all normal recurring adjustments, which are, in the opinion of management, necessary for a fair statement of the
results of the interim periods. Summarized quarterly data for 2019 and 2018 are as follows (in thousands, except share and per share data):
Revenue
Operating loss
Net loss
Net loss per share, basic and diluted
Weighted-average shares outstanding, basic and diluted
Revenue
Operating loss
Net loss
Net loss per share, basic and diluted
2019 Quarters
Fourth
Third
Second
First
6,767 $
1,958 $
1,438 $
(3,873)
(3,503)
(74,564)
(73,730)
(18,701)
(17,650)
(0.06) $
(1.26) $
(0.35) $
2,356
(18,845)
(17,693)
(0.35)
61,385,616
58,457,110
51,130,104
50,887,221
2018 Quarters
Fourth
Third
Second
First
4,864 $
369 $
1,193 $
(15,419)
(14,956)
(16,710)
(16,079)
(19,169)
(18,613)
(0.29) $
(0.33) $
(0.39) $
790
(20,307)
(19,826)
(0.42)
$
$
$
$
Weighted-average shares outstanding, basic and diluted
50,722,655
48,172,354
47,811,552
47,637,907
Net loss per share is computed independently for each of the quarters presented. Therefore, the sum of the quarterly per share calculations will not necessarily
equal the annual per share calculation. Diluted weighted-average shares outstanding are identical to basic weighted-average shares outstanding and diluted net
loss per share is identical to basic net loss per share for all quarters of 2019 and 2018.
Note 10. Subsequent Events
The Company has evaluated subsequent events through the issuance date of these financial statements to ensure that this filing includes appropriate disclosure
of events both recognized in the financial statements as of December 31, 2019, and events which occurred subsequently but were not recognized in the
financial statements.
88
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 principal executive officer and principal financial officer, after evaluating the effectiveness of our disclosure controls and procedures (as defined in Rules
13a-15(e) and 15d-15(e) of the Securities Exchange Act of 1934, as amended, or Exchange Act) as of December 31, 2019, have concluded that, based on such
evaluation, our disclosure controls and procedures were effective to ensure that information required to be disclosed by us in the reports we file or submit
under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and is
accumulated and communicated to our management, including our principal executive and principal financial officers, or persons performing similar
functions, as appropriate to allow timely decisions regarding required disclosure.
Management’s Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act
Rules 13a-15(f) and 15d-15(f). Our internal control system was designed to provide reasonable assurance to our management and Board of Directors
regarding the preparation and fair presentation of published financial statements.
Our internal control over financial reporting 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 our assets;
i.
ii. provide reasonable assurance that transactions are recorded as necessary to permit preparations of financial statements in accordance with generally
accepted accounting principles, and that our receipts and expenditures are being made only in accordance with authorizations of our management
and directors; and
iii. provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a
material effect on the financial statements.
All internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to be effective can provide
only reasonable assurance with respect to financial statement preparation and presentation. In making the assessment of internal controls over financial
reporting, our management used the criteria issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control-
Integrated Framework (2013 framework). Based on that assessment and those criteria, management has concluded that our internal control over financial
reporting was effective as of December 31, 2019.
Ernst & Young LLP, the independent registered public accounting firm that audited our financial statements included in this Annual Report, has issued an
attestation report on the Company’s internal control over financial reporting, a copy of which appears in Item 8 of this Annual Report.
Changes in Internal Control Over Financial Reporting
No change in our internal control over financial reporting (as defined in Rules 13a-15(d) and 15d-15(d) under the Exchange Act) occurred during the last
fiscal quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
ITEM 9B. OTHER INFORMATION
Not applicable.
89
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
PART III
The information required by this item and not set forth below will be set forth in the section headed “Election of Directors” and “Executive Officers” in our
Proxy Statement for our 2020 Annual Meeting of Stockholders (Proxy Statement), to be filed with the SEC within 120 days after the end of the fiscal year
ended December 31, 2019, and is incorporated herein by reference.
We have adopted a code of ethics for directors, officers (including our principal executive officer, principal financial officer and principal accounting officer)
and employees, known as the Code of Business Conduct and Ethics. The Code of Business Conduct and Ethics is available on our website at
http://www.chimerix.com under the Corporate Governance section of our Investor Relations page. We will promptly disclose on our website (i) the nature of
any amendment to the policy that applies to our principal executive officer, principal financial officer, principal accounting officer or controller, or persons
performing similar functions and (ii) the nature of any waiver, including an implicit waiver, from a provision of the policy that is granted to one of these
specified individuals that is required to be disclosed pursuant to SEC rules and regulations, the name of such person who is granted the waiver and the date of
the waiver.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this item will be set forth in the section headed “Executive Compensation” in our Proxy Statement and is incorporated herein by
reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER
MATTERS
The information required by this item will be set forth in the section headed “Security Ownership of Certain Beneficial Owners and Management” in our
Proxy Statement and is incorporated herein by reference.
The information required by Item 201(d) of Regulation S-K will be set forth in the section headed “Executive Compensation” in our Proxy Statement and is
incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
The information required by this item will be set forth in the section headed “Transactions With Related Persons” in our Proxy Statement and is incorporated
herein by reference.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
The information required by this item will be set forth in the section headed “Ratification of Selection of Independent Registered Public Accounting Firm” in
our Proxy Statement and is incorporated herein by reference.
90
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
PART IV
1. Financial Statements. The financial statements and reports of independent registered public accounting firm are filed as part of this Annual Report (see
"Index to Consolidated Financial Statements" at Item 8).
2. Financial Statement Schedules. No financial statement schedules are included because the information is either provided in the consolidated financial
statements, is not required under the instructions or is immaterial, and such schedules, therefore have been omitted.
3. Exhibits. The following exhibits have been or are being filed herewith and are numbered in accordance with Item 601 of Regulation S-K:
EXHIBIT INDEX
Exhibit
Number
3.1 (1)
3.2 (1)
4.1 (1)
10.1+ (1)
10.2+ (1)
10.3+ (1)
10.4+(17)
10.5+ (2)
10.6+ (1)
10.7+
10.8+ (26)
10.9+ (3)
10.10+ (12)
10.11+ (12)
10.12+ (12)
10.13+ (12)
10.14 (1)
10.15 (6)
10.16 (5)
10.17 (9)
10.18 (17)
10.19 (18)
10.20* (1)
10.21* (7)
Description of Document
Amended and Restated Certificate of Incorporation of the Registrant.
Amended and Restated Bylaws of the Registrant.
Form of Common Stock Certificate of the Registrant.
Form of Indemnity Agreement by and between the Registrant and its directors and officers.
Chimerix, Inc. 2002 Equity Incentive Plan and Form of Stock Option Agreement, Notice of Exercise and Form of Stock Option Grant
Notice thereunder.
Chimerix, Inc. 2012 Equity Incentive Plan and Form of Stock Option Agreement, Notice of Exercise and Form of Stock Option Grant
Notice and Form of Restricted Stock Unit Award Agreement and Form of Restricted Stock Unit Award Grant Notice thereunder.
Form of Stock Option Agreement, Notice of Exercise and Form of Stock Option Grant Notice and Form of Restricted Stock Unit
Award Agreement and Form of Restricted Stock Unit Award Grant Notice under Chimerix, Inc. 2013 Equity Incentive Plan.
Chimerix, Inc. 2013 Equity Incentive Plan, as amended.
Chimerix, Inc. 2013 Employee Stock Purchase Plan.
Chimerix, Inc. Non-Employee Director Compensation Policy.
Chimerix, Inc. Officer Severance Benefit Plan, as amended.
Employment Offer Letter to William Garrett Nichols, M.D., M.S., dated August 19, 2014.
Directorship Offer Letter to James M. Daly dated June 6, 2014.
Directorship Offer Letter to Catherine L. Gilliss dated June 13, 2014.
Directorship Offer Letter to Patrick Machado dated May 30, 2014.
Directorship Offer Letter to Ronald C. Renaud, Jr. dated December 12, 2014.
Office Lease by and between the Registrant and ACP 2505 Meridian LLC dated September 1, 2007, as amended.
Lease Agreement by and between the Registrant and Northwood RTC LLC dated March 10, 2014.
Fifth Amendment to Office Lease dated July 2, 2014 by and between the Registrant and AREP Meridian I LLC.
Sixth Amendment to Office Lease dated April 28, 2015 by and between the Registrant and IVC Meridian TT O, LLC.
Seventh Amendment to Office Lease dated March 10, 2017 by and between the Registrant and IVC Meridian TT O, LLC.
Eighth Amendment to Office Lease dated July 13, 2017 by and between the Registrant and IVC Meridian TT O, LLC.
Contract by and between the Registrant and the Biomedical Advanced Research and Development Authority of the United States
Department of Health and Human Services dated February 16, 2011, as amended.
Contract modification No. 14, dated May 30, 2013, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
91
10.22* (8)
10.23* (8)
10.24 (4)
10.25 (12)
10.26* (5)
10.27 (5)
10.28* (12)
10.29 (12)
10.30 (12)
10.31 (12)
10.32 (9)
10.33 (10)
10.34 (10)
10.35* (11)
10.36* (11)
10.37* (13)
10.38* (14)
10.39* (14)
10.40* (15)
Contract modification No. 15, dated August 28, 2013, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 16, dated December 10, 2013, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 17, dated April 14, 2014, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 18, dated May 6, 2014, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 19, dated August 27, 2014, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 20, dated October 27, 2014, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 21, dated November 7, 2014, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 22, dated December 11, 2014, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 23, dated December 22, 2014, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 24, dated February 19, 2015, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 25, dated March 26, 2015, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 26, dated June 18, 2015, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 27, dated July 14, 2015, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 28, dated September 1, 2015, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 29, dated September 11, 2015, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 30, dated November 12, 2015, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 31, dated April 8, 2016, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 32, dated May 5, 2016, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 33, dated June 17, 2016, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
92
10.41* (16)
Contract modification No. 34, dated August 3, 2016, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
10.42 (17)
10.43 (17)
10.44 (18)
10.45 (19)
10.46 (19)
10.47 (19)
10.48 (20)
10.49 (20)
10.50 (20)
10.51 (20)
10.52 (22)
10.53 (22)
10.54* (22)
10.55 (22)
10.56* (22)
10.57* (23)
Contract modification No. 35, dated October 21, 2016, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 36, dated January 23, 2017, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 37, dated March 27, 2017, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 38, dated April 3, 2017, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 39, dated May 11, 2017, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 40, dated June 16, 2017, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 41, dated July 24, 2017, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 42, dated August 25, 2017, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 43, dated September 22, 2017, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 44, dated September 28, 2017, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 45, dated October 20, 2017, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 46, dated November 27, 2017, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 47, dated December 21, 2017, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 48, dated December 21, 2017, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 49, dated February 27, 2018, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 50, dated March 20, 2018, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
93
10.58* (24)
10.59* (24)
10.60 (25)
10.61 (26)
10.62* (26)
10.63 (28)
10.64** (29)
10.65**
10.66* (17)
10.67 (21)
10.68 (22)
10.69+ (26)
10.70+ (27)
10.71+ (27)
10.72 (29)
10.73** (30)
10.74** (30)
10.75** (30)
23.1
24.1
31.1
31.2
32.1
32.2
Contract modification No. 51, dated May 31, 2018, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 52, dated July 11, 2018, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 53, dated September 6, 2018, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 54, dated December 3, 2018, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 55, dated January 10, 2019, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 56, dated March 5, 2019, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 57, dated July 12, 2019, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Contract modification No. 58, dated December 13, 2019, to the contract by and between the Registrant and the Biomedical Advanced
Research and Development Authority of the United States Department of Health and Human Services dated February 16, 2011, as
amended.
Patent Option and License Agreement by and between the Registrant and The Regents of the University of Michigan dated May 24,
2006, as amended.
Sales Agreement, dated November 8, 2017, by and between Chimerix, Inc and Cowen and Company, LLC.
First Amendment to Industrial Building Lease dated December 14, 2017 by and between Registrant and CLPF - Research Center, LLC.
Employment Offer Letter to Michael A. Alrutz dated May 9, 2012.
Employment Offer Letter to Michael Sherman dated April 2, 2019.
Employment Offer Letter to Michael Andriole dated April 4, 2019.
Form of Stock Option Grant Notice, Option Agreement and Notice of Exercise for Inducement Grant Outside of 2013 Equity Incentive
Plan.
License and Development Agreement, dated July 26, 2019, by and between the Registrant and Cantex Pharmaceuticals, Inc.
Supply Agreement, dated October 2, 2015, by and between the Registrant (as successor to Cantex Pharmaceuticals, Inc.) and Scientific
Protein Laboratories LLC.
License Agreement, dated September 30, 2019, by and between the Registrant and SymBio Pharmaceuticals Limited.
Consent of Ernst & Young LLP, an Independent Registered Public Accounting Firm.
Power of Attorney. Reference is made to the signature page hereto.
Certification of Principal Executive Officer, pursuant to Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934, as
adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of Principal Financial Officer, pursuant to Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934, as
adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of Principal Executive Officer, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-
Oxley Act of 2002.
Certification of Principal Financial Officer, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-
Oxley Act of 2002.
101.INS
101.SCH
XBRL Instance Document.
XBRL Taxonomy Extension Schema Document.
94
101.CAL
101.DEF
101.LAB
101.PRE
XBRL Taxonomy Extension Calculation Linkbase Document.
XBRL Taxonomy Extension Definition Linkbase Document.
XBRL Taxonomy Extension Label Linkbase Document.
XBRL Taxonomy Extension Presentation Linkbase Document.
95
+
*
**
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)
Indicates management contract or compensatory plan.
Confidential treatment has been granted with respect to certain portions of this exhibit. Omitted portions have been filed separately with
the SEC.
Certain confidential information contained in this exhibit, marked by brackets, has been omitted pursuant to Item 601 of Regulation S-K.
Incorporated by reference to Chimerix, Inc.’s Registration Statement on Form S-1 (No. 333-187145), as amended.
Incorporated by reference to Chimerix, Inc.’s Current Report on Form 8-K (No. 001-35867) filed with the SEC on June 23, 2014.
Incorporated by reference to Chimerix, Inc.’s Current Report on Form 8-K (No. 001-35867) filed with the SEC on September 4, 2014.
Incorporated by reference to Chimerix, Inc.’s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on May 9, 2014.
Incorporated by reference to Chimerix, Inc.’s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on November 7,
2014.
Incorporated by reference to Chimerix, Inc.’s Current Report on Form 8-K (No. 001-35867) filed with the SEC on March 14, 2014.
Incorporated by reference to Chimerix, Inc.’s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on August 14, 2013.
Incorporated by reference to Chimerix, Inc.’s Annual Report on Form 10-K (No. 001-35867) filed with the SEC on March 7, 2014.
Incorporated by reference to Chimerix, Inc.'s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on May 11, 2015.
Incorporated by reference to Chimerix, Inc.'s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on August 6, 2015.
Incorporated by reference to Chimerix, Inc.'s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on November 5,
2015.
Incorporated by reference to Chimerix, Inc.’s Annual Report on Form 10-K (No. 001-35867) filed with the SEC on March 6, 2015.
Incorporated by reference to Chimerix, Inc.’s Annual Report on Form 10-K (No. 001-35867) filed with the SEC on February 29, 2016
Incorporated by reference to Chimerix, Inc.’s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on May 9, 2016.
Incorporated by reference to Chimerix, Inc.’s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on August 8, 2016.
Incorporated by reference to Chimerix, Inc.’s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on November 7,
2016.
Incorporated by reference to Chimerix, Inc.’s Annual Report on Form 10-K (No. 001-35867) filed with the SEC on March 2, 2017.
Incorporated by reference to Chimerix, Inc.’s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on May 9, 2017.
Incorporated by reference to Chimerix, Inc.’s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on August 7, 2017.
Incorporated by reference to Chimerix, Inc.’s Current Report on Form 8-K (No. 001-35867) filed with the SEC on October 11, 2017.
Incorporated by reference to Chimerix, Inc.’s Current Report on Form 8-K (No. 001-35867) filed with the SEC on November 8, 2017.
Incorporated by reference to Chimerix, Inc.’s Annual Report on Form 10-K (No. 001-35867) filed with the SEC on March 1, 2018.
Incorporated by reference to Chimerix, Inc.’s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on May 7, 2018.
Incorporated by reference to Chimerix, Inc.’s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on August 8, 2018.
96
(25)
(26)
(27)
(28)
(29)
(30)
Incorporated by reference to Chimerix, Inc.’s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on November 8,
2018.
Incorporated by reference to Chimerix, Inc.’s Annual Report on Form 10-K (No. 001-35867) filed with the SEC on March 5, 2019.
Incorporated by reference to Chimerix, Inc.’s Current Report on Form 8-K (No. 001-35867) filed with the SEC on April 10, 2019.
Incorporated by reference to Chimerix, Inc.’s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on May 9, 2019.
Incorporated by reference to Chimerix, Inc.’s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on August 8, 2019.
Incorporated by reference to Chimerix, Inc.’s Quarterly Report on Form 10-Q (No. 001-35867) filed with the SEC on November 5,
2019.
97
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K
to be signed on its behalf by the undersigned, thereunto duly authorized.
SIGNATURES
Date:
February 25, 2020
By:
Chimerix, Inc.
/s/ Michael A. Sherman
Michael A. Sherman
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael A. Sherman and
Michael T. Andriole, and each of them, his true and lawful attorneys-in-fact, each with full power of substitution, for him in any and all capacities, to sign any
amendments to this Annual Report on Form 10-K and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities
and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact or their substitute or substitutes may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this Annual Report on Form 10-K has been signed below by the following persons on
behalf of the registrant and in the capacities and on the dates indicated.
Signature
Title
Date
/s/ Michael A. Sherman
Michael A. Sherman
/s/ Michael T. Andriole
Michael T. Andriole
/s/ David Jakeman
David Jakeman
/s/ Martha J. Demski
Martha J. Demski
/s/ Catherine L. Gilliss
President, Chief Executive Officer and Director
February 25, 2020
(Principal Executive Officer)
Chief Business and Financial Officer
February 25, 2020
(Principal Financial Officer)
Executive Director of Finance and Accounting
February 25, 2020
(Principal Accounting Officer)
Chair of the Board of Directors
February 25, 2020
Catherine L. Gilliss, PhD, RN, FAAN
Member of the Board of Directors
February 25, 2020
/s/ Edward F. Greissing Jr.
Edward F. Greissing Jr.
/s/ Patrick Machado
Patrick Machado
/s/ Robert J. Meyer
Robert J. Meyer, MD
/s/ Fred A. Middleton
Fred A. Middleton
/s/ Ronald C. Renaud Jr.
Ronald C. Renaud Jr.
Member of the Board of Directors
February 25, 2020
Member of the Board of Directors
February 25, 2020
Member of the Board of Directors
February 25, 2020
Member of the Board of Directors
February 25, 2020
Member of the Board of Directors
February 25, 2020
98
CHIMERIX, INC.
NON-EMPLOYEE DIRECTOR COMPENSATION POLICY
Last Modified: January 21, 2020
Each member of the Board of Directors (the “Board”) who is not also serving as an employee of Chimerix, Inc. (“Chimerix”) or
any of its subsidiaries (each such member, an “Eligible Director”) will receive the compensation described in this Non-Employee
Director Compensation Policy for his or her Board service. This policy may be amended at any time in the sole discretion of the
Board or the Compensation Committee of the Board.
Annual Cash Compensation
The annual cash compensation amount set forth below is payable in equal quarterly installments, payable in arrears on the last day
of each fiscal quarter in which the service occurred. If an Eligible Director joins the Board or a committee of the Board at a time
other than effective as of the first day of a fiscal quarter, each annual retainer set forth below will be pro-rated based on days served
in the applicable fiscal year, with the pro-rated amount paid for the first fiscal quarter in which the Eligible Director provides the
service, and regular full quarterly payments thereafter. All annual cash fees are vested upon payment.
1.
2.
Annual Board Service Retainer:
a. All Eligible Directors: $40,000
Annual Chair Service Retainer (in addition to Annual Board Service Retainer): $30,000
3. Annual Committee Member Service Retainer:
a. Member of the Audit Committee: $10,000
b. Member of the Compensation Committee: $7,500
c. Member of the Nominating & Corporate Governance Committee: $5,000
4. Annual Committee Chair Service Retainer (in lieu of Annual Committee Service Retainer):
a. Chairman of the Audit Committee: $20,000
b. Chairman of the Compensation Committee: $15,000
c. Chairman of the Nominating & Corporate Governance Committee: $10,000
Equity Compensation
The equity compensation set forth below will be granted under the Chimerix 2013 Equity Incentive Plan (the “Plan”). All stock
options granted under this policy will be nonstatutory stock options, with an exercise price per share equal to 100% of the Fair
Market Value (as defined in the Plan) of the underlying common stock of Chimerix (the “Common Stock”) on the date of grant,
and a term of ten years from the date of grant (subject to earlier termination in connection with a termination of service as provided
in the Plan).
1. Initial Grant: On the date of the Eligible Director’s initial election to the Board (or, if such date is not a market trading day, the
first market trading day thereafter), the Eligible Director will be automatically, and without further action by the Board or
Compensation Committee of the Board, granted a stock option to purchase 60,000 shares. One-fourth of the shares subject to the
stock option will vest on the one year anniversary of the date of grant and the balance of the shares will vest in a series of 36 equal
monthly installments thereafter, such that the option is fully vested on the fourth anniversary of the date of grant, subject to the
Eligible Director’s Continuous Service (as defined in the Plan) through each such vesting date and will vest in full upon a Change
in Control (as defined in the Plan).
2. Annual Grant: On the date of each Chimerix annual stockholder meeting, each Eligible Director will be automatically, and
without further action by the Board or Compensation Committee of the Board, granted a stock option to purchase 35,000 shares.
The shares subject to the stock option will vest in 12 equal monthly installments from the date of grant, provided that in any case
each stock option is fully vested on the date of Chimerix’s next annual stockholder meeting, subject to the Eligible Director’s
Continuous Service (as defined in the Plan) through each such vesting date and provided further that the stock option will vest in
full upon a Change in Control (as defined in the Plan).
1.
50791103 v10
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be
competitively harmful if publicly disclosed.
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
1. CONTRACT ID CODE
3. EFFECTIVE DATE
See Block 16C
4. REQUISITION/PURCHASE REQ. NO
N/A.
CODE ASPR-BARDA
7. ADMINISTERED BY (if other than Item 6)
CODE
ASPR-BARDA02
ASPR-BARDA
330 Independence Ave, SW, Rm G640
Washington DC 20201
PAGE OF PAGES
1
2
5. PROJECT NO. (if applicable)
2. AMENDMENT/MODIFICATION NO
P00058
6. ISSUED BY
ASPR-BARDA
200 Independence Ave., S.W.
Room 640-G
Washington DC 20201
8. NAME AND ADDRESS OF CONTRACTOR (No., street, county, State and ZIP Code)
9A. AMENDMENT OF SOLICITATION NO.
(x)
CHIMERIX, INC. 1377270
CHIMERIX, INC. 2505 MERIDIAN P
2505 MERIDIAN PKWY STE 340
DURHAM NC 277135246
CODE
1377270
FACILITY CODE
9B. DATED (SEE ITEM 11)
x
10A. MODIFICATION OF CONTRACT/ORDER NO.
HHSO100201100013C
10B. DATED (SEE ITEM 13)
02/16/2011
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
☐ The above numbered solicitation amended as set forth in Item 14. The hour and date specified for receipt of Offers ☐ is extended ☐ is not extended
Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the following methods: (a) By completing
Items 8 and 15, and returning _____________ copies of the amendment: (b) By acknowledging receipt of this amendment on each copy of the offer submitted; or (c) By
separate letter or telegram which includes a reference to the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE RECEIVED AT
THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by
virtue of this amendment you desire to change an offer already submitted, such change may be made by telegram or letter, provided each telegram or letter makes
reference to the solicitation and this amendment, and is received prior to the opening hour and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (if required)
N/A.
CHECK ONE
13. THIS ITEM ONLY APPLIES TO MODIFICATION OF CONTRACTS/ORDERS. IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: (Specify authority) THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT
ORDER NO. IN ITEM 10A.
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE ADMINISTRATIVE CHANGES (such as changes in paying office,
appropriation date, etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43 103(b)
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY OF:
X
D. OTHER (Specify type of modification and authority)
Bilateral: Mutual Agreement of the Parties.
E. IMPORTANT Contractor ☒ is not ☐ is required to sign this document and return ____________________ copies to the issuing office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section headings, including solicitation/contract subject matter where feasible.)
Tax ID Number: 33-0903395
DUNS Number: 121785997
A. The purpose of this is to incorporate the following changes into the
contract:
1. Under Contract Number HHSO100201100013C in SECTION G - CONTRACT ADMINISTRATION DATA,
under Article G.10. Government Property, the following is hereby added as Paragraph 9. and
titled "Disposition Instructions" as follows:
9. Disposition Instructions
Continued . . .
Except as provided herein, all terms and conditions of the document referenced in Item 9 A or 10A, as heretofore changed remains unchanged and in full force and effect.
15A. NAME AND TITLE OF SIGNER (Type or print)
Michael Alrutz / SVP & General Counsel
16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
ETHAN J. MUELLER
15B. CONTRACTOR/OFFEROR
15C. DATE SIGNED
16B. UNITED STATES OF AMERICA
16C. DATE SIGNED
/s/ Michael Alrutz
(Signature of person authorized to sign)
NSN 7540-01-152-8070
Previous edition unusable
12/9/19
/s/Ethan J. Mueller
(Signature of Contracting Officer)
12/13/19
STANDARD FORM 30 (REV. 10-83)
Prescribed by GSA
FAR (48 CFR) 53.243
CONTINUATION SHEET
HHSO100201100013C/P00058
REFERENCE NO. OF DOCUMENT BEING CONTINUED
PAGE OF
2
2
NAME OF OFFEROR OR CONTRACTOR
CHIMERIX, INC. 1377270
ITEM NO.
(A)
SUPPLIES/SERVICES
(B)
QUANTITY
(C)
UNIT
(D)
UNIT PRICE
(E)
AMOUNT
(F)
Title for CMX Lot Number J-80231 [*] Only under Contract Number
HHSO100201100013C that are no longer needed by the Government and have no
commercial market value will hereby vest with the Contractor.
2. In signing this no cost bilateral modification, the Contractor hereby certifies for
both Chimerix ad any of it subcontractors at any tier that the CMX Lot Number J-
80231 [*] Only under Contract Number HHSO100201100013C that are no longer
needed by the Government and have no commercial market value that the
Government will be turning title over to the Contractor will not be repurposed for
use under any efforts in any methods that are prohibited by any federal, state and
local laws and regulations and will not result in any costs being incurred under
both Contract Number HHSO100201100013C and under any other U.S.
Government contracts in effect as of the effective date of this modification and in
signing this no cost bilateral modification, the Contract also hereby certifies for
both Chimerix and any of its subcontractors at any tier that the CMX Lot Number
J-80231 [*] Only under Contract Number HHSO100201100013C that are no
longer needed by the Government and have no commercial market value that the
Government will be turning title over to the Contractor will not be repurposed for
the performance of any other efforts that are under the scope of Contract Number
HHSO100201100013C nor under any other U.S. Government contracts in effect
as of the effective date of this modification by either Chimerix or any of its
subcontractors at any tier and will not result in any costs being incurred under
both Contract Number HHSO100201100013C and under any other U.S.
Government Contracts.
3. As consideration for the transfer of Title for CMX Lot Number J-80231 [*]
Only from the Government under Contract Number HHSO100201100013C to
Chimerix, the consideration that is contained in Modification 49 under Contract
Number HHSO100201100013C applies to Modification 58 under Contract
Number HHSO100201100013C.
4. The total amount, scope and period of performance of all other CLINs that are
currently being performed under the contract remain unchanged. This
modification does not exercise any unexercised Option CLINs under the contract
and does not authorize any performance of efforts under any unexercised Option
CLINs under the contract. In addition, the total amount, scope and period of
performance of all unexercised Option CLINs under the contract remain
unchanged. This modification also confirms that all activities under the base
period of performance CLIN 0001 were completed as of 31 May 2013 and
confirms that all activities under the Option 1/CLIN0002 period of performance
were completed as of 30 April 2015.
B. This is a no cost bilateral modification. All other terms and conditions of
Contract Number HHSO100201100013C remain unchanged.
Period of Performance: 02/16/2011 to 05/31/2020
NSN 7540-01-152-8067 OPTIONAL FORM 336 (4-86)
Sponsored by GSA
FAR (48 CFR) 53.110
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the following Registration Statements:
1. Registration Statement (Form S-8 No. 333-187860) pertaining to the 2002 Equity Incentive Plan, 2012 Equity Incentive Plan, 2013 Equity Incentive
Plan and 2013 Employee Stock Purchase Plan of Chimerix, Inc.,
2. Registration Statement (Form S-8 Nos. 333-194408, 333-202582, 333-209802, 333-216396, 333-223344, 333-230071, and 333-233115) pertaining
to the 2013 Equity Incentive Plan and 2013 Employee Stock Purchase Plan of Chimerix, Inc., and
3. Registration Statement (Form S-3 No. 333-221412) of Chimerix, Inc.;
of our reports dated February 25, 2020 with respect to the consolidated financial statements of Chimerix, Inc. and the effectiveness of internal control over
financial reporting of Chimerix, Inc. included in this Annual Report (Form 10-K) of Chimerix, Inc. for the year ended December 31, 2019.
Exhibit 23.1
/s/ Ernst & Young LLP
Raleigh, North Carolina
February 25, 2020
Exhibit 31.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Michael A. Sherman, certify that:
1. I have reviewed this Annual Report on Form 10-K for the fiscal year ended December 31, 2019 of Chimerix, 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 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 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 25, 2020
/s/ Michael A. Sherman
Michael A. Sherman
President & Chief Executive Officer
Exhibit 31.2
CERTIFICATION OF THE PRINCIPAL FINANCIAL OFFICER PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Michael T. Andriole, certify that:
1. I have reviewed this Annual Report on Form 10-K for the fiscal year ended December 31, 2019 of Chimerix, 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 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 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 25, 2020
/s/ Michael T. Andriole
Michael T. Andriole
Chief Business and Financial Officer
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.1
In connection with the Annual Report on Form 10-K of Chimerix, Inc. (the “Company”) for the period ended December 31, 2019, as filed with the Securities
and Exchange Commission on the date hereof (the “Report”), I, Michael A. Sherman, as Principal Executive Officer of the Company, certify, pursuant to 18
U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
1. the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
2. the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: February 25, 2020
/s/ Michael A. Sherman
Michael A. Sherman
President & Chief Executive Officer
The foregoing certification is being furnished solely to accompany the Report pursuant to 18 U.S.C. § 1350, and is not being filed for purposes of Section 18
of the Securities Exchange Act of 1934, as amended, and is not to be incorporated by reference into any filing of the Company, whether made before or after
the date hereof, regardless of any general incorporation language in such filing. A signed original of this written statement required by Section 906 has been
provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.2
In connection with the Annual Report on Form 10-K of Chimerix, Inc. (the “Company”) for the period ended December 31, 2019, as filed with the Securities
and Exchange Commission on the date hereof (the “Report”), I, Michael T. Andriole, as Principal Financial Officer of the Company, certify, pursuant to 18
U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
1. the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
2. the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: February 25, 2020
/s/ Michael T. Andriole
Michael T. Andriole
Chief Business and Financial Officer
The foregoing certification is being furnished solely to accompany the Report pursuant to 18 U.S.C. § 1350, and is not being filed for purposes of Section 18
of the Securities Exchange Act of 1934, as amended, and is not to be incorporated by reference into any filing of the Company, whether made before or after
the date hereof, regardless of any general incorporation language in such filing. A signed original of this written statement required by Section 906 has been
provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.