UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________________
FORM 10-K
_____________________________
☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
☐ 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: 001-38381
_____________________________
EVOLUS, INC.
(Exact name of registrant as specified in its charter)
_____________________________
Delaware
(State or other jurisdiction of
incorporation or organization)
46-1385614
(I.R.S. Employer
Identification Number)
520 Newport Center Dr., Suite 1200
Newport Beach, California 92660
(949) 284-4555
(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive offices)
_____________________________
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Common Stock, $0.00001 par value per share
Trading Symbol(s)
EOLS
Name of each exchange on which registered
The Nasdaq Stock Market LLC
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐ No ☒
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12
months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,”
“accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
Non-accelerated filer
☐
☐
Accelerated filer
Smaller reporting company
Emerging growth company
☒
☒
☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards pursuant to Section 13(a) of
the Exchange Act. ☒
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐ No ☒
The aggregate market value of the registrant’s common stock held by non-affiliates of the registrant as of the last business day of the registrant’s most recently completed second fiscal quarter was approximately $238.7 million,
based on the closing price of the registrant’s common stock on the Nasdaq Global Market of $14.62 per share for such date.
As of February 21, 2020, 33,728,035 shares of the registrant’s sole class of common stock were outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's Proxy Statement for the 2020 Annual Meeting of Stockholders are incorporated herein by reference in Part III of this Annual Report on Form 10-K to the extent stated herein. Such proxy statement
will be filed with the Securities and Exchange Commission within 120 days of the registrant's fiscal year ended December 31, 2019.
Table of Contents
Item 1
Business
Item 1A
Item 1B
Item 2
Item 3
Item 4
Item 5
Item 6
Item 7
Risk Factors
Unresolved Staff Comments
Properties
Legal Proceedings
Mine Safety Disclosures
EVOLUS, INC.
TABLE OF CONTENTS
PART I
PART II
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
Item 7A
Quantitative and Qualitative Disclosures About Market Risk
Item 8
Item 9
Item 9A
Item 9B
Item 10
Item 11
Item 12
Item 13
Item 14
Item 15
Item 16
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
PART III
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
PART IV
Exhibits, Financial Statement Schedules
Form 10-K Summary
Signatures
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Special Note Regarding Forward-Looking Statements
This Annual Report on Form 10-K contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the
Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act, that involve risks and uncertainties, including
statements based on our current expectations, assumptions, estimates and projections about future events, our business, financial condition, results of
operations and prospects, our industry and the regulatory environment in which we operate. Any statements contained herein that are not statements of
historical facts may be deemed to be forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “anticipate,”
“believe,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “should,” “will,” “would” or the negative of those terms,
or other comparable terms intended to identify statements about the future. Forward-looking statements include, but are not limited to, statements about:
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our ability to successfully commercialize our sole product Jeuveau® including our ability to successfully market and sell Jeuveau® to our customers;
our ability to maintain regulatory approval of Jeuveau® and comply with any related restrictions, limitations and warnings in the label of Jeuveau®
and any relevant regulatory requirements;
the potential market size, opportunity and growth potential for Jeuveau®;
the attractiveness of the product characteristics of Jeuveau® (including the benefits of a 900 kilodalton, or kDa, botulinum toxin type A complex) and
the rate and degree of physician and patient acceptance of Jeuveau®;
the pricing of Jeuveau®, and the flexibility of our pricing and marketing strategy compared to our competitors;
the performance of our third-party licensors, suppliers, manufacturers and distributors;
our expectations regarding our future development of Jeuveau® for other indications and approval in other jurisdictions;
the accuracy of our estimates regarding the amount and timing of expenses, revenue, capital requirements and needs for additional financing;
regulatory and legislative developments in the United States, European Union, or EU, Canada and other countries;
developments and projections relating to our competitors and our industry, including competing products and procedures;
the loss of key management personnel;
our future financial performance and our ability to continue as a going concern; and
the results and impact of current and any future legal proceedings.
The forward-looking statements included herein are not guarantees of future performance or events and are based on current expectations of our management
based on available information and involve a number of risks and uncertainties, all of which are difficult or impossible to predict accurately and many of
which are beyond our control. As such, our actual results may differ materially from those expressed in any forward-looking statements. Factors that may
cause or contribute to such differences include, but are not limited to, those discussed in more detail in Item 1. “Business” and Item 1A. “Risk Factors” of
Part I and Item 7. “Management’s Discussion and Analysis of Financial Condition and Results of Operations” of Part II of this Annual Report on Form 10-
K. Readers should carefully review these risks, as well as the additional risks described in other documents we file from time to time with the Securities and
Exchange Commission, or SEC. In light of the significant risks and uncertainties inherent in the forward-looking statements included herein, the inclusion of
such information should not be regarded as a representation by us or any other person that such results will be achieved, and readers are cautioned not to place
undue reliance on such forward-looking statements. Except as required by law, we undertake no obligation to revise the forward-looking statements contained
herein to reflect events or circumstances after the date hereof or to reflect the occurrence of unanticipated events. You should read this Annual Report on
Form 10-K and the documents we file with the SEC, with the understanding that our actual future results, levels of activity, performance and achievements
may be materially different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
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Unless the context indicates otherwise, as used in this Annual Report on Form 10-K, the terms “Evolus,” “company,” “we,” “us” and “our” refer to Evolus,
Inc., a Delaware corporation, and our subsidiaries taken as a whole, unless otherwise noted.
EVOLUS™, Jeuveau®, Evolux™ are three of our trademarks that are used in this Annual Report on Form 10-K. Jeuveau® is the trade name in the United
States for our approved product with non-proprietary name, prabotulinumtoxinA-xvfs. The product has different trade names outside of the United States, but
is referred to throughout this Annual Report on Form 10-K as Jeuveau®. This Annual Report on Form 10-K also includes trademarks, trade names and service
marks that are the property of other organizations, such as BOTOX® and BOTOX® Cosmetic, which we refer to throughout this Annual Report on Form 10-K
as BOTOX. Solely for convenience, trademarks and trade names referred to in this Annual Report on Form 10-K may appear without the ® and ™ symbols,
but those references are not intended to indicate that we will not assert, to the fullest extent under applicable law, our rights, or that the applicable owner will
not assert its rights, to these trademarks and trade names. We do not intend our use or display of other companies’ trade names or trademarks to imply a
relationship with, or endorsement or sponsorship of us by, any other companies.
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Item 1. Business.
Overview
Part I
We are a performance beauty company with a customer-centric approach focused on delivering breakthrough products in the self-pay aesthetic market.
Our first product, Jeuveau®, is a proprietary 900 kDa purified botulinum toxin type A formulation indicated for the temporary improvement in the appearance
of moderate to severe glabellar lines, also known as “frown lines,” in adults. Our primary market is the self-pay aesthetic market, which includes medical
products purchased by physician and other customers that are then sold to consumers or used in procedures for aesthetic indications that are not reimbursed
by any third-party payor, such as Medicaid, Medicare or commercial insurance. We believe we offer customers and consumers a compelling value proposition
with Jeuveau®. Currently, onabotulinumtoxinA (BOTOX) is the neurotoxin market leader, and prior to the approval of Jeuveau®, was the only known 900
kDa botulinum toxin type A complex approved in the United States. We believe aesthetic physicians generally prefer the performance characteristics of the
complete 900 kDa neurotoxin complex and are accustomed to injecting this formulation.
United States
In February 2019, we received the approval of our first product Jeuveau® (prabotulinumtoxinA-xvfs) from the U.S. Food and Drug Administration, or FDA.
In May 2019, we commercially launched Jeuveau® in the United States.
As part of our commercial launch in the United States, we introduced the Jeuveau® Experience Treatment, or J.E.T., an exclusive program for aesthetic
providers and consumers to be the first to experience Jeuveau®. J.E.T. offered aesthetic providers the opportunity to receive multiple shipments of Jeuveau®
through August 2019. The program was made available through our technology platform, “Evolus Practice”, which allows providers to open a new account,
order Jeuveau®, pay invoices and engage with our customer experience team and medical affairs representatives. We enrolled over 5,000 customer accounts
in JET.
In addition to the J.E.T program, in 2019, we launched marketing programs designed to increase the adoption of Jeuveau® by customer accounts and to drive
consumer demand for Jeuveau®. The next phase of our U.S. launch will be the release of our customer loyalty program, branded Evolux™, and our consumer
loyalty program in 2020.
International
In August 2018, we received approval from Health Canada for the temporary improvement in the appearance of moderate to severe glabellar lines in adult
patients under 65 years of age. We began marketing Jeuveau® in Canada in October 2019 through our distribution partner, Clarion Medical Technologies,
Inc., or Clarion.
In September 2019, we received approval from the European Commission, to market the product in all 28 EU member states, Iceland, Norway and
Liechtenstein. We plan to launch Jeuveau® in Europe in 2020.
Our Market
Our primary market is self-pay aesthetic healthcare, which includes medical products purchased by physicians that are then sold to consumers or used in
procedures for aesthetic indications that are not reimbursed by any third-party payor, such as Medicaid, Medicare or commercial insurance. By focusing on
the self-pay medical aesthetics market, we believe we are not exposed to reimbursement risk associated with a reliance on payments from such third-party
payors, and we are subject to fewer regulations that place limits on the types of marketing and other interactions we have with physicians.
Within the self-pay aesthetic market, the global aesthetic neurotoxin market was estimated to generate approximately $2.7 billion of revenue in 2019 and is
estimated to grow to approximately $3.9 billion in 2022. The U.S. aesthetic neurotoxin market was estimated to generate $1.4 billion in sales in 2019 and is
expected to grow to approximately $2.0 billion in 2022.
We believe the growth in the medical aesthetics market is driven by a number of factors, including:
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increased use by millennials who are increasingly seeking medical aesthetic treatments and utilizing neurotoxins as an entry point for aesthetic
procedures due to their minimally invasive nature;
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an aging population together with an increasing life expectancy, which is resulting in more consumers with a desire for improved appearance and
well-being over a longer period of time;
rising disposable income, with the U.S. Bureau of Economic Analysis reporting that real disposable income in the United States increased
approximately 19% from December 2012 to December 2019;
growing awareness, utilization and acceptance of elective or minimally invasive aesthetic procedures; and
continued innovation and improved accessibility to these treatments due to an increase in the number of physicians who perform these procedures.
Within the multiple age groups that receive aesthetic neurotoxin treatments, we strategically focus our marketing efforts on the millennial segment which is
the largest cohort in the U.S. population. In 2019 there are estimated to be approximately 73 million millennials, defined as individuals born between 1981
and 1996. We believe that approximately 1.7 million females between the age of 30 and 39, which includes many individuals we define as millennials, are
considering neurotoxins in the next twelve months.
Our Competitive Strengths
We offer physicians and consumers a compelling value proposition because:
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Jeuveau® offers the U.S. market the first known 900 kDa neurotoxin alternative to BOTOX. The manufacture of both Jeuveau® and BOTOX starts
with a 900 kDa complex, includes adding the excipients human serum albumin, or HSA, and sodium chloride, and finishes by vacuum drying. We
believe Jeuveau® is the only known neurotoxin product in the United States with a 900 kDa neurotoxin complex other than BOTOX. We also believe
an important component of competitiveness in the neurotoxin market relates to the characteristics associated with the 900 kDa complex and the
potential of the accessory proteins to increase the effectiveness of the active toxin portion of the complex.
Results from our TRANSPARENCY global clinical program in more than 2,100 patients provides robust data to physicians evaluating the purchase
of Jeuveau®. We believe the comprehensive TRANSPARENCY clinical data set, including a head-to-head Phase III study comparing Jeuveau® and
BOTOX, provides physicians with confidence in recommending Jeuveau® to their patients.
• We offer a unique technology platform. We provide a simple, personal and connected experience for physicians utilizing our proprietary technology
platform. We have built and continue to improve our platform with the goal of limiting friction and enhancing the overall experience for physicians
and ultimately consumers. We are modernizing the customer engagement with our proprietary “Evolus Practice” app. We not only leverage
technology for operational efficiency, but more importantly, to enhance a customer’s experience. The combination of a highly specialized sales force
and our technology platform is an effective and competitive model.
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Enhanced level of physician-customer interaction through a self-pay, aesthetic-only marketing strategy. We have elected to specifically target the
self-pay aesthetic market. With a reduced regulatory burden compared to third-party payor reimbursed therapeutic products, there is a number of
benefits that market participants in reimbursed markets are unable to achieve, such as an enhanced level of interaction with our physician-customers.
Jeuveau® is the only U.S. neurotoxin without a therapeutic indication. We believe pursuing an aesthetic-only non-reimbursed product strategy creates
meaningful strategic advantages in the United States, including pricing and marketing flexibility. We utilize this flexibility to drive market adoption
through programs such as promotional events, experience product programs and pricing strategies.
• We have strong relationships with aesthetic key opinion leaders, or KOLs. We have established relationships with aesthetic KOLs as a result of our
management team’s industry experience and engagement of our clinical trial investigators. KOLs are important information resources to the general
physician-customer market due to their clinical expertise, academic reputations, active clinical practices and their status as medical innovators. The
broader physician community often looks to KOLs for their experience with products and procedures as part of their new product and procedure
adoption process.
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Our management team has significant experience and expertise in medical aesthetics. Our management team has extensive experience in self-pay
healthcare markets, in the development, market launch and commercialization of major medical products, execution and integration of business
development transactions, identification of and
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partnerships with KOLs, and understanding of the regulatory environment of the healthcare markets. Key members of our leadership team have also
served in relevant senior leadership positions with leading aesthetic companies.
Our Strategy
In May 2019, we launched Jeuveau® in the United States with our own specialty sales organization now consisting of over 150 positions between
representatives, management and other sales employees and in Canada through our distribution partner, Clarion. We plan to expand our product offerings over
time through in-licensing, partnerships and acquisitions. The key components of our strategy are:
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Partner outside of the United States to reach and serve physicians and consumers in those territories.
Pursue an aesthetic-only strategy to enhance marketing and pricing flexibility along with improving transparency for our customers.
Leverage our strong KOL relationships to assist in scientific presentations, publications, and other methods to drive success of our commercial
launch of Jeuveau®.
Leverage our differentiated digital platform to efficiently open new accounts, personalize the purchasing process and efficiently deploy marketing
programs at scale.
Establish a leading medical aesthetics company by in-licensing technology, developing partnerships and potentially acquiring products.
Jeuveau® Overview
Jeuveau® is an injectable formulation of a 900 kDa botulinum toxin type A complex designed to address the needs of the large and growing facial aesthetics
market. We completed the TRANSPARENCY global clinical program which enrolled over 2,100 adult subjects. The results of the TRANSPARENCY global
clinical program were used to support our applications for regulatory approvals in the United States, EU and Canada.
As demonstrated in the figure below, Jeuveau® contains a 900 kDa botulinum toxin type A complex produced by the bacterium Clostridium botulinum. The
active part of the neurotoxin is the 150 kDa component, and the remaining 750 kDA of the complex is made up of accessory proteins that we believe help
with the function of the active portion of the toxin. Jeuveau® has the same mechanism of action as other type A botulinum toxins. When injected
intramuscularly at therapeutic doses, botulinum toxin causes a chemical denervation of the muscle resulting in localized reduction of muscle activity.
Botulinum toxin type A specifically blocks peripheral acetylcholine release at presynaptic cholinergic nerve terminals by cleaving SNAP-25, a protein
integral to the successful docking and release of acetylcholine from vesicles situated within the nerve endings leading to denervation and relaxation of the
muscle.
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Diagram of Botulinum Toxin Type A
TRANSPARENCY: Evolus Clinical Development for Glabellar Lines
TRANSPARENCY was a comprehensive five-study clinical development program for Jeuveau® and was used to meet the regulatory requirements for a
Biologics License Application, or BLA, in the United States, a Marketing Authorisation Application, or MAA, in the EU, and a New Drug Submission, or
NDS, in Canada, for the treatment of moderate to severe glabellar lines. The TRANSPARENCY program, which was developed in consultation with the
FDA, Canadian, and European regulatory bodies, included three multicenter, randomized, double-blinded, controlled, single dose Phase III studies titled EV-
001, EV-002 and EVB-003. Each Phase III study lasted 150 days. The TRANSPARENCY program also included two open label, multiple dose, long-term
Phase II studies titled EV-004 and EV-006, each lasting one year. Between September 2014 and August 2016, over 2,100 adult male and female subjects with
moderate to severe glabellar lines at maximum frown participated in this program.
In our clinical trials, subjects received intramuscular injections in five target sites in muscles that contribute to the formation of glabellar lines: the midline of
the procerus, the inferomedial aspect of each corrugator, and the superior middle aspect of each corrugator. Each of the five target sites was injected with 0.1
milliliters, or mL, for a total of 0.5mL. Subjects assigned (in the open label studies) or randomized (in the controlled studies) to Jeuveau® received a total of
20 units per treatment, administered as 4 units per 0.1mL and those subjects who were randomized to the placebo group received 0.5mL saline. In our EVB-
003 Phase III trial, the only study of the five with both a placebo and active control arm, subjects randomized to the active control received a total of 20 units
of BOTOX administered as 4 units per 0.1mL.
All five studies contributed data to the evaluation of efficacy and safety of Jeuveau®.
Phase III U.S. Based Clinical Trials. The two identical U.S. Phase III studies, EV-001 and EV-002, enrolled subjects who were selected from a population of
healthy adults, at least 18 years of age, who had moderate to severe glabellar lines at maximum frown, as independently assessed by the investigator and
subject using the 4-point photonumeric Glabellar Line Scale, or GLS, where 0=no lines, 1=mild lines, 2=moderate lines and 3=severe lines. On Day 0,
eligible subjects were randomly assigned in a 3:1 ratio to receive a single treatment of either Jeuveau® or placebo. Subjects were followed for 150 days after
treatment.
The primary efficacy endpoint was defined as the proportion of subjects classified as responders on Day 30. This was a composite endpoint in which a
responder was a subject with a 2 point improvement or greater on the GLS from Day 0 to Day 30 at maximum frown, only if independently agreed by both
investigator and subject assessment.
Both studies met the primary endpoint of superiority over placebo. The percentages of responders in the intent to treat population for the composite primary
endpoint, a two point or greater score composite improvement, in each of the two controlled single dose studies were:
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EV-001: 1.2% placebo, 67.5% Jeuveau®, with an absolute difference between the groups of 66.3%, 95% CI (59.0, 72.4)
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EV-002: 1.3% placebo, 70.4% Jeuveau®, with an absolute difference between the groups of 69.1%, 95% CI (61.5, 75.1)
In the EV-002 study, the adverse event, or AE, rate was 26.9% in the placebo group and 28.5% in the Jeuveau® group. Placebo and Jeuveau® groups were
similar in the overall incidence of subjects who experienced one or more AEs. Four Jeuveau® subjects (4/246, 1.6%) experienced a serious adverse event, or
SAE, but none were assessed as study drug related. Placebo and Jeuveau® groups were also similar in the percentages of subjects who experienced an AE
assessed by the investigator as study drug related: 7.7% of placebo subjects and 9.8% of Jeuveau® subjects. The drug related eyelid and eyebrow ptosis rates
in the Jeuveau® arm were 1.2% and 0.4% respectively. Overall, AEs with an incidence of 1% or greater were headache at 9.3% in the Jeuveau® groups and
7.6% in the placebo groups and eyelid ptosis at 1% in the Jeuveau® groups and 0% in the placebo groups.
Phase III European and Canadian Clinical Trial for Glabellar Lines
The EVB-003 study was the third Phase III safety and efficacy study in the Jeuveau® clinical development program, and was conducted in Europe and
Canada. 540 subjects with moderate to severe glabellar lines, or a GLS score of 2 or 3, as assessed by the investigator, were eligible to be enrolled provided
that subjects also felt their glabellar lines had an important psychological impact, such as on their mood, anxiety or depressive symptoms. On Day 0, eligible
subjects were randomly assigned in a 5:5:1 ratio to receive a single treatment of 20 units of Jeuveau®, 20 units of BOTOX or placebo.
The primary efficacy endpoint was defined as the proportion of subjects classified as responders on Day 30. A responder was a subject with a GLS score of 0
or 1, as assessed by the investigator at maximum frown. The primary analysis of the primary efficacy endpoint in the EVB-003 study showed the superiority
of Jeuveau® over placebo, and established non-inferiority of Jeuveau® to BOTOX. The percentages of responders for the primary efficacy endpoint were:
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4.2% in the placebo group, 95% CI (0.0, 9.8);
82.8% in the BOTOX group, 95% CI (78.1, 87.5); and
87.2% in the Jeuveau® group, 95% CI (83.0, 91.5).
A confidence interval, or CI, is a range of values in which, statistically, there is a specified level of confidence where the result lies. As an example, in the
results above for this Phase III study, the results indicate that there is a 95% level of confidence that the responder rate for placebo was between 0.0% and
9.8%, which we express as: 95% CI (0.0, 9.8).
The absolute differences between the treatment groups were:
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83.1% between Jeuveau® and placebo groups, 95% CI (70.3, 89.4), (p<0.001), indicating Jeuveau® was superior to placebo; and
4.4% between Jeuveau® and BOTOX groups, 95% CI (-1.9, 10.8), with non‑inferiority of Jeuveau® versus BOTOX concluded based on the lower
bound of the 95% CI for the absolute difference exceeding -10.0%.
EU Phase III Primary Endpoint - Responder Rates at Maximum Frown on
Day 30 (GLS = 0 or 1) by Investigator Assessment
EU Phase III Primary Endpoint - Non-Inferiority, at Maximum Frown on
Day 30 by Investigator Assessment
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As presented in the table below, within each group, 32.7% of placebo subjects, 41.9% of BOTOX subjects and 37.6% of Jeuveau® subjects experienced AEs.
One placebo subject (1/49, 2.0%), one BOTOX subject (1/246, 0.4%) and three Jeuveau® subjects (3/245, 1.2%) experienced a total of 11 SAEs and none
were assessed as study drug related. The drug related eyelid ptosis rates were 1.6% in the Jeuveau® arm and 0% in the BOTOX arm and the eyebrow ptosis
rates were 0% in the Jeuveau® arm and 0.4% in the BOTOX arm.
EU and Canadian Phase III Trial - Adverse Event Rate Summary
As presented in the table below, in EVB-003, we also assessed as a secondary endpoint ≥ 1 point improvement GLS at maximum frown for both investigator
and patient satisfaction. The investigator assessment at Day 2, the beginning of the study, and at Day 150, at the end of the study, Jeuveau® is statistically
superior to placebo as measured by a one-point improvement on the GLS scale by investigator assessment. We also looked at subject satisfaction on Day 30,
and Jeuveau® was superior to placebo at 91% versus 6% in the placebo arm.
EU and Canadian Phase III Trial - Select Secondary Endpoints
Manufacturing
*P-Value Placebo vs Jeuveau® <0.001
Daewoong Pharmaceuticals Co. Ltd., or Daewoong, manufactures and supplies Jeuveau® to us. Daewoong has over 70 years of experience manufacturing
pharmaceutical products and is one of the largest pharmaceutical companies in South Korea. Daewoong constructed a facility in South Korea where Jeuveau®
is produced. We believe this facility will be sufficient to meet demand for Jeuveau® for the foreseeable future. The FDA conducted a current Good
Manufacturing Practice, or cGMP, and pre-approval inspection of the facility in November 2017 in connection with our BLA for Jeuveau®. The UK
Medicines and Healthcare Products Regulatory Agency, or MHRA, also completed an inspection of the manufacturing facility in February 2018 in connection
with our MAA. The U.S. FDA approval of Jeuveau® in February 2019 included approval to manufacture Jeuveau® at Daewoong’s facility.
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Daewoong License and Supply Agreement
On September 30, 2013, we entered into the Daewoong Agreement with Daewoong, pursuant to which Daewoong agreed to manufacture and supply
Jeuveau® and grant us an exclusive license to import, distribute, promote, market, develop, offer for sale and otherwise commercialize and exploit Jeuveau®
for aesthetic indications in the United States, EU, Great Britain, Canada, Australia, Russia, Commonwealth of Independent States, or CIS, and South Africa,
each, a covered territory. Daewoong also granted us a non-exclusive license to do the same in Japan. In connection with our entry into the Daewoong
Agreement, we made an upfront payment to Daewoong of $2.5 million and agreed to make milestone payments upon certain confidential development and
commercial milestones, including payment to Daewoong upon each of FDA and EMA approval of Jeuveau®. Under the Daewoong Agreement, the maximum
aggregate amount of milestone payments that could be owed to Daewoong upon the satisfaction of all milestones is $13.5 million. Upon the FDA approval in
February 2019 and EMA approval in September 2019, we paid $2.0 million and $1.0 million milestone payment, respectively. As of December 31, 2019,
Daewoong is eligible to receive remaining contingent milestone payments of up to $10.5 million. Under the Daewoong Agreement, Daewoong is responsible
for all costs related to the manufacturing of Jeuveau®, including costs related to the operation and upkeep of its manufacturing facility, and we are responsible
for all costs related to obtaining regulatory approval, including clinical expenses, and commercialization of Jeuveau®.
Under the Daewoong Agreement, Daewoong has agreed to supply us with Jeuveau® at an agreed-upon, transfer price, and we have agreed to make milestone
payments upon completion of certain confidential development and commercial milestones. Our exclusivity is subject to certain minimum annual purchases
upon commercialization and if we fail to meet these targets, Daewoong may, at its option, convert the exclusive license to a non-exclusive license. These
potential minimum purchase obligations are contingent upon the occurrence of future events, including receipt of governmental approvals and our future
market share in various jurisdictions. During the term of the Daewoong Agreement, we cannot purchase, sell or distribute any competing products in a
covered territory or Japan or sell Jeuveau® outside a covered territory or Japan. We also have the option to negotiate first with Daewoong to secure a
distribution license for any product that Daewoong directly or indirectly develops or commercializes that is classified as an injectable botulinum toxin (other
than Jeuveau®) in a covered territory or Japan.
The initial term of the Daewoong Agreement is from September 30, 2013 to the later of (i) the fifth anniversary of approval from the relevant governmental
authority necessary to market and sell Jeuveau® or (ii) September 30, 2023, and automatically renews for unlimited additional three-year terms if we meet
certain performance requirements. The Daewoong Agreement will terminate (A) upon written notice by either us or Daewoong upon a continuing default that
remains uncured within 90 days (or 30 days for a payment default) by the other party, or (B) without notice upon the bankruptcy or insolvency of our
company.
We are the sole owner of any marketing authorization and clinical trial results we pursue in a covered territory. However, if we do not renew the Daewoong
Agreement or upon termination of the Daewoong Agreement due to a breach by us, we are obligated to transfer our rights to Daewoong.
The Daewoong Agreement also provides that Daewoong will indemnify us for any losses arising out of (i) Daewoong’s willful misconduct or gross
negligence in performing its obligations under the agreement, (ii) Daewoong’s breach of the agreement, or (iii) any allegation that Jeuveau® or Daewoong’s
trademark infringes or misappropriates the rights of a third party, except, in each case, as a result of our willful misconduct or gross negligence. We have
agreed to indemnify Daewoong for any losses arising out of (A) our willful misconduct or gross negligence in performing our obligations under the
agreement, or (B) our breach of the agreement, except, in each case, as a result of Daewoong’s willful misconduct or gross negligence.
Competition
Our primary competitors in the pharmaceutical market are companies offering injectable dose forms of botulinum toxin. There are only four approved
injectable botulinum toxin type A neurotoxins in the United States, including Jeuveau®. There are also other injectable botulinum toxin type A products being
developed for the U.S. market. We believe the primary competing products in this market include BOTOX, Dysport and Xeomin:
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BOTOX, marketed by Allergan plc, or Allergan, received FDA approval in 2002 for glabellar lines. Allergan was the first company to market
neurotoxins for aesthetic purposes.
Dysport, marketed by Galderma S.A., or Galderma, received FDA approval in 2009 for glabellar lines.
Xeomin, marketed by Merz Pharma GmbH & Co., or Merz, received FDA approval in 2011 for glabellar lines.
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We are also aware that Revance Therapeutics, Inc. has submitted a BLA to the FDA for an injectable botulinum toxin type A neurotoxin and received a target
date action date of November 25, 2020 under the Prescription Drug User Fee Act. If the BLA is approved, we expect the competition in the U.S. injectable
botulinum toxin market to further increase.
In addition to the companies commercializing and developing neurotoxins, there are other products and treatments that may indirectly compete with
Jeuveau®, such as dermal fillers, laser treatments, brow lifts, chemical peels, fat injections and cold therapy. We compete with various companies that have
products in these medical aesthetic categories. Among these companies are Allergan, Sanofi, Sun Pharma, Valeant Pharmaceuticals International, Inc., or
Valeant, Mentor Worldwide LLC, a division of Johnson & Johnson, Merz, Galderma, and Skinceuticals, a division of L’Oreal SA. In addition, we are aware
of other companies also developing and/or marketing products in one or more of our target markets, including competing injectable botulinum toxin type A
formulations that are in various phases of development in North America for the treatment of glabellar lines.
Seasonality
We launched Jeuveau® into the U.S. aesthetic neurotoxin market in May 2019. Given the early stage of our launch of Jeuveau®, we have not experienced
seasonality in our net revenue to date. However, we are aware that historically the aesthetic neurotoxin market experiences higher revenue in the second and
fourth calendar quarters as compared to the first and third calendar quarters.
Government Regulation in the United States
We operate in a highly regulated industry that is subject to significant federal, state, local and foreign regulation. Our business has been, and will continue to
be, subject to a variety of laws including the Federal Food Drug and Cosmetic Act, or FFDCA, and the Public Health Service Act, or the PHS Act, among
others. Biologics and medical devices are subject to regulation under the FFDCA and PHS Act.
In the United States, cosmetics, dietary supplements, biopharmaceutical products and medical devices are subject to extensive regulation by the FDA. The
FFDCA, PHS Act, and other federal and state statutes and regulations, govern, among other things, the research, development, testing, manufacture, storage,
recordkeeping, regulatory approval, license or clearance, labeling, promotion and marketing, distribution, post-approval monitoring and reporting, sampling,
and import and export of these products. Failure to comply with applicable U.S. requirements may subject a company to a variety of administrative or judicial
sanctions, such as FDA refusal to approve pending license or marketing applications, warning letters and other enforcement actions, product recalls, product
seizures, total or partial suspension of production or distribution, injunctions, fines, civil penalties and criminal prosecution.
FDA Marketing Approval
The process required by the FDA before a biological product may be marketed in the United States generally involves the following:
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completion of nonclinical laboratory tests and animal studies according to good laboratory practices, or GLPs, and applicable requirements for the
humane use of laboratory animals or other applicable regulations;
submission to the FDA of an investigative new drug application, or IND, which must become effective before human clinical trials may begin;
performance of adequate and well-controlled human clinical trials to establish the safety and efficacy of the proposed biological product for its
intended use, according to the FDA’s regulations, commonly referred to as good clinical practices, or GCPs, and any additional requirements
including those for the protection of human research subjects and their health and other personal information;
submission to the FDA of a BLA for marketing approval that includes substantive evidence of safety;
purity and potency from results of nonclinical testing and clinical trials;
satisfactory completion of an FDA inspection of the manufacturing facility or facilities where the biological product is produced to assess
compliance with cGMP, to assure that the facilities, methods and controls are adequate to preserve the biological product’s identity, strength, quality
and purity and, if applicable, the FDA’s current good tissue practices for the use of human cellular and tissue products;
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potential FDA audits of the nonclinical study and clinical trial sites that generated the data in support of the BLA; and
FDA review and approval of the BLA.
Post-Approval Requirements
Once a BLA is approved, a product is subject to certain post-approval requirements. For instance, the FDA closely regulates the post-approval marketing and
promotion of biologics, including standards and regulations, off-label promotion, industry-sponsored scientific and educational activities and promotional
activities involving the internet. Biologics may be marketed only for the approved indications and in accordance with the provisions of the approved labeling.
Adverse event reporting and submission of periodic reports is required following FDA approval of a BLA. The FDA also may require post-marketing testing,
known as Phase IV testing, Risk Evaluation and Mitigation Strategies, or REMS, and surveillance to monitor the effects of an approved product or place
conditions on an approval that could restrict the distribution or use of the product. In addition, quality control as well as product manufacturing, packaging
and labeling procedures must continue to conform to cGMP after approval. Manufacturers and certain of their subcontractors are required to register their
establishments with the FDA and certain state agencies, and are subject to periodic unannounced inspections by the FDA during which the agency inspects
manufacturing facilities to assess compliance with applicable regulations such as cGMP and the Quality System Regulation. Accordingly, manufacturers must
continue to expend time, money and effort in the areas of production and quality control to maintain compliance with cGMP. Regulatory authorities may
withdraw product approvals or request product recalls if a company fails to comply with regulatory standards, if it encounters problems following initial
marketing, or if previously unrecognized problems are subsequently discovered.
Other Regulation of the Healthcare Industry
While we do not currently have plans for our neurotoxin product to be covered by insurance or government reimbursement programs, if we were to offer
reimbursable products, we could be subject to federal laws and regulations covering reimbursable products, such as the Anti-Kickback Statute, Stark Law and
Physician Payment Sunshine Act. These laws that may affect our ability to operate include, but are not limited to:
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The Anti-Kickback Statute, which prohibit persons from knowingly and willfully soliciting, offering, receiving or providing remuneration, directly
or indirectly, in cash or in kind, to induce either the referral of an individual, or furnishing or arranging for a good or service, for which payment may
be made under a federal healthcare program;
The Federal False Claims Act which imposes civil and criminal liability on individuals and entities who submit, or cause to be submitted, false or
fraudulent claims for payment to the government;
the Federal Civil Monetary Penalties Law, which prohibits, among other things, offering or transferring remuneration to a federal healthcare
beneficiary that a person knows or should know is likely to influence the beneficiary’s decision to order or receive items or services reimbursable by
the government from a particular provider or supplier;
The Foreign Corrupt Practices Act (“FCPA”), which prohibits certain payments made to foreign government officials;
the Federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, which created new federal criminal statutes that prohibit
knowingly and willfully executing, or attempting to execute, a scheme to defraud 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, including
private third-party payors and knowingly and willfully falsifying, concealing or covering up by trick, scheme or device a material fact or making any
materially false, fictitious or fraudulent statement in connection with the delivery of or payment for healthcare benefits, items or services relating to
healthcare matters;
the Federal Physician Payments Sunshine Act, and its implementing regulations, which require that certain manufacturers of drugs, medical devices,
biologics, and medical supplies for which payment is available under Medicare, Medicaid, or the Children’s Health Insurance Program (with certain
exceptions) to report to the CMS information related to certain payments or other transfers of value made or distributed to physicians, which is
defined broadly to include other healthcare providers, teaching hospitals, and ownership and investment interests held by physicians and their
immediate family members; and
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State and foreign law equivalents of the foregoing and state laws regarding pharmaceutical company marketing compliance, reporting and disclosure
obligations.
If our operations are found to be in violation of any of these laws, regulations, rules or policies or any other law or governmental regulation, or if
interpretations of the foregoing change, we may be subject to civil and criminal penalties, damages, fines and the curtailment or restructuring of our
operations.
Government Regulation in Europe
In the European Economic Area, or EEA (which is composed of the 28 Member States of the EU plus Norway, Iceland and Liechtenstein), medicinal
products can only be commercialized after obtaining a Marketing Authorization, or MA.
There are two types of MAs:
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The Community MA, which is issued by the European Commission through the Centralized Procedure, based on the opinion of the Committee for
Medicinal Products for Human Use, or CHMP, of the EMA and which is valid throughout the entire territory of the EEA. The Centralized Procedure
is mandatory for certain types of products, such as biotechnology medicinal products, orphan medicinal products, and medicinal products indicated
for the treatment of AIDS, cancer, neurodegenerative disorders, diabetes, auto-immune and viral diseases. The Centralized Procedure is optional for
products containing a new active substance not yet authorized in the EEA, or for products that constitute a significant therapeutic, scientific or
technical innovation or which are in the interest of public health in the EU.
National MAs, which are issued by the competent authorities of the Member States of the EEA and only cover their respective territory, are available
for products not falling within the mandatory scope of the Centralized Procedure.
Because we are a biotechnology medicinal products company, we are eligible for a Community MA under the Centralized Procedure.
Under the above described procedures, before granting the MA, the EMA or the competent authorities of the Member States of the EEA make an assessment
of the risk-benefit balance of the product on the basis of scientific criteria concerning its quality, safety and efficacy.
Product Approval Process Outside the United States and Europe
In addition to regulations in the United States and EU, we may be subject to a variety of regulations in other jurisdictions governing manufacturing, clinical
trials, commercial sales and distribution of our future products. Whether or not we obtain FDA approval or MA approval for a product candidate, we must
obtain approval of the product by the comparable regulatory authorities of foreign countries before commencing clinical trials or marketing in those countries.
The approval process varies from country to country, and the time may be longer or shorter than that required for FDA approval or MA approval. The
requirements governing the conduct of clinical trials, product licensing, pricing and reimbursement vary greatly from country to country.
Data Privacy and Security Laws and Regulations
We are also subject to data privacy and security regulation by the federal government, states and non-U.S. jurisdictions in which we conduct our business. For
example, HIPAA, as amended by the Health Information Technology and Clinical Health Act, or HITECH, and its implementing regulations, imposes certain
requirements relating to the privacy, security and transmission of individually identifiable health information. Among other things, HITECH makes HIPAA’s
privacy and security standards directly applicable to “business associates,” those independent contractors or agents of covered entities that create, receive,
maintain, transmit or obtain protected health information in connection with providing a service on behalf of a covered entity. HITECH also increased the
civil and criminal penalties that may be imposed against covered entities, business associates and possibly other persons, and gave state attorneys general new
authority to file civil actions for damages or injunctions in federal courts to enforce the federal HIPAA laws and seek attorney’s fees and costs associated with
pursuing federal civil actions. In addition, state and non-U.S. laws, including the General Data Protection Regulation adopted by the EU, govern the privacy
and security of health and other personal information in certain circumstances, many of which differ from each other in significant ways and may not have the
same effect, thus complicating compliance efforts.
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Environmental Regulation
We are subject to numerous foreign, federal, state, and local environmental, health and safety laws and regulations relating to, among other matters, safe
working conditions, manufacturing practices, fire hazard control, product stewardship and end-of-life handling or disposition of products, and environmental
protection, including those governing the generation, storage, handling, use, transportation and disposal of hazardous or potentially hazardous substances and
biological materials.
Our History
We were incorporated in November 2012 and are headquartered in Newport Beach, California. In a series of related transactions in 2013, Strathspey Crown
Holdings Group, LLC (formerly known as Strathspey Crown Holdings, LLC), or SCH, acquired all of our outstanding equity in exchange for membership
interests in SCH. In 2014, SCH contributed our equity that it had acquired in 2013 to its subsidiary operating entity, ALPHAEON Corporation, or Alphaeon.
As a result of these transactions, prior to our initial public offering we were a wholly-owned subsidiary of Alphaeon. In 2019 Alphaeon changed its name to
AEON Biopharma, Inc. We continue to refer to the renamed AEON Biopharma, Inc. as Alphaeon.
As of December 31, 2019, Alphaeon owned 25.8% of our outstanding shares of common stock. Subsequent to December 31, 2019, Alphaeon contributed all
of the shares it held in us to Alphaeon 1, LLC.
Employees
As of December 31, 2019, we had 235 employees, all of whom constituted full-time employees. None of our employees are represented by a collective
bargaining agreement, and we have never experienced any work stoppage. We believe we have good relations with our employees.
Corporate Information
We were incorporated in the State of Delaware in November 2012. Our principal executive offices are located at 520 Newport Center Drive, Suite 1200,
Newport Beach, California 92660, and our telephone number is (949) 284-4555. Our website address is www.evolus.com. We do not incorporate the
information on or accessible through our website into this Annual Report on Form 10-K, and you should not consider any information on, or that can be
accessed through, our website a part of this Annual Report on Form 10-K or any other filing we make with the SEC. We are an emerging growth company
under the Jumpstart Our Business Startups Act of 2012 and also a smaller reporting company, and therefore we are subject to reduced public company
reporting requirements.
Available Information
We make available, free of charge, on our website at www.evolus.com our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on
Form 8-K and any amendments to such reports, as soon as reasonably practicable after such reports are electronically filed with, or furnished to, the SEC. All
such reports are also available free of charge via EDGAR through the SEC website at www.sec.gov. We do not incorporate the information on or accessible
through these websites into this Annual Report on Form 10-K, and you should not consider any information on, or that can be accessed through, these
websites a part of this Annual Report on Form 10-K or any other filing we make with the SEC.
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Item 1A. Risk Factors.
You should carefully consider the risks and uncertainties described below, together with all the other information in this Annual Report on Form 10-K,
including Item 7“Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the financial statements and the related
notes included in Item 8 “Financial Statements and Supplementary Data.” If any of the following risks actually occurs, our business, reputation, financial
condition, results of operations, revenue, and future prospects could be seriously harmed. The risks and uncertainties described below are not the only ones
we face. Additional risks and uncertainties that we are unaware of, or that we currently believe are not material, may also become important factors that
adversely affect our business. Unless otherwise indicated, references to our business being seriously harmed in these risk factors will include harm to our
business, reputation, financial condition, results of operations, revenue, and future prospects. In that event, the market price of our common stock could
decline, and you could lose part or all of your investment.
Risks Related to Our Business and Strategy
We have a limited operating history and have incurred significant losses since our inception and anticipate that we will continue to incur losses for the
foreseeable future. We have only one product and limited commercial sales, which, together with our limited operating history, make it difficult to assess
our future viability.
We are a performance beauty company with a limited operating history. To date, we have invested substantially all of our efforts and financial resources in the
clinical development, regulatory approval, and commercial launch of Jeuveau®, which is currently our only product. We began selling Jeuveau® in the United
States in May 2019 and through a distribution partner in Canada in October 2019 and have a limited history of generating revenue. We are not profitable and
have incurred losses in each year since our inception in 2012. We have a limited operating history upon which you can evaluate our business and prospects.
Consequently, any predictions about our future success, performance or viability may not be as accurate as they could be if we had a longer operating history
or greater experience commercializing a product. In addition, we have limited experience and have not yet demonstrated an ability to successfully overcome
many of the risks and uncertainties frequently encountered by companies in the medical aesthetics field. We continue to incur significant expenses related to
the commercialization of Jeuveau®. We have recorded net losses of $90.0 million and $46.9 million for the years ended December 31, 2019 and 2018,
respectively, and had an accumulated deficit as of December 31, 2019 of $213.1 million. We expect to continue to incur losses for the foreseeable future, and
we anticipate these losses will continue as we commercialize Jeuveau®. Our ability to achieve revenue and profitability is dependent on our ability to
successfully market and commercialize Jeuveau®. Even if we achieve profitability in the future, we may not be able to sustain profitability in subsequent
periods. Our prior losses, combined with expected future losses, may adversely affect the market price of our common stock and our ability to raise capital
and continue operations.
We currently depend entirely on the successful commercialization of our only product, Jeuveau®. If we are unable to successfully commercialize
Jeuveau®, we may never generate sufficient revenue to continue our business.
We currently have only one product, Jeuveau®, and our business presently depends entirely on our ability to successfully commercialize it in a timely manner.
While the product was commercially launched in the United States in May 2019 and through a distribution partner in Canada in October 2019, we have a
limited history of generating revenue for Jeuveau®. Our near-term prospects, including our ability to generate revenue, as well as our future growth, depend
entirely on the successful commercialization of Jeuveau®. The commercial success of Jeuveau® will depend on a number of factors, including the following:
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our success in educating physicians and consumers about the benefits, administration and use of Jeuveau®;
the prevalence, duration and severity of potential side effects experienced with Jeuveau®;
achieving and maintaining compliance with all regulatory requirements applicable to Jeuveau®;
the ability to raise additional capital on acceptable terms, or at all, if needed, to support our operations and further commercialization of Jeuveau®;
the acceptance by physicians and consumers of the safety and efficacy of Jeuveau®;
our ability to successfully commercialize Jeuveau®, whether alone or in collaboration with others, including our ability to hire, retain and train sales
representatives in the United States;
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the ability of our current manufacturer and any third parties with whom we may contract to remain in good standing with regulatory agencies and
develop, validate and maintain commercially viable manufacturing processes that are compliant with current Good Manufacturing Practice, or
cGMP, requirements;
our ability to accurately forecast demand for our products, the ability of our third-party manufacturers to scale production to meet that demand and
our ability to effectively manage our working capital requirements including the purchase of inventory and collection of receivables;
our ability to resolve ongoing legal proceedings in a timely and cost-effective manner;
the availability, perceived advantages, relative cost, relative safety and relative efficacy of competing products, the timing of new product
introductions by our competitors, and the sales and marketing tactics of our competitors, including bundling of multiple products, in response to our
launch of Jeuveau®.
If we do not achieve one or more of these factors, many of which are beyond our control, in a timely manner or at all, we could experience significant issues
commercializing Jeuveau®. Further, we may never be able to successfully commercialize Jeuveau® or any future product candidates. In addition, our
experience as a commercial company is limited. Accordingly, we may not be able to generate sufficient revenue through the sale of Jeuveau® or any future
product candidates to continue our business.
Jeuveau® faces, and any of our future product candidates will face, significant competition and our failure to effectively compete may prevent us from
achieving significant market penetration and expansion.
In May 2019, we commercially launched Jeuveau® into the highly competitive U.S. aesthetic neurotoxin market. In the long term, we expect to expand our
focus to the broader self-pay healthcare market. Many of our potential competitors, including Allergan in particular who first launched BOTOX for cosmetic
uses in 2002 and has since maintained the highest market share position in the aesthetic neurotoxin market with its BOTOX product, are large, experienced
companies that enjoy significant competitive advantages, such as:
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substantially greater financial resources enabling them to, among other things, market and discount aggressively;
large and established research and development, manufacturing, personnel and marketing resources;
greater brand recognition for their products;
larger sales forces;
larger aesthetic product portfolios allowing the companies to bundle products to provide customers more choices and to further discount their
products;
greater existing market share in the aesthetic neurotoxin product market;
long standing customer loyalty programs and sales contracts with large customers;
established business and financial relationships with customers, aesthetic societies and universities.
These competitors may also try to compete with Jeuveau® on price both directly, through rebates and promotional programs to high volume physicians and
coupons to consumers, and indirectly, through attractive product bundling with complimentary products, such as dermal fillers that offer convenience and an
effectively lower price compared to the total price of purchasing each product separately. These companies may also seek to compete based on their longer
operating history. Larger companies may be better capitalized than us and, accordingly, are able to offer greater customer loyalty benefits to encourage repeat
use of their products and finance a sustained global advertising campaign to compete with our commercialization efforts at launch. A number of our larger
competitors also have access to a significant amount of studies and publications that they could use to compete with us.
Competitors and other parties may also seek to impact regulatory approval of our future product applications through the filing of citizen petitions or other
similar documents, which could require costly and time-consuming responses to the regulatory agencies. Larger competitors could seek to prevent or delay
our commercialization efforts via costly litigation which can be lengthy and expensive and serve to distract our management team’s attention. We could face
competition from other sources as well, including academic institutions, governmental agencies and public and private research institutions. In addition, we
are aware of other companies also developing and/or marketing products in one or more of our target markets,
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including competing injectable botulinum toxin type A formulations that are currently in Phase III clinical development in North America for the treatment of
glabellar lines. For example, Revance Therapeutics, Inc. has submitted a BLA to the FDA for an injectable botulinum toxin type A neurotoxin and received a
target date action date of November 25, 2020 under the Prescription Drug User Fee Act. If the BLA is approved, we expect the competition in the U.S.
injectable botulinum toxin market to further increase. We would face similar risks with respect to any future product candidates that we may seek to develop
or commercialize in the broader self-pay healthcare market. Successful competitors in that market have the ability to effectively discover, obtain patents,
develop, test and obtain regulatory approvals for products, as well as the ability to effectively commercialize, market and promote approved products,
including communicating the effectiveness, safety and value of products to actual and prospective customers and medical staff.
Our strategy of competing in the aesthetic neurotoxin market is dependent on the marketing and pricing flexibility that we believe is afforded to a company
with a portfolio limited to self-pay healthcare, comprised of products and procedures that are not reimbursed by third-party payors. In the event that
regulations applicable to reimbursed products are changed to apply to self-pay healthcare products, we would no longer have this flexibility and we may not
be able to compete as effectively with our competitors which may have a material effect on our business, financial condition and results of operations.
The first use of Jeuveau® is in aesthetic medicine. The aesthetic product market, and the facial aesthetic market in particular, is highly competitive and
dynamic and is characterized by rapid and substantial technological development and product innovations. We have received regulatory approval of Jeuveau®
for the treatment of glabellar lines and launched commercially in the United States and through a distribution partner in Canada. We anticipate that Jeuveau®
will face significant competition from other facial aesthetic products, such as other injectable and topical botulinum toxins and dermal fillers. Jeuveau® may
also compete with unapproved and off-label treatments. In addition, competitors may develop new technologies within the aesthetic market that may be
superior in safety and efficacy to Jeuveau® or offer alternatives to the use of toxins, including surgical and radio frequency techniques. To compete
successfully in the aesthetic market, we will have to demonstrate that Jeuveau® is at least as safe and effective as current products sold by our competitors.
Competition in the aesthetic market could result in price-cutting and reduced profit margins, any of which would harm our business, financial condition and
results of operations.
Due to less stringent regulatory requirements, there are many more aesthetic products and procedures available for use in international markets than are
approved for use in the United States. There are also fewer limitations on the claims that our competitors in international markets can make about the
effectiveness of their products and the manner in which they can market them. As a result, we expect to face more competition in these markets than in the
United States.
Our commercial opportunity could also be reduced or eliminated if our competitors develop and commercialize products that are safer, are more effective,
have fewer or less severe side effects, are more convenient or are less expensive than Jeuveau® or any other product that we may develop. Our competitors
also may obtain FDA or other regulatory approval for these products more rapidly than we may obtain approval for our products, which could result in our
competitors establishing a strong market position before we are able to enter the market, which may create additional barriers to successfully commercializing
Jeuveau® and any future product candidates and attracting physician and consumer demand.
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We rely on the license and supply agreement, the Daewoong Agreement, with Daewoong to provide us exclusive rights to distribute Jeuveau® in certain
territories. Any termination or loss of significant rights, including exclusivity, under the Daewoong Agreement would materially and adversely affect our
development or commercialization of Jeuveau®.
Pursuant to the Daewoong Agreement, we have secured an exclusive license from Daewoong, a South Korean pharmaceutical manufacturer, to import,
distribute, promote, market, develop, offer for sale and otherwise commercialize and exploit Jeuveau® for aesthetic indications in the United States, EU,
Canada, Australia, Russia, C.I.S. and South Africa, as well as co-exclusive distribution rights with Daewoong in Japan. The Daewoong Agreement imposes
on us obligations relating to exclusivity, territorial rights, development, commercialization, funding, payment, diligence, sublicensing, intellectual property
protection and other matters. We are obligated to conduct development activities, obtain regulatory approval of Jeuveau®, obtain from Daewoong all of our
product supply requirements for Jeuveau® and pay to Daewoong regulatory milestone payments and other cash payments in connection with the net sales of
Jeuveau®. In addition, under the Daewoong Agreement, we are required to submit our commercialization plan to a joint steering committee, or JSC,
comprised of an equal number of development and commercial representatives from Daewoong and us, for review and input. Although the Daewoong
Agreement provides us with final decision-making power regarding the marketing, promotion, sale and/or distribution of Jeuveau®, any disagreement among
the JSC would be referred to Daewoong’s and our respective senior management for resolution if the JSC is unable to reach a decision within thirty days,
which may result in a delay in our ability to implement our commercialization plan or harm our working relationship with Daewoong. If we fail to achieve
minimum annual purchase targets of Jeuveau® under the Daewoong Agreement, Daewoong may, at its sole option, elect to convert the exclusive license to a
non-exclusive license.
The initial term of the Daewoong Agreement will expire on the later of September 30, 2023 or the fifth anniversary of our receipt of marketing approval in
any of the aforementioned territories. The Daewoong Agreement will renew for unlimited additional three-year terms after the expiration of the initial term,
only if we meet certain performance requirements during the initial term or preceding renewal term, as applicable. We or Daewoong may terminate the
Daewoong Agreement if the other party breaches any of its duties or obligations and such breach continues without cure for ninety days, or thirty days in the
case of a payment breach, or if we declare bankruptcy or assign our business for the benefit of creditors.
If we breach any material obligations, or use the intellectual property licensed to us in an unauthorized manner, we may be required to pay damages to
Daewoong and Daewoong may have the right to terminate our license. In addition, if any of the regulatory milestones or other cash payments become due
under the terms of the Daewoong Agreement, we may not have sufficient funds available to meet our obligations, which would allow Daewoong to terminate
the Daewoong Agreement. Any termination or loss of rights, including exclusivity, under the Daewoong Agreement would materially and adversely affect our
ability to commercialize Jeuveau®, which in turn would have a material adverse effect on our business, operating results and prospects. If we were to lose our
rights under the Daewoong Agreement, we believe it would be difficult for us to find an alternative supplier of a botulinum toxin type A complex. In addition,
to the extent the alternative supplier has not secured regulatory approvals in a jurisdiction, we would have to expend significant resources to obtain regulatory
approvals that may never be obtained or require several years to obtain, which could significantly delay commercialization. We may be unable to raise
additional capital to fund our operations during this extended time on terms acceptable to us or at all. Additionally, if we experience delays as a result of a
dispute with Daewoong, the demand for Jeuveau® could be materially and adversely affected. Additionally, if the Daewoong Agreement is terminated,
breached or has certain other adverse actions, it may constitute an event of default under our loan and security agreement, or credit facility, with Oxford
Finance, LLC, or Oxford. Under the credit facility, in the event of default, a default interest rate equal to the applicable rate plus 5.0% would apply and
Oxford, as collateral agent, could exercise remedies against us and the collateral securing the credit facility, including foreclosure against the property
securing the credit facility, including cash. Any such action could materially and adversely affect our business and results of operations.
We currently rely solely on Daewoong to manufacture Jeuveau®, and as such, any production or other problems with Daewoong could adversely affect
us.
We depend solely upon Daewoong for the manufacturing of Jeuveau®. Although alternative sources of supply may exist, the number of third-party suppliers
with the necessary manufacturing and regulatory expertise and facilities is limited, and it could be expensive and take a significant amount of time to arrange
for and qualify alternative suppliers, which could have a material adverse effect on our business. Suppliers of any new product candidate would be required to
qualify under applicable regulatory requirements and would need to have sufficient rights under applicable intellectual property laws to the method of
manufacturing the product candidate. Obtaining the necessary FDA approvals or other qualifications under applicable regulatory requirements and ensuring
non-infringement of third-party intellectual property rights could result in a
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significant interruption of supply and could require the new manufacturer to bear significant additional costs which may be passed on to us.
In addition, our reliance on Daewoong entails additional risks, including reliance on Daewoong for regulatory compliance and quality assurance, the possible
breach of the Daewoong Agreement by Daewoong, and the possible termination or nonrenewal of the Daewoong Agreement at a time that is costly or
inconvenient for us. Our failure, or the failure of Daewoong, to comply with applicable regulations could result in sanctions being imposed on us, including
fines, injunctions, civil penalties, delays, suspension or withdrawal of approvals, license revocation, seizures or recalls of products, operating restrictions and
criminal prosecutions, any of which could significantly and adversely affect supplies of Jeuveau®. Our dependence on Daewoong also subjects us to all of the
risks related to Daewoong’s business, which are all generally beyond our control. Daewoong’s ability to perform its obligations under the Daewoong
Agreement is dependent on Daewoong’s operational and financial health, which could be negatively impacted by several factors, including changes in the
economic, political and legislative conditions in South Korea and the broader region in general and the ability of Daewoong to continue to successfully attract
customers and compete in its market. Furthermore, Daewoong’s recently constructed manufacturing facility is Daewoong’s only facility meeting FDA and
European Medicines Agency, or EMA, cGMP requirements. Daewoong’s lack of familiarity with, or inability to effectively operate, the facility and produce
products of consistent quality, may harm our ability to compete in our market.
Additionally, although we are ultimately responsible for ensuring compliance with regulatory requirements such as cGMPs, we are dependent on Daewoong
for day-to-day compliance with cGMP for production of drug substance and finished products. Facilities used by Daewoong to produce the drug substance
and materials or finished products for commercial sale must pass inspection and be approved by the FDA and other relevant regulatory authorities. If the
safety of Jeuveau® is compromised due to a failure to adhere to applicable laws or for other reasons, we may not be able to successfully commercialize our
product and we may be held liable for injuries sustained as a result. In addition, the manufacturing facilities of certain of our suppliers are located outside of
the United States. This may give rise to difficulties in importing our product into the United States or other countries as a result of, among other things,
regulatory agency approval requirements, taxes, tariffs, local import requirements such as import duties or inspections, incomplete or inaccurate import
documentation or defective packaging. Any of these factors could adversely impact our ability to effectively commercialize Jeuveau®.
Any failure or refusal by Daewoong or any other third party to supply Jeuveau® or any other product candidates or products that we may develop could delay,
prevent or impair our clinical development or commercialization efforts.
Third-party claims of intellectual property infringement may prevent or delay our commercialization efforts and interrupt our supply of products.
Our commercial success depends in part on our avoiding infringement of the proprietary rights of third parties. Competitors in the field of dermatology,
aesthetic medicine and neurotoxins have developed large portfolios of patents and patent applications in fields relating to our business. In particular, there are
patents held by third parties that relate to the treatment with neurotoxin-based products for the indication we are currently developing. There may also be
patent applications that have been filed but not published that, when issued as patents, could be asserted against us. There is a substantial amount of litigation,
both within and outside the United States, involving patent and other intellectual property rights in the technology, medical device and pharmaceutical
industries, including patent infringement lawsuits, interferences, oppositions and inter-party reexamination proceedings before the U.S. Patent and Trademark
Office, or USPTO. Numerous U.S. and foreign issued patents and pending patent applications, which are owned by third parties, exist in the fields in which
we are developing Jeuveau®. As the technology, medical device and pharmaceutical industries expand and more patents are issued, the risk increases that our
product candidates may be subject to claims of infringement of the patent rights of third parties.
Third parties may assert that we or any of our current or future licensors, including Daewoong, are employing their proprietary technology without
authorization. There may be third-party patents or patent applications with claims to materials, methods of manufacture or methods for treatment related to
the use or manufacture of Jeuveau® or any future product candidates. Because patent applications can take many years to issue, there may be currently
pending patent applications that may later result in issued patents that Jeuveau® or any future 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 Jeuveau® or any future product candidates, the holders of any such patents may be able to block our ability
to commercialize such product candidate unless we obtain 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 methods of use, the holders of any such patent may be able
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to block our ability to develop and commercialize the applicable product candidate unless we obtain 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 to claims of patent infringement, third parties may bring claims against us asserting misappropriation of proprietary technology or other
information in the development, manufacture and commercialization of Jeuveau® or any of our future product candidates. Defense of such a claim would
require dedicated time and resources, which time and resources could otherwise be used by us toward the maintenance of our own intellectual property and
the development and commercialization of Jeuveau® and any of our future product candidates or by any of our current or future licensors for operational
upkeep and manufacturing of our products. Presently, we are a defendant in a lawsuit brought by Medytox, Inc., or Medytox, on June 7, 2017 in the Superior
Court of the State of California, alleging, among other things, that Daewoong stole Medytox’s botulinum toxin bacterial strain, or the BTX strain, that
Daewoong misappropriated certain trade secrets of Medytox, including the process used to manufacture Jeuveau® (which Medytox claims is similar to its
biopharmaceutical drug, Meditoxin) using the BTX strain, and that Daewoong thereby interfered with Medytox’s plan to license Meditoxin to us, or the
Medytox Litigation. Medytox claims that as a result of Daewoong’s conduct, we entered into the Daewoong Agreement instead of an agreement with
Medytox to license Meditoxin.
Daewoong filed a motion to dismiss or stay for forum non conveniens, claiming that the place where the complaint has been filed, in the Superior Court of the
State of California, is not the proper place for the trial of the claims in the complaint because, among other reasons, the underlying facts that gave rise to the
complaint occurred in South Korea. Daewoong’s motion to dismiss was granted by the Superior Court of the State of California on October 12, 2017. As a
result, the action filed with the Superior Court of the State of California is stayed pending resolution of the proceedings in South Korea. In October 2017,
Medytox initiated a civil lawsuit against Daewoong and its parent company, Daewoong Co. Ltd., in the Seoul Central District Court in Seoul, South Korea,
related to the same subject matter in the Medytox Litigation and is seeking, among other things, money damages, injunctive relief and destruction of related
documents and products. None of us, Alphaeon or SCH are parties to the litigation in the Seoul Central District Court.
On April 27, 2018, pursuant to a motion to dismiss brought by Daewoong, the Superior Court of the State of California dismissed Medytox’s suit against
Daewoong, without prejudice, on the basis that Medytox had brought a substantially similar proceeding against Daewoong in South Korea. The proceedings
against us, Alphaeon and SCH remain stayed in the Superior Court of the State of California pending resolution of the proceedings between Medytox and
Daewoong in South Korea. While the proceedings between Medytox and Daewoong in South Korea are progressing, legal proceedings are inherently
uncertain and we cannot predict what actions may be taken by the Seoul Central District Court in connection with such proceedings. Due to these factors and
because we are not a direct party to the proceedings, we are unable to provide any assurances about when such proceedings may be resolved or whether such
resolution may occur sooner or later than we otherwise anticipate.
With specific regard to us, Medytox alleges that (i) we have violated California Uniform Trade Secrets Act, Cal. Civ. Code Section 3426 because Daewoong’s
alleged knowledge of the misappropriation of certain trade secrets of Medytox is imputed to us as a result of our relationship with Daewoong, (ii) we have
stolen the BTX strain through our possession of and refusal to return the BTX strain, (iii) we have engaged in unlawful, unfair and fraudulent business acts
and practices in violation of California Bus. & Prof. Code Section 17200, including conversion of the BTX strain and misrepresentations to the public
regarding the source of the botulinum toxin bacterial strain used to manufacture Jeuveau®, and (iv) the Daewoong Agreement is invalid and in violation of
Medytox’s rights.
Medytox seeks, among other things, (i) actual, consequential and punitive damages, (ii) a reasonable royalty, as appropriate, (iii) a declaration that the
Daewoong Agreement is void and unenforceable and that Medytox is entitled to disgorgement of all property wrongfully and unjustly retained or acquired by
the defendants, including unlawfully gained profits, (iv) injunctive relief prohibiting us from using the license under the Daewoong Agreement and
distributing Jeuveau®, and (v) attorneys’ fees and costs.
Given the early stage in the Medytox Litigation, we are unable to predict the likelihood of success of Medytox’s claims against us, Alphaeon, SCH or
Daewoong or to quantify any risk of loss. The Medytox Litigation and any other similar claims, suits, government investigations and proceedings are
inherently uncertain and their results may not be favorable for us. For example, if the Medytox Litigation has a negative outcome for us, Alphaeon or
Daewoong, it could result in us losing access to Jeuveau® and the manufacturing process and require us to negotiate a new license with Medytox for
continued access to Jeuveau®. We may not be able to successfully negotiate such license on terms acceptable to us or at all. If we are unable to license
Jeuveau®, we may not be able to find a replacement product, if at all, without expending significant resources and being required to seek additional regulatory
approvals, which would be uncertain, time consuming and costly. Regardless of
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the outcome, such proceedings can have an adverse impact on us because of legal costs, diversion of management resources and other factors. An adverse
ruling against either us or one of the other defendants of any such proceedings could adversely affect our business, financial position, results of operations, or
cash flows and could also result in reputational harm. Any of these consequences could adversely affect our business and results of operations.
On January 30, 2019, Allergan and Medytox filed a complaint against us and Daewoong in the U.S. International Trade Commission, or the ITC, containing
substantially similar allegations to the Medytox Litigation, specifically that Jeuveau® is manufactured based on misappropriated trade secrets of Medytox and
therefore the importation of Jeuveau® is an unfair act. The ITC matter is entitled In the Matter of Certain Botulinum Toxin Products, or the ITC Complaint.
The ITC instituted an investigation as ITC Inv. No. 337-TA-1145. The ITC complaint calls for an investigation by the ITC under Section 337 of the Tariff Act
of 1930. The ITC complaint seeks (i) an investigation pursuant to Section 337 of the Tariff Act of 1930, (ii) a hearing with the ITC on permanent relief, (iii)
issuance of a limited exclusion order forbidding entry of Jeuveau® into the United States, (iv) a cease and desist order prohibiting Daewoong and us from
engaging in the importations, sale for importation, marketing, distribution, offering for sale, the sale after the importation of, or otherwise transferring
Jeuveau® within the United States, (v) a bond issued during the presidential review period, (vi) the return of Medytox’s trade secrets and other confidential
information including the alleged stolen BTX Strain, and (vii) exclusion and cease and desist orders. We intend to defend ourselves vigorously in the
proceedings. The ITC has set a target date for the final determination of the matter for October 2020. An adverse ruling by the ITC against either us or
Daewoong could result in the imposition of an exclusion order which would bar imports of Jeuveau® into the United States and a cease and desist order which
would bar sales and marketing of our sole product Jeuveau® within the United Sates either of which would adversely affect our ability to carry our out our
business and which would have an adverse effect on our business, financial position, results of operations, or cash flows and could also result in reputational
harm. Any of these consequences could adversely affect our business and results of operations. Additionally, in certain cases if there is preliminary or
permanent relief granted under the Medytox Litigation or the ITC matter, it may constitute an event of default under our credit facility. Under the credit
facility, in the event of default, a default interest rate equal to the applicable rate plus 5.0% would apply and Oxford, as collateral agent, could exercise
remedies against us and the collateral securing the credit facility, including foreclosure against the property securing the credit facility, including cash. Any
such action could materially and adversely affect our business and results of operations.
Parties making claims against us or any of our current or future licensors may request and 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 claim of
infringement, we or any of our current or future licensors may have to pay substantial damages, including treble damages and attorneys’ fees for willful
infringement, obtain one or more licenses from third parties which may not be commercially or more available, pay royalties or redesign our infringing
products or manufacturing processes, which may be impossible or require substantial time and monetary expenditure. Furthermore, even in the absence of
litigation, we may need to obtain licenses from third parties to advance our research, manufacture clinical trial supplies or allow commercialization of
Jeuveau® or any future product candidates. 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. Similarly, third-
party patents could exist that might be enforced against our products, 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.
Borrowings under our credit facility could adversely affect our financial condition and restrict our operating flexibility.
On March 15, 2019, or the closing date, we entered into a credit facility with Oxford, or the lender, pursuant to which the lender will make term loans
available to us of up to $100.0 million, or the credit facility. The credit facility provides that the term loans will be funded in two advances. The first tranche
of $75.0 million was funded on the closing date, and the second tranche of $25.0 million may be drawn, at our request, no later than September 30, 2020,
upon achieving specified minimum net sales milestones with no event of default occurring. The credit facility bears an annual interest rate equal to the greater
of 9.5%, or the 30-day U.S. Dollar LIBOR (London Inter-Bank Offered Rate) rate plus 7.0%. We have agreed to pay interest only on each tranche funded
pursuant to the credit facility for the first 36 months until May 2022, which will be followed by a 23-month amortization period. Notwithstanding the
foregoing, if we maintain compliance with the specified minimum net sales covenant and meet other conditions during the initial interest-only period, upon
our request, the interest only period may be extended by an additional 12 months to a total of 48 months followed by an 11-month amortization period.
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The credit facility is secured by substantially all of our assets. The credit facility contains customary affirmative and restrictive covenants and representations
and warranties. We are bound by certain affirmative covenants setting forth actions that are required during the term of the credit facility including, without
limitation, certain requirements to deliver financial and other required information to Oxford, obligations to maintain certain insurance, and certain notice
requirements. Additionally, we are bound by certain restrictive covenants setting forth actions that are not permitted to be taken during the term of the credit
facility without Oxford’s prior written consent, including, without limitation, incurring certain additional indebtedness, consummating certain mergers,
acquisitions or other business combination transactions, or incurring any non-permitted lien or other encumbrance on our assets.
Interest payments, fees, covenants and restrictions under the credit facility could have important consequences, including the following:
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limiting our ability to obtain additional financing on satisfactory terms to fund our working capital requirements, capital expenditures, potential
acquisitions, debt obligations and other general corporate requirements, and making it more difficult for us to satisfy our obligations with respect to
any such additional financing;
increasing our vulnerability to general economic downturns, competition and industry conditions, which could place us at a competitive
disadvantage compared to our competitors with no debt obligations or with debt obligations on more favorable terms; and
limiting our ability to pursue acquisition opportunities and to license intellectual property outside specified exceptions.
The occurrence of any one of these events could have an adverse effect on our business, financial condition, operating results or cash flows and ability to
satisfy our obligations under the credit facility and any other indebtedness. If new debt is incurred in addition to debt incurred under the credit facility, the
related risks that we face would be increased. The terms of the credit facility may restrict our current and future operations, particularly our ability to respond
to changes in our business or to take certain actions. The credit facility contains, and the terms of any future indebtedness of ours would likely contain, a
number of restrictive covenants that impose significant operating restrictions, including restrictions on our ability to engage in acts that may be in our best
long-term interests. The credit facility includes covenants that, among other things and subject to certain exceptions and limits, restrict or otherwise limit our
ability to:
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dispose of assets;
undergo certain business, management, ownership, business and other fundamental changes;
engage in certain merger, acquisition and consolidation transactions;
incur additional indebtedness and create liens and other encumbrances;
• make restricted payments, including dividends and other distributions; and
•
engage in certain transactions with affiliates.
The credit facility also includes events of default including, among other things, any failure by us to pay principal or interest due under the credit facility, a
breach of certain covenants under the credit facility, our insolvency, a material adverse change, the occurrence of any default under certain other indebtedness
and one or more judgments against us, the institution of certain temporary or permanent relief in connection with pending litigation, or the breach, termination
or other adverse events under the Daewoong Agreement. Under the credit facility, in the event of default, a default interest rate equal to the applicable rate
plus 5.0% would apply and Oxford, as collateral agent, could exercise remedies against including the ability to declare any outstanding debt immediately due
and payable. In addition, the credit facility is secured by certain of our existing and hereafter created or acquired assets, including our intellectual property,
cash, accounts receivable, equipment, general intangibles, inventory and all of the proceeds and products of the foregoing. If we are unable to pay any
amounts due and payable under the credit facility because we do not have sufficient cash on hand or are unable to obtain alternative financing on acceptable
terms, the lenders could initiate a bankruptcy proceeding or proceed against any assets that serve as collateral to secure the credit facility. These restrictions
could limit our ability to obtain future financings, make needed capital expenditures, withstand future downturns in the economy or otherwise conduct
necessary corporate activities. We may also be prevented from taking advantage of business opportunities that arise because of limitations imposed on us by
the restrictive covenants under the credit facility.
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We may require additional financing to fund our future operations, and a failure to obtain additional capital when so needed on acceptable terms, or at
all, could force us to delay, limit, reduce or terminate our operations.
We have utilized substantial amounts of cash since our inception in order to conduct clinical development to support regulatory approval of Jeuveau® in the
United States, EU and Canada and in connection with the launch of Jeuveau® in the United States and Canada. We expect that we will continue to expend
substantial resources for the foreseeable future in order to commercialize Jeuveau® and for the clinical development of any additional product candidates we
may choose to pursue.
In the near term, these expenditures will include costs associated with the development and continuation of our marketing programs and commercialization
infrastructure in connection with commercializing Jeuveau® within and outside of the United States. In the long term, these expenditures will include costs
associated with the continued commercialization of Jeuveau® and any of our future product candidates, such as research and development, conducting
preclinical studies and clinical trials and manufacturing and supplying as well as marketing and selling any products approved for sale. In addition, other
unanticipated costs may arise. Because the regulatory approval process and commercialization expenditures needed to meet our sales objectives are highly
uncertain, we cannot reasonably estimate the actual amounts necessary to successfully complete the development and commercialization of Jeuveau® or any
future product candidates. We expect to incur additional costs as we continue to operate as a public company, hire additional personnel and expand our
operations.
We anticipate that our existing cash, cash equivalents and investments will be sufficient to fund our current operating plan for the next twelve months.
However, we may require additional funds earlier than we currently expect in the event that market acceptance of Jeuveau® is slower than expected. Our
currently anticipated expenditures for the commercialization of Jeuveau® may exceed existing cash, cash equivalents and investments, and we may need to
seek additional debt or equity financing. Additionally, under our credit facility, in order to draw the final $25.0 million of the facility, we must meet a number
of conditions including maintaining compliance with covenants under the credit facility and the achievement of specified net sales targets based on a trailing
six-month basis. In the event we are unable to reach this net sales milestone, we will not be able to draw the additional $25.0 million. As of December 31,
2019, we had not yet met the net sales milestone to draw the second tranche.
We may need to raise additional capital to fund our operations and continue to support both our near and long-term expenditures.
Our future capital requirements depend on many factors, including:
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the cost of commercialization activities for Jeuveau® or if any other future product candidates are approved for sale, including marketing, sales and
distribution costs;
the scope, progress, results and costs of researching and developing any future product candidates, and conducting preclinical and clinical trials;
our ability to accurately forecast demand for our products, the ability of our third-party manufacturers to scale production to meet that demand and
our ability to effectively manage our working capital requirements including the purchase of inventory and collection of receivables;
costs under our third-party manufacturing and supply arrangements for our current and any future product candidates and any products we
commercialize;
our ability to establish and maintain strategic collaborations, licensing or other arrangements and the terms of and timing of such arrangements;
the timing of, and the costs involved in, obtaining and maintaining regulatory approvals for any future product candidates;
the degree and rate of market acceptance of Jeuveau® or any future approved products;
the emergence, approval, availability, perceived advantages, relative cost, relative safety and relative efficacy of alternative and competing products,
the timing of new product introductions by competitors and other actions by competitors in the marketplace;
costs of operating as a public company; and
costs associated with any acquisition or in-license of products and product candidates, technologies or businesses.
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If we raise additional capital through marketing and distribution arrangements or other collaborations, strategic alliances or licensing arrangements with third
parties, we may have to relinquish certain valuable rights to our product candidates, technologies, future revenue streams or research programs or grant
licenses on terms that may not be favorable to us. If we raise additional capital through public or private equity offerings or offerings of securities convertible
into our equity, the ownership interest of our existing stockholders will be diluted and the terms of any such securities may have a preference over our
common stock. Debt financing, receivables financing and royalty financing may also be coupled with an equity component, such as warrants to purchase our
capital stock, which could also result in dilution of our existing stockholders’ ownership, and such dilution may be material. Additionally, if we raise
additional capital through debt financing, we will have increased fixed payment obligations and may be subject to covenants limiting or restricting our ability
to take specific actions, such as incurring additional debt or making capital expenditures to meet specified financial ratios, and other operational restrictions,
any of which could restrict our ability to commercialize Jeuveau® or any future product candidates or operate as a business and may result in liens being
placed on our assets. If we were to default on any of our indebtedness, we could lose such assets.
In the event we are unable to raise sufficient capital to fund our commercialization efforts to achieve specified minimum sales targets under the Daewoong
Agreement, we will lose exclusivity of the license that we have been granted under the Daewoong Agreement. In addition, if we are unable to raise additional
capital when required or on acceptable terms, we may be required to significantly reduce operating expenses and delay, reduce the scope of or discontinue
some of our development programs, commercialization efforts or other aspects of our business plan, out-license intellectual property rights to our product
candidates and sell unsecured assets, or a combination of the above. As a result, our ability to achieve profitability or to respond to competitive pressures
would be significantly limited and may have a material adverse effect on our business, results of operations, financial condition and/or our ability to fund our
scheduled obligations on a timely basis or at all.
Jeuveau® may fail to achieve the broad degree of physician adoption and use necessary for commercial success.
Jeuveau® may fail to gain sufficient market acceptance by physicians, consumers and others in the medical aesthetics community. The commercial success of
Jeuveau® and any future product candidates will depend significantly on the broad adoption and use of the resulting product by physicians for approved
indications, including, in the case of Jeuveau®, the treatment of glabellar lines and other aesthetic indications that we may seek to pursue. We are aware that
other companies are seeking to develop alternative products and treatments, any of which could impact the demand for Jeuveau®.
The degree and rate of physician adoption of Jeuveau® and any future product candidates depend on a number of factors, including:
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the effectiveness, ease of use and safety of Jeuveau® and any future product candidates as compared to existing products or treatments;
physician and consumer willingness to adopt Jeuveau® to treat glabellar lines or other aesthetic indications we may pursue over products and brands
with which consumers and physicians may have more familiarity or recognition or additional approved uses;
overcoming any biases physicians or consumers may have toward the use, safety and efficacy of existing products or treatments and successful
marketing of the benefits of a 900 kDa botulinum toxin type A complex;
the cost of Jeuveau® and any future product candidates in relation to alternative products or treatments and willingness to pay for the product or
treatment on the part of consumers;
proper training and administration of Jeuveau® and any future product candidates by physicians and medical staff;
consumer satisfaction with the results and administration of Jeuveau® and any future product candidates and overall treatment experience;
negative selling efforts by our competitors against Jeuveau®;
our competitors’ long standing relationships with customers, including Allergan in particular, given their longstanding dominance of the market,
which we may not be able to overcome in order to get customers to adopt Jeuveau®;
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changes in pricing, promotional, negative sales tactics, promotion of longer-term purchase agreements and bundling efforts by competitors;
the filing of various lawsuits by competitors with the intent of preventing or delaying our product launches, to distract management’s attention from
operating our business and to devote significant financial resources to defend such litigation attempts;
consumer demand for the treatment of glabellar lines or other aesthetic indications that may be approved in the future;
the willingness of consumers to pay for Jeuveau® and any future product candidates relative to other discretionary items, especially during
economically challenging times;
the revenue and profitability that Jeuveau® and any future product candidates may offer a physician as compared to alternative products or
treatments;
the effectiveness of our sales, marketing and distribution efforts and our ability to develop our brand awareness;
any adverse impact on our brand resulting from key opinion leader relationships with Alphaeon or SCH, whether or not related to us;
a perception that Jeuveau® are unproven or experimental, or perceived differences in product performance, reliability, features and ease of use
characteristics versus our competitors’ products;
our ability to compete with our competitors’ product bundling offerings as we initially launch Jeuveau® as a stand-alone product; and
adverse publicity about our product candidates, competitive products, or the industry as a whole, or favorable publicity about competitive products.
In addition, in its clinical trials, Jeuveau® was clinically tested with one Jeuveau® unit compared to one BOTOX unit. Jeuveau® is the only known neurotoxin
product in the United States with a 900 kDa complex other than BOTOX. We believe that aesthetic physicians’ familiarity with the 900 kDa complex’s
handling, preparation and dosing will more easily facilitate incorporation of Jeuveau® into their practices. However, the ease of integration of Jeuveau® into a
physician’s practice may not be as seamless as we anticipate.
If Jeuveau® or any future product candidates fail to achieve the broad degree of physician adoption necessary for commercial success, our operating results
and financial condition will be adversely affected, which may delay, prevent or limit our ability to generate revenue and continue our business.
If there is not sufficient consumer demand for Jeuveau®, our financial results and future prospects will be harmed.
Treatment of glabellar lines with Jeuveau® is an elective procedure, the cost of which must be borne by the consumer, and we do not expect costs related to
the treatment to be reimbursable through any third-party payor, such as Medicaid, Medicare or commercial insurance. The decision by a consumer to undergo
treatment with Jeuveau® for the treatment of glabellar lines or other aesthetic indications that we may pursue may be influenced by a number of factors,
including:
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the success of any sales and marketing programs that we, or any third parties we engage, undertake, and as to which we have limited experience;
the extent to which physicians recommend Jeuveau® to their patients;
the extent to which Jeuveau® satisfies consumer expectations and overcoming consumer loyalty with existing products and brands;
our ability to properly train physicians in the use of Jeuveau® such that their consumers do not experience excessive discomfort during treatment or
adverse side effects;
the cost, safety and effectiveness of Jeuveau® versus other aesthetic treatments;
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the development and availability of alternative products and treatments that seek to address similar goals;
consumer sentiment about the benefits and risks of aesthetic procedures generally and Jeuveau® in particular;
the success of any direct-to-consumer marketing efforts that we may initiate;
the ability and ease with which physicians are able to incorporate Jeuveau® into their practices;
changes in demographic and social trends; and
general consumer confidence, which may be impacted by economic and political conditions.
Jeuveau® is the only U.S. neurotoxin without a therapeutic indication, although other companies may seek to develop a similar product in the future. We
believe pursuing an aesthetic-only non-reimbursed product strategy will allow for meaningful strategic advantages in the United States, including pricing and
marketing flexibility. However, physicians may choose to not pass any cost benefits received by them due to such pricing flexibility to their patients. In
addition, companies offering aesthetic products competitive to Jeuveau®, whether they pursue an aesthetic-only non-reimbursed product strategy or not, may
nonetheless try to compete with Jeuveau® on price both directly through rebates, promotional programs and coupons and indirectly through attractive product
bundling and customer loyalty programs. Our business, financial results and future prospects will be materially harmed if we cannot generate sufficient
consumer demand for Jeuveau®.
In addition, we have not pursued regulatory approval of Jeuveau® for indications other than for the treatment of glabellar lines, which may limit adoption of
Jeuveau®. Many of our competitors have received approval of multiple aesthetic and therapeutic indications for their neurotoxin product and may be able to
market such product for use in a way we cannot. For example, we are aware that one of our competitors, Allergan plc, or Allergan, has obtained and plans to
obtain additional indications for its neurotoxin product within medical aesthetics and therefore is able to market its product across a greater number of
indications than Jeuveau®. If we are unable to obtain approval for indications in addition to glabellar lines, our marketing efforts for Jeuveau® will be severely
limited. As a result, we may not generate physician and consumer demand or approval of Jeuveau®.
Jeuveau® or any other product candidate for which we seek approval as a biologic may face competition sooner than anticipated.
With the enactment of the Biologics Price Competition and Innovation Act of 2009, or the BPCI Act, as part of the Patient Protection and Affordable Care
Act, an abbreviated pathway for the approval of biosimilar or interchangeable biological products was created. The abbreviated regulatory pathway
establishes legal authority for the FDA to review and approve biosimilar biologics. Under the BPCI Act, an application for a biosimilar product cannot be
approved by the FDA until twelve years after the original branded product was approved under a Biologics License Application, or BLA. The law is complex
and is still being interpreted and implemented by the FDA. For example, one company has filed a Citizen Petition requesting that the FDA not apply the BPCI
Act to pre-enactment BLAs. As a result, its ultimate impact, implementation and meaning are subject to uncertainty. While it is uncertain when such
processes intended to implement the BPCI Act may be fully adopted by the FDA, any such processes could have a material adverse effect on the future
commercial prospects for our biological products.
We believe that Jeuveau® should qualify for the twelve-year period of exclusivity. However, there is a risk that this exclusivity could be shortened due to
congressional action or otherwise, or that the FDA will not consider any of our product candidates to be a reference product for competing products,
potentially creating the opportunity for competition sooner than anticipated. Moreover, the extent to which a biosimilar product, once approved, will be
substituted for any one of our reference products in a way that is similar to traditional generic substitution for non-biological products is not yet clear and will
depend on a number of marketplace and regulatory factors that are still developing.
Jeuveau® is manufactured exclusively in one facility located in South Korea, and we plan to utilize this facility to support commercial production of
Jeuveau®. If this facility were damaged or destroyed, or if there occurs a significant disruption in operations at this facility for any reason, our ability to
continue to operate our business would be materially harmed.
Daewoong developed the manufacturing process for Jeuveau® and manufactures Jeuveau® in a recently constructed facility located in South Korea. If this
facility were to be damaged, destroyed or otherwise unable to operate or comply with regulatory requirements, whether due to earthquakes, fire, floods,
hurricanes, storms, tornadoes, other natural disasters, employee malfeasance, terrorist acts, power outages or otherwise, or if operations at the facility is
disrupted for any other
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reason, such an event could jeopardize Daewoong’s ability to manufacture Jeuveau® as promptly as we or our customers expect or possibly at all. If we
experience delays in achieving our development objectives, or if Daewoong is unable to manufacture Jeuveau® within a timeframe that meets our and our
customers’ expectations, our business, prospects, financial results and reputation could be materially harmed.
If these disruptions exceed coverage provided by Daewoong’s insurance policies, Daewoong may be unable to satisfy its obligations to us.
We or the third parties upon whom we depend may be adversely affected by earthquakes or other natural disasters, public health crises, or political unrest
and our business continuity and disaster recovery plans may not adequately protect us from a serious disaster or political unrest.
Daewoong, the sole manufacturer of Jeuveau®, manufactures Jeuveau® in a facility located in South Korea. In addition, the underlying drug substance for
Jeuveau® is also manufactured in a separate facility on the same campus. As a result of the concentration of the manufacturing and storage facilities for
Jeuveau® on this single campus, we are subject to risks that manmade or natural events will impact our supply of Jeuveau®.. For example, extreme weather
events at or near Daewoong’s facilities may impact the accessibility or viability of such facilities. As well, the earthquakes in the Pacific Rim region is high
and the Daewoong facility is in close proximity to major earthquake fault lines. Additionally, public health crises may affect South Korea. For example,
beginning in December 2019, a strain of coronavirus was reported to have surfaced in Wuhan, China which spread to other areas within Asia. If this or any
other public health crisis effects operations at Daewoong, it would have an adverse effect on the ability for Daewoong to manufacture our product. There is
also a level of political unrest and potential military conflict or uncertainty in South Korea and the broader region. For example, the operations of the South
Korean manufacturing plant may experience unrest or security issues due to the threats posed by North Korea. Natural disasters or political unrest could
severely disrupt Daewoong’s operations, and have a material adverse effect on our business, results of operations, financial condition and prospects.
If a natural disaster, public health crisis or political unrest, power outage or other event occurred that prevented Daewoong from using all or a significant
portion of its manufacturing facility, or prevented us from using all or a significant portion of our headquarters, that damaged critical infrastructure, or that
otherwise disrupted operations, it may be difficult or, in certain cases, impossible for us to continue our business for a substantial period of time. In particular,
because Daewoong manufactures Jeuveau® in its facility, in the event of a natural disaster, public health crisis, political unrest, power outage or other event
affecting this facility, we would be required to seek additional manufacturing facilities and capabilities that have obtained the necessary approvals required by
state, federal or other applicable authorities in order to continue or resume manufacturing activities, which we may not be able to do on commercially
reasonable terms if at all. Any disaster recovery and business continuity plans that we and Daewoong have in place or put in place may not be adequate in the
event of a serious disaster or similar event. We may incur substantial expenses as a result of our or Daewoong’s lack of disaster recovery and business
continuity plans, or the adequacy thereof, which could have a material adverse effect on our business.
Our ability to market Jeuveau® is limited to use for the treatment of glabellar lines, and if we want to expand the indications for which we market
Jeuveau®, we will need to obtain additional regulatory approvals, which will be expensive and may not be granted.
We have received regulatory approval for Jeuveau® in the United States for the treatment of moderate to severe glabellar lines. The terms of that approval
restrict our ability to market or advertise Jeuveau® for other indications, which could limit physician and consumer adoption. Under the U.S. Federal Food
Drug and Cosmetic Act, we may generally only market Jeuveau® for approved indications. Many of our competitors have received approval of multiple
aesthetic and therapeutic indications for their neurotoxin products and may be able to market such products for use in a way we cannot. For example, we are
aware that one of our competitors, Allergan, has obtained and plans to obtain additional indications for its neurotoxin product within medical aesthetics and,
therefore, is able to market its product across a greater number of indications than Jeuveau®. If we are unable to obtain approval for indications in addition to
our approval for glabellar lines, our marketing efforts for Jeuveau® will be severely limited. As a result, we may not generate physician and consumer demand
or approval of Jeuveau®.
We have entered into an agreement with Alphaeon relating to certain rights to the therapeutic indications of Jeuveau® under the Daewoong Agreement
and, as a result, we will not be able to pursue therapeutic indications for Jeuveau®.
On December 18, 2017, we entered into the therapeutic agreement with Alphaeon, or the therapeutic agreement, relating to certain rights to the therapeutic
indications of botulinum toxin products under the Daewoong Agreement. Pursuant to the Daewoong Agreement, we received an option to expand the
permitted uses of botulinum toxin products to cover all
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therapeutic uses in the United States, EU, Canada, Australia, Russia, C.I.S. and South Africa, or the covered territories, and Japan, or the therapeutic option.
However, pursuant to the therapeutic agreement, we agreed not to sell, sub-license or otherwise dispose in whole or in part the therapeutic option or the rights
underlying the therapeutic option and hold the therapeutic option and the underlying rights in trust for Alphaeon. In September 2018, Alphaeon exercised the
right to obtain the therapeutic option to botulinum toxin products and remitted the option exercise price directly to Daewoong.
In December 2019, Alphaeon and Daewoong entered into a direct distribution agreement for botulinum toxin products for therapeutic uses that is separate and
distinct from the Daewoong Agreement. Our entry into the therapeutic agreement and the entry by Alphaeon into an agreement directly with Daewoong
eliminates our ability to expand the permitted uses of botulinum toxin products for therapeutic indications.
If we are found to have improperly promoted off-label uses, or if physicians misuse our products or use our products off-label, we may become subject to
prohibitions on the sale or marketing of our products, significant fines, penalties, sanctions, or product liability claims, and our image and reputation
within the industry and marketplace could be harmed.
The FDA and other regulatory agencies strictly regulate the marketing and promotional claims that are made about pharmaceutical products, such as
Jeuveau®. In particular, a product may not be promoted for uses or indications that are not approved by the FDA or other similar regulatory authorities as
reflected in the product’s approved labeling. Physicians could use Jeuveau® on their patients in a manner that is inconsistent with the approved label of the
treatment of moderate to severe glabellar lines, potentially including for the treatment of other aesthetic or therapeutic indications. If we are found to have
promoted such off-label uses, we may receive warning letters from and be subject to other enforcement actions by the FDA, the EMA and other regulatory
agencies, and become subject to significant liability, which would materially harm our business. The federal government has levied large civil and criminal
fines against companies for alleged improper promotion and has enjoined several companies from engaging in off-label promotion. If we become the target of
such an investigation or prosecution based on our marketing and promotional practices, we could face similar sanctions, which would materially harm our
business. In addition, management’s attention could be diverted from our business operations, significant legal expenses could be incurred, and our reputation
could be damaged. The FDA has also required that companies enter into consent decrees or permanent injunctions under which specified promotional conduct
is changed or curtailed in order to resolve FDA enforcement actions. If we are deemed by the FDA to have engaged in the promotion of our products for off-
label use, we could be subject to FDA prohibitions or other restrictions on the sale or marketing of our products and other operations or significant fines and
penalties, and the imposition of these sanctions could also affect our reputation and position within the industry. In addition, regulatory authorities outside the
United States may impose similar fines, penalties or sanctions.
Physicians may also misuse Jeuveau® or any future product candidates or use improper techniques, potentially leading to adverse results, side effects or
injury, which may lead to product liability claims. If Jeuveau® or any future product candidates are misused or used with improper techniques or are
determined to cause or contribute to consumer harm, we may become subject to costly litigation by our customers or their patients. Product liability claims
could divert management’s attention from our core business, be expensive to defend, result in sizable damage awards against us that may not be covered by
insurance and subject us to negative publicity resulting in reduced sales of our products. Furthermore, the use of Jeuveau® or any future product candidates
for indications other than those cleared by the FDA may not effectively treat such conditions, which could harm our reputation in the marketplace among
physicians and consumers. Any of these events could harm our business and results of operations and cause our stock price to decline.
Jeuveau® or any of our future product candidates may cause serious or undesirable side effects or possess other unexpected properties that could delay or
prevent their regulatory approval, limit the commercial profile of approved labeling or result in post-approval regulatory action.
Unforeseen side effects from Jeuveau® or our future product candidates could arise either during clinical development or after marketing such product.
Undesirable side effects caused by product candidates could cause us or regulatory authorities to interrupt, modify, delay or halt clinical trials and could result
in a more restrictive label or the delay or denial of regulatory approval by the FDA, the EMA or similar regulatory authorities. Results of clinical trials could
reveal a high and unacceptable severity and prevalence of side effects. In such an event, trials could be suspended or terminated and the FDA, the EMA or
similar regulatory authorities could order us to cease further development of or deny approval of product candidates for any or all targeted indications. The
drug-related side effects could affect patient recruitment or the ability of enrolled patients to complete the trial or result in product liability claims. Any of
these occurrences may harm our business, financial condition, operating results and prospects.
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Additionally, if we or others identify undesirable side effects, or other previously unknown problems, caused by Jeuveau®, or any of our future product
candidates, after obtaining regulatory approval in the United States or other jurisdictions, a number of potentially negative consequences could result,
including:
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•
regulatory authorities may withdraw their approval of the product;
regulatory authorities may require a recall of the product or we may voluntarily recall a product;
regulatory authorities may require the addition of warnings or contraindications in the product labeling, narrowing of the indication in the product
label or issuance of field alerts to physicians and pharmacies;
regulatory authorities may require us to create a medication guide outlining the risks of such side effects for distribution to patients or institute a Risk
Evaluation and Mitigation Strategies, or REMS;
we may be subject to limitations as to how we market or promote the product;
we may be required to change the way the product is administered or modify the product in some other way;
regulatory authorities may require additional clinical trials or costly post-marketing testing and surveillance to monitor the safety or efficacy of the
product;
sales of the product may decrease significantly;
we could be sued and held liable for harm caused to patients; and
our brand and reputation may suffer.
Any of the above events could prevent us from achieving or maintaining market acceptance of the affected product, negatively impact our revenues and could
substantially increase the costs of commercializing our products. The demand for Jeuveau® could also be negatively impacted by any adverse effects of a
competitor’s product or treatment.
Our failure to successfully in-license, acquire, develop and market additional product candidates or approved products would impair our ability to grow
our business.
Although most of our effort is focused on the commercialization of Jeuveau®, a key element of our long-term strategy is to in-license, acquire, develop,
market and commercialize a portfolio of products to serve the self-pay aesthetic market. Because our internal research and development capabilities are
limited, we may be dependent upon pharmaceutical and other companies, academic scientists and other researchers to sell or license products or technology to
us. The success of this strategy depends partly upon our ability to identify and select promising pharmaceutical product candidates and products, negotiate
licensing or acquisition agreements with their current owners and finance these arrangements.
The process of proposing, negotiating and implementing a license or acquisition of a product candidate or approved product is lengthy and complex. Other
companies, including some with substantially greater financial, marketing, sales and other resources, may compete with us for the license or acquisition of
product candidates and approved products. We have limited resources to identify and execute the acquisition or in-licensing of third-party products,
businesses and technologies and integrate them into our current infrastructure. Moreover, we may devote resources to potential acquisitions or licensing
opportunities that are never completed, or we may fail to realize the anticipated benefits of such efforts. We may not be able to acquire the rights to additional
product candidates on terms that we find acceptable, or at all.
Further, any product candidates that we acquire may require additional development efforts prior to commercial sale, including preclinical or clinical testing
and approval by the FDA, the EMA and other similar regulatory authorities. All product candidates are prone to risks of failure during pharmaceutical product
development, including the possibility that a product candidate will not be shown to be sufficiently safe and effective for approval by regulatory authorities.
In addition, any approved products that we acquire may not be manufactured or sold profitably or achieve market acceptance.
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If we are unable to establish sufficient sales and marketing capabilities on our own or through third parties, we will be unable to successfully
commercialize Jeuveau® or any other future product candidates or generate significant product revenue.
In connection with the commercial launch of Jeuveau® in the United States, we built sales and marketing capabilities. We have no prior experience in the
marketing, sale and distribution of aesthetic medicine products, and there are significant risks involved in building and managing a sales organization,
including our ability to retain and incentivize qualified individuals, provide adequate training to sales and marketing personnel, generate sufficient sales leads,
effectively manage a geographically dispersed sales and marketing team, adequately provide complementary products to be offered by sales personnel, which
may otherwise put us at a competitive disadvantage relative to companies with more extensive product lines, and handle any unforeseen costs and expenses.
Any failure or delay in the development of our internal sales, marketing and distribution capabilities would adversely impact the commercialization of these
products. We may choose to collaborate with third parties that have direct sales forces and established distribution systems, either to augment our own sales
force and distribution systems or in lieu of our own sales force and distribution systems. If we are unable to enter into such arrangements on acceptable terms
or at all, we may not be able to successfully commercialize Jeuveau® or any future product candidates. To the extent we commercialize our product
candidates by entering into agreements with third-party collaborators, we may have limited or no control over the sales, marketing and distribution activities
of these third parties, in which case our future revenues would depend heavily on the success of the efforts of these third parties. If we are not successful in
commercializing Jeuveau® or any future product candidates, either on our own or through collaborations with one or more third parties, our future product
revenue will suffer, and we would incur significant additional losses.
To successfully commercialize Jeuveau® outside the United States or any other future product candidates in the United States, EU, Canada and other
jurisdictions we may seek to enter, we will need to build our marketing, sales, distribution, managerial and other capabilities or make arrangements with third
parties to perform these services, and we may not be successful in doing so.
We may need to increase the size of our organization, and we may experience difficulties in managing this growth.
As of December 31, 2019, we had 235 employees, all of whom constituted full-time employees. Our management and personnel, systems and facilities
currently in place may not be adequate to support future growth. Our need to effectively execute our growth strategy requires that we:
• manage any of our future clinical trials effectively;
•
identify, recruit, retain, incentivize and integrate any additional employees;
• manage our internal development efforts effectively while carrying out our contractual obligations to third parties; and
•
continue to improve our operational, financial and management controls, reporting systems and procedures.
Due to our limited financial resources and our limited experience in managing a company with such anticipated growth, we may not be able to effectively
manage the expansion of our operations or recruit and train additional qualified personnel. The physical expansion of our operations may lead to significant
costs and may divert our management and business development resources. Any inability to manage growth could delay the execution of our development
and strategic objectives or disrupt our operations.
Our employees, independent contractors, consultants, commercial collaborators, principal investigators, vendors and other agents may engage in
misconduct or other improper activities, including non-compliance with regulatory standards and requirements.
We are exposed to the risk that our employees, independent contractors, consultants, commercial collaborators, principal investigators, vendors and other
agents may engage in fraudulent conduct or other illegal activity. Misconduct by these parties could include intentional, reckless and/or negligent conduct or
disclosure of unauthorized activities to us that violates applicable regulations, including those laws requiring the reporting of true, complete and accurate
information to regulatory agencies, manufacturing standards and federal and state healthcare laws and regulations. In particular, sales, marketing and business
arrangements in the healthcare industry are subject to extensive laws and regulations intended to prevent fraud, kickbacks, self-dealing and other abusive
practices. Although our strategy to focus only on the self-pay market will reduce our risk under the Anti-Kickback Statute, we could face liability under
similar state laws that are not limited to products
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reimbursed by the government or if we obtain regulatory approval for products reimbursed by federal healthcare programs in the future. These laws and
regulations may restrict or prohibit a wide range of pricing, discounting, marketing and promotion, sales commission, referrals, customer incentive programs
and other business arrangements. Misconduct by these parties could also involve the improper use of individually identifiable information, including, without
limitation, information obtained in the course of clinical trials, which could result in regulatory sanctions and serious harm to our reputation. The precautions
we take to detect and prevent misconduct may not be effective in controlling unknown or unmanaged risks or losses or in protecting us from governmental
investigations or other actions or lawsuits stemming from a failure to be in compliance with such laws or regulations. If any such actions are instituted against
us, and we are not successful in defending ourselves or asserting our rights, those actions could have a significant impact on our business, including the
imposition of significant civil, criminal and administrative penalties, including, without limitation, damages, fines, disgorgement, imprisonment and the
curtailment or restructuring of our operations.
In the future, we may rely on third-parties and consultants to conduct all of our preclinical studies and clinical trials. If these third parties or consultants
do not successfully carry out their contractual duties or meet expected deadlines, we may be unable to obtain regulatory approval for any future product
candidates.
In the future, we may rely on medical institutions, clinical investigators, contract laboratories, collaborative partners and other third parties, such as contract
research organizations, or CROs, to conduct clinical trials on our product candidates. The third parties with whom we may contract for execution of any of
our future clinical trials may play a significant role in the conduct of these trials and the subsequent collection and analysis of data. However, any of these
third parties may not be our employees, and except for contractual duties and obligations, we would have limited ability to control the amount or timing of
resources that they devote to any of our future programs. Although we may rely on these third parties to conduct our preclinical studies and clinical trials, we
would remain responsible for ensuring that each of our preclinical studies and clinical trials is conducted in accordance with the applicable investigational
plan and protocol. Moreover, the FDA and other similar regulatory authorities require us to comply with, among other requirements, good clinical practices,
or GCPs, for conducting, monitoring, recording and reporting the results of clinical trials to ensure that the data and results are scientifically credible and
accurate, and that the trial subjects are adequately informed of the potential risks of participating in clinical trials. We may also rely on consultants to assist in
the execution, including data collection and analysis, of any of our future clinical trials.
In addition, the execution of preclinical studies and clinical trials, and the subsequent compilation and analysis of the data produced, requires coordination
among various parties. In order for these functions to be carried out effectively and efficiently, it is imperative that these parties communicate and coordinate
with one another. Moreover, these third parties may also have relationships with other commercial entities, some of which may compete with us. If the third
parties or consultants conducting our clinical trials do not perform their contractual duties or obligations, experience work stoppages, do not meet expected
deadlines, terminate their agreements with us or need to be replaced, or if the quality or accuracy of the clinical data they obtain is compromised due to the
failure to adhere to our clinical trial protocols or GCPs, or for any other reason, we may need to conduct additional clinical trials or enter into new
arrangements with alternative third parties, which could be difficult, costly or impossible, and our clinical trials may be extended, delayed or terminated or
may need to be repeated. If any of the foregoing were to occur, we may not be able to obtain, or may be delayed in obtaining, regulatory approval for and will
not be able to, or may be delayed in our efforts to, successfully commercialize any future product candidates being tested in such trials.
We plan to rely on third-party distribution partners for the distribution of our products, product candidates and services outside of the United States,
which could delay or limit our ability to generate revenue.
With respect to certain markets for our products, product candidates and services outside of the United States, we plan to retain third-party service providers
to perform functions related to the marketing, distribution and sale of Jeuveau® and any future product candidates. Key aspects of those functions may be out
of our direct control, including regulatory compliance, warehousing and inventory management, distribution, contract administration, accounts receivable
management and call center management. Any future distribution partners may hold significant control over important aspects of the commercialization of
our products, including market identification, regulatory compliance, marketing methods, pricing, composition of sales force and promotional activities.
We may not be able to control the amount and timing of resources that any current or future third-party distribution partners may devote to our products, or
prevent any third-party distribution partners from pursuing the development of alternative technologies or products that compete with our products, except to
the extent our contractual arrangements protect us against
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such activities. Also, we may not be able to prevent any other third-party distribution partners from withdrawing its support of our products.
If third-party service providers fail to comply with applicable laws and regulations, fail to meet expected deadlines, encounter natural or other disasters at
their facilities or otherwise fail to perform their services to us in a satisfactory or predicted manner, or at all, our ability to deliver product to meet commercial
demand could be significantly impaired. In addition, we may use third parties to perform various other services for us relating to sample accountability and
regulatory monitoring, including adverse event reporting, safety database management and other product maintenance services. If the quality or accuracy of
the data maintained by these service providers is insufficient, our ability to continue to market our products could be jeopardized or we could be subject to
regulatory sanctions, and any indemnity we may receive from such third-party service providers could be limited by such provider’s ability to pay and
otherwise might not be sufficient to cover all losses we may experience.
We forecast the demand for commercial quantities of our products, and if our forecasts are inaccurate, we may experience delays in shipments, increased
inventory costs or inventory levels, and reduced cash flow.
We purchase Jeuveau® from Daewoong. Pursuant to the Daewoong Agreement, we submit forecasts of anticipated product orders to Daewoong and may,
from time to time, submit purchase orders on the basis of these forecasting requirements. Our limited historical experience may not provide us with enough
data to accurately predict future demand. In addition, we expect Daewoong to manufacture its own product, Nabota, a botulinum toxin formulation, from this
facility for sale in the South Korean market and other markets in which we do not have exclusive rights. If our business significantly expands, our demand for
commercial products would increase and Daewoong may be unable to meet our increased demand. In addition, our product will have fixed future expiration
dates. If we overestimate our component and material requirements, we will have excess inventory, which may have to be disposed of if such inventory
exceeds approved expiration dates, which would result in lost revenues and increase our expenses. If we underestimate our component and material
requirements, we may have inadequate inventory, which could interrupt, delay or prevent delivery of our products to our customers. Any of these occurrences
would negatively affect our financial performance.
Our international operations will expose us to risks, and failure to manage these risks may adversely affect our operating results and financial condition.
We currently have operations in the United States and may have operations in EU in the future. International operations are subject to a number of inherent
risks, and our future results could be adversely affected by a number of factors, including:
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requirements or preferences for domestic products or solutions, which could reduce demand for our products;
differing existing or future regulatory and certification requirements;
• management communication and integration problems resulting from cultural and geographic dispersion;
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greater difficulty in collecting accounts receivable and longer collection periods;
difficulties in enforcing contracts;
difficulties and costs of staffing and managing non-U.S. operations;
the uncertainty of protection for intellectual property rights in some countries;
tariffs and trade barriers, export regulations and other regulatory and contractual limitations on our ability to sell our products;
• multiple, conflicting and changing laws and regulations such as privacy regulations, including General Data Protection Regulation, or GDPR, tax
laws, export and import restrictions, employment laws, immigration laws, labor laws, regulatory requirements and other governmental approvals,
permits and licenses;
• more stringent data protection standards in some countries;
•
greater risk of a failure of foreign employees to comply with both U.S. and foreign laws, including export and antitrust regulations, the U.S. Foreign
Corrupt Practices Act, or FCPA, quality assurance and other healthcare regulatory requirements and any trade regulations ensuring fair trade
practices;
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heightened risk of unfair or corrupt business practices in certain geographies and of improper or fraudulent sales arrangements that may impact
financial results and result in restatements of, or irregularities in, financial statements;
foreign currency exchange rates and the generally lower average sales prices available in most international markets compared to those in the United
States;
potentially adverse tax consequences, including multiple and possibly overlapping tax structures and difficulties relating to repatriation of cash;
economic, legal and regulatory uncertainty associated with the United Kingdom leaving the EU, or Brexit; and
political and economic instability, political unrest and terrorism.
These and other factors could harm our ability to gain future revenue and, consequently, materially impact our business, operating results and financial
condition.
A perception of a conflict of interest of our indirect physician investors by other physicians or consumers could negatively impact our future product
sales.
Prior to our initial public offering, we were indirectly funded through investments in our controlling stockholder, Alphaeon, and its majority stockholder,
SCH, in part, by leading physicians in the self-pay healthcare market, or the indirect physician investors. As a result, through Alphaeon (and, subsequent to its
transfer of shares, Alphaeon 1, LLC) and SCH, these indirect physician investors may have an indirect financial interest in our success (as our successes, if
any, will in part be imputed to Alphaeon 1, LLC and ultimately SCH) and may be more inclined to use, promote or recommend Jeuveau® to their patients and
other physicians. Other physicians may become aware of the indirect and potential financial interest and investments of these indirect physician investors,
who realize additional incentives by recommending Jeuveau® and any of our future product candidates. If other physicians perceive this to be a significant
conflict, they may be unwilling to purchase Jeuveau® or any of our future product candidates without obtaining additional third-party evidence of their
benefits and efficacy. If consumers perceive these indirect physician investors have a conflict of interest in recommending Jeuveau® or any of our future
product candidates, they may be unwilling to purchase Jeuveau® or any of our future product candidates and may have a negative view of our brand, which
could harm our reputation in the market. If physicians do not recommend Jeuveau® or any of our future product candidates or consumers choose not to
purchase any of our products as a result of these conflicts of interest, it could adversely affect our business.
If product liability lawsuits are brought against us, we may incur substantial liabilities and may be required to limit commercialization of any future
products we develop.
We face an inherent risk of product liability as a result of the commercialization of Jeuveau® and any of our future product candidates. For example, we may
be sued if any product we develop allegedly causes injury or is found to be otherwise unsuitable during product testing, manufacturing, marketing or sale.
Any such product liability claims may include allegations of defects in manufacturing, defects in design, a failure to warn of dangers inherent in the product,
negligence, strict liability and a breach of warranties. Claims could also be asserted against us under state consumer protection acts. If we cannot successfully
defend ourselves against product liability claims, we may incur substantial liabilities or be required to limit commercialization of our products. Even a
successful defense would require significant financial and management resources. Regardless of the merits or eventual outcome, liability claims may result in:
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decreased demand for Jeuveau® or any future product candidates or products we develop;
termination of clinical trial sites or entire trial programs;
injury to our reputation and significant negative media attention;
withdrawal of clinical trial participants or cancellation of clinical trials;
significant costs to defend the related litigation;
a diversion of management’s time and our resources;
substantial monetary awards to trial participants or patients;
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regulatory investigations, product recalls, withdrawals or labeling, marketing or promotional restrictions;
loss of revenue;
the inability to commercialize any products we develop; and
a decline in our share price.
Our inability to obtain and maintain sufficient product liability insurance at an acceptable cost and scope of coverage to protect against potential product
liability claims could prevent or inhibit the commercialization of Jeuveau® or any future products that we develop. We currently carry product liability
insurance covering our clinical trials. Although we maintain such insurance, any claim that may be brought against us could result in a court judgment or
settlement in an amount that is not covered, in whole or in part, by our insurance or that is in excess of the limits of our insurance coverage. Our insurance
policies also have various exclusions and deductibles, and we may be subject to a product liability claim for which we have no coverage. We will have to pay
any amounts awarded by a court or negotiated in a settlement that exceed our coverage limitations or that are not covered by our insurance, and we may not
have, or be able to obtain, sufficient capital to pay such amounts. Moreover, 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.
If we fail to attract and keep senior management and key scientific personnel, we may be unable to commercialize Jeuveau® successfully, or any future
products we develop.
Our success depends in part on our continued ability to attract, retain and motivate highly qualified management. We believe that our future success is highly
dependent upon the contributions of our senior management, particularly David Moatazedi, our President, Chief Executive Officer and member of our board
of directors, Lauren Silvernail, our Chief Financial Officer and Executive Vice President, Corporate Development, Rui Avelar, our Chief Medical Officer and
Head of R&D, and Michael Jafar, our Chief Marketing Officer, as well as other members of our senior management team. The loss of services of any of these
individuals could delay or prevent the successful development of our product pipeline, completion of our planned clinical trials or the commercialization of
Jeuveau® or any future products we develop.
In addition, we could experience difficulties attracting and retaining qualified employees in the future. For example, competition for qualified personnel in the
pharmaceuticals and aesthetic medicine field is intense due to the limited number of individuals who possess the skills and experience required by our
industry. We may not be able to attract and retain quality personnel on acceptable terms, or at all. In addition, to the extent we hire personnel from
competitors, we may be subject to allegations that they have been improperly solicited or that they have divulged proprietary or other confidential information
or that their former employers own their research output.
Unfavorable global economic conditions could adversely affect our business, financial condition or results of operations.
Our results of operations could be adversely affected by general conditions in the global economy and in the global financial markets. Furthermore, the
market for aesthetic medical procedures may be particularly vulnerable to unfavorable economic conditions. We do not expect Jeuveau® for the treatment of
glabellar lines to be reimbursed by any government or third-party payor and, as a result, our product will be ultimately paid for by the consumer. Demand for
Jeuveau® is tied to discretionary spending levels of our targeted consumer population. A severe or prolonged economic downturn could result in a variety of
risks to our business, including a decline in the discretionary spending of our target consumer population, which could lead to a weakened demand for
Jeuveau® or any future product candidates. A severe or prolonged economic down turn may also affect our ability to raise additional capital when needed on
acceptable terms, if at all. A weak or declining economy could also strain our suppliers, possibly resulting in supply disruption, or cause our customers to
delay making payments for our services. Any of the foregoing could harm our business.
In addition, our business strategy was developed based on a number of important assumptions about the self-pay healthcare market. For example, we believe
that the number of self-pay healthcare procedures will increase in the future. However, these trends are uncertain and limited sources exist to obtain reliable
market data. Therefore, sales of Jeuveau® or any of our future product candidates could differ materially from our projections if our assumptions are incorrect.
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Our strategy of focusing exclusively on the self-pay healthcare market may limit our ability to increase sales or achieve profitability.
Our near-term strategy of focusing exclusively on the self-pay healthcare market may limit our ability to increase sales or achieve profitability. For example,
to maintain our business model, we cannot offer products or services available in the broader healthcare market that are reimbursed by third-party payors such
as Medicare, Medicaid or commercial insurance. This eliminates our ability to offer a substantial number of products and indications for Jeuveau®.
We incur significant costs as a result of operating as a public company, and our management is required to devote substantial time to new compliance
initiatives. We may fail to comply with the rules that apply to public companies, including Section 404 of the Sarbanes-Oxley Act of 2002, as amended, or
the Sarbanes-Oxley Act, which could result in sanctions or other penalties that would harm our business.
We incur and expect to incur significant legal, accounting, information technology and other expenses as a public company, including costs resulting from
public company reporting obligations under the Exchange Act and regulations regarding corporate governance practices. The listing requirements of the
Nasdaq Global Market, or Nasdaq, and the rules of the SEC require that we satisfy certain corporate governance requirements. Our management and other
personnel devote a substantial amount of time to ensure that we comply with all of these requirements. Moreover, the reporting requirements, rules and
regulations increase our legal and financial compliance costs and make some activities more time-consuming and costly. Any changes we make to comply
with these obligations may not be sufficient to allow us to satisfy our obligations as a public company on a timely basis, or at all. These reporting
requirements, rules and regulations, coupled with the increase in potential litigation exposure associated with being a public company, could also make it
more difficult for us to attract and retain qualified persons to serve on our board of directors or board committees or to serve as executive officers, or to obtain
certain types of insurance, including directors’ and officers’ insurance, on acceptable terms.
We are subject to Section 404 of the Sarbanes-Oxley Act, or Section 404, and the related rules of the SEC, which generally require our management and
independent registered public accounting firm to report on the effectiveness of our internal control over financial reporting. In order to maintain effective
internal controls, we will need additional financial personnel, systems and resources. However, for so long as we remain an emerging growth company, as
defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act, we intend to take advantage of certain exemptions from various reporting
requirements that are applicable to public companies that are not emerging growth companies, including, but not limited to, not being required to comply with
the auditor attestation requirements of Section 404(b). Once we are no longer an emerging growth company or, if prior to such date, we opt to no longer take
advantage of the applicable exemption, we will be required to include an opinion from our independent registered public accounting firm on the effectiveness
of our internal control over financial reporting. We will remain an emerging growth company until the earliest of: (i) December 31, 2023; (ii) the first fiscal
year after our gross annual revenues are $1.07 billion or more; (iii) the date on which we have, during the immediately preceding three-year period, issued
more than $1.0 billion in non-convertible debt securities; or (iv) the end of any fiscal year in which the market value of our common stock held by non-
affiliates is $700 million or more as of the end of the second quarter of that fiscal year.
While we have conducted a review of our internal controls for the purpose of providing the reports required by these rules, during the course of our review
and testing, we may identify deficiencies and be unable to remediate them before we must provide the required reports. Furthermore, if we have a material
weakness in our internal control over financial reporting, we may not detect errors on a timely basis and our financial statements may be materially misstated.
We or our independent registered public accounting firm may not be able to conclude on an ongoing basis that we have effective internal control over
financial reporting, which could harm our operating results, cause investors to lose confidence in our reported financial information and cause the trading
price of our stock to fall. In addition, as a public company we will be required to file accurate and timely quarterly and annual reports with the SEC under the
Exchange Act. Any failure to report our financial results on an accurate and timely basis could result in sanctions, lawsuits, delisting of our shares from the
Nasdaq Global Market or other adverse consequences that would materially harm our business and reputation.
Our business involves the use of hazardous materials, and we and our third-party manufacturer and supplier must comply with environmental laws and
regulations, which can be expensive and restrict how we do business.
Our research and development and manufacturing activities in the future may, and Daewoong’s manufacturing and supplying activities presently do, involve
the controlled storage, use and disposal of hazardous materials, including botulinum toxin type A, a key component of Jeuveau®, and other hazardous
compounds. We and Daewoong are subject to laws and regulations governing the use, manufacture, storage, handling and disposal of these hazardous
materials. In some cases, these hazardous materials and various wastes resulting from their use are stored at Daewoong’s facilities pending their use and
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disposal. We and Daewoong cannot eliminate the risk of contamination, which could cause an interruption of Daewoong’s manufacturing processes, our
commercialization efforts, business operations and environmental damage resulting in costly clean-up and liabilities under applicable laws and regulations
governing the use, manufacture, storage, handling and disposal of these materials and specified waste products. Although we believe that the safety
procedures utilized by Daewoong for handling and disposing of these materials generally comply with the standards prescribed by these laws and regulations,
this may not eliminate the risk of accidental contamination or injury from these materials. In such an event, we may be held liable for any resulting damages
and such liability could exceed our resources, and state or federal or other applicable authorities may curtail our use of certain materials and interrupt our
business operations. Furthermore, environmental laws and regulations are complex, change frequently and have tended to become more stringent.
We may use third-party collaborators to help us develop, validate or commercialize any new products, and our ability to commercialize such products
could be impaired or delayed if these collaborations are unsuccessful.
We may license or selectively pursue strategic collaborations for the development, validation and commercialization of Jeuveau® and any future product
candidates. In any third-party collaboration, we would be dependent upon the success of the collaborators in performing their responsibilities and their
continued cooperation. Our collaborators may not cooperate with us or perform their obligations under our agreements with them. Our collaborators may
choose to pursue alternative technologies in preference to those being developed in collaboration with us. The development, validation and commercialization
of our product candidates will be delayed if collaborators fail to conduct their responsibilities in a timely manner or in accordance with applicable regulatory
requirements or if they breach or terminate their collaboration agreements with us. Disputes with our collaborators could also impair our reputation or result
in development delays, decreased revenues and litigation expenses.
In addition, we may face significant competition in seeking appropriate collaborators. Whether we reach a definitive agreement for a collaboration will
depend, among other things, upon our assessment of the collaborator’s resources and expertise, the terms and conditions of the proposed collaboration and the
proposed collaborator’s evaluation of a number of factors. Those factors may include the design or results of clinical trials, the likelihood of approval by the
FDA or similar regulatory authorities outside the United States, the potential market for the subject product candidate, the costs and complexities of
manufacturing and delivering such product candidate to consumers, the potential of competing products, the existence of uncertainty with respect to our
ownership of technology, which can exist if there is a challenge to such ownership without regard to the merits of the challenge and industry and market
conditions generally. The collaborator may also consider alternative product candidates or technologies for similar indications that may be available to
collaborate on and whether such a collaboration could be more attractive than the one with us for our product candidate. Collaborations are complex and time-
consuming to negotiate and document.
We may not be able to negotiate collaborations on a timely basis, on acceptable terms, or at all. If we are unable to do so, we may have to curtail the
development of such product candidate, reduce or delay its development program or one or more of our other development programs, delay its potential
commercialization or reduce the scope of any sales or marketing activities, or increase our expenditures and undertake development or commercialization
activities at our own expense. If we elect to increase our expenditures to fund development or commercialization activities on our own, we may need to obtain
additional capital, which may not be available to us on acceptable terms or at all. If we do not have sufficient funds, we may not be able to further develop our
product candidates or bring them to market and generate revenue.
Our ability to use our net operating loss carryforwards and certain other tax attributes may be limited.
We have incurred substantial losses during our history and do not expect to become profitable in the near future, and we may never achieve profitability. To
the extent that we continue to generate taxable losses, unused losses will carry forward to offset future taxable income, if any, until such unused losses expire.
Under Section 382 of the Internal Revenue Code of 1986, as amended, or the Code, if a corporation undergoes an “ownership change,” 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 net operating loss
carryforwards, or NOLs, and other pre-change tax attributes, such as research tax credits, to offset its post-change income may be limited. As of
December 31, 2019, we had $179.6 million of federal NOLs and $94.1 million of state NOLs available to offset our future taxable income, if any. As of
December 31, 2019, we had federal research and development credit carryforwards of $1.4 million. These federal and state NOLs and federal research and
development tax credit carryforwards expire at various dates beginning in 2034. We may experience ownership changes in the future as a result of subsequent
shifts in our stock ownership. As a result, if we earn net taxable income, our ability to use our pre-change NOLs to offset U.S. federal taxable income may be
subject to limitations, which could potentially result in increased future
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tax liability to us. 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.
Increased regulatory oversight and uncertainty relating to the LIBOR calculation process and potential phasing out of LIBOR after 2021 may adversely
affect the results of our operations.
As of December 31, 2019, we had $73.5 million of outstanding indebtedness that bears interest at a floating rate using LIBOR as the applicable reference rate
and that have maturities beyond 2021. On July 27, 2017, the United Kingdom’s Financial Conduct Authority, which regulates LIBOR, announced that it
intends to stop persuading or compelling banks to submit rates for the calculation of LIBOR after 2021. The announcement indicates that the continuation
of LIBOR on the current basis cannot and will not be guaranteed after 2021. It is impossible to predict whether and to what extent banks will continue to
provide LIBOR submissions to the administrator of LIBOR, whether LIBOR rates will cease to be published or supported before or after 2021 or whether any
additional reforms to LIBOR may be enacted in the United Kingdom or elsewhere. Efforts in the United States to identify a set of alternative U.S. dollar
reference interest rates include proposals by the Alternative Reference Rates Committee of the Federal Reserve Board and the Federal Reserve Bank of New
York. Uncertainty as to the nature of alternative reference rates and as to potential changes in other reforms to LIBOR may adversely affect LIBOR rates and
may impact the availability and cost of borrowings, including the rates we pay on our credit facility with Oxford. If LIBOR rates are no longer available or do
not remain an acceptable market benchmark, any successor or replacement interest rates may perform differently, which may adversely affect our interest
expenses. We may incur significant costs to transition our borrowing arrangement with Oxford from LIBOR, which may have an adverse effect on our results
of operations. The effect of a transition away from LIBOR on our company cannot yet be determined, and management continues to evaluate the LIBOR
exposure risks.
Our business and operations would suffer in the event of computer system failures or breach by hackers.
Despite the implementation of security measures, our internal computer systems, and those of third parties on which we rely, are vulnerable to damage from
computer viruses, malware, natural disasters, terrorism, war, telecommunication and electrical failures, cyberattacks or cyber intrusions over the internet,
attachments to emails, persons inside our organization, or persons with access to systems inside our organization. The risk of a security breach or disruption,
particularly through cyberattacks or cyber intrusions, including by computer hackers, foreign governments and cyberterrorists, has generally increased as the
number, intensity and sophistication of attempted attacks and intrusions from around the world have increased. If such an event were to occur and cause
interruptions in our operations, it could result in a material disruption of our current or future product development programs. The costs to us to mitigate
network security problems, bugs, viruses, worms, malicious software programs and security vulnerabilities could be significant, and while we have
implemented security measures to protect our data security and information technology systems, our efforts to address these problems may not be successful,
and these problems could result in unexpected interruptions, delays, cessation of service, government files or penalties and other harm to our business and our
competitive position. If such an event were to occur and cause interruptions in our operations, it could result in a material disruption of our product
development programs. For example, the loss of clinical trial data from completed, ongoing or planned clinical trials could result in delays in our regulatory
approval efforts and significantly increase our costs to recover or reproduce the data.
Moreover, if a computer security breach affects our systems or results in the unauthorized release of personally identifiable information, or PII, our reputation
could be materially damaged. In addition, such a breach may require notification to governmental agencies, the media or individuals pursuant to various
international, federal and state privacy and security laws, if applicable, including the GDPR, the Health Insurance Portability and Accountability Act of 1996,
as amended by the Health Information Technology for Clinical Health Act of 2009, and its implementing rules and regulations, as well as regulations
promulgated by the Federal Trade Commission and state breach notification laws. Additionally, the regulatory environment governing information, security
and privacy laws is increasingly demanding and continues to evolve and a number of states have adopted laws and regulations that may affect our privacy and
data security practices regarding the use, disclosure and protection of PII. For example, the California Consumer Privacy Act, among other things, has created
new individual privacy rights and imposes increased obligations on companies handling PII. We would also be exposed to a risk of loss or litigation and
potential liability, which could materially adversely affect our business, results of operations and financial condition. Our liability insurance may not be
sufficient in type or amount to cover us against claims related to security breaches, cyberattacks and other related breaches.
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Risks Related to Intellectual Property
If we or any of our current or future licensors, including Daewoong, are unable to maintain, obtain or protect intellectual property rights related to
Jeuveau® or any of our future product candidates, we may not be able to compete effectively in our market.
We and our current licensor, Daewoong, currently rely upon a combination of trademarks, trade secret protection, confidentiality agreements and proprietary
know-how. Botulinum toxin cannot be patented, as it is produced by Clostridium botulinum, a gram-positive, rod-shaped, anaerobic, spore-forming, motile
bacterium with the ability to produce the neurotoxin botulinum. Only the manufacturing process for botulinum toxin can be patented, for which Daewoong
has obtained a U.S. patent. Our trade secrets and other confidential proprietary information and those of our licensors could be disclosed or competitors could
otherwise gain access to our trade secrets or independently develop substantially equivalent information and techniques. Further, the laws of some foreign
countries do not protect proprietary rights to the same extent or in the same manner as the laws of the United States. As a result, we or any of our current or
future licensors may encounter significant problems in protecting and defending our or their intellectual property both in the United States and internationally.
If we or any of our current or future licensors are unable to prevent material disclosure of the non-patented intellectual property related to Jeuveau® to third
parties, we may not be able to establish or maintain a competitive advantage in our market, which could adversely affect our business.
In addition to the protection afforded by trademarks, confidentiality agreements and proprietary know-how, we may in the future rely upon in-licensed patents
for any future product offerings. The strength of patents we may in-license in the technology and healthcare fields involves complex legal and scientific
questions and can be uncertain. The patent applications that we may in-license may fail to result in issued patents with claims that cover any of our future
product candidates in the United States or in other foreign countries, and the issued patents that we may in-license may be declared invalid or unenforceable.
We are reliant on the ability of Daewoong, as the licensor of our only product, and will be reliant on future licensors of any future product candidates, to
maintain their intellectual property and protect their intellectual property against misappropriation, infringement or other violation. We may not have primary
control over our future licensors’ patent prosecution activities. Furthermore, we may not be allowed to comment on prosecution strategies, and patent
applications may be abandoned by the patent owner without our knowledge or consent. With respect to patents that are issued to our licensors, or patents that
may be issued on patent applications, third parties may challenge their validity, enforceability or scope, which may result in such patents being narrowed or
invalidated. As a licensee, we are reliant on Daewoong and our future licensors to defend any third-party claims, including Daewoong’s defense in connection
with the Medytox Litigation, which is defined below. Our licensors may not defend or prosecute such actions as vigorously or in the manner that we would
have if entitled to do so, and we will be subject to any judgment or settlement resulting from such actions. Also, a third-party may challenge the validity of
our in-licensing transactions. Furthermore, even if they are unchallenged, any of our future in-licensed patents and patent applications may not adequately
protect the licensors or our intellectual property or prevent others from designing around their or our claims.
We may become involved in lawsuits to protect or enforce our intellectual property or the patents and other intellectual property of our licensors, which
could be expensive and time-consuming.
Competitors may infringe our intellectual property, including any future patents we may acquire, or the patents and other intellectual property of our licensors,
including Daewoong. As a result, we or any of our current or future licensors may be required to file infringement claims to stop third-party infringement or
unauthorized use. This can be expensive, particularly for a company of our size, and time-consuming. In addition, in an infringement proceeding, a court may
decide that a patent of ours or any of our current or future 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 patent claims do not cover its technology or that the factors necessary to grant an injunction against an infringer
are not satisfied.
An adverse determination of any litigation or other proceedings could put one or more of such patents at risk of being invalidated or interpreted narrowly.
Interference, derivation or other proceedings brought at the USPTO may be necessary to determine the priority or patentability of inventions with respect to
any of our future patent applications or those of our licensors or collaborators. Litigation or USPTO proceedings brought by us or any of our current or future
licensors may fail or may be invoked against us or our licensors by third parties. Even if we are successful, domestic or foreign litigation or USPTO or foreign
patent office proceedings may result in substantial costs and distraction to our management or the management of any of our current or future licensors,
including Daewoong. We may not be able, alone or with any of our
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current or future licensors or collaborators, to prevent misappropriation of our proprietary rights, particularly in countries where the laws may not protect such
rights as fully as in the United States.
Furthermore, because of the substantial amount of discovery required in connection with intellectual property litigation or other proceedings, there is a risk
that some of our confidential information could be compromised by disclosure during this type of litigation or proceedings. In addition, during the course of
this kind of litigation or proceedings, there could be public announcements of the results of hearings, motions or other interim proceedings or developments or
public access to related documents. If investors perceive these results to be negative, the market price for our common stock could be significantly harmed.
Most of our competitors are larger than we are and have substantially greater resources. They are, therefore, likely to be able to sustain the costs of complex
patent litigation longer than we could. Accordingly, despite our efforts, we may not be able to prevent third parties from infringing upon or misappropriating
our intellectual property. In addition, the uncertainties associated with litigation could compromise our ability to raise the funds necessary to continue our
clinical trials, continue our internal research programs, or in-license needed technology or other product candidates. There could also be public
announcements of the results of the hearing, motions, or other interim proceedings or developments. If securities analysts or investors perceive those results to
be negative, it could cause the price of shares of our common stock to decline.
We may not be able to protect our intellectual property rights throughout the world.
Filing, prosecuting and defending patents on product candidates in all countries throughout the world would be prohibitively expensive, and our intellectual
property rights in some countries outside the United States can be less extensive than those in the United States. In addition, the laws of some foreign
countries do not protect intellectual property rights to the same extent as federal and state laws in the United States and in some cases may even force us to
grant a compulsory license to competitors or other third parties. Consequently, we may not be able to prevent third parties from using our inventions in all
countries outside the United States or from selling or importing products made using our inventions in and into the United States or other jurisdictions.
Competitors may use our technologies in jurisdictions where we have not obtained patent protection to develop their own products and further, may export
otherwise infringing products to territories where we have patent protection, but enforcement is not as strong as that in the United States. These products may
compete with our products and our patents or other intellectual property rights may not be effective or sufficient to prevent them from competing.
Many companies have encountered significant problems in protecting and defending intellectual property rights in foreign jurisdictions. The legal systems of
certain countries, particularly certain developing countries, do not favor the enforcement of patents and other intellectual property protection, particularly
those relating to biopharmaceuticals, which could make it difficult for us to stop the infringement of our patents or marketing of competing products in
violation of our proprietary rights generally. Proceedings to enforce our patent rights in foreign jurisdictions could result in substantial costs and divert our
efforts and attention from other aspects of our business, could put our patents at risk of being invalidated or interpreted narrowly and our patent applications
at risk of not issuing and could provoke third parties to assert claims against us. We may not prevail in any lawsuits that we initiate and the damages or other
remedies awarded, if any, may not be commercially meaningful. Accordingly, our efforts to enforce our intellectual property rights around the world may be
inadequate to obtain a significant commercial advantage from the intellectual property that we develop or license.
In addition, our ability to protect and enforce our intellectual property rights may be adversely affected by unforeseen changes in domestic and foreign
intellectual property laws.
If we are unable to protect the confidentiality of our trade secrets, our business and competitive position would be harmed.
In addition to seeking patents for our product candidates, we also rely on trade secrets, including unpatented know-how, technology and other proprietary
information, to maintain our competitive position.
We seek to protect our trade secrets, in part, by entering into non-disclosure and confidentiality agreements with parties who have access to them, such as our
employees, collaborators, consultants, advisors and other third parties. We expect to enter into confidentiality and invention assignment agreements with our
employees and consultants. Despite these efforts, any of these parties may breach the agreements and disclose our proprietary information, including our trade
secrets, and we may not be able to obtain adequate remedies for such breaches. Enforcing a claim that a party illegally disclosed or misappropriated a trade
secret is difficult, expensive and time-consuming, and the outcome is unpredictable. In addition, some courts within and outside the United States are less
willing or unwilling to protect trade secrets. If any of our trade secrets were to be lawfully obtained or independently developed by a competitor, we would
have no right to prevent them, or
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those to whom they communicate it, from using that technology or information to compete with us. If any of our trade secrets were to be disclosed to or
independently developed by a competitor, our competitive position would be harmed.
We may be subject to claims that our employees, consultants or independent contractors have wrongfully used or disclosed confidential information of
third parties.
We employ individuals who were previously employed at other pharmaceutical or medical aesthetic companies. We may be subject to claims that we or our
employees, consultants or independent contractors have inadvertently or otherwise used or disclosed confidential information of our employees’ former
employers or other third parties. We may also be subject to claims that former employers or other third parties have an ownership interest in our patents.
Litigation may be necessary to defend against these claims. We may not be successful in defending these claims, and even if we are successful, litigation
could result in substantial cost and be a distraction to our management and other employees. Any litigation or the threat thereof may adversely affect our
ability to hire employees. A loss of key personnel or their work product could diminish or prevent our ability to commercialize product candidates, which
could have an adverse effect on our business, results of operations and financial condition.
We may need to license intellectual property from third parties, and such licenses may not be available or may not be available on commercially
reasonable terms.
A third party may hold intellectual property, including patent rights that are important or necessary to the development of our future product candidates. It
may be necessary for us to use the patented or proprietary technology of third parties to commercialize our product candidates, in which case we would be
required to obtain a license from these third parties on commercially reasonable terms, or our business could be harmed, possibly materially.
If our trademarks and trade names are not adequately protected, then we may not be able to build name recognition in our markets of interest and our
business may be adversely affected.
Our registered or unregistered trademarks or trade names may be challenged, infringed, circumvented or declared generic or determined to be infringing on
other marks. We may not be able to protect our rights to these trademarks and trade names, which we need to build name recognition by potential partners or
customers in our markets of interest. Over the long term, if we are unable to establish name recognition based on our trademarks and trade names, then we
may not be able to compete effectively and our business may be adversely affected.
Third parties may assert that we are using trademarks or trade names that are confusingly similar to their marks. If any third party were able to establish that
our trademarks or trade names were infringing their marks, that third party may be able to block our ability to use the infringing trademark or trade name. In
addition, if a third party were to bring such a claim, we would be required to dedicate time and resources to fight the claim, which time and resources could
otherwise be used toward the maintenance of our own intellectual property.
Parties making claims against us may request and obtain injunctive or other equitable relief, which could prevent our ability to use the subject trademarks or
trade names. 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 claim of infringement against us, we may have to pay substantial damages, including treble damages
and attorneys’ fees for willful infringement. We may be required to re-brand one or more of our products, product candidates, or services offered under the
infringing trademark or trade name, which may require substantial time and monetary expenditure. Third parties could claim senior rights in marks which
might be enforced against our use of trademarks or trade names, resulting in either an injunction prohibiting our sales under those trademarks or trade names.
Risks Related to Government Regulation
Our business and products are subject to extensive government regulation.
We are subject to extensive, complex, costly and evolving regulation by federal and state governmental authorities in the United States, the EU, Canada and
other countries, principally by the FDA, the U.S. Drug Enforcement Administration, the Centers for Disease Control and Prevention, the EMA and other
similar regulatory authorities. Daewoong is also subject to extensive regulation by the FDA and the South Korean regulatory authorities as well as other
regulatory authorities. Our failure to comply with all applicable regulatory requirements, or Daewoong’s failure to comply with applicable regulatory
requirements, including those promulgated under the Federal Food, Drug, and Cosmetic Act, the Public Health Service Act, and the Controlled Substances
Act, may subject us to operating restrictions and criminal prosecution, monetary penalties and
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other enforcement or administrative actions, including, sanctions, warnings, product seizures, recalls, fines, injunctions, suspension, revocation of approvals,
or exclusion from future participation in the Medicare and Medicaid programs.
Following regulatory approval, we, and our direct and indirect suppliers, including Daewoong, remain subject to the periodic inspection of our plants and
facilities, review of production processes, and testing of our products to confirm that we are in compliance with all applicable regulations. Adverse findings
during regulatory inspections may result in requirements that we implement REMS programs, requirements that we complete government mandated clinical
trials, and government enforcement actions including those relating to labeling, advertising, marketing and promotion, as well as regulations governing
manufacturing controls.
If we experience delays in obtaining approval or if we fail to obtain approval of our product candidates, the commercial prospects for our product candidates
may be harmed and our ability to generate revenue will be materially impaired.
We may not obtain regulatory approval for the commercialization of any future product candidates.
The research, testing, manufacturing, labeling, approval, selling, import, export, marketing and distribution of drug and biologic products are subject to
extensive regulation by the FDA and other regulatory authorities in the United States and other countries, with regulations differing from country to country.
If we, our products or the manufacturing facilities for our products fail to comply with applicable regulatory requirements, a regulatory agency may:
•
•
impose restrictions on the marketing or manufacturing of the product, suspend or withdraw product approvals or revoke necessary licenses;
issue warning letters, show cause notices or untitled letters describing alleged violations, which may be publicly available;
• mandate modifications to promotional materials or require us to provide corrective information to healthcare practitioners;
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•
•
•
•
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require us to enter into a consent decree, which can include imposition of various fines, reimbursements for inspection costs, required due dates for
specific actions and penalties for noncompliance;
commence criminal investigations and prosecutions;
impose injunctions;
impose other civil or criminal penalties;
suspend any ongoing clinical trials;
delay or refuse to approve pending applications or supplements to approved applications filed by us;
refuse to permit drugs or active ingredients to be imported or exported;
suspend or impose restrictions on operations, including costly new manufacturing requirements; or
seize or detain products or require us to initiate a product recall.
Prior to obtaining approval to commercialize a product candidate in the United States or abroad, we or our collaborators must demonstrate with substantial
evidence from well-controlled clinical trials, and to the satisfaction of the FDA, the EMA or other similar foreign regulatory authorities, that such product
candidates are safe and effective for their intended uses. Results from preclinical studies and clinical trials can be interpreted in different ways. Even if we and
our collaborators believe the preclinical or clinical data for our product candidates are promising, such data may not be sufficient to support approval by the
FDA, the EMA and other similar regulatory authorities. Administering product candidates to humans may produce undesirable side effects, which could
interrupt, delay or halt clinical trials and result in the FDA, the EMA or other similar regulatory authorities delaying or denying approval of a product
candidate for any or all targeted indications.
Regulatory approval of a BLA or BLA supplement, MAA, or other product approval is not guaranteed, and the approval process is expensive and may take
several years. The FDA, the EMA and other regulatory authorities have substantial discretion in the approval process. Despite the time and expense
expended, failure can occur at any stage, and we could
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encounter problems that cause us to abandon, modify or repeat clinical trials, or perform additional preclinical studies and clinical trials. The number of
preclinical studies and clinical trials that will be required for the FDA, the EMA or other regulatory approval varies depending on the product candidate, the
disease or condition that the product candidate is designed to address and the regulations applicable to any particular product candidate. The FDA, the EMA
and other regulatory authorities can delay, limit or deny approval of a product candidate for many reasons, including the following:
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a product candidate may not be deemed safe, effective, pure or potent;
the data from preclinical studies and clinical trials may not be deemed sufficient;
the FDA or other regulatory authorities might not approve our third-party manufacturers’ processes or facilities;
deficiencies in the formulation, quality control, labeling, or specifications of a product candidate or in response to citizen petitions or similar
documents filed in connection with the product candidate;
general requirements intended to address risks associated with a class of drugs, such as a new REMS requirement for neurotoxins;
the enactment of new laws or promulgation of new regulations that change the approval requirements; or
the FDA or other regulatory authorities may change their approval policies or adopt new regulations.
If any future product candidates fail to demonstrate safety and efficacy in clinical trials or do not gain approval, our business and results of operations will be
materially and adversely harmed.
We are subject to ongoing regulatory obligations and continued regulatory review, which may result in significant additional expense, limit or delay
regulatory approval and subject us to penalties if we fail to comply with applicable regulatory requirements.
Jeuveau® and any other approved products are subject to continual regulatory review by the FDA, the EMA and other similar regulatory authorities.
Any regulatory approvals that we or our collaborators receive for any future product candidates may also be subject to limitations on the approved indications
for which the product may be marketed or to the conditions of approval, or contain requirements for potentially costly post-marketing testing, including Phase
IV clinical trials, and surveillance to monitor the safety and efficacy of the product. In addition, the manufacturing processes, labeling, packaging,
distribution, adverse event reporting, storage, advertising, promotion and recordkeeping for Jeuveau® and any other future product candidates will be subject
to extensive and ongoing regulatory requirements. These requirements include submissions of safety and other post-marketing information and reports,
registration, as well as continued compliance with cGMP requirements and compliance with GCP requirements, for any clinical trials that we conduct post-
approval. Later discovery of previously unknown problems with Jeuveau® or any future product candidates, including adverse events of unanticipated
severity or frequency, or with our third-party manufacturers or manufacturing processes, or failure to comply with regulatory requirements, may result in,
among other things:
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restrictions on the marketing or manufacturing of the product, withdrawal of the product from the market, or voluntary or mandatory product recalls;
fines, warning letters or holds on clinical trials;
refusal by the FDA, the EMA or other similar regulatory authorities to approve pending applications or supplements to approved applications filed
by us or our strategic collaborators or suspension or revocation of product license approvals;
product seizure or detention or refusal to permit the import or export of products; and
injunctions or the imposition of civil or criminal penalties.
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Our ongoing regulatory requirements may also change from time to time, potentially harming or making costlier our commercialization efforts. If we are slow
or unable to adapt to changes in existing requirements or the adoption of new requirements or policies, or if we are not able to maintain regulatory
compliance, we may lose any marketing approval that we may have obtained and we may not achieve or sustain profitability, which would adversely affect
our business.
If we fail to obtain regulatory approvals in foreign jurisdictions for Jeuveau® or any future product candidates, we will be unable to market our products
outside of the United States.
In addition to regulations in the United States, we are and will be subject to a variety of foreign regulations governing manufacturing, clinical trials,
commercial sales and distribution of our future products. Whether or not we obtain FDA approval for a product candidate, we must obtain approval of the
product by the comparable regulatory authorities of foreign countries before commencing clinical trials or marketing in those countries. The approval
procedures vary among countries and can involve additional clinical testing, and the time required to obtain approval may differ from that required to obtain
FDA approval. Clinical trials conducted in one country may not be accepted by regulatory authorities in other countries. Approval by the FDA does not
ensure approval by regulatory authorities in other countries, and approval by one or more foreign regulatory authorities does not ensure approval by
regulatory authorities in other foreign countries or by the FDA. The foreign regulatory approval process may include all of the risks associated with obtaining
FDA approval. We may not be able to file for regulatory approvals or to do so on a timely basis, and even if we do file, we may not receive necessary
approvals to commercialize our products in markets outside of the United States.
Jeuveau® or any future products may cause or contribute to adverse medical events that we are required to report to regulatory agencies and if we fail to
do so, we could be subject to sanctions that would materially harm our business.
Some participants in our clinical trials have reported adverse events after being treated with Jeuveau®. If we are successful in commercializing Jeuveau® or
any other product candidate, the FDA and other regulatory agency regulations require that we report certain information about adverse medical events if those
products may have caused or contributed to those adverse events. The timing of our obligation to report would be triggered by the date we become aware of
the adverse event as well as the nature of the event. We may fail to report adverse events that we become aware of within the prescribed timeframe. We may
also fail to appreciate that we have become aware of a reportable adverse event, especially if it is not reported to us as an adverse event or if it is an adverse
event that is unexpected or removed in time from the use of our products. If we fail to comply with our reporting obligations, the FDA, the EMA or other
similar regulatory authorities could take action including criminal prosecution, the imposition of civil monetary penalties, seizure of our products, or delay in
approval or clearance of future products.
We may in the future be subject to various U.S. federal and state laws pertaining to health care fraud and abuse, including anti-kickback, self-referral,
false claims and fraud laws, and any violations by us of such laws could result in fines or other penalties.
While we do not expect that Jeuveau® will subject us to the various U.S. federal and most state laws intended to prevent health care fraud and abuse, we may
in the future become subject to such laws. The Anti-Kickback Statute prohibits the offer, receipt, or payment of remuneration in exchange for or to induce the
referral of patients or the use of products or services that would be paid for in whole or part by Medicare, Medicaid or other federal health care programs.
Remuneration has been broadly defined to include anything of value, including cash, improper discounts, and free or reduced price items and services. Many
states have similar laws that apply to their state health care programs as well as private payors. Violations of anti-kickback and other applicable laws can
result in exclusion from federal health care programs and substantial civil and criminal penalties.
The federal False Claims Act, or FCA, imposes liability on persons who, among other things, present or cause to be presented false or fraudulent claims for
payment by a federal health care program. The FCA has been used to prosecute persons submitting claims for payment that are inaccurate or fraudulent, that
are for services not provided as claimed, or for services that are not medically necessary. The FCA includes a whistleblower provision that allows individuals
to bring actions on behalf of the federal government and share a portion of the recovery of successful claims. Some state law equivalents of the above federal
laws, such as the Anti-Kickback Statute and FCA, apply to items or services regardless of whether the good or service was reimbursed by a government
program, so called all-payor laws. These all-payor laws could apply to our sales and marketing activities even if the Anti-Kickback Statute and FCA laws are
inapplicable.
If our marketing or other arrangements were determined to violate anti-kickback or related laws, including the FCA or an all-payor law, then we could be
subject to penalties, including administrative, civil and criminal penalties, damages, fines, disgorgement, the exclusion from participation in federal and state
healthcare programs, individual imprisonment or the
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curtailment or restructuring of our operations, any of which could materially and adversely affect our ability to operate our business and our financial results.
State and federal authorities have aggressively targeted pharmaceutical companies for alleged violations of these anti-fraud statutes, based on improper
research or consulting contracts with doctors, certain marketing arrangements with pharmacies and other healthcare providers that rely on volume-based
pricing, off-label marketing schemes, and other improper promotional practices. Companies targeted in such prosecutions have paid substantial fines, have
been ordered to implement extensive corrective action plans, and have in many cases become subject to consent decrees severely restricting the manner in
which they conduct their business, among other consequences. Additionally, federal and state regulators have brought criminal actions against individual
employees responsible for alleged violations. If we become the target of such an investigation or prosecution based on our contractual relationships with
providers or institutions, or our marketing and promotional practices, we could face similar sanctions, which would materially harm our business.
Also, the FCPA and similar worldwide anti-bribery laws generally prohibit companies and their intermediaries from making improper payments to non-U.S.
officials for the purpose of obtaining or retaining business. Our internal control policies and procedures may not protect us from reckless or negligent acts
committed by our employees, future distributors, partners, collaborators or agents. Violations of these laws, or allegations of such violations, could result in
fines, penalties or prosecution and have a negative impact on our business, results of operations and reputation.
Legislative or regulatory healthcare reforms in the United States and other countries may make it more difficult and costly for us to obtain regulatory
clearance or approval of any future product candidates and to produce, market, and distribute our products after clearance or approval is obtained.
From time to time, legislation is drafted and introduced in the U.S. Congress or other countries that could significantly change the statutory provisions
governing the regulatory clearance or approval, manufacture, and marketing of regulated products or the reimbursement thereof. In addition, regulations and
guidance are often revised or reinterpreted by the FDA and other regulatory authorities in ways that may significantly affect our business and our products.
Any new regulations or revisions or reinterpretations of existing regulations may impose additional costs or lengthen review times of any future product
candidates. Such changes could, among other things, require:
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changes to manufacturing or marketing methods;
changes to product labeling or promotional materials;
recall, replacement, or discontinuance of one or more of our products; and
additional recordkeeping.
Each of these would likely entail substantial time and cost and could materially harm our business and our financial results. In addition, delays in receipt of or
failure to receive regulatory clearances or approvals for any future products would harm our business, financial condition and results of operations.
Risks Related to Our Relationship with Alphaeon and Alphaeon 1, LLC
Alphaeon 1, LLC may exert significant influence over our business, and the concentrated ownership of our common stock and certain contractual rights
of Alphaeon 1, LLC may prevent you and other stockholders from influencing significant decisions.
As of December 31, 2019, Alphaeon owned 25.8% of our outstanding shares of common stock. Subsequent to December 31, 2019, Alphaeon contributed all
of those shares to Alphaeon 1, LLC. This concentrated ownership position may provide Alphaeon 1, LLC with significant influence in determining the
outcome of corporate actions requiring stockholder approval, including the election and removal of directors. This significant stock ownership may also
discourage transactions involving a change-of-control of our company, including transactions in which you as a holder of our common stock might otherwise
receive a premium for your shares.
Certain of our directors may have actual or potential conflicts of interest because of their ownership of debt and equity securities in Alphaeon and
Alphaeon 1, LLC and their positions with Alphaeon and Alphaeon 1, LLC.
Vikram Malik, Simone Blank, Kristine Romine, M.D., and Robert Hayman serve on our board of directors. Such directors or entities they are affiliated with
currently own and may in the future own equity, debt or convertible debt of Alphaeon and
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Alphaeon 1, LLC, which we refer to collectively as the Alphaeon entities. These individuals’ or entities’ holdings of debt or equity securities, options to
purchase shares of Alphaeon entities or other equity awards in the Alphaeon entities may be significant for some of these persons or entities compared to
these persons’ or entities’ total assets. Additionally, each of Mr. Malik, and Ms. Blank serve on the board of directors of Alphaeon and board of managers of
Alphaeon 1, LLC. Their positions at the Alphaeon entities and the ownership of any Alphaeon entities equity, debt or equity awards may create, or may create
the appearance of, conflicts of interest when these directors are faced with decisions that could have different implications for the Alphaeon entities than the
decisions have for us.
These decisions include:
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corporate opportunities;
the impact that operating decisions for our business may have on the Alphaeon entities consolidated financial statements;
the impact that operating or capital decisions (including the incurrence of indebtedness) for our business may have on the Alphaeon entities’ current
or future indebtedness or the covenants under that indebtedness;
the timing and amount of financing efforts, whether they are debt or equity, and the amount of resulting dilution to existing shareholders;
business combinations involving us;
our dividend policy;
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the related party services and agreements between Alphaeon and us.
Potential conflicts of interest could also arise if we decide to enter into any new commercial arrangements with the Alphaeon entities or SCH in the future or
in connection with the Alphaeon entities desire to enter into new commercial arrangements with third parties.
Furthermore, disputes may arise between the Alphaeon entities and us relating to our past and ongoing relationship, and these potential conflicts of interest
may make it more difficult for us to favorably resolve such disputes, including those related to:
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indemnification and other matters arising from our initial public offering;
the nature, quality and pricing of services Alphaeon agrees to provide to us;
sales or other disposal by Alphaeon 1, LLC of all or a portion of its ownership interest in us; and
business combinations involving us.
We may not be able to resolve any potential conflicts, and even if we do, the resolution may be less favorable to us than if we were dealing with an
unaffiliated party. While we are not controlled by the Alphaeon entities, we may not have the leverage to negotiate amendments to these agreements, if
required, on terms as favorable to us as those we would negotiate with an unaffiliated third party.
Alphaeon and its directors and officers will have limited liability to us or you for breach of fiduciary duty.
Our certificate of incorporation provides that, subject to any contractual provision to the contrary, Alphaeon has no obligation to refrain from:
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engaging in the same or similar business activities or lines of business as we do;
doing business with any of our clients or consumers; or
employing or otherwise engaging any of our officers or employees.
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Our certificate of incorporation provides for the allocation of certain corporate opportunities between us and Alphaeon. Under these provisions, neither
Alphaeon nor its other affiliates, nor any of their officers, directors, agents, stockholders, members, partners and subsidiaries, will have any obligation to
present to us certain corporate opportunities. For example, a director or officer of our company who also serves as a director, officer or employee of Alphaeon
or any of its other affiliates may present to Alphaeon certain acquisitions, in-licenses, potential development programs or other opportunities that may be
complementary to our business, if he or she was not offered such corporate opportunity in his or her capacity as our director or officer, and, as a result, such
opportunities may not be available to us. To the extent attractive corporate opportunities are allocated to Alphaeon or its other affiliates instead of to us, we
may not be able to benefit from these opportunities.
In addition, under our certificate of incorporation, neither Alphaeon nor any officer or director of Alphaeon, except as provided in our certificate of
incorporation, will be liable to us or to our stockholders for breach of any fiduciary or other duty by reason of any of these activities.
Risks Related to Our Common Stock
The trading price of our common stock may be volatile, and purchasers of our common stock could incur substantial losses.
Our stock price is volatile. For example, the closing price of our common stock during the year ended December 31, 2019 has ranged from a low of $11.58 to
a high of $28.91. The stock market in general and the market for earlier-stage pharmaceutical and medical aesthetic companies in particular have experienced
extreme volatility that has often been unrelated to the operating performance of particular companies. The market price for our common stock may be
influenced by many factors, some of which are beyond our control, including:
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announcements of regulatory approval or disapproval of product candidates;
adverse results from or delays in clinical trials of any of our future product candidates;
unanticipated safety concerns related to the use of Jeuveau® or any of our future products;
any termination or loss of rights under the Daewoong Agreement;
the FDA or other U.S. or foreign regulatory or legal actions or changes affecting us or our industry;
adverse developments concerning our manufacturer or any future strategic partnerships;
adverse developments concerning litigation pending against us;
introductions and announcements of new technologies and products by us, any commercialization partners or our competitors, and the timing of
these introductions and announcements;
variations in our financial results or those of companies that are perceived to be similar to us;
success or failure of competitive products or medical aesthetic products generally;
changes in the structure of healthcare payment systems;
announcements by us or our competitors of significant acquisitions, licenses, strategic partnerships, new product approvals and introductions, joint
ventures or capital commitments;
overall financial market conditions for the pharmaceutical and biopharmaceutical sectors and issuance of securities analysts’ reports or
recommendations;
quarterly variations in our results of operations or those of our competitors;
changes in financial estimates or guidance, including our ability to meet our future revenue and operating profit or loss estimates or guidance;
the public’s reaction to our earnings releases, other public announcements and filings with the SEC;
rumors and market speculation involving us or other companies in our industry;
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short selling of our common stock or the publication of opinions regarding our business prospects in a manner that is designed to create negative
market momentum;
sales of substantial amounts of our stock by Alphaeon or other significant stockholders or our insiders, or the expectation that such sales might
occur;
general economic, industry and market conditions, including the size and growth, if any, of the medical aesthetics market;
news reports relating to trends, concerns and other issues in medical aesthetics market or the pharmaceutical or biopharmaceutical industry;
operating and stock performance of other companies that investors deem comparable to us and overall performance of the equity markets;
additions or departures of key personnel, including our Chief Executive Officer, Chief Financial Officer, Chief Medical Officer and Chief Marketing
Officer;
intellectual property, product liability or other litigation against us, our manufacturer or other parties on which we rely or litigation against our
general industry;
announcements or actions taken by Alphaeon as our controlling stockholder, including sales of substantial amounts of our common stock by
Alphaeon;
changes in our capital structure, such as future issuances of securities and the incurrence of additional debt;
changes in accounting standards, policies, guidelines, interpretations or principles; and
other factors described in this “Risk Factors” section.
In addition, the stock market in general, and the market for pharmaceutical, biotechnology and medical aesthetics companies in particular, have experienced
extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of those companies. Broad market and
industry factors may affect the market price of our common stock, regardless of our actual operating performance. In the past, following periods of volatility
in the overall market and the market prices of a particular company’s securities, securities class action litigation has often been instituted against that
company. We may become the target of this type of litigation in the future. Securities litigation, if instituted against us, could result in substantial costs and
divert our management’s attention and resources from our business.
We are no longer a “controlled company” within the meaning of the Nasdaq Marketplace Rules. Prior to May 2019, we qualified for, and relied on,
exemptions from certain corporate governance requirements and our stockholders were not afforded the same protections as the stockholders of
companies that are subject to such requirements.
As a result of a sale of shares by Alphaeon in May 2019, we are no longer a “controlled company” within the meaning of the corporate governance standards
of the Nasdaq Marketplace Rules. Under these rules, a listed company of which more than 50% of the voting power is held by an individual, group or another
company is a “controlled company” and may elect not to comply with certain corporate governance requirements, including:
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the requirement that a majority of our board of directors consist of independent directors;
the requirement that our nominating and corporate governance committee be comprised entirely of independent directors with a written charter
addressing the committee's purpose and responsibilities;
the requirement that our compensation committee be comprised entirely of independent directors with a written charter addressing the committee's
purpose and responsibilities; and
the requirement for an annual performance evaluation of our nominating and corporate governance and compensation committees;
Since we utilized certain of these exemptions, our nominating and corporate governance and compensation committees do not consist entirely of independent
directors. As a result, we will be required to comply with the above-referenced
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requirements within one year. We may have difficulty complying with the requirements listed above and while we intend to do so, we cannot assure you that
we will be able to comply with such requirements before the end of the phase-in period for compliance. Accordingly, unless and until we comply with these
requirements, you will not have the same protections afforded to stockholders of companies that are subject to and in compliance with all of the corporate
governance requirements of Nasdaq.
Our business could be negatively affected as a result of actions of activist stockholders, and such activism could impact the trading value of our securities.
Stockholders may, from time to time, engage in proxy solicitations or advance stockholder proposals, or otherwise attempt to effect changes and assert
influence on our board of directors and management. Activist campaigns that contest or conflict with our strategic direction or seek changes in the
composition of our board of directors could have an adverse effect on our operating results and financial condition. A proxy contest would require us to incur
significant legal and advisory fees, proxy solicitation expenses and administrative and associated costs and require significant time and attention by our board
of directors and management, diverting their attention from the pursuit of our business strategy. Any perceived uncertainties as to our future direction and
control, our ability to execute on our strategy, or changes to the composition of our board of directors or senior management team arising from a proxy contest
could lead to the perception of a change in the direction of our business or instability which may result in the loss of potential business opportunities, make it
more difficult to pursue our strategic initiatives, or limit our ability to attract and retain qualified personnel and business partners, any of which could
adversely affect our business and operating results. If individuals are ultimately elected to our board of directors with a specific agenda, it may adversely
affect our ability to effectively implement our business strategy and create additional value for our stockholders. We may choose to initiate, or may become
subject to, litigation as a result of the proxy contest or matters arising from the proxy contest, which would serve as a further distraction to our board of
directors and management and would require us to incur significant additional costs. In addition, actions such as those described above could cause significant
fluctuations in our stock price based upon temporary or speculative market perceptions or other factors that do not necessarily reflect the underlying
fundamentals and prospects of our business.
We may be subject to securities litigation, which is expensive and could divert management attention.
The market price of our common stock may be volatile, and in the past, companies that have experienced volatility in the market price of their stock have
been subject to securities class action litigation. We may be the target of this type of litigation in the future. Securities litigation against us could result in
substantial costs and divert our management’s attention from other business concerns, which could have a material and adverse effect on our business,
financial condition, and results of operations.
If securities or industry analysts publish unfavorable research about our business or decrease the frequency or cease to provide coverage of our company,
our stock price and trading volume could decline.
The trading market for our common stock depends in part on the research and reports that equity research analysts publish about us and our business. If one or
more of the equity research analysts who cover us downgrades our common stock or issues other unfavorable commentary or research the price of our
common stock may decline. If one or more equity research analysts ceases coverage of our company or fails to publish reports on us regularly, demand for
our common stock could decrease, which in turn could cause the trading price or trading volume of our common stock to decline.
Certain of our historical financial data is not necessarily representative of the results that we would have achieved as a stand-alone company and may not
be a reliable indicator of our future results.
Our historical financial data included in this Annual Report on Form 10-K does not reflect the financial condition, results of operations or cash flows that we
would have achieved as a stand-alone company during the periods presented or those we will achieve in the future. This is primarily the result of the
following factors:
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our historical financial data reflects expense allocations for certain support functions that are provided on a centralized basis within Alphaeon, such
as expenses for business technology, facilities, legal, finance, human resources and business development, that may be higher or lower than the
comparable expenses that we would have actually incurred, or will incur in the future, as a stand-alone company;
significant increases have and will continue to occur in our cost structure as a result of our being a public company, including costs related to public
company reporting, investor relations and compliance with the Sarbanes-Oxley Act; and
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our becoming a commercial company in 2019.
As a result, it may be difficult for investors to compare our future results to historical results or to evaluate our relative performance or trends in our business.
Future sales of our common stock by us, Alphaeon 1, LLC or others, or the perception that such sales may occur, could depress the market price of our
common stock.
We have 33,728,035 shares of common stock issued and outstanding as of February 21, 2020. Sales by us of a substantial number of shares of our common
stock in the public market, or the perception that these sales might occur, could significantly reduce the market price of our common stock and could impair
our ability to raise capital through the sale of additional equity securities.
As of December 31, 2019, Alphaeon owned 25.8% of our outstanding shares of common stock. Subsequent to December 31, 2019, Alphaeon contributed all
of those shares to Alphaeon 1, LLC. Subject to the restrictions described in the paragraph below, future sales of these shares in the public market will be
subject to the volume and other restrictions of Rule 144 under the Securities Act for so long as Alphaeon 1, LLC is deemed to be our affiliate, unless the
shares to be sold are registered with the SEC. The sale by Alphaeon 1, LLC of a substantial number of shares of our common stock, or a perception that such
sales could occur, could significantly reduce the market price of our common stock.
We have filed a registration statement with the SEC covering shares of our common stock available for future issuance under our 2017 Omnibus Incentive
Plan and may file future registration statements covering shares of our common stock for future issuance under any future plans. Upon effectiveness of such
registration statements, any shares subsequently issued under such plans will be eligible for sale in the public market, except to the extent that they are
restricted by the lock-up agreements referred to above and subject to compliance with Rule 144 in the case of our affiliates. Sales of a large number of the
shares issued under these plans in the public market, or a perception that such sales could occur, could significantly reduce the market price of our common
stock.
Anti-takeover provisions in our certificate of incorporation and bylaws, as well as Delaware law, could discourage a takeover.
Our certificate of incorporation, bylaws and Delaware law contain provisions that might enable our management to resist a takeover and might make it more
difficult for an investor to acquire a substantial block of our common stock. These include the following provisions:
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permit our board of directors to issue shares of preferred stock, with any rights, preferences and privileges as they may designate, without
stockholder approval, which could be used to dilute the ownership of a hostile bidder significantly;
provide that the authorized number of directors may be changed only by resolution of our board of directors and that a director may only be removed
for cause by the affirmative vote of the holders of at least 66 2/3% of our voting stock;
provide that all vacancies, including newly created directorships, may, except as otherwise required by law, be filled by the affirmative vote of a
majority of directors then in office, even if less than a quorum;
divide our board of directors into three classes, with each class serving staggered three-year terms, which may delay the ability of stockholders to
change the membership of a majority of our board of directors;
require that any action to be taken by our stockholders must be effected at a duly called annual or special meeting of stockholders and not be taken
by written consent;
provide that stockholders seeking to present proposals before a meeting of stockholders or to nominate candidates for election as directors at a
meeting of stockholders must provide notice in writing in a timely manner and also specify requirements as to the form and content of a
stockholder’s notice, which may discourage or deter a potential acquiror from conducting a solicitation of proxies to elect the acquiror’s own slate of
directors or otherwise attempting to obtain control of our company;
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provide that special meetings of our stockholders may be called only by the chairman of the board, our Chief Executive Officer or by our board of
directors pursuant to a resolution adopted by a majority of the total number of authorized directors, which may delay the ability of our stockholders
to force consideration by our company of a take-over proposal or to take certain corporate actions, including the removal of directors.
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 General Corporation Law of the State of Delaware, or the DGCL, which generally prohibits a Delaware corporation from engaging in any
of a broad range of business combinations with an interested stockholder who owns in excess of 15% of our outstanding voting stock from merging or
combining with us for a period of three years after the date of the transaction in which the person acquired in excess of 15% of our outstanding voting stock,
unless the merger or combination is approved in a prescribed manner. 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.
In addition, our certificate of incorporation specifies that the Court of Chancery of the State of Delaware is the sole and exclusive forum for most legal actions
involving actions brought against us by stockholders. We believe this provision benefits us by providing increased consistency in the application of Delaware
law by chancellors particularly experienced in resolving corporate disputes, efficient administration of cases on a more expedited schedule relative to other
forums and protection against the burdens of multi-forum litigation. However, the provision may have the effect of discouraging lawsuits against our directors
and officers.
Our certificate of incorporation designates the Court of Chancery of the State of Delaware as the sole and exclusive forum for certain types of actions
and proceedings that may be initiated by our stockholders, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes
with us or our directors, officers, employees or agents.
Our certificate of incorporation provides that, unless we consent in writing to an alternative forum, the Court of Chancery of the State of Delaware will be
the sole and exclusive forum for all “internal corporate claims.” “Internal corporate claims” are claims that are based upon a violation of a duty by a current or
former director, officer or stockholder in such capacity, or as to which Title 8 of the DGCL confers jurisdiction upon the Court of Chancery of the State of
Delaware, or the Court of Chancery, in each case subject to the Court of Chancery having personal jurisdiction over the indispensable parties named as
defendants and the claim not being one which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or for which the
Court of Chancery does not have subject matter jurisdiction. For example, this choice of forum provision would not apply to claims brought pursuant to the
Exchange Act or the Securities Act of 1933, as amended, or any other claim for which the federal courts have exclusive jurisdiction. Any person purchasing
or otherwise acquiring any interest in any shares of our capital stock shall be deemed to have notice of and to have consented to this provision of our
certificate of incorporation. The choice of forum provision in our certificate of incorporation will not relieve us of our duties to comply with the federal
securities laws and the rules and regulations thereunder, and our stockholders will not be deemed to have waived our compliance with these laws, rules and
regulations.
This choice of forum provision may limit our stockholders’ ability to bring a claim in a judicial forum that they find favorable for disputes with us or our
directors, officers, employees or agents, which may discourage such lawsuits against us and our directors, officers, employees and agents even though an
action, if successful, might benefit our stockholders. Stockholders who do bring a claim in the Court of Chancery could face additional litigation costs in
pursuing any such claim, particularly if they do not reside in or near Delaware. The Court of Chancery may also reach different judgments or results than
would other courts, including courts where a stockholder considering an action may be located or would otherwise choose to bring the action, and such
judgments or results may be more favorable to us than to our stockholders. Alternatively, if a court were to find this provision of our certificate of
incorporation inapplicable to, or unenforceable in respect of, one or more of the specified types of actions or proceedings, we may incur additional costs
associated with resolving such matters in other jurisdictions, which could have a material adverse effect on our business, financial condition or results of
operations.
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Claims for indemnification by our directors and officers may reduce our available funds to satisfy successful third-party claims against us and may
reduce the amount of money available to us.
Our certificate of incorporation and bylaws provide that we can indemnify our directors and officers, in each case to the fullest extent permitted by Delaware
law. Separate indemnity agreements have been issued with each director and executive officer.
In addition, as permitted by Section 145 of the DGCL, our bylaws and our indemnification agreements that we have entered into with our directors and
officers, among other things provide that:
• We have indemnified our directors and officers for serving us in those capacities, or for serving as a director, officer, employee or agent of other
business enterprises at our request, to the fullest extent permitted by Delaware law. Delaware law provides that we may indemnify such person if
such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to our best interest and, with respect to any
criminal proceeding, had no reasonable cause to believe such person’s conduct was unlawful.
• We may, in our discretion, indemnify employees and agents in those circumstances where indemnification is permitted by applicable law.
• We will be required to advance expenses, as incurred, to our directors and officers in connection with defending a proceeding, except that such
directors or officers shall undertake to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
•
The rights conferred in our bylaws will not be exclusive. We may not retroactively amend our bylaw provisions to reduce our indemnification
obligations to directors, officers, employees and agents.
As a result, claims for indemnification by our directors and officers may reduce our available funds to satisfy successful third-party claims against us and may
reduce the amount of money available to us.
We have not paid dividends in the past and do not expect to pay dividends in the future, and any return on investment may be limited to the value of our
stock.
We have never paid cash dividends on our common stock and do not anticipate paying cash dividends on our common stock in the foreseeable future, and the
payment of dividends is also restricted under our credit facility. The payment of dividends on our common stock will depend on our earnings, financial
condition and other business and economic factors affecting us at such time as our board of directors may consider relevant. If we do not pay dividends,
capital appreciation, if any, of our common stock will be your sole source of gain for the foreseeable future.
We are an “emerging growth company,” and the reduced reporting requirements available to emerging growth companies could make our common stock
less attractive to investors.
We qualify as an “emerging growth company,” as defined in the JOBS Act. For as long as we remain an emerging growth company, we may take advantage
of certain exemptions from various reporting requirements that are applicable to other public companies. These provisions include, but are not limited to:
•
•
•
•
being permitted to have only two years of audited financial statements and only two years of related selected financial data and management’s
discussion and analysis of financial condition and results of operations disclosure;
an exemption from compliance with the auditor attestation requirement in the assessment of our internal control over financial reporting pursuant to
the Sarbanes-Oxley Act;
reduced disclosure about executive compensation arrangements in our periodic reports, registration statements and proxy statements; and
exemptions from the requirements to seek non-binding advisory votes on executive compensation or golden parachute arrangements.
To the extent we take advantage of any of these exemptions, the information that we provide stockholders may be different than what is available with respect
to other public companies. Investors may find our common stock less attractive because
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we will rely on these exemptions. If some investors find our common stock less attractive as a result, there may be a less active trading market for our
common stock and our stock price may be more volatile.
Even after we no longer qualify as an emerging growth company, we may still qualify as a “smaller reporting company” which would allow us to take
advantage of many of the same exemptions from disclosure requirements, including exemption from compliance with the auditor attestation requirements of
Section 404(b) and reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements. Investors could find our
common stock less attractive because we may rely on these exemptions. If some investors find our common stock less attractive as a result, there may be a
less active trading market for our common stock and our trading price may be more volatile.
The requirements of being a public company may strain our resources, divert management’s attention and affect our ability to attract and retain executive
management and qualified board members.
As a public company, we are subject to the reporting requirements of the Exchange Act, the Sarbanes-Oxley Act, the Dodd-Frank Wall Street Reform and
Consumer Protection Act, the Nasdaq Marketplace Rules and other applicable securities rules and regulations. Complying with these rules and regulations
will increase our legal and financial compliance costs, make some activities more difficult, time-consuming or costly and increase demand on our systems and
resources, particularly after we are no longer an “emerging growth company,” as defined in the JOBS Act. The Exchange Act requires, among other things,
that we file annual, quarterly and current reports with respect to our business and operating results. The Sarbanes-Oxley Act requires, among other things, that
we maintain effective disclosure controls and procedures and internal control over financial reporting. In order to maintain and, if required, improve our
disclosure controls and procedures and internal control over financial reporting to meet this standard, significant resources and management oversight may be
required. As a result, management’s attention may be diverted from other business concerns, which could adversely affect our business and operating results.
We may need to hire more employees in the future or engage outside consultants to assist us in complying with these requirements, which will increase our
costs and expenses.
In addition, changing laws, regulations and standards relating to corporate governance and public disclosure are creating uncertainty for public companies,
increasing legal and financial compliance costs and making some activities more time consuming. These laws, regulations and standards are subject to
varying interpretations, in many cases due to their lack of specificity, and, as a result, their application in practice may evolve over time as new guidance is
provided by regulatory and governing bodies. This could result in continuing uncertainty regarding compliance matters and higher costs necessitated by
ongoing revisions to disclosure and governance practices. We intend to invest resources to comply with evolving laws, regulations and standards, and this
investment may result in increased selling, general and administrative expenses and a diversion of our management’s time and attention from revenue-
generating activities to compliance activities. If our efforts to comply with new laws, regulations and standards differ from the activities intended by
regulatory or governing bodies due to ambiguities related to their application and practice, regulatory authorities may initiate legal proceedings against us and
our business may be adversely affected.
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Item 1B. Unresolved Staff Comments.
Not applicable.
Item 2. Properties.
Our corporate headquarters is located at 520 Newport Center Drive, Suite 1200, Newport Beach, CA 92660, in a facility that we lease, encompassing
approximately 17,758 square feet of space. The lease for this facility expires on January 31, 2025. We believe our facilities are sufficient for our current
needs. When our lease expires, we may exercise our renewal option or look for additional or alternate space for our operations, and we believe that suitable
additional or alternative space will be available in the future on commercially reasonable terms.
Item 3. Legal Proceedings.
Medytox Litigation
On June 7, 2017, Medytox Inc., or Medytox, filed an initial complaint in the Superior Court of the State of California, or the Medytox Litigation, against, us,
Alphaeon, SCH, Daewoong, Byung Kook Lee, Jae Chun Yoon, Jae Seung Yoon and Chang Woo Suh, among others, or collectively, the defendants. On
August 14, 2017, Medytox filed an amended complaint against the defendants, or the amended complaint. The amended complaint alleges, among other
things, that Daewoong stole Medytox’s botulinum toxin bacterial strain, or the BTX strain, that Daewoong misappropriated certain trade secrets of Medytox,
including the process used to manufacture Jeuveau® (which Medytox claims is similar to its biopharmaceutical drug, Meditoxin) using the BTX strain, and
that Daewoong thereby interfered with Medytox’s plan to license Meditoxin to us. Medytox claims that as a result of Daewoong’s conduct, we entered into
the Daewoong Agreement instead of an agreement with Medytox to license Meditoxin.
Daewoong filed a motion to dismiss or stay for forum non conveniens, claiming that the place where the complaint has been filed, in the Superior Court of the
State of California, is not the proper place for the trial of the claims in the complaint because, among other reasons, the underlying facts that gave rise to the
complaint occurred in South Korea. Daewoong’s motion to dismiss was granted by the Superior Court of the State of California on October 12, 2017. As a
result, the action filed with the Superior Court of the State of California is stayed pending resolution of the proceedings in South Korea. In October 2017,
Medytox initiated a civil lawsuit against Daewoong and its parent company, Daewoong Co. Ltd., in the Seoul Central District Court in Seoul, South Korea,
related to the same subject matter in the Medytox Litigation and is seeking, among other things, money damages, injunctive relief and destruction of related
documents and products. We are not a party to the litigation in the Seoul Central District Court.
On April 27, 2018, pursuant to a motion to dismiss brought by Daewoong, the Superior Court of the State of California dismissed Medytox’s suit against
Daewoong, without prejudice, on the basis that Medytox had brought a substantially similar proceeding against Daewoong in South Korea. The proceedings
against us remain stayed in the Superior Court of the State of California pending resolution of the proceedings between Medytox and Daewoong in South
Korea.
With specific regard to us, Medytox alleges that (i) we have violated California Uniform Trade Secrets Act, Cal. Civ. Code § 3426 because Daewoong’s
alleged knowledge of the misappropriation of certain trade secrets of Medytox is imputed to us as a result of our relationship with Daewoong, (ii) we have
stolen the BTX strain through our possession of and refusal to return the BTX strain, (iii) we have engaged in unlawful, unfair and fraudulent business acts
and practices in violation of California Bus. & Prof. Code § 17200, including conversion of the BTX strain and misrepresentations to the public regarding the
source of the botulinum toxin bacterial strain used to manufacture Jeuveau®, and (iv) the Daewoong Agreement is invalid and in violation of Medytox’s
rights.
Medytox seeks, among other things, (i) actual, consequential and punitive damages, (ii) a reasonable royalty, as appropriate, (iii) a declaration that the
Daewoong Agreement is void and unenforceable and that Medytox is entitled to disgorgement of all property wrongfully and unjustly retained or acquired by
the defendants, including unlawfully gained profits, (iv) injunctive relief prohibiting us from using the license under the Daewoong Agreement and
distributing Jeuveau®, and (v) attorneys’ fees and costs.
We are vigorously defending Medytox’s claims against us. Given the early stage in the Medytox Litigation, we are unable to predict the likelihood of success
of Medytox’s claims against us or Daewoong or to quantify any risk of loss. The litigation could go on for an extended period of time and require us to
dedicate significant financial and management resources to those efforts. While we are entitled to indemnity under the Daewoong Agreement, the indemnity
may not be sufficient. An adverse ruling against either us or one of the other defendants could materially and adversely affect our business, consolidated
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financial position, results of operations, or cash flows and could also result in reputational harm. Even if we are successful, the litigation may result in delays
in our product development, reputational damage or other collateral consequences.
ITC Complaint
On January 30, 2019, Allergan and Medytox filed a complaint against us and Daewoong in the U.S. International Trade Commission, or the ITC, containing
substantially similar allegations to the Medytox Litigation, specifically that Jeuveau® is manufactured based on misappropriated trade secrets of Medytox and
therefore the importation of Jeuveau® is an unfair act. The ITC matter is entitled In the Matter of Certain Botulinum Toxin Products, or the ITC Complaint.
On March 6, 2019, the ITC instituted an investigation as ITC Inv. No. 337-TA-1145, or the ITC Action. The ITC complaint calls for an investigation by the
ITC Office of Unfair Import Investigations, or OUII, under Section 337 of the Tariff Act of 1930. The ITC complaint seeks (i) an investigation pursuant to
Section 337 of the Tariff Act of 1930, (ii) a hearing with the ITC on permanent relief, (iii) issuance of a limited exclusion order forbidding entry of Jeuveau®
into the United States, (iv) a cease and desist order prohibiting Daewoong and us from engaging in the importations, sale for importation, marketing,
distribution, offering for sale, the sale after the importation of, or otherwise transferring Jeuveau® within the United States, (v) a bond issued during the
presidential review period, (vi) the return of Medytox’s trade secrets and other confidential information including the alleged stolen BTX Strain, and (vii)
exclusion and cease and desist orders. In January 2020, the three sets of parties to the ITC action, (i) the Complainants - Allergan and Medytox, (ii) the
Respondents - us and Daewoong and (iii) the OUII, each submitted pre-hearing briefs to the Administrative Law Judge assigned to the ITC Action setting
forth each parties positions on the substantive issues and preliminary conclusions prior to the evidentiary hearing. From February 4-7, 2020, the
Administrative Law Judge held an evidentiary hearing on the ITC Action. An initial determination by the Administrative Law Judge is due by June 5, 2020
and the target date for the final determination by the ITC is October 6, 2020.
We intend to defend the claims contained in the ITC complaint and the related ITC Action vigorously. Given the current stage of the ITC Action, we are
unable to predict the likelihood of success of Medytox’s and Allergan’s claims against us or Daewoong or to quantify the risk of the imposition of an
exclusion order or cease and desist order. The ITC Action could require us to dedicate significant financial and management resources to those efforts. While
we are entitled to indemnity under the Daewoong Agreement, the indemnity may not be sufficient. An adverse ruling by the ITC against either us or
Daewoong could result in the imposition of an exclusion order which would bar imports of Jeuveau® within the United States and a cease and desist order
which would bar sales and marketing of Jeuveau® within the United States, either of which would materially adversely affect the Company’s ability to carry
out its business and which would have a material adverse effect on the Company’s business, financial position, results of operations, or cash flows and could
also result in reputational harm. Even if we are successful, the ITC Action may result in reputational damage or other collateral consequences.
Other Matters
In January 2017, Medytox initiated a criminal investigation into the foregoing matter in South Korea, which appears to target one or more of the above
defendants, but does not appear to target us.
In addition to the Medytox Litigation and the ITC Complaint, from time to time, we may be subject to other legal proceedings and claims in the ordinary
course of business.
Item 4. Mine Safety Disclosures.
Not applicable.
Part II
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
Market Information
Our common stock has been listed and traded on the Nasdaq under the symbol “EOLS” since February 12, 2018.
Holders of Record
As of February 21, 2020, we had approximately 38 holders of record of our common stock. This number does not include beneficial owners whose shares
were held in street name. The actual number of holders of our common stock is greater than this number of record holders and includes stockholders who are
beneficial owners, but whose shares are held in street name
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by brokers or held by other nominees. This number of holders of record also does not include stockholders whose shares may be held in trust by other entities.
Dividend Policy
We have never declared or paid any cash dividends on our capital stock and we do not currently intend to pay any cash dividends on our capital stock for the
foreseeable future. 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. 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, tax considerations, legal or contractual restrictions, business prospects, the
requirements of current or then-existing debt instruments, general economic conditions and other factors our board of directors may deem relevant. The
payment of dividends is also restricted under our credit facility.
Recent Sales of Unregistered Securities
From January 1, 2018 to December 31, 2019, the period covered by this Annual Report on Form 10-K, we did not issue any unregistered securities.
Purchases of Equity Securities
We made no purchases of our equity securities during the fourth quarter of the year ended December 31, 2019.
Performance Graph
Not applicable.
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Item 6. Selected Financial Data.
Not applicable.
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Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
The following discussion contains management’s discussion and analysis of our financial condition and results of operations and should be read together with
the historical financial statements, the notes thereto included in Item 8 “Financial Statements and Supplementary Data” and included elsewhere in this
Annual Report on Form 10-K. This discussion contains forward-looking statements that reflect our plans, estimates and beliefs and involve numerous risks
and uncertainties, including but not limited to those described in the Item 1A “Risk Factors” section of this Annual Report on Form 10-K. Actual results may
differ materially from those contained in any forward-looking statements. You should carefully read “Special Note Regarding Forward-Looking Statements”
and Item 1A “Risk Factors.”
Overview
We are a performance beauty company with a customer-centric approach focused on delivering breakthrough products in the self-pay aesthetic market. In
February 2019, we received the approval of our first product Jeuveau® (prabotulinumtoxinA-xvfs) from the U.S. Food and Drug Administration, or FDA. In
May 2019, we commercially launched Jeuveau® in the United States and through a distribution partner in Canada in October 2019.
Jeuveau® is a proprietary 900 kDa purified botulinum toxin type A formulation indicated for the temporary improvement in the appearance of moderate to
severe glabellar lines, also known as “frown lines,” in adults. Our primary market is the self-pay aesthetic market, which includes medical products purchased
by physician and other customers that are then sold to consumers or used in procedures for aesthetic indications that are not reimbursed by any third-party
payor, such as Medicaid, Medicare or commercial insurance. We believe we offer customers and consumers a compelling value proposition with Jeuveau®.
Currently, onabotulinumtoxinA (BOTOX) is the neurotoxin market leader, and prior to the approval of Jeuveau®, was the only known 900 kDa botulinum
toxin type A complex approved in the United States. We believe aesthetic physicians generally prefer the performance characteristics of the complete 900
kDa neurotoxin complex and are accustomed to injecting this formulation.
In May 2019, as part of our commercial launch, we introduced the Jeuveau® Experience Treatment, or J.E.T., an exclusive program for aesthetic providers
and consumers to be the first to experience Jeuveau®. J.E.T. offered aesthetic providers the opportunity to receive multiple shipments of Jeuveau® and ended
in August 2019. The program was made available through our technology platform, “Evolus Practice,” which allows providers to open a new account, order
Jeuveau®, pay invoices and engage with our customer experience team and medical affairs representatives. We did not recognize net revenues from shipments
made through the J.E.T. program. We have generated revenue from aesthetic practices that purchased products directly from us after completion or outside of
the J.E.T. program.
As a result of our J.E.T. program and customer and consumer marketing initiatives throughout 2019, we have established a broad base of over 3,500 customer
accounts ordering Jeuveau® through December 31, 2019. Customer accounts that participated in J.E.T. drove greater than 80% of our U.S. Jeuveau® net
revenue for the year ended December 31, 2019.
In August 2018, we received approval from Health Canada for the temporary improvement in the appearance of moderate to severe glabellar lines in adult
patients under 65 years of age. We began marketing Jeuveau® in Canada in October 2019 through our distribution partner Clarion Medical Technologies, Inc.,
or Clarion. In September 2019, we also received approval from the European Commission, to market the product in all 28 EU member states, Iceland,
Norway and Liechtenstein. We plan to launch Jeuveau® in Europe in 2020.
We have a limited history of generating revenue from Jeuveau® and have never been profitable. As of December 31, 2019, we had an accumulated deficit of
$213.1 million. We incurred net losses of $90.0 million and $46.9 million in the years ended December 31, 2019 and 2018, respectively.
We expect to continue to incur significant expenses for the foreseeable future as we increase marketing efforts for Jeuveau® and maintain our regulatory
approvals.
Daewoong License and Supply Agreement
In 2013, we and Daewoong Pharmaceuticals Co. Ltd., or Daewoong, entered into the Daewoong Agreement pursuant to which we have an exclusive
distribution license to Jeuveau® from Daewoong for aesthetic indications in the United States, EU, Great Britain, Canada, Australia, Russia, C.I.S., and South
Africa, as well as co-exclusive distribution rights with Daewoong in Japan. Under the Daewoong Agreement, we are required to make certain minimum
annual purchases in order to maintain the exclusivity of the license. These minimum purchase obligations are contingent upon the occurrence of future events,
including receipt of governmental approvals and our future market share in various jurisdictions. In connection with
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our entry into the Daewoong Agreement, we made an upfront payment to Daewoong of $2.5 million. We further agreed to make milestone payments upon
achievement of certain confidential development and commercial milestones, including a confidential payment to Daewoong upon each of the U.S. Food and
Drug Administration, or FDA, and the European Medicines Agency, or the EMA, approval of Jeuveau®. Under the Daewoong Agreement, the maximum
aggregate amount of milestone payments that could be owed to Daewoong upon the satisfaction of all milestones is $13.5 million. Upon FDA approval in
February 2019 and EMA approval in September 2019, the Company paid $2.0 million and $1.0 million milestone payments, respectively. As of
December 31, 2019, Daewoong is eligible to receive remaining contingent milestone payments of up to $10.5 million. Under the Daewoong Agreement,
Daewoong is responsible for all costs related to the manufacturing of Jeuveau®, including costs related to the operation and upkeep of its manufacturing
facility, and we are responsible for all costs related to obtaining regulatory approval, including clinical expenses, and commercialization of Jeuveau®. We had
the option to expand the permitted use of the product beyond aesthetic indications and into therapeutic indications. This option was assigned to ALPHAEON
Corporation, or Alphaeon who exercised the option by remitting payment directly to Daewoong in November 2018. For additional information about the
Daewoong Agreement, see Item 1 “Business—Daewoong License and Supply Agreement.”
Royalties and Notes Payable to Evolus Founders
We are obligated to make the following future payments to the founders of Evolus (i) quarterly royalty payments of a low single digit percentage of net sales
of Jeuveau® and (ii) a $20.0 million promissory note that matures in November 2021. The obligations set forth in (i) above will terminate in the quarter
following the 10-year anniversary of the first commercial sale of Jeuveau® in the United States. The fair value of the obligations set forth in items (i) and (ii)
are valued quarterly and are referred to in our financial statements as the “contingent royalty obligation.”
Our Relationship with Alphaeon
For periods prior to the completion of our initial public offering on February 12, 2018, we funded our operations primarily through contributions and related
party borrowings from Alphaeon. Accordingly, we derived our financial statements by allocating expenses associated with our operations from Alphaeon’s
consolidated financial statements in accordance with applicable accounting standards and SEC regulations.
In January 2018, we entered into a services agreement with Alphaeon, or the services agreement, which became effective in connection with our initial public
offering. The services agreement sets forth certain terms between Alphaeon and us that govern the respective responsibilities and obligations between
Alphaeon and us, as it relates to the services to be performed between us. The services agreement has a one-year term and thereafter renews for successive
one-year terms unless terminated by either party. We or Alphaeon may terminate the services agreement upon sixty days’ notice to the other party. In
accordance with the services agreement, we paid Alphaeon $5.0 million to settle our historical related party borrowings from Alphaeon upon our initial public
offering. There were no significant services provided under the services agreement since our initial public offering.
As of December 31, 2019, Alphaeon owned approximately 25.8% of our outstanding shares of common stock and had changed its name to AEON
Biopharma, Inc. We continue to refer to the renamed AEON Biopharma, Inc. as Alphaeon. Subsequent to December 31, 2019, Alphaeon contributed all of the
shares it held in us to Alphaeon 1, LLC.
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Results of Operations
Comparison of the Years Ended December 31, 2019 and 2018
The following table summarizes our results of operations for the periods indicated:
(in millions)
Product revenue, net
Service revenue
Total net revenues
Product cost of sales (excludes amortization of intangible assets)
Gross profit
As a percentage of net revenues
Operating expenses:
Selling, general and administrative
Research and development
Revaluation of contingent royalty obligation to Evolus Founders
Depreciation and amortization
Total operating expenses
Loss from operations
Non operating expense, net
Loss before income taxes
Income tax (benefit) expense
Net loss
Net Revenues
Year Ended December 31,
2019
2018
Change
$
34.2
$
0.7
34.9
8.0
26.9
77.1%
113.6
4.0
4.2
4.1
125.9
(99.0)
(6.1)
(105.1)
(15.0)
— $
—
—
—
—
—%
29.1
6.5
10.5
0.0
46.1
(46.1)
(0.7)
(46.8)
0.1
$
(90.1)
$
(46.9)
$
34.2
0.7
34.9
8.0
26.9
84.5
(2.5)
(6.3)
4.1
79.8
(52.9)
(5.4)
(58.3)
(15.1)
(43.2)
We currently operate in one reportable segment and all of our net revenues are derived from sales of Jeuveau®. Net revenues consist of revenues, net of
customer rebates and coupons. Revenues are recognized when the control of the promised goods is transferred to the customer in an amount that reflects the
consideration to which we expect to be entitled in exchange for those products or services. During the year ended December 31, 2019, we recorded net
revenues of $34.9 million consisting of product revenue of $34.2 million from the sale of Jeuveau® in the United States and service revenue of $0.7 million
from sale of Jeuveau® through a distribution partner in Canada. We commercially launched Jeuveau® and began shipping to customers in the United States in
May 2019 and launched through a distribution partner in Canada in October 2019. We recorded the sale of Jeuveau® in Canada as service revenue on a net
basis. We did not record any net revenue during the year ended December 31, 2018.
Cost of Sales
Our cost of sales was $8.0 million for the year ended December 31, 2019, which primarily consisted of the cost of inventory that was purchased from
Daewoong for product sales in the United States. We did not record any cost of sales during the year ended December 31, 2018. Our gross profit as a
percentage of net revenues was 77.1% for the year ended December 31, 2019 and benefited from one-time reduced, launch pricing from our manufacturing
partner. Our gross profit may fluctuate in the future as we deplete inventory purchased at the one-time launch pricing and implement various marketing
programs that may affect the average selling price of Jeuveau®. We anticipate that our cost of sales will increase as Jeuveau® sales increase.
Selling, General and Administrative
Selling, general and administrative expenses increased by $84.5 million to $113.6 million for the year ended December 31, 2019 from $29.1 million for
the year ended December 31, 2018. The increase was primarily attributable to the U.S. launch of Jeuveau®. This included higher personnel-related expenses
as a result of hiring a U.S. sales force, building out our corporate and commercial infrastructure and incurring marketing expenses including the J.E.T.
program. Shipments under the J.E.T. program ended in August 2019. Personnel-related expenses, including stock-based compensation, increased by $39.4
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million and marketing and selling expenses, including expenses related to the J.E.T. program, increased by $26.0 million from the year ended December 31,
2018. Selling, general and administrative expenses may fluctuate in the future primarily due to potential changes in marketing strategies, and performance-
based personnel-related expenses, such as commissions and bonuses.
Research and Development
Research and development expenses decreased by $2.5 million to $4.0 million for the year ended December 31, 2019 from $6.5 million for the year ended
December 31, 2018. The decrease was primarily attributable to the completion of the U.S. clinical trial activities related to Jeuveau® in 2018, partially offset
by one-time bonuses of $1.6 million to certain current and former employees upon FDA approval of Jeuveau® in February 2019. We expect our overall
research and development expense to increase if and when we seek to develop further product candidates and pursue regulatory approvals in other
jurisdictions.
Revaluation of Contingent Royalty Obligation Payable to Evolus Founders
During the year ended December 31, 2019 and 2018, the revaluation charges of $4.2 million and $10.5 million, respectively, were primarily driven by
changes in management assumptions related to revenue forecasts based on management’s assessment of current and future markets of Jeuveau® and
marketing and distribution strategies, discount rate and timing of cash flows.
Depreciation and Amortization
Depreciation and amortization increased to $4.1 million for the year ended December 31, 2019 from a de minimis amount for the year ended December 31,
2018. This was primarily attributable to amortization of the distribution right asset related to Jeuveau® over 20 years as well as amortization of the internal-
use software costs over two years.
Non-Operating Expense, Net
Non-operating expenses, net, increased by $5.4 million to $6.1 million for the year ended December 31, 2019 from $0.7 million for the year ended December
31, 2018. Interest income increased by $1.6 million to $1.8 million for the year ended December 31, 2019 from $0.2 million for the year ended December 31,
2018, which was primarily attributable to interest earned from short-term investments. Interest expense increased by $7.1 million to $8.0 million for the year
ended December 31, 2019 from $0.9 million for the year ended December 31, 2018, which was primarily attributable to interest incurred on our long-term
debt to Oxford Finance, LLC and the contingent promissory note payable to the Evolus Founders.
Income Taxes (Benefit) Expense
Income tax benefit was $15.0 million for the year ended December 31, 2019 as compared to a de minimis provision for the year ended December 31, 2018.
This was primarily attributable to a partial release of the deferred tax assets valuation allowance. Upon the reclassification of the indefinite-lived IPR&D
intangible asset to a definite-lived distribution right intangible asset in the first quarter of 2019 upon FDA approval of Jeuveau®, the related deferred tax
liability became a source of future taxable income in the assessment of the realization of deferred tax assets, and as a result, a portion of the previously
existing valuation allowance was released.
Liquidity and Capital Resources
As of December 31, 2019, we had cash and cash equivalents of $109.9 million, short-term investments of $19.9 million, and stockholders’ equity of $79.5
million.
We have a limited history of generating revenues and only began shipping Jeuveau® in May 2019. As of December 31, 2019, we had an accumulated deficit
of $213.1 million and working capital of $127.8 million. We had net losses of $90.0 million and $46.9 million for the years ended December 31,
2019 and 2018, respectively, and we used net cash in operating activities of $93.4 million and $25.7 million for the years ended December 31, 2019 and 2018,
respectively. Management expects operating losses and negative cash flows to continue for at least the next 12 months.
Initial Public Offering
In February 2018, we closed our initial public offering and sold 5,047,514 shares of our common stock at a price of $12.00 per share, inclusive of 47,514
shares of our common stock issued upon the exercise by the underwriters of their option to
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purchase additional shares. The net proceeds were approximately $56.3 million, after deducting underwriting discounts and commissions, excluding other
offering expenses.
Follow-On Public Offerings
In July 2018, we closed a follow-on public offering and sold 3,600,000 shares of our common stock at a price of $20.00 per share, inclusive of 600,000 shares
of common stock issued upon the exercise by the underwriters of their option to purchase additional shares. The net proceeds were approximately $67.7
million, after deducting underwriting discounts and commissions, excluding other offering expenses.
In November 2019, we closed a follow-on public offering and sold 5,999,550 shares of our common stock at a price of $13.00 per share, inclusive of 782,550
shares of common stock issued upon the exercise by the underwriters of their option to purchase additional shares. The net proceeds were approximately
$73.3 million after deducting underwriting discounts and commissions, excluding other offering expenses.
Loan and Security Agreement
On March 15, 2019, or the closing date, we entered into a loan and security agreement, or the credit facility, with Oxford Finance, LLC, as collateral agent, or
Oxford, pursuant to which the lender made term loans available to us of up to $100.0 million, or the credit facility. The credit facility provides that the term
loans will be funded in two advances. The first tranche of $75.0 million was funded on the closing date, and the second tranche of $25.0 million may be
drawn, at our request, no later than September 30, 2020, upon achieving specified minimum net sales milestones and no event of default is occurring. As of
December 31, 2019, the Company had not yet met the net sales milestone to draw the second tranche. The credit facility bears an annual interest rate equal to
the greater of 9.5%, or the 30-day U.S. Dollar LIBOR rate plus 7.0%. We have agreed to pay interest only on each tranche funded pursuant to the credit
facility for the first 36 months until May 2022, which will be followed by a 23-month amortization period. Notwithstanding the foregoing, if we maintain
compliance with the specified minimum net sales covenant and meet other conditions during the initial interest-only period, upon our request, the interest
only period may be extended by an additional 12 months to a total of 48 months followed by an 11-month amortization period.
Upon the earliest to occur of the maturity date, the acceleration of the term loans, or the prepayment of the term loans, we will be required to pay to Oxford a
final payment of 5.5% of the full principal amount of the term loans funded, or the final payment. We may elect to prepay all amounts owed prior to the
maturity date, provided that a prepayment fee is also paid, which shall be equal to 3.0% of the amount prepaid if the prepayment occurs on or prior to March
15, 2020, 2.0% of the amount prepaid if the prepayment occurs after March 15, 2020 and on or prior to March 15, 2021, or 1.0% of the amount prepaid if the
prepayment occurs thereafter, or the Prepayment Fee. If the term loans are accelerated following the occurrence of an event of default, we will be required to
immediately pay to Oxford an amount equal to the sum of all outstanding principal of the term loans plus accrued and unpaid interest thereon through the
prepayment date, the final payment, the Prepayment Fee, and all other obligations that are due and payable, including payment of Oxford’s expenses and
interest at the default rate with respect to any past due amounts.
The credit facility is secured by substantially all of our assets. The credit facility includes affirmative and negative covenants applicable to us, our current
subsidiary and any subsidiaries we may create in the future. The affirmative covenants include, among others, covenants requiring us to maintain our legal
corporate existence and governmental approvals, deliver certain financial reports, maintain insurance coverage and satisfy certain requirements regarding
deposit accounts. The negative covenants include, among others, restrictions on us transferring collateral, incurring additional indebtedness, engaging in
mergers or acquisitions, paying dividends or making other distributions, making investments, creating liens, selling assets and suffering a change in control, in
each case subject to certain exceptions.
The credit facility also includes events of default, the occurrence and continuation of which could cause interest to be charged at a default interest rate equal
to the applicable rate plus 5.0% and Oxford, as collateral agent, with the right to exercise remedies against us and the collateral securing the credit facility,
including foreclosure against the property securing the credit facility, including our cash. These events of default include, among other things, any failure by
us to pay principal or interest due under the credit facility, a breach of certain covenants under the credit facility, our insolvency, a material adverse change,
the occurrence of any default under certain other indebtedness and one or more judgments against us, the institution of certain temporary or permanent relief
in connection with pending litigation, or the breach, termination or other adverse events under the Daewoong Agreement.
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The credit facility also provides us with the ability, under certain conditions, to obtain up to a $25.0 million revolving line of credit secured by our inventory,
accounts receivable and cash proceeds of both. Oxford has the right of first refusal, but not the obligation, to provide such a revolving line of credit. There is
no guarantee that such a line would be available to us on terms favorable to us or at all. As of December 31, 2019, the Company had met the conditions to
enter into a $25.0 million revolving line of credit.
Operating Leases
We lease office facilities under various operating lease agreements. Our corporate headquarters is located in Newport Beach, California, in a facility that we
subleased until January 2020 under a non-cancelable operating lease for a fixed amount each month. On May 15, 2019, we entered into a non-cancelable
operating lease for the same office facility with the original lessor. This non-cancelable operating lease commenced on February 1, 2020 and expires on
January 31, 2025 with an option to extend the term for an additional 60 months. Lease payments increase based on an annual rent escalation clause that
occurs on each February 1 anniversary. We may, under certain circumstances, terminate the lease on the 36 months anniversary of the lease commencement
date by providing a written notice 12 months prior to such anniversary and paying a termination fee equal to six months basic rent plus certain other expenses.
We have an option to extend the term of the lease for an additional 60 months.
Current and Future Capital Requirements
We believe that our current capital resources, which consist of cash, cash equivalents and short-term investments, will be sufficient to fund operations through
at least the next twelve months based on our expected cash burn rate from the date of the issuance of this Annual Report on Form 10-K.
Until such time, if ever, as we can generate substantial product revenue to cover our costs of operations, we expect to finance our cash needs through
additional draws against the Oxford term loan and revolving line of credit, entering into licensing or collaboration agreements with partners, other debt or
equity financings, or other sources of financing. Sufficient funds may not be available to us at all or on attractive terms when needed from these sources. To
the extent that we raise additional capital through the future sale of equity, the ownership interests of our stockholders will be diluted, and the terms of these
securities may include liquidation or other preferences that adversely affect the rights of our existing common stockholders. If we raise additional funds
through the issuance of debt securities, these securities could contain covenants that would restrict our operations. We may require additional capital beyond
our currently anticipated amounts. If we are unable to obtain additional funding from these or other sources when needed, we may need to significantly
reduce our controllable and variable expenditures and current rate of spending through reductions in staff and delaying, scaling back, or suspend certain
research and development, sales and marketing programs and other operational goals.
We have based our projections of operating capital requirements on assumptions that may prove to be incorrect and we may use all our available capital
resources, which consist of cash, cash equivalents and short-term investments, sooner than we expect. Because of the numerous risks and uncertainties
associated with research, development and commercialization of our products, we are unable to estimate the exact amount of our operating capital
requirements. Our future funding requirements will depend on many factors, including, but not limited to:
•
•
•
•
•
•
•
the number and characteristics of any future product candidates we develop or acquire;
the timing of any cash milestone payments to Daewoong if we successfully achieve certain predetermined milestones;
our ability to forecast demand for our products, scale our supply to meet that demand and manage working capital effectively
the cost of manufacturing our product or any future product candidates and any products we successfully commercialize, including costs associated
with building our supply chain;
the cost of commercialization activities for Jeuveau® or any future product candidates are approved or cleared for sale, including marketing, sales
and distribution costs;
the cost of maintaining a sales force, the productivity of that sales force, and the market acceptance of our products;
our ability to establish and maintain strategic collaborations, licensing or other arrangements and the financial terms of any such agreements that we
may enter into;
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•
•
•
•
•
any product liability or other lawsuits related to our products;
the expenses needed to attract and retain skilled personnel;
the costs associated with being a public company;
the costs involved in preparing, filing, prosecuting, maintaining, defending and enforcing patent claims, including ongoing litigation costs related to
Jeuveau® and the outcome of this and any other future patent litigation we may be involved in; and
the timing, receipt and amount of sales of any future approved or cleared products, if any.
Cash Flows
The following table summarizes our cash flows for the periods indicated:
(in millions)
Net cash (used in) provided by:
Operating activities
Investing activities
Financing activities
Change in cash and cash equivalents
Cash and cash equivalents, beginning of period
Cash and cash equivalents, end of period
Operating Activities
Year Ended December 31,
2019
2018
Change
$
$
(93.4) $
(23.4)
133.5
16.7
93.2
109.9 $
(25.7) $
—
118.8
93.2
—
93.2
(67.7)
(23.4)
14.7
Cash used in operating activities increased by $67.7 million to $93.4 million for the year ended December 31, 2019 from $25.7 million for the year ended
December 31, 2018. The increase in cash used in operating activities was primarily attributable to an increase in net loss of $43.2 million, as adjusted for
certain non-cash items. In 2019, there was an increase in non-cash income tax benefit of $15.1 million resulting from partial release of the deferred tax assets
valuation allowance. There were also increases in non-cash stock-based compensation expense of $2.5 million, provisions related to the rebate and coupon
programs of $12.3 million, and depreciation and amortization of $4.1 million, which were partially offset by a $6.3 million decrease in revaluation of our
contingent royalty obligation. Cash used in working capital increased by $23.6 million which was primarily driven by inventory purchases, timing of accounts
receivable collections, timing of vendor billing and invoice payments, and increased expenditures associated with the hiring of our sales force and expansion
of our commercialization infrastructure in connection with launching Jeuveau®.
Investing Activities
Cash used in investing activities increased to $23.4 million for the year ended December 31, 2019 from a de minimis amount for the year ended December 31,
2018. The increase in cash used in investing activities was primarily attributable to purchases of short-term investments net of maturities of $18.9 million and
additions to capitalized software of $4.2 million.
Financing Activities
Cash provided by financing activities increased by $14.7 million to $133.5 million for the year ended December 31, 2019 from $118.8 million for the year
ended December 31, 2018. We received proceeds of $71.7 million in March 2019 from the credit facility net of discounts and issuance costs and $73.3 million
in November 2019 from the public offering of common stock after deducting underwriting discounts and commissions, and $2.5 million from issuance of
common stock related to the incentive equity plan. This was offset by $9.7 million of milestone and contingent royalty payments to the Evolus Founders and
$3.0 million in payments to Daewoong ($2.0 million in February 2019 and $1.0 million in December 2019 subsequent to the FDA’s approval and EMA’s
approval, respectively, of Jeuveau®) during 2019. We received proceeds of $56.3 million and $67.7 million in the initial public offering in February 2018 and
the follow-on public offering in July 2018, respectively.
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Indebtedness
Currently, we have no indebtedness to Alphaeon. For periods prior to the completion of our initial public offering on February 12, 2018, Alphaeon provided
us certain services that were not covered under a services agreement, including, without limitation, general and administrative support services and research
and development support services. Alphaeon had allocated a certain percentage of personnel to perform the services that it provided to us based on its good
faith estimate of the required services. These allocated costs have historically increased related-party borrowings. The costs reflect Alphaeon full-time
equivalent, or FTE, rate for the applicable personnel, plus out-of-pocket expenses such as occupancy costs associated with the FTEs allocated to providing us
these services. We historically have not recorded a mark-up on the external or internal expenses Alphaeon allocates to us. All Alphaeon-provided operating
expenses shown in our financial statements were treated as related party borrowings from Alphaeon to us for the period between January 1, 2018 and
February 11, 2018. Since the initial public offering, we have not relied on Alphaeon for funding and in connection with the closing of our initial public
offering the related party borrowings were settled in full. As of the completion of our initial public offering on February 12, 2018, we assumed from Alphaeon
the revised payment obligations under the Amended Purchase Agreement of $55.7 million (comprised of $39.7 million related to the contingent royalty
obligation and $16.0 million related to the contingent promissory note).
Upon our initial public offering on February 12, 2018, we were released of the $140.7 million note obligation for all guaranty and security obligations, and
the related party receivable from Alphaeon of $73.7 million was settled, resulting in a capital contribution of $67.0 million. Alphaeon’s security interest in
Evolus’ assets also was terminated. See Note 11, Related Party Transactions for more information.
Payment Obligations Related to the Acquisition by Alphaeon
Under the Amended Purchase Agreement, the revised payment obligations consist of (i) an approximately $9.2 million up-front payment upon obtaining FDA
approval for Jeuveau® for the treatment of glabellar lines, which was paid in full in 2018, (ii) quarterly royalty payments of a low single digit percentage of
net sales of Jeuveau® within the United States, (iii) quarterly royalty payments of a low single digit percentage of net sales of Jeuveau® outside of the United
States, and (iv) a $20.0 million promissory note that matures in November 2021. The revised payment obligations set forth in (ii) and (iii) above will
terminate in the quarter following the 10-year anniversary of the first commercial sale of Jeuveau® in the United States in the second quarter of 2029. Neither
Evolus nor Alphaeon has the right to terminate any future payments for a one-time lump sum payment. As of December 31, 2019 and 2018, we recorded an
aggregate balance of $59.1 million and $67.1 million, respectively, on our balance sheet for the revised payment obligations and the promissory note owed to
the Evolus Founders (comprised of $41.2 million and $50.2 million, respectively, for the contingent royalty obligation and $17.9 million and $16.9 million,
respectively, for the contingent promissory note). We paid the Evolus Founders $9.2 million in February 2019 subsequent to the FDA’s approval of Jeuveau®.
Under the Amended Purchase Agreement, in February 2019, Evolus paid one-time bonuses of $1.6 million to certain former and current employees upon
FDA approval of Jeuveau®.
License and Supply Agreement with Daewoong
Pursuant to the Daewoong Agreement, $13.5 million in additional cash consideration was due to Daewoong based upon the Company’s successful completion
of certain technical and sales milestones. We paid Daewoong $2.0 million in February 2019 and $1.0 million in December 2019 subsequent to the FDA’s
approval and EMA’s approval, respectively, of Jeuveau®. As of December 31, 2019, Daewoong is eligible to receive remaining contingent milestone
payments of up to $10.5 million.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements as defined in the rules and regulations of the SEC. We do not have any relationships with unconsolidated
entities or financial partnerships, such as entities often referred to as structured finance or special purpose entities, which would have been established for the
purpose of facilitating off-balance sheet arrangements or for any other contractually narrow or limited purpose.
Contractual Obligations and Commitments
Not applicable.
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Critical Accounting Policies
Management’s discussion and analysis of our financial condition and results of operations are based on our financial statements, which have been prepared in
accordance with GAAP. The preparation of these financial statements requires us to make estimates and assumptions that affect the reported amounts of assets
and liabilities and related disclosure of contingent assets and liabilities, revenue and expenses at the date of the financial statements as well as the expenses
incurred during the reporting period. Generally, we base our estimates on historical experience and on various other assumptions in accordance with GAAP
that we believe to be reasonable under the circumstances. Actual results may differ materially from these estimates under different assumptions or conditions
and such differences could be material to the financial position and results of operations. On an ongoing basis, we evaluate our judgments and estimates in
light of changes in circumstances, facts and experience.
While our significant accounting policies are more fully described in the notes to our financial statements appearing elsewhere in this Annual Report on Form
10-K, we believe the following accounting policies to be most critical for fully understanding and evaluating our financial condition and results of operations,
as these policies relate to the more significant areas involving management’s judgments and estimates.
Revenue Recognition
We recognize revenue when control of the promised goods or services is transferred to our customers, in an amount that reflects the consideration to which we
expect to be entitled in exchange for the goods or services. In order to achieve that core principle, a five-step approach is applied: (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 allocated to each performance obligation when the Company satisfies the performance
obligation. A performance obligation is a promise in a contract to transfer a distinct good or service to the customer, and is the unit of account for revenue
recognition.
We currently operate in one reportable segment and all of our net revenue is derived from sales of Jeuveau®. We generate product revenue from the sale of
Jeuveau® in the United States and service revenue from the sale of Jeuveau® through a distribution partner in Canada. For product revenue, we recognize
revenue when control of Jeuveau® is transferred to a customer upon receipt. We do not accept product returns except under limited circumstances such as
damages in transit or ineffective product. Any amounts related to taxes assessed by governmental authorities are excluded from revenue measurement.
Shipping and handling costs associated with outbound product freight are accounted for as fulfillment costs and are included in selling, general, and
marketing expenses on the condensed statements of operations and comprehensive loss. Payment terms are short-term and customer contracts do not include
significant financing components. For service revenue, we are determined to be the agent in the distribution of Jeuveau® in Canada and record the sale as
service revenue on a net basis.
We provide customers with trade and volume discounts and prompt pay discounts that are directly reflected in the invoice price. Revenues are recorded net of
sales-related adjustments, wherever applicable, for the volume rebates and coupon programs. Volume rebates are contractually offered to certain customers.
Generally, the rebates payable to each customer are determined based on the contract and quarterly purchase volumes. Through the coupon program,
customers receive coupons redeemable into gift cards funded by us for the benefit of consumers. The coupons are accounted for as variable consideration.
The Company estimates the coupon redemption rates based on historical data and expectations of future redemptions prior to the coupon expiration date. The
coupons are accrued based on estimated redemption rates and the volume of products purchased and recorded as a reduction to revenues on product delivery.
Accounts receivable are recorded at the invoiced amount and do not bear interest. We assess the probability that we will collect the entitled consideration in
exchange for the goods sold, by considering the customer’s ability and intention to pay when consideration is due. On a recurring basis, we estimate the
amounts of receivables considered uncollectible to reflect an allowance for doubtful accounts.
Contingent Royalty Obligation and Promissory Note Payable to Evolus Founders
We determine the fair value of the contingent royalty obligation payable to the Evolus Founders under the Amended Purchase Agreement based on significant
unobservable inputs using a discounted cash flows method. Changes in the fair value of this contingent royalty obligation are determined each period end and
recorded in operating expenses in the statements of operations and comprehensive loss and in the current and non-current liabilities in the balance sheets. The
significant
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unobservable input assumptions that can significantly change the fair value includes (i) projected net revenues during the payment period, (ii) the discount
rate and (iii) the timing of payments.
We also determined the fair value of the contingent promissory note payable at present value using a discount rate for similar rated debt securities and is based
on an estimated date that we believe the contingent promissory note will mature. Accretion related to the contingent promissory note is recorded in interest
expense of the statements of operations and comprehensive loss with a corresponding increase to the non-current liabilities section of the balance sheets.
Goodwill
Goodwill represents the excess of the purchase price over the fair value of the net tangible and intangible assets acquired in a business combination. We
review goodwill for impairment annually and whenever events or changes in circumstances indicate the carrying amount of goodwill may not be recoverable.
We perform an annual qualitative assessment of goodwill in the fourth quarter each calendar year to determine if any events or circumstances exist, such as an
adverse change in business climate or a decline in the overall industry demand, that would indicate that it would more likely than not reduce the fair value of a
reporting unit below its carrying amount, including goodwill. If events or circumstances do not indicate that the fair value of a reporting unit is below its
carrying amount, then goodwill is not considered to be impaired and no further testing is required. If further testing is required, we perform a two-step
process. The first step involves comparing the fair value of our reporting unit to its carrying value, including goodwill. If the carrying value of the reporting
unit exceeds its fair value, the second step of the test is performed by comparing the carrying value of the goodwill in the reporting unit to its implied fair
value. An impairment charge is recognized for the excess of the carrying value of goodwill over its implied fair value. For the purpose of impairment testing,
we have determined that there is one reporting unit. There has been no impairment of goodwill for any of the periods presented.
Intangible Assets
Upon FDA approval of Jeuveau® in February 2019, in process research and development (“IPR&D”) related to Jeuveau® was evaluated as completed and
reclassified to a definite-lived distribution right intangible asset, which is amortized over the period the asset is expected to contribute to the future cash flows
of the Company. The Company determined the pattern of this intangible asset’s future cash flows could not be readily determined with a high level of
precision. As a result, the distribution right intangible asset is being amortized on a straight-line basis over the estimated useful life of 20 years.
The Company capitalizes certain internal-use software costs associated with the development of its mobile and web-based customer platforms. These costs
include personnel expenses and external costs that are directly associated with the software projects. These costs are included as intangible assets in the
accompanying condensed balance sheets. The capitalized internal-use software costs are amortized on a straight-line basis over the estimated useful life
of two years upon being placed in service.
The Company reviews long-term and identifiable definite-lived intangible assets or asset groups for impairment when events or changes in circumstances
indicate that the carrying amount of an asset or asset group may not be recoverable. If the sum of the expected future undiscounted cash flows is less than the
carrying amount of the asset or an asset group, further impairment analysis is performed. An impairment loss is measured as the amount by which the
carrying amount of the asset or asset groups exceeds the fair value for assets to be held and used or fair value less cost to sell for assets to be disposed of. The
Company also reviews the useful lives of its assets periodically to determine whether events and circumstances warrant a revision to the remaining useful life.
Changes in the useful life are adjusted prospectively by revising the remaining period over which the asset is amortized. There was no material impairment of
long-lived assets for any periods presented.
Recently Issued and Adopted Accounting Pronouncements
We describe the recently issued accounting pronouncements that apply to us in Note 2, Summary of Significant Accounting Policies-Recent Accounting
Pronouncements.
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Item 7A. Quantitative and Qualitative Disclosure About Market Risk.
Not applicable.
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Item 8. Financial Statements and Supplementary Data.
Evolus, Inc.
Index to Financial Statements
Report of Independent Registered Public Accounting Firm
Financial Statements:
Balance Sheets
Statements of Operations and Comprehensive Loss
Statements of Stockholders’ Equity (Deficit)
Statements of Cash Flows
Notes to Financial Statements
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68
69
70
71
72
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To the Stockholders and the Board of Directors of Evolus, Inc.
Opinion on the Financial Statements
Report of Independent Registered Public Accounting Firm
We have audited the accompanying balance sheets of Evolus, Inc. (the Company) as of December 31, 2019 and 2018, the related statements of operations and
comprehensive loss, stockholders’ equity and cash flows for each of the two years in the period ended December 31, 2019, and the related notes (collectively
referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company
at December 31, 2019 and 2018, and the results of its operations and its cash flows for each of the two years in the period ended December 31, 2019, in
conformity with U.S. generally accepted accounting principles.
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 Public Company Accounting Oversight Board (United States) (PCAOB)
and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of
the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor
were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of
internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial
reporting. Accordingly, we express no such opinion.
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.
/s/ Ernst & Young LLP
We have served as the Company's auditor since 2017.
Irvine, California
February 25, 2020
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Current assets
Cash and cash equivalents
Short-term investments
Accounts receivable, net
Inventories
Prepaid expenses and other current assets
Total current assets
Property and equipment, net
Operating lease right-of-use assets
Intangible assets, net
Goodwill
Other assets
Total assets
Evolus, Inc.
Balance Sheets
(in thousands, except par value and share data)
ASSETS
December 31,
2019
2018
$
109,892 $
93,162
$
$
19,911
10,661
6,407
5,326
152,197
902
4,068
59,638
21,208
2,429
240,442 $
5,796 $
13,960
1,200
3,483
24,439
3,893
41,200
17,945
73,508
—
—
160,985
—
1
292,509
6
(213,059)
79,457
—
—
—
1,177
94,339
—
—
56,076
21,208
221
171,844
1,558
3,718
—
—
5,276
—
50,200
16,904
—
15,055
25
87,460
—
1
207,408
—
(123,025)
84,384
171,844
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current Liabilities
Accounts payable
Accrued expenses
Operating lease liabilities
Contingent royalty obligation payable to Evolus Founders
Total current liabilities
Operating lease liabilities
Contingent royalty obligation payable to Evolus Founders
Contingent promissory note payable to Evolus Founders
Long-term debt, net of discounts and issuance costs
Deferred tax liability
Deferred rent
Total liabilities
Commitments and contingencies (Note 7)
Stockholders’ equity
Preferred Stock, $0.00001 par value; 10,000,000 shares authorized; no shares issued and outstanding at December 31,
2019 and December 31, 2018, respectively
Common Stock, $0.00001 par value; 100,000,000 shares authorized; 33,562,665 and 27,274,991 shares issued and
outstanding at December 31, 2019 and December 31, 2018, respectively
Additional paid-in capital
Accumulated other comprehensive gain
Accumulated deficit
Total stockholders’ equity
Total liabilities and stockholders’ equity
$
240,442
$
See accompanying notes to financial statements.
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Evolus, Inc.
Statements of Operations and Comprehensive Loss
(in thousands, except share and per share data)
Revenue:
Product revenue, net
Service revenue
Total net revenues
Product cost of sales (excludes amortization of intangible assets)
Gross profit
Operating expenses:
Selling, general and administrative
Research and development
Revaluation of contingent royalty obligation to Evolus Founders
Depreciation and amortization
Total operating expenses
Loss from operations
Other income (expense):
Interest income
Interest expense
Loss before income taxes
Income tax (benefit) expense
Net loss
Other comprehensive gain:
Unrealized gain on available-for-sale securities, net of tax
Comprehensive loss
Net loss per share, basic and diluted
Year Ended December 31,
2019
2018
$
34,237 $
688
34,925
8,014
26,911
113,593
3,973
4,160
4,132
125,858
(98,947)
1,839
(7,953)
(105,061)
(15,027)
(90,034) $
6
(90,028) $
(3.19) $
$
$
$
—
—
—
—
—
29,146
6,487
10,500
9
46,142
(46,142)
203
(863)
(46,802)
65
(46,867)
—
(46,867)
(1.92)
Weighted-average shares outstanding used to compute basic and diluted net loss per share
28,237,816
24,402,368
See accompanying notes to financial statements.
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Evolus, Inc.
Statements of Stockholders’ Equity (Deficit)
(in thousands, except share data)
Series A Preferred
Stock
Common Stock
Balance at December 31, 2017
Deemed contribution from Parent, increase of related-party receivable
Deemed distribution to Parent, increase of convertible note obligation
Capital contribution from Parent, convertible note write-off
Capital contribution from Parent, forgiveness of related party
borrowings
Preferred stock conversion upon initial public offering
Issuance of common stock upon initial public offering, net of issuance
costs
Issuance of common stock upon follow-on offering, net of issuance
costs
Issuance of common stock in connection with the incentive equity plan
Stock-based compensation
Net loss
Balance at December 31, 2018
Issuance of common stock upon follow-on offering, net of issuance
costs
Issuance of common stock in connection with the incentive equity plan
Stock-based compensation
Net loss
Other comprehensive gain
Balance at December 31, 2019
Shares
1,250,000
Amount
Shares
$ — 16,527,000 $ — $
Amount
—
—
—
—
(1,250,000)
—
—
—
—
—
—
—
—
— 2,065,875
—
—
—
—
—
— $
1,051
(1,385)
66,998
13,188
—
—
— 5,047,514
1
53,445
— 3,600,000
34,602
—
—
—
—
—
—
—
—
—
— $ — 27,274,991 $
— 5,999,550
288,124
—
—
—
—
—
—
—
—
—
—
—
—
— $ — 33,562,665 $
67,379
(239)
6,971
—
—
—
—
—
1 $ 207,408 $
73,022
2,455
9,624
—
—
—
—
—
—
—
1 $ 292,509 $
See accompanying notes to financial statements.
71
Additional
Paid In
Capital
Accumulated
Other
Comprehensive
Gain
Accumulated
Deficit
Total
— $
—
—
—
—
—
—
—
—
—
—
— $
—
—
—
—
6
6 $
(75,543) $(75,543)
—
(615)
—
—
—
—
1,051
(2,000)
66,998
13,188
—
53,446
(239)
67,379
—
—
—
(46,867)
(123,025) $ 84,384
6,971
(46,867)
—
—
—
(90,034)
—
73,022
2,455
9,624
(90,034)
6
(213,059) $ 79,457
Table of Contents
Evolus, Inc.
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 and amortization
Stock-based compensation
Provisions for rebate and coupon programs
Provision for bad debts
Amortization of discount on short-term investments
Amortization of operating lease right-of-use assets
Amortization of debt discount and issuance costs
Deferred income taxes
Revaluation of contingent royalty obligation to Evolus Founders
Changes in assets and liabilities:
Inventories
Accounts receivable
Prepaid expenses and other current assets
Accounts payable
Accrued expenses
Operating lease liabilities
Deferred rent
Other assets
Net cash used in operating activities
Cash flows from investing activities
Purchases of property and equipment
Additions to capitalized software
Purchases of short-term investments
Maturities of short-term investments
Net cash used in investing activities
Cash flows from financing activities
Payment of contingent royalty obligation to Evolus Founders
Milestone payment for intangible assets
Proceeds from issuance of long-term debt, net of discounts
Payments for debt issuance costs
Payment for debt obligation
Proceeds from initial public offering, net of underwriting fees
Proceeds from follow-on offering, net of underwriting fees
Payments for offering costs
Related party borrowings
Payments on related party borrowings
Issuance of common stock in connection with incentive equity plan
Net cash provided by financing activities
Change in cash and cash equivalents
Cash and cash equivalents, beginning of period
Cash and cash equivalents, end of period
Year Ended December 31,
2019
2018
$
(90,034) $
(46,867)
4,132
9,518
12,325
387
(1,038)
873
2,156
(15,055)
4,160
(4,482)
(11,048)
(1,874)
183
(2,742)
(654)
—
(190)
(93,383)
(345)
(4,222)
(113,867)
95,000
(23,434)
(9,677)
(3,000)
73,906
(2,205)
(1,044)
—
73,315
(203)
—
—
2,455
133,547
16,730
93,162
109,892 $
$
9
6,971
—
—
—
—
863
65
10,500
—
—
(992)
1,275
2,733
—
(13)
(211)
(25,667)
(9)
—
—
—
(9)
—
—
—
—
—
56,330
67,680
(1,060)
1,127
(5,000)
(239)
118,838
93,162
—
93,162
See accompanying notes to financial statements.
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Evolus, Inc.
Statements of Cash Flows (Continued)
(in thousands)
Supplemental disclosure of cash flow information
Cash paid for interest
Cash paid for operating leases
Non-cash investing and financing information:
Related party receivable
Related party borrowings
Note obligation
Contingent royalty obligation payable to Evolus Founders
Contingent promissory note payable to Evolus Founders
Capital contribution from Parent, convertible note write-off
Capital contribution from Parent, forgiveness of related party borrowings
Deferred offering costs
Accounts payable, paid by Parent
Operating lease right-of-use assets obtained in exchange for operating lease liabilities
Landlord paid tenant improvements
Financed D & O insurance payment
Capitalized software recorded in accounts payable and accrued expenses
Accrued offering costs, unpaid
See accompanying notes to financial statements.
73
Year Ended December 31,
2019
2018
5,166 $
923 $
— $
— $
— $
— $
— $
— $
— $
— $
— $
5,566 $
781 $
1,561 $
87 $
(90) $
—
—
73,690
(68,767)
(140,688)
39,700
16,042
66,998
13,188
(2,885)
(163)
—
—
—
—
—
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
Table of Contents
Note 1. Organization
Organization and Description of Business
Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
Evolus, Inc., (“Evolus” or the “Company”) is a performance beauty company focused on delivering products in the self-pay aesthetic market. The Company
received the approval of its first product Jeuveau® (prabotulinumtoxinA-xvfs) from the U.S. Food and Drug Administration (the “FDA”) in February 2019.
The product was also approved by Health Canada in August 2018 and the European Commission (“EC”) in September 2019. The product is a proprietary 900
kDa purified botulinum toxin type A formulation indicated for the temporary improvement in the appearance of moderate to severe glabellar lines, also
known as “frown lines,” in adults. The Company commercially launched Jeuveau® in the United States in May 2019 and in Canada through a distributor in
October 2019. The Company is headquartered in Newport Beach, California.
In January 2018, the Company’s board of directors and its then-sole stockholder approved an amendment to the Company’s amended and restated certificate
of incorporation to effect a split of shares of the Company’s common stock on a 1.6527-for-1 basis (the “Stock Split”). The Company’s then-outstanding
shares of convertible Series A preferred stock (“Series A preferred stock”), the par value of the common stock, and the authorized shares of the common stock
were not adjusted as a result of the Stock Split. All issued and outstanding shares of common stock, stock options, restricted stock units and related per share
amounts in the accompanying financial statements have been retroactively adjusted to reflect this Stock Split for all periods presented. The Stock Split was
effected on January 26, 2018.
On February 12, 2018, the Company completed its initial public offering (“IPO”) and issued 5,047,514 shares of common stock, which included the exercise
by the underwriters of their option to purchase 47,514 additional shares of common stock, at an offering price to the public of $12.00 per share. The Company
received net proceeds of approximately $56,330 after deducting underwriting discounts and commissions, excluding other offering costs. In connection with
the IPO, the Company’s then-outstanding shares of Series A preferred stock were automatically converted into 2,065,875 shares of common stock. In
connection with the completion of its IPO, the Company’s amended and restated certificate of incorporation was further amended and restated to provide for
100,000,000 authorized shares of common stock with a par value of $0.00001 per share and 10,000,000 authorized shares of preferred stock with a par value
of $0.00001 per share.
In July 2018, the Company completed a follow-on public offering and issued 3,600,000 shares of its common stock, which included the exercise in full by the
underwriters of their option to purchase an additional 600,000 shares of common stock, at a price to the public of $20.00 per share. The Company received
net proceeds of approximately $67,680 from the offering, after deducting underwriting discounts and commissions, excluding other offering expenses.
In November 2019, the Company completed a follow-on public offering and issued 5,999,550 shares of its common stock, which included the exercise in full
by the underwriters of their option to purchase an additional 782,550 shares of common stock, at a price to the public of $13.00 per share. The Company
received net proceeds of approximately $73,315 from the offering, after deducting underwriting discounts and commissions, excluding other offering
expenses.
As of December 31, 2019 and 2018, ALPHAEON Corporation (“Alphaeon”), which is majority-owned by Strathspey Crown Holdings Group, LLC, formerly
known as SCH-AEON, LLC, (“SCH”), owned 25.8% and 56.0% of the Company’s outstanding shares of common stock, respectively. See Note 11. Related
Party Transactions, for more information. In 2019 Alphaeon changed its name to AEON Biopharma, Inc. and contributed all of the shares it held in the
Company to Alphaeon 1, LLC. The Company continues to refer to the renamed AEON Biopharma, Inc. as “Alphaeon” and Alphaeon 1, LLC as “Alphaeon 1,
LLC.”
Liquidity and Financial Condition
The accompanying financial statements have been prepared on a basis that assumes that the Company will continue as a going concern, and do not include
any adjustments that may result from the outcome of this uncertainty. This basis of accounting contemplates the recovery of the Company’s assets and the
satisfaction of the Company’s liabilities and commitments in the normal course of business and does not include any adjustments to reflect the possible future
effects of the recoverability and classification of recorded asset amounts or amounts and classification of liabilities that might be necessary should the
Company be unable to continue as a going concern. Since inception, the Company has incurred
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
recurring net operating losses, which include operating losses of $90,034 and $46,867 for the years ended December 31, 2019 and 2018, respectively.
Additionally, the Company used $93,383 and $25,667 in cash for operations in the years ended December 31, 2019 and 2018, respectively. Management
expects operating losses and negative cash flows to continue for at least the next 12 months. As of December 31, 2019, the Company had $109,892 in cash
and cash equivalents plus $19,911 in short-term investments and an accumulated deficit of $213,059.
The Company’s ability to execute on its business strategy, meet its future liquidity requirements, and achieve profitable operations, is dependent on a number
of factors, including its ability to gain and expand market acceptance of its product and achieve a level of revenues adequate to support its cost structure and
operate its business and sell products without infringing third party intellectual property rights.
The Company believes that its current capital resources, which consist of cash, cash equivalents and short-term investments, are sufficient to fund operations
through at least the next twelve months from the date the accompanying financial statements are issued based on the expected cash burn rate. The Company
may be required to raise additional capital to fund future operations through the incurrence of additional debt allowed under existing debt arrangements, the
entry into licensing or collaboration agreements with partners, sale of its equity securities, grants or other sources of financing. Sufficient funds may not be
available to the Company at all or on attractive terms when needed from equity or debt financings. If the Company is unable to obtain additional funding from
these or other sources when needed, or to the extent needed, it may be necessary to significantly reduce its controllable and variable expenditures and current
rate of spending through reductions in staff and delaying, scaling back, or suspending certain research and development, sales and marketing programs and
other operational goals.
Note 2. Summary of Significant Accounting Policies
Basis of Presentation
The accompanying financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America
(“GAAP”).
Reclassification
Certain amounts in the prior period financial statements have been reclassified to conform to the presentation of the current period financial statements. These
reclassifications had no effect on the previously reported net loss.
Use of Estimates
Management is required to make certain estimates and assumptions in order to prepare financial statements in conformity with GAAP. Such estimates and
assumptions affect the reported financial statements. The Company’s most significant estimates relate to net revenues, allowance for doubtful accounts, fair
value measurements, goodwill and long-lived asset valuations and impairment assessments, inventory valuations, income tax valuations, stock-based
compensation and royalty obligations, among others. Management bases estimates on historical experience and on assumptions that management believes are
reasonable. The Company’s actual results could differ materially from those estimates.
Risks and Uncertainties
In 2013, Evolus and Daewoong Pharmaceuticals Co. Ltd. (“Daewoong”) entered into the Daewoong Agreement, pursuant to which, the Company has the
exclusive distribution license to Jeuveau® from Daewoong for aesthetic indications in the United States, European Union, Great Britain, Canada, Australia,
Russia, Commonwealth of Independent States, and South Africa, as well as co-exclusive distribution rights with Daewoong in Japan. Jeuveau® is
manufactured by Daewoong in a facility in South Korea. The Company also has the option to negotiate first with Daewoong to secure a distribution license
for any product that Daewoong directly or indirectly develops or commercializes that is classified as an injectable botulinum toxin (other than Jeuveau®) in a
territory covered by the Daewoong Agreement. The Company relies on Daewoong, its exclusive and sole supplier, to manufacture Jeuveau®. Any termination
or loss of significant rights, including exclusivity, under the Daewoong Agreement would materially and adversely affect the Company’s commercialization
of Jeuveau®. The Daewoong
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
Agreement, and Daewoong’s rights relating to Jeuveau®, are subject to litigation. See Note 7, Commitments and Contingencies for additional information
regarding such litigation.
The Company commercially launched Jeuveau® in the United States in May 2019 and in Canada through its distribution partner in October 2019 and, as such,
has a limited history of sales. If any previously granted approval is retracted or the Company is denied approval or approval is delayed by any other
regulators, it may have a material adverse impact on the Company’s business and its financial statements.
The Company is subject to risks common to early stage companies in the pharmaceutical industry including, but not limited to, dependency on the clinical
and commercial success of Jeuveau® and any future product candidates, ability to obtain and maintain regulatory approval of Jeuveau® and any future product
candidates in the jurisdictions where approval is sought, the need for additional financing to achieve its goals, uncertainty of broad adoption of its approved
products, if any, by physicians and patients, significant competition and untested manufacturing capabilities.
Segment Reporting
Operating segments are identified as components of an enterprise about which separate discrete financial information is available for evaluation by the chief
operating decision-maker. The Company has determined that it operates in a single operating and reportable segment. The Company’s chief operating
decision maker is its Chief Executive Officer who manages operations and reviews the financial information as a single operating segment for purposes of
allocating resources and evaluating its financial performance.
Concentration of Credit Risk
Financial instruments that potentially subject the Company to a concentration of credit risk consist of cash and cash equivalents, short-term investments and
accounts receivable. Substantially all of the Company’s cash is held by financial institutions that management believes are of high credit quality. Such
deposits may, at times, exceed federally insured limits. To date, the Company has not experienced any losses associated with this credit risk and continues to
believe that this exposure is not significant. The Company invests its excess cash, in line with its investment policy, primarily in money market funds and debt
instruments of U.S. government agencies.
The Company’s accounts receivable is derived from customers located principally in the United States. Concentrations of credit risk with respect to trade
receivables are limited due to the Company’s credit evaluation process. The Company does not typically require collateral from its customers. Credit losses
historically have not been material. The Company continuously monitors customer payments and maintains an allowance for doubtful accounts based on its
assessment of various factors including historical experience, age of the receivable balances, and other current economic conditions or other factors that may
affect customers’ ability to pay.
Cash and Cash Equivalents
Cash and cash equivalents consist of cash and highly liquid investments with remaining maturities at purchase of three months or less that can be liquidated
without prior notice or penalty. Cash and cash equivalents may include deposits, money market funds and debt securities. Amounts receivable from credit
card issuers are typically converted to cash within two to four days of the original sales transaction and are considered to be cash equivalents.
Short-Term Investments
Short-term investments consist of available-for-sale U.S. Treasury securities with original maturities greater than three months and remaining maturities of
less than twelve months. These investments are recorded at fair value based on quoted prices in active markets, with unrealized gains and losses reported in
other comprehensive gain (loss) in the Company’s statements of operations and comprehensive loss. Purchase premiums and discounts are recognized in
interest expense using the effective interest method over the terms of the securities. Realized gains and losses and declines in fair value that are deemed to be
other than temporary are reflected in the statements of operations and comprehensive loss using the specific-identification method.
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
The Company periodically reviews all available-for-sale securities for other than temporary declines in fair value below the cost basis whenever events or
changes in circumstances indicate that the carrying amount of an asset may not be recoverable. The Company also evaluates whether it has plans or is
required to sell short-term investments before recovery of their amortized cost bases. To date, the Company has not identified any other than temporary
declines in fair value of its short-term investments.
Inventories
Inventories consist of finished goods held for sale and distribution. Cost is determined using the first‑in, first‑out method with prioritization of the items with
the earliest expiration dates. Inventory valuation reserves are established based on a number of factors including, but not limited to, finished goods not
meeting product specifications, product excess and obsolescence, or application of the lower of cost or net realizable value concepts. The determination of
events requiring the establishment of inventory valuation reserves, together with the calculation of the amount of such reserves may require judgment. No
material inventory valuation reserves have been recorded for any periods presented. Adverse changes in assumptions utilized in the Company’s inventory
reserve calculations could result in an increase to its inventory valuation reserves.
Fair Value of Financial Instruments
Fair value is defined as the exchange price that would be received for an asset or an exit price paid to transfer a liability in an orderly transaction between
market participants in a principal market on the measurement date.
The fair value hierarchy defines a three-tiered valuation hierarchy for disclosure of fair value measurement is classified and disclosed by the Company in one
of the three categories as follows:
•
•
•
Level 1—Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets or liabilities;
Level 2—Inputs other than Level 1 that are observable, either directly or indirectly, such as quoted prices for similar assets or liabilities in active
markets; quoted prices in markets that are not active; or other inputs that are observable, either directly or indirectly, or can be corroborated by
observable market data for substantially the full term of the asset or liability; and
Level 3—Prices or valuation techniques that require inputs that are unobservable that are supported by little or no market activity and that are
significant to the fair value of the assets or liabilities.
The categorization of a financial instrument within the valuation hierarchy is based upon the lowest level of input that is significant to the fair value
measurement.
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Goodwill
Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
Goodwill represents the excess of the purchase price over the fair value of the net tangible and intangible assets acquired in a business combination. The
Company reviews goodwill for impairment annually and whenever events or changes in circumstances indicate the carrying amount of goodwill may not be
recoverable. The Company performs an annual qualitative assessment of its goodwill in the fourth quarter each calendar year to determine if any events or
circumstances exist, such as an adverse change in business climate or a decline in the overall industry demand, that would indicate that it would more likely
than not reduce the fair value of a reporting unit below its carrying amount, including goodwill. If events or circumstances do not indicate that the fair value
of a reporting unit is below its carrying amount, then goodwill is not considered to be impaired and no further testing is required. If further testing is required,
the Company performs a two-step process. The first step involves comparing the fair value of the Company’s reporting unit to its carrying value, including
goodwill. If the carrying value of the reporting unit exceeds its fair value, the second step of the test is performed by comparing the carrying value of the
goodwill in the reporting unit to its implied fair value. An impairment charge is recognized for the excess of the carrying value of goodwill over its implied
fair value. For the purpose of impairment testing, the Company has determined that it has one reporting unit. There was no impairment of goodwill for any of
the periods presented.
Intangible Assets
Upon FDA approval of Jeuveau® in February 2019, the in process research and development (“IPR&D”) related to Jeuveau® was evaluated as completed and
reclassified to a definite-lived distribution right intangible asset, which is amortized over the period the asset is expected to contribute to the future cash flows
of the Company. The Company determined the pattern of this intangible asset’s future cash flows could not be readily determined with a high level of
precision. As a result, the distribution right intangible asset is being amortized on a straight-line basis over the estimated useful life of 20 years.
The Company capitalizes certain internal-use software costs associated with the development of its mobile and web-based customer platforms. These costs
include personnel expenses and external costs that are directly associated with the software projects. These costs are included as intangible assets in the
accompanying balance sheets. The capitalized internal-use software costs are amortized on a straight-line basis over the estimated useful life of two
years upon being placed in service.
The Company reviews long-term and identifiable definite-lived intangible assets or asset groups for impairment when events or changes in circumstances
indicate that the carrying amount of an asset or asset group may not be recoverable. If the sum of the expected future undiscounted cash flows is less than the
carrying amount of the asset or an asset group, further impairment analysis is performed. An impairment loss is measured as the amount by which the
carrying amount of the asset or asset groups exceeds the fair value for assets to be held and used or fair value less cost to sell for assets to be disposed of. The
Company also reviews the useful lives of its assets periodically to determine whether events and circumstances warrant a revision to the remaining useful life.
Changes in the useful life are adjusted prospectively by revising the remaining period over which the asset is amortized. There was no impairment of long-
lived assets for any periods presented.
Leases
In accordance with Accounting Standards Update (“ASU”) No. 2016-02 as adopted on January 1, 2019, at the inception of a contractual arrangement, the
Company determines whether the contract contains a lease by assessing whether there is an identified asset and whether the contract conveys the right to
control the use of the identified asset in exchange for consideration over a period of time. If both criteria are met, upon lease commencement, the Company
records a lease liability which represents the Company’s obligation to make lease payments arising from the lease, and a corresponding right-of-use (“ROU”)
asset which represents the Company’s right to use an underlying asset during the lease term. Operating lease assets and liabilities are included in ROU assets,
current portion of operating lease liabilities and noncurrent operating lease liabilities in the accompanying balance sheets.
Operating lease ROU assets and lease liabilities are initially recognized based on the present value of the future minimum lease payments over the lease term
at commencement date calculated using the Company’s incremental borrowing rate applicable to the underlying asset unless the implicit rate is readily
determinable. Operating lease ROU assets also include
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
any lease payments made at or before lease commencement and exclude any lease incentives received, if any. The Company determines the lease term as the
noncancellable period of the lease and may include options to extend or terminate the lease when it is reasonably certain that the Company will exercise such
options. The Company’s leases do not contain any residual value guarantees. Leases with a term of 12 months or less are not recognized on the balance
sheets. For operating leases, the Company recognized rent expense on a straight-line basis over the lease term. There were no significant finance leases as
of December 31, 2019.
Research and Development Expenses
Research and development costs are expensed as incurred. Research and development expenses include personnel-related costs, costs associated with pre-
clinical and clinical development activities, costs associated with and costs for prototype products that are manufactured prior to market approval for that
prototype product, internal and external costs associated with the Company’s regulatory compliance and quality assurance functions, including the costs of
outside consultants and contractors that assist in the process of submitting and maintaining regulatory filings, and overhead costs, including allocated facility
related expenses.
Contingent Payment Obligation Payable to the Evolus Founders
On February 12, 2018, related to the acquisition of Evolus in 2013 by SCH and Alphaeon, the Company recognized a contingent royalty obligation payable to
the Evolus Founders. See Note 11, Related Party Transactions for more information. The Company determines the fair value of the contingent royalty
obligation payable at each reporting period end based on Level 3 inputs using a discounted cash flows method. Changes in the fair value of this contingent
royalty obligation are determined at each reporting period end and recorded in operating expenses in the statements of operations and comprehensive loss and
as a liability in the balance sheets.
Contingent Promissory Note Payable to Evolus Founders
On February 12, 2018, related to the acquisition of Evolus in 2013 by SCH and Alphaeon (See Note 11, Related Party Transactions for more information),
the Company recognized a contingent promissory note payable at present value using a discount rate for similar rated debt securities based on an estimated
date that the Company believed the contingent promissory note will mature. Discount amortization related to the contingent promissory note is recorded in
interest expense in the statement of operations and comprehensive loss with a corresponding increase to the non-current liabilities in the balance sheets.
Long-term Debt
Long-term debt represents the debt balance with Oxford Finance (“Oxford”), net of debt issuance costs. See Note 6, Oxford Term Loans for more information.
Debt issuance costs represent legal, lender and consulting costs or fees associated with debt financing. Debt discounts and issuance costs are allocated pro rata
between the funded and unfunded portions of the debt and are amortized into interest expense over the term of the debt.
Revenue Recognition
The Company applies Accounting Standards Codification 606, Revenue from Contracts with Customers (“ASC 606”), to account for revenue generated since
the commercial launch of Jeuveau® in May 2019.
The Company recognizes revenue when control of the promised goods or services is transferred to its customers, in an amount that reflects the consideration
to which the Company expects to be entitled in exchange for the goods or services. In order to achieve that core principle, a five-step approach is applied: (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 allocated to each performance obligation when the Company satisfies the
performance obligation. A performance obligation is a promise in a contract to transfer a distinct good or service to the customer, and is the unit of account
for revenue recognition.
General
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
The Company currently generates product revenue from the sale of Jeuveau® in the United States and service revenue from the sale of Jeuveau® through a
distribution partner in Canada.
For product revenue, the Company recognizes revenue when control of the promised goods under a contract is transferred to a customer, in an amount that
reflects the consideration the Company expects to receive in exchange for those goods as specified in the customer contract. The transfer of control occurs
upon receipt of the goods by the customer since that is when the customer has obtained control of the goods’ economic benefits. The Company does not
provide any service-type warranties and does not accept product returns except under limited circumstances such as damages in transit or ineffective product.
The Company also excludes any amounts related to taxes assessed by governmental authorities from revenue measurement. Shipping and handling costs
associated with outbound product freight are accounted for as fulfillment costs and are included in selling, general and marketing expenses in the
accompanying statements of operations and comprehensive loss.
For service revenue, the Company evaluated the arrangement with the distribution partner in Canada and determined that it acts as an agent in the distribution
of Jeuveau® in Canada as it does not control the product before control is transferred to a customer. The indicators of which party exercises control include
primary responsibility over performance obligations, inventory risk before the good or service is transferred and discretion in establishing the price.
Accordingly, the Company records the sale as service revenue on a net basis. Revenue from services is recognized in the period the service is performed for
the amount of consideration expected to be received. For the year ended December 31, 2019, the Company recognized $688 of revenue related to Canada
sales.
Disaggregation of Revenue
The Company’s disaggregation of revenue is consistent with its operating segment as disclosed above.
Gross-to-Net Revenue Adjustments
The Company provides customers with trade and volume discounts and prompt pay discounts that are reflected in the invoice price. Revenues are recorded
net of sales-related adjustments, wherever applicable, for rebates and coupon programs. Accrued rebate and coupon balances are recorded in accrued
expenses on the accompanying balance sheets.
•
•
Volume-based Rebates - Volume-based rebates are contractually offered to certain customers. The rebates payable to each customer are determined
based on the contract and purchase volumes.
Coupons - The Company issued customers coupons redeemable into gift cards funded by the Company for the benefit of patients. The coupons are
accounted for as variable consideration. The Company estimates the coupon redemption rates based on historical data and future expectations. The
coupons are accrued based on estimated redemption rates and the volume of products purchased and are recorded as a reduction to revenues on
product delivery.
As of December 31, 2019, the accrued volume-based rebate and coupon liability was $1,709. For the year ended December 31, 2019, provisions for rebate
and coupon programs were $12,325, which were offset by related payments of $10,616.
Contract balances
A contract with a customer states the terms of the sale, including the description, quantity and price of each product purchased. Amounts are recorded as
accounts receivable when the Company’s right to consideration becomes unconditional. As payment terms are short-term, the Company does not have any
significant financing components in customer contracts given the expected time between transfer of the promised products and the payment of the associated
consideration is less than one year. As of December 31, 2019, all amounts included in accounts receivable, net on the accompanying balance sheets are related
to contracts with customers.
The Company did not have any contract assets nor unbilled receivables as of December 31, 2019. Sales commissions are included in selling, general and
administrative expenses when incurred.
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
Contract liabilities reflect estimated amounts that the Company is obligated to pay to customers or patients under the rebate and coupon programs. The
Company’s contract liabilities are included in accounts payable and accrued expenses in the accompanying balance sheets.
During the year ended December 31, 2019, the Company did not recognize any revenue related to changes in transaction prices regarding its contracts with
customers and did not recognize any material changes in revenue related to amounts included in contract liabilities at the beginning of the period.
Collectability
Accounts receivable are recorded at the invoiced amount and do not bear interest. At the time of contract inception or new customer account set-up, the
Company performs a collectability assessment of the customer’s creditworthiness. The Company assesses the probability that the Company will collect the
entitled consideration in exchange for the goods sold, by considering the customer’s ability and intention to pay when consideration is due. On a recurring
basis, the Company estimates the amount of receivables considered uncollectable to reflect an allowance for doubtful accounts. The Company writes off
accounts receivable balances when it is determined that there is no possibility of collection. As of December 31, 2019, allowance for doubtful accounts was
$387. For the year ended December 31, 2019, provision for bad debts was $387 and there were no write-offs.
Practical Expedients
The Company expenses sales commissions when incurred as the amortization period is one year or less. These costs are recorded within selling, general and
administrative expenses in the accompanying statements of operations and comprehensive loss. The Company does not adjust the amount of promised
consideration for the effects of the time value of money for contracts in which the anticipated period between when the Company transfers the goods or
services to the customer and when the customer pays is within one year.
Stock-Based Compensation
The Company recognizes stock-based compensation expense for employees, consultants and members of the Board of Directors based on the fair value at the
date of grant.
The Company uses the Black-Scholes option pricing model to value stock option grants. The Black-Scholes option pricing model requires the input of
subjective assumptions, including the expected volatility of the Company’s common stock, expected risk-free interest rate, and the option’s expected life. The
fair value of the Company’s restricted stock units (“RSUs”) is based on the fair value of the grant date of the Company’s common stock. The Company also
evaluates the impact of modifications made to the original terms of equity awards when they occur.
The fair value of equity awards that are expected to vest is amortized on a straight-line basis over the requisite service period. Stock-based compensation
expense is recognized net of actual forfeitures when they occur, as an increase to additional paid-in capital in the balance sheets and in the selling, general and
administrative or research and development expenses in the statements of operations and comprehensive loss.
Advertising Costs
Advertising costs are expensed as incurred and primarily include costs related to social media ads. For the years ended December 31, 2019 and 2018, the
Company incurred advertising costs of $1,407 and $0, respectively.
Income Taxes
The Company accounts for income taxes under the asset and liability method. Under this method, deferred tax assets and liabilities are determined on the
basis of differences between the financial statements and tax basis of assets and liabilities using enacted tax rates in effect for the year in which the differences
are expected to reverse. Prior to the IPO, the Company calculated its income tax amounts using a separate return methodology and presented these amounts as
if it were a separate taxpayer from Alphaeon in each jurisdiction. Subsequent to the IPO, the Company has prepared its stand-alone tax return.
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
A valuation allowance is recorded against deferred tax assets, to reduce the net carrying value, when it is more likely than not that some portion or all of a
deferred tax asset will not be realized. In making such a determination, management considers all available positive and negative evidence, including future
reversals of existing taxable temporary differences, projected future taxable income, and ongoing prudent and feasible tax planning strategies in assessing the
amount of the valuation allowance. When the Company establishes or reduces the valuation allowance against its deferred tax assets, its provision for income
taxes will increase or decrease, respectively, in the period such determination is made.
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 Company has not recognized interest or penalties in its statement of operations and comprehensive loss.
The Company is required to file federal and state income tax returns in the United States and various other state jurisdictions. The preparation of these income
tax returns requires the Company to interpret the applicable tax laws and regulations in effect in such jurisdictions, which could affect the amount of tax paid
by the Company. An amount is accrued for the estimate of additional tax liability, including interest and penalties, for any uncertain tax positions taken or
expected to be taken in an income tax return. The Company reviews and updates the accrual for uncertain tax positions as more definitive information
becomes available.
The Company’s income tax returns are based on calculations and assumptions that are subject to examination by the Internal Revenue Service and other tax
authorities. In addition, the calculation of the Company’s tax liabilities involves dealing with uncertainties in the application of complex tax regulations. The
Company recognizes liabilities for uncertain tax positions based on a two-step process. The first step is to evaluate the tax position for recognition by
determining if the weight of available evidence indicates that it is more likely than not that the position will be sustained on audit, including resolution of
related appeals or litigation processes, if any. The second step is to measure the tax benefit as the largest amount that is more than 50% likely of being realized
upon settlement. While the Company believes it has appropriate support for the positions taken on its tax returns, the Company regularly assesses the
potential outcomes of examinations by tax authorities in determining the adequacy of its provision for income taxes. The Company continually assesses the
likelihood and amount of potential revisions and adjusts the income tax provision, income taxes payable and deferred taxes in the period in which the facts
that give rise to a revision become known.
Net Loss Per Share
Basic net loss per share is computed by dividing the net loss by the weighted-average number of shares of common stock outstanding during the period
including contingently issuable shares. Diluted earnings per share is based on the treasury stock method and includes the effect from potential issuance of
ordinary shares, such as shares issuable pursuant to the exercise of stock options and the vesting of restricted stock units. Because the impact of the options
and non-vested RSUs are anti-dilutive during periods of net loss, there was no difference between the weighted-average number of shares used to calculate
basic and diluted net loss per common share for the periods presented. For the years ended December 31, 2019 and 2018, excluded from the dilutive net loss
per share computation were stock options of 3,977,401 and 3,257,801, respectively, and non-vested RSUs of 179,758 and 221,292, respectively, because their
inclusion would have been anti-dilutive. Although these securities were anti-dilutive for these periods, they could be dilutive in future periods.
Recent Accounting Pronouncements
Recently Adopted Pronouncements
In August 2018, the SEC adopted the final rule under SEC Release No. 33-10532, Disclosure Update and Simplification, amending certain disclosure
requirements that were redundant, duplicative, overlapping, outdated or superseded. In addition, the amendments expanded the disclosure requirements on the
analysis of stockholders’ equity for interim financial statements. Under the amendments, an analysis of changes in each caption of stockholders’ equity
presented in the balance sheet must be provided in a note or separate statement. The analysis should present a reconciliation of the beginning balance to the
ending balance of each period for which a statement of comprehensive income is required to be filed. This final rule
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
was effective on November 5, 2018 and it did not have a material impact on the Company’s financial statements upon adoption on January 1, 2019.
In July 2018, the Financial Accounting Standards Board (the “FASB”) issued ASU No. 2018-09, Codification Improvements, which clarifies certain
amendments to guidance that may have been incorrectly or inconsistently applied by certain entities and includes Amendments to Subtopic 718-
740, Compensation - Stock Compensation - Income Taxes. The guidance in paragraph 718-740-35-2, as amended by the amendments in ASU 2016-
09, Compensation - Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting, is unclear on whether an entity should
recognize excess tax benefits (or tax deficiencies) for compensation expense that is taken on the entity’s tax return. The amendment to paragraph 718-740-35-
2 in this update clarified that an entity should recognize excess tax benefits in the period in which the amount of deduction is determined. The Company
adopted the guidance on January 1, 2019, and such adoption did not have a material impact on its financial statements.
In February 2016, the FASB issued ASU No. 2016-02 and its related amendments which introduced Leases (Topic 842, or “ASC 842”), a new comprehensive
lease accounting model that superseded the lease guidance under Leases (Topic 840). The new accounting standard required lessees to recognize ROU assets
and corresponding lease liabilities for all leases with lease terms of greater than 12 months. It also changed the definition of a lease and expanded the
disclosure requirements of lease arrangements. In July 2018, the FASB added a transition option for implementation that allowed companies to continue to
use the legacy guidance in ASC 840, Leases, including its disclosure requirements, in the comparative periods presented in the year of adoption. The
Company adopted the guidance effective January 1, 2019. The Company elected the transition package of three practical expedients and elected the optional
transition method that allowed for a cumulative-effect adjustment in the period of adoption without a restatement of prior periods. Further, the Company
elected a short-term lease exception policy, permitting the Company to not apply the recognition requirements of this standard to short-term leases (i.e. leases
with terms of 12 months or less) and an accounting policy to account for lease and non-lease components as a single component for certain classes of assets.
As a result of the adoption, the Company adjusted its beginning balance of 2019 by recording operating lease ROU assets and liabilities through a cumulative-
effect adjustment. The adoption impacted the accompanying balance sheet, but did not have an impact on the statements of operations and comprehensive
loss.
The impact of the adoption of ASC 842 on the accompanying balance sheet as of January 1, 2019 was as follows:
Operating lease right-of-use assets
Current portion of operating lease liabilities
Operating lease liabilities
Deferred rent
Recent Pronouncements Not Yet Adopted
December 31, 2018
Adjustments Due to the
Adoption of ASC 842
January 1, 2019
$
$
$
$
— $
— $
— $
25 $
1,029 $
916 $
138 $
(25) $
1,029
916
138
—
In June 2016, the FASB issued ASU No. 2016-13, Financial Instruments - Credit Losses (Topic 326): Measurement of Credit Losses on Financial
Instruments, which modifies the measurement and recognition of credit losses for most financial assets and certain other instruments. The new standard
requires the use of forward-looking expected credit loss models based on historical experience, current conditions, and reasonable and supportable forecasts
that affect the collectability of the reported amount, which may result in earlier recognition of credit losses under the new standard. The new guidance also
modifies the impairment models for available-for-sale debt securities and for purchased financial assets with credit deterioration since their origination.
Subsequent to the issuance of ASU 2016-13, the FASB issued ASU 2018-19, Codification Improvements to Topic 326, Financial Instruments - Credit Losses.
This ASU does not change the core principle of the guidance in ASU 2016-13, instead these amendments are intended to clarify and improve operability of
certain topics included within the credit losses standard. The FASB also subsequently issued ASU No. 2019-04, Codification Improvements to Topic 326,
Financial Instruments—Credit Losses, Topic 815, Derivatives and Hedging, and Topic 825, Financial Instruments, which did not change the core principle of
the guidance in ASU 2016-13 but clarified that expected recoveries of amounts previously written off and expected to be written off should be included in the
valuation account and should not exceed amounts
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
previously written off and expected to be written off. The guidance is effective for interim and annual reporting periods beginning after December 15, 2019
for public business entities, excluding entities eligible to be smaller reporting companies, and early adoption is permitted. As a smaller reporting company, the
guidance will be effective for the Company during the first quarter of 2023. The Company is in the process of determining the effects adoption will have on
its financial statements.
In January 2017, the FASB issued ASU No. 2017-04, Intangibles—Goodwill and Other (Topic 350): Simplifying the Test for Goodwill Impairment. The
update simplifies the accounting for goodwill impairment by removing step two of the goodwill impairment test, which requires a hypothetical purchase price
allocation. A goodwill impairment will be the amount by which a reporting unit’s carrying amount, including goodwill, exceeds its fair value. The impairment
charge will be limited to the amount of goodwill allocated to that reporting unit. The update is effective for the Company beginning January 1, 2023. The
standard requires prospective application. Early adoption is permitted. The Company is evaluating the effect of this standard on its financial statements and
related disclosures as well as whether to early adopt the new guidance.
In August 2018, the FASB issued ASU 2018-13, Fair Value Measurement (Topic 820): Disclosure Framework — Changes to the Disclosure Requirements for
Fair Value Measurement. The update is part of the disclosure framework project and eliminates certain disclosure requirements for fair value measurements,
requires entities to disclose new information, and modifies existing disclosure requirements. Under the new guidance, entities will no longer be required to
disclose the amount of and reasons for transfers between Level 1 and Level 2 of the fair value hierarchy, or valuation processes for Level 3 fair value
measurements. However, public companies will be required to disclose the range and weighted average of significant unobservable inputs used to develop
Level 3 fair value measurements, and related changes in unrealized gains and losses included in other comprehensive income. The guidance is effective for
interim and annual reporting periods during the year ending December 31, 2020. Early adoption is permitted. The Company does not expect adoption of this
guidance will have a material impact to its financial statements.
In August 2018, the FASB issued ASU No. 2018-15, Intangibles-Goodwill and Other-Internal-Use Software: Customer’s Accounting for Implementation
Costs Incurred in a Cloud Computing Arrangement that is a Service Contract. ASU 2018-15 requires implementation costs incurred by customers in cloud
computing arrangements (i.e., hosting arrangements) to be capitalized under the same premises of authoritative guidance for internal-use software, and
deferred over the noncancellable term of the cloud computing arrangements plus any option renewal periods that are reasonably certain to be exercised by the
customer or for which the exercise is controlled by the service provider. The guidance is effective for interim and annual reporting periods during the year
ending December 31, 2020. Early adoption is permitted. The Company does not expect adoption of this guidance will have a material impact to its financial
statements.
In December 2019, the FASB issued ASU No. 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes. ASU 2019-12 eliminates
certain exceptions for recognizing deferred taxes for investments, performing intraperiod allocation and calculating income taxes in interim periods. This
ASU also includes guidance to reduce complexity in certain areas, including recognizing deferred taxes for tax goodwill and allocating taxes to members of a
consolidated group. ASU 2019-12 is effective for annual and interim periods in fiscal years beginning after December 15, 2020. Early adoption is permitted.
The Company is currently evaluating the impact this change will have on its financial statements.
Note 3. Fair Value Measurements and Short-Term Investments
Short-Term Investments
The Company did not have any short-term investments for the year ended December 31, 2018. As of December 31, 2019, all of the Company’s investments
had remaining maturities of less than 12 months. The following is a summary of the Company’s short-term investments, considered available-for-sale, as of
December 31, 2019:
Available-for-sale securities
U.S treasury securities
Amortized
Cost
Gross Unrealized
Gains
Losses
Estimated
Fair Value
$
19,905 $
6 $
— $
19,911
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
As of December 31, 2019, no investments had been in a continuous unrealized loss position for more than 12 months, and the Company did not record any
other-than-temporary impairments on these securities.
Assets and Liabilities Measured at Fair Value on a Recurring Basis
The Company measures and reports certain financial instruments as assets and liabilities at fair value on a recurring basis. The fair value of these instruments
was as follows:
Available-for-sale debt securities
U.S treasury securities
Liabilities
Contingent royalty obligation payable to Evolus Founders
As of December 31, 2019
Fair Value
Level 1
Level 2
Level 3
$
$
19,911 $
19,911 $
— $
—
44,683 $
— $
— $
44,683
As of December 31, 2018
Fair Value
Level 1
Level 2
Level 3
Liabilities
Contingent royalty obligation payable to Evolus Founders
$
50,200 $
— $
— $
50,200
The Company did not transfer any assets or liabilities measured at fair value on a recurring basis between levels during the year ended December 31, 2019.
The Company determines the fair value of the contingent royalty obligation payable based on Level 3 inputs using a discounted cash flow method. The
significant unobservable input assumptions that can significantly change the fair value include (i) timing of regulatory approvals of Jeuveau®, (ii) projected
and timing of net revenues during the payment period, which terminates in the quarter following the 10-year anniversary of the first commercial sale of
Jeuveau® in the United States, (iii) the discount rate and (iv) the timing of payments. During the years ended December 31, 2019 and 2018, the Company
utilized discount rates between 16.0% and 25.0%, reflecting changes in the Company’s risk profile. Net revenue projections were also updated to reflect
changes in the timing of regulatory approval and expected sales. Significant increases (decreases) in discount rate would result in a significantly lower
(higher) fair value measurement, which could impact materially the fair value reported on the balance sheet.
The following table shows a reconciliation of the beginning and ending fair value measurements of the contingent royalty obligation payable:
Fair value, beginning of period
Payments
Assumption of the royalty obligation payable to Evolus Founders
Change in fair value recorded in operating expenses
Fair value, end of period
Other Financial Assets and Liabilities
Year Ended December 31,
2019
2018
$
$
50,200 $
(9,677)
—
4,160
44,683 $
—
—
39,700
10,500
50,200
The Company’s financial instruments consist primarily of cash and cash equivalents, short-term available-for-sale debt securities, accounts receivable,
accounts payable, accrued expenses, lease liabilities, and long-term debt. The carrying amount of cash and cash equivalents, accounts receivable, accounts
payable and accrued expenses approximates their fair value because of the short-term maturity of such instruments.
The Company estimates the fair value of contingent promissory note payable to the Evolus Founders, long-term debt and operating lease liabilities using the
discounted cash flow analysis based on the interest rates for similar rated debt securities
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
(Level 2). As of December 31, 2019, the fair value of contingent promissory note and long-term debt was estimated to be $16,696 and $76,203, respectively.
The fair value of operating lease liabilities at December 31, 2019 approximated their carrying value. As of December 31, 2018, the fair value of contingent
promissory note was $17,181.
Note 4. Goodwill and Intangible Assets
The table below shows the weighted-average life, original cost, accumulated amortization and net book value by major intangible asset classification:
Weighted-Average Life
(Years)
Original Cost
Accumulated Amortization
Net Book Value
Definite-lived intangible assets
Distribution right
Capitalized software
Intangible assets, net
Indefinite-lived intangible asset
Goodwill
Total as of December 31, 2019
Indefinite-lived intangible assets
IPR&D**
Goodwill
Total as of December 31, 2018
20
2
*
$
59,076 $
4,415
63,491
$
21,208
84,699 $
(2,679) $
(1,174)
(3,853)
—
(3,853) $
56,397
3,241
59,638
21,208
80,846
Weighted-Average Life
(Years)
Original Cost
Accumulated Amortization
Net Book Value
*
*
$
$
56,076 $
21,208
77,284 $
— $
—
— $
56,076
21,208
77,284
________________________
* Intangible assets with indefinite lives have an indeterminable average life.
** IPR&D is presented as “intangible assets, net” in the accompanying balance sheets.
The following table outlines the estimated future amortization expense related to intangible assets held as of December 31, 2019 that are subject to
amortization:
Fiscal year
2020
2021
2022
2023
2024
Thereafter
$
$
5,423
3,729
2,955
2,955
2,955
41,621
59,638
In connection with the acquisition of the Company by SCH in 2013, the Company recorded goodwill of $21,208 and IPR&D of $56,076. The IPR&D
recognized represents the license and associated distribution right to develop Jeuveau®, the initial term of which expires in September 2023 and is
automatically extended for unlimited additional three-year terms provided that the Company meets certain performance requirements. Additionally, pursuant
to the Daewoong Agreement, up to $13,500 in additional cash consideration was due to Daewoong based upon the Company’s successful completion of
certain technical and sales milestones. Upon FDA approval of Jeuveau® on February 1, 2019, the Company paid Daewoong a $2,000 milestone payment
which increased the cost basis of the IPR&D, and the IPR&D project was completed and reclassified as a definite-lived distribution right intangible asset,
which is amortized on a straight-line basis over the estimated useful life of 20 years. In connection with EU approval of Jeuveau®, the Company paid a $1,000
milestone payment to Daewoong in the fourth quarter of fiscal year 2019, which also increased the cost basis of the distribution right.
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
For the years ended December 31, 2019 and 2018, the Company capitalized $4,415 and $0, respectively, related to costs of computer software developed for
internal use. The software is amortized over a two-year period using the straight-line method. For the years ended December 31, 2019 and 2018, total
intangible assets amortization expense of $3,853 and $0 was recorded within depreciation and amortization on the accompanying statements of operations and
comprehensive loss, respectively.
Note 5. Accrued Expenses
Accrued expenses consisted of the following:
Accrued professional services
Accrued payroll and related benefits
Accrued volume-based rebate and coupon liability
Other accrued expenses
Year Ended December 31,
2019
2018
$
$
5,794 $
5,229
1,709
1,228
13,960 $
931
2,577
—
210
3,718
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Note 6. Oxford Term Loans
Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
On March 15, 2019, the Company entered into a credit facility of up to $100,000 with Oxford. Pursuant to the terms of the credit facility, the lender extended
term loans (the “Term Loans”), available in two advances, to the Company. The first tranche of $75,000 was funded on the closing date. The second tranche
of $25,000 may be drawn, at the request of the Company, no later than September 30, 2020, upon achieving specified minimum net sales milestones based on
a trailing six-month basis and no event of default. As of December 31, 2019, the Company had not yet met the net sales milestone to draw the second tranche.
The credit facility bears an annual interest rate equal to the greater of 9.5%, or the 30-day U.S. Dollar LIBOR rate plus 7.0%. The Company agreed to pay
interest-only on each tranche funded for the first 36 months until May 2022, which is followed by a 23-month amortization period. Notwithstanding the
foregoing, if the Company maintains compliance with the specified minimum net sales covenant and meets other conditions during the initial interest-only
period, upon the Company’s request, the interest-only period may be extended by an additional 12 months to a total of 48 months followed by an 11-month
amortization period.
Upon the earliest to occur of the maturity date, the acceleration of the term loans, or the prepayment of the term loans, the Company is required to pay to
Oxford a final payment of 5.5% of the full principal amount of the term loans funded (“Final Payment”). The Company may elect to prepay all amounts owed
prior to the maturity date, provided that a prepayment fee is also paid, which shall be equal to 3.0% of the amount prepaid if the prepayment occurs on or
prior to March 15, 2020, 2.0% of the amount prepaid if the prepayment occurs after March 15, 2020 and on or prior to March 15, 2021, or 1.0% of the amount
prepaid if the prepayment occurs thereafter (“Prepayment Fee”). If the Term Loans are accelerated following the occurrence of an event of default, the
Company is required to immediately pay to Oxford an amount equal to the sum of all outstanding principal of the term loans plus accrued and unpaid interest
thereon through the prepayment date, the Final Payment, the Prepayment Fee and all other obligations that are due and payable, including payment of
Oxford’s expenses and interest at the default rate with respect to any past due amounts.
The credit facility is secured by substantially all of the Company’s assets. The credit facility includes affirmative and negative covenants applicable to the
Company and any subsidiaries it may create in the future. The affirmative covenants include, among others, covenants requiring the Company to maintain its
legal corporate existence and governmental approvals, deliver certain financial reports, maintain insurance coverage and satisfy certain requirements
regarding deposit accounts. The negative covenants include, among others, restrictions on us transferring collateral, incurring additional indebtedness,
engaging in mergers or acquisitions, paying dividends or making other distributions, making investments, creating liens, selling assets and suffering a change
in control, in each case subject to certain exceptions.
The credit facility also includes events of default, the occurrence and continuation of which could cause interest to be charged at a default interest rate equal
to the applicable rate plus 5.0% and Oxford, as collateral agent, with the right to exercise remedies against the Company and the collateral securing the credit
facility, including foreclosure against the property securing the credit facility, including the Company’s cash. These events of default include, among other
things, any failure by the Company to pay principal or interest due under the credit facility, a breach of certain covenants under the credit facility, the
Company’s insolvency, a material adverse change, the occurrence of any default under certain other indebtedness and one or more judgments against the
Company, the institution of certain temporary or permanent relief in connection with pending litigation, or the breach, termination or other adverse events
under the Daewoong Agreement. As of December 31, 2019, the Company was in compliance with its debt covenants.
At the closing date, the Company incurred $1,094 and $2,205 in debt discounts and issuance costs related to the Term Loans, respectively. Debt discounts and
issuance costs related to the entire Term Loans have been allocated pro rata between the funded and unfunded portions. Debt discounts and issuance costs
allocated to the first tranche of $75,000 have been presented as a deduction to the debt balance and are amortized into interest expense using the effective
interest method. The Final Payment on the first tranche of $75,000 is $4,125 and amortized into interest expense over the life of the term loan. As of
December 31, 2019, the borrowings outstanding under the Term Loans were classified as long-term debt in the accompanying balance sheets. Debt discounts
and issuance costs associated with the unfunded tranche are deferred as assets until the tranche is drawn and are amortized into interest expense using the
straight-line method over the term of the debt. The overall effective interest rate was approximately 11.6% as of December 31, 2019.
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
As of December 31, 2019, the principal amounts of long-term debt maturities during each of the next five fiscal years are as follows:
Fiscal year
2022
2023
2024
Total principal payments
Unamortized debt discounts and issuance costs
Long term debt, net of discounts and issuance costs
Note 7. Commitments and Contingencies
Operating Leases
$
$
26,087
39,130
9,783
75,000
(1,492)
73,508
The Company leases office facilities under various operating lease agreements. The Company’s corporate headquarters is located in Newport Beach,
California, in a facility that it subleases under a non-cancelable operating lease for a fixed amount each month. The sublease for this facility expired on
January 20, 2020. On May 15, 2019, the Company entered into a non-cancelable operating lease for the same office facility with the original lessor. This non-
cancelable operating lease commenced on February 1, 2020 and expires on January 31, 2025. Lease payments increase based on an annual rent escalation
clause that occurs each year on February 1. The Company may, under certain circumstances, terminate the lease on the 36-month anniversary of the lease
commencement date by providing a written notice 12 months prior to such anniversary and paying a termination fee equal to six months basic rent plus
certain other expenses. The Company has an option to extend the term of the lease for an additional 60 months, which is not recognized as part of its ROU
assets and lease liabilities. The lease with the original lessor is a modification of the existing sublease that is not accounted for as a separate contract.
The Company also leases an office facility in Santa Barbara, California, under a non-cancelable operating lease, the payments of which include a three
percent annual rent escalation clause that occurs on each June 1 anniversary. The lease for this facility expires on May 31, 2020 and the Company has an
option to extend the term of the lease for an additional 60 months. In June 2019, the Company subleased the Santa Barbara, California facility to a third-party
for a term starting on June 1, 2019 and expiring on May 31, 2020. The sublease income was not significant. Upon signing the sublease, the Company
recorded an impairment charge of $80 to the right-of-use asset related to the original lease.
The Company’s lease agreements do not contain any residual value guarantees or material restrictive covenants. The payments associated with the renewal
will only be included in the measurement of the lease liability and ROU assets if the exercise of the renewal option is determined to be reasonably certain.
The Company considers the timing of the renewal period and other economic factors such as the financial implications of a decision to extend or not to extend
a lease in determining if the renewal option is reasonably certain to be exercised.
For the year ended December 31, 2019, the components of operating lease expense and other quantitative information were as follows:
Fixed operating lease expense
Variable operating lease expense
Short-term operating lease expense
Weighted-average remaining lease term (years)
Weighted-average discount rate
Year Ended December 31, 2019
1,080
110
85
1,275
$
$
As of December 31, 2019
5.0
9.4%
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
Operating lease expenses were included in the selling, general and administration expenses in the accompanying statements of operations and comprehensive
loss. Operating lease right-of-use assets and related current and noncurrent operating lease liabilities are presented in the accompanying balance sheets.
The following table presents the maturity of the Company’s operating lease liabilities as of December 31, 2019, future minimum payments under the
operating lease agreements with non-cancelable terms as follows:
Fiscal year
2020
2021
2022
2023
2024
Thereafter
Total operating lease payments
Less: imputed interest
Present value of operating lease liabilities
$
$
1,201
1,205
1,258
1,312
1,369
114
6,459
(1,366)
5,093
As required by the new lease accounting standard, legacy disclosures are provided for periods prior to adoption.
Total rental expense for the year ended December 31, 2018 was $334. As of December 31, 2018, annual future minimum payments under the operating lease
agreements with non-cancelable terms greater than one year are as follows:
Fiscal year
2019
2020
2021
Purchase Commitments
$
$
890
139
—
1,029
As of December 31, 2019, the Company has entered into commitments to purchase services and products for an aggregate amount of approximately $4,602.
Certain minimum purchase commitments related to the purchase of Jeuveau® are described below.
License and Supply Agreement
Pursuant to the Daewoong Agreement, the Company has an exclusive distribution license to Jeuveau® from Daewoong for aesthetic indications in the United
States, European Union, Canada, Australia, Russia, Commonwealth of Independent States, and South Africa, as well as co-exclusive distribution rights with
Daewoong in Japan. The Product is manufactured by Daewoong in a recently constructed facility in South Korea. The Company also has the option to
negotiate first with Daewoong to secure a distribution license for any product that Daewoong directly or indirectly develops or commercializes that is
classified as an injectable botulinum toxin (other than Jeuveau®) in a territory covered by the Daewoong Agreement.
The Company held an option to obtain the therapeutic rights to Jeuveau® in its licensed territories which was held in trust for Alphaeon during the fourth
quarter of 2017 for a $2,500 reduction in related party borrowings. In September 2018, Alphaeon exercised the right to obtain the therapeutic option to
Jeuveau® and remitted the option exercise price directly to Daewoong.
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
In connection with the Daewoong Agreement, the Company was obligated to make milestone payments to Daewoong for certain confidential development
and commercial milestones associated with Jeuveau®. As of December 31, 2019, Daewoong is eligible to receive remaining contingent milestone payments of
up to $10,500.
The Daewoong Agreement also includes certain minimum annual purchases the Company is required to make in order to maintain the exclusivity of the
license. The Company may, however, meet these minimum purchase obligations by achieving certain market share in its covered territories. These potential
minimum purchase obligations are contingent upon the occurrence of future events, including receipt of governmental approvals and the Company’s future
market share in various jurisdictions.
Legal Proceedings
In the normal course of business, the Company enters into contracts and agreements that contain a variety of representations and warranties and provide for
general indemnifications. The Company’s exposure under these agreements is unknown because they involve claims that may be made against the Company
in the future, but have not yet been made. The Company accrues a liability for such matters when it is probable that future expenditures will be made and such
expenditures can be reasonably estimated. No amounts were accrued as of December 31, 2019 and 2018.
Medytox Litigation
The Company, Daewoong and other individuals and entities are defendants to a lawsuit brought by Medytox, Inc. (“Medytox”) originally instituted in the
Superior Court of the State of California in June 2017. With specific regard to the Company, Medytox alleges that (i) the Company has violated California
Uniform Trade Secrets Act, Cal. Civ. Code § 3426 because Daewoong’s alleged knowledge of the misappropriation of certain trade secrets of Medytox is
imputed to the Company as a result of the Company’s relationship with Daewoong, (ii) the Company has stolen the botulinum toxin bacterial strain of
Medytox through our possession of and refusal to return the botulinum toxin bacterial strain, (iii) the Company has engaged in unlawful, unfair and fraudulent
business acts and practices in violation of California Bus. & Prof. Code § 17200, including conversion of the botulinum toxin bacterial strain and
misrepresentations to the public regarding the source of the botulinum toxin bacterial strain used to manufacture Jeuveau®, and (iv) the Daewoong Agreement
is invalid and in violation of Medytox’s rights (the “Medytox Litigation”). Medytox seeks, among other things, (i) actual, consequential and punitive
damages, (ii) a reasonable royalty, as appropriate, (iii) a declaration that the Daewoong Agreement is void and unenforceable and that Medytox is entitled to
disgorgement of all property wrongfully and unjustly retained or acquired by the defendants, including unlawfully gained profits, (iv) injunctive relief
prohibiting the Company from using the license under the Daewoong Agreement and distributing Jeuveau®, and (v) attorneys’ fees and costs. The Company
believes it has meritorious defenses and intends to vigorously defend Medytox’s claims. The Company is unable to determine the likelihood of success of
Medytox’s claims against the Company, and an estimate of the possible loss or range of loss cannot be made. While the Company is entitled to indemnity
under the Daewoong Agreement, the indemnity may not be sufficient. An adverse ruling by the Superior Court against either us or Daewoong could
materially adversely affect the Company’s ability to carry out its business and which would have a material adverse effect on the Company’s business,
financial position, results of operations, or cash flows and could also result in reputational harm.
ITC Case
On January 30, 2019, Allergan, plc and Allergan, Inc. (collectively, “Allergan”) and Medytox filed a complaint against us and Daewoong in the U.S.
International Trade Commission (the “ITC”), containing substantially similar allegations to the Medytox Litigation, specifically that Jeuveau® is
manufactured based on misappropriated trade secrets of Medytox and therefore the importation of Jeuveau® is an unfair act. The ITC matter is entitled In the
Matter of Certain Botulinum Toxin Products (the “ITC Complaint”). The ITC instituted an investigation as ITC Inv. No. 337-TA-1145 (the “ITC Action”).
The ITC Complaint seeks (i) an investigation by the ITC pursuant to Section 337 of the Tariff Act of 1930, (ii) a hearing with the ITC on permanent relief,
(iii) issuance of a limited exclusion order forbidding entry of Jeuveau® into the United States, (iv) a cease and desist order prohibiting Daewoong and us from
engaging in the importations, sale for importation, marketing, distribution, offering for sale, the sale after the importation of, or otherwise transferring
Jeuveau® within the United States, (v) a bond issued during the presidential review period, (vi) the return of Medytox’s trade secrets and other confidential
information including the alleged stolen botulinum toxin bacterial strain, and (vii) exclusion and cease and desist orders. The
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
Company intends to defend itself vigorously in the proceedings. In January 2020, the three sets of parties to the ITC Action, (i) the Complainants - Allergan
and Medytox, (ii) the Respondents - the Company and Daewoong and (iii) the OUII, each submitted pre-hearing briefs to the Administrative Law Judge
assigned to the ITC Action setting forth each party’s positions on the substantive issues prior to the evidentiary hearing. From February 4-7, 2020, the
Administrative Law Judge held an evidentiary hearing on the ITC Action. An initial determination by the Administrative Law Judge is due by June 5, 2020
and the target date for the final determination by the ITC is October 6, 2020. An adverse ruling by the ITC against either the Company or Daewoong could
result in the imposition of an exclusion order which would bar imports of Jeuveau® into the United States and a cease and desist order which would bar sales
and marketing of Jeuveau® within the United Sates either of which would materially adversely affect the Company’s ability to carry out its business and
which would have a material adverse effect on the Company’s business, financial position, results of operations, or cash flows and could also result in
reputational harm. Even if the Company is successful, the ITC Action may result in reputation damage or other collateral consequences.
Other Legal Matters
The Company, from time to time, is involved in various litigation matters or regulatory encounters arising in the ordinary course of business that could result
in unasserted or asserted claims or litigation. These other matters may raise difficult and complex legal issues and are subject to many uncertainties,
including, but not limited to, the facts and circumstances of each particular case or claim, the jurisdiction in which each suit or regulatory encounter is
brought, and differences in applicable laws and regulations. Except as set forth above, the Company does not believe that these other matters would have a
material adverse effect on its accompanying financial position, results of operations or cash flows. However, the resolution of one or more of the other matters
in any reporting period could have a material adverse impact on the Company’s financial results for that period.
Note 8. Stockholders’ Equity (Deficit)
Convertible Series A Preferred Stock
Prior to IPO, the Company had 2,500,000 shares of Series A preferred stock authorized, of which 1,250,000 were issued and outstanding to Alphaeon. The
number of shares of common stock to which a preferred stockholder was entitled was the product obtained by multiplying the Series A preferred stock
conversion rate by the number of shares of preferred stock being converted, subject to adjustments as provided in the amended and restated certificate of
incorporation. In connection with the IPO, all shares of Series A preferred stock were converted into 2,065,875 shares of common stock. In addition, the
Company also amended and restated its certificate of incorporation. As a result, shares of Series A convertible preferred stock were canceled, with none
authorized, issued or outstanding as of December 31, 2019.
Preferred Stock
The Company has 10,000,000 authorized shares of preferred stock with a par value of $0.00001 per share. As of December 31, 2019, none were issued and
outstanding.
Common Stock
The Company has 100,000,000 authorized shares of common stock with a par value of $0.00001 per share. As of December 31, 2019, 33,562,665 shares were
issued and outstanding.
Equity Related Transactions
As of February 12, 2018, the Company assumed from Alphaeon the revised payment obligations under the Amended Purchase Agreement of $55,742
(comprised of $39,700 related to the contingent royalty obligation and $16,042 related to the contingent promissory note at that date). See Note 3, Fair Value
Measurements and Short-Term Investments for more information. Pursuant to the Amended Purchase Agreement, Alphaeon agreed to offset and reduce the
amount of related party borrowings by the estimated value of the revised payment obligations on a dollar-for-dollar basis and pursuant to the services
agreement (see Note 11, Related Party Transactions). Additionally, the Company paid $5,000 to Alphaeon in satisfaction of a portion of the outstanding
related party borrowings (see Note 11, Related Party Transactions). The remaining balance of
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
related party borrowings of $13,188 was recharacterized as a capital contribution from Alphaeon pursuant to the services agreement.
2017 Omnibus Incentive Plan and Stock-based Compensation Allocation
On November 21, 2017, the board of directors and the then-sole stockholder of the Company approved the Company’s 2017 Omnibus Incentive Plan (the
“Plan”). The Plan provides for the grant of incentive options to employees of the Company, and for the grant of nonstatutory options, restricted stock awards,
restricted stock unit awards, stock appreciation rights, performance stock awards and other forms of stock compensation to the Company’s employees,
including officers, directors, consultants and employees of the Company. The maximum number of shares of common stock that may be issued under the Plan
is 4,361,291 shares, plus an annual increase on each anniversary of November 21, 2017 equal to 4% of the total issued and outstanding shares of the
Company’s common stock as of such anniversary (or such lesser number of shares as may be determined by the Company’s board of directors). On November
21, 2018 and 2019, an additional 1,091,000 shares and 1,337,821 shares, respectively, were reserved under the evergreen provision of the Plan. As of
December 31, 2019, the Company has available an aggregate of 2,249,380 shares of common stock for future issuance under the Plan.
Stock-Based Award Activity and Balances
Options are granted at exercise prices based on the Company’s grant date common share price. The restricted stock units (“RSUs”) and options generally vest
over a one-to four-year period. There have been no awards granted with performance conditions or market conditions for the period presented. The options
generally have a contractual term of ten years. The Black‑Scholes option pricing model has various inputs, including the grant date common share price,
exercise price, risk‑free interest rate, volatility, expected life and dividend yield. The change of any of these inputs could significantly impact the
determination of the fair value of the Company’s options as well as significantly impact its results of operations. The fair value of RSU grants is determined at
the grant date based on the common share price. The Company records stock-based compensation expense net of actual forfeitures when they occur.
The significant assumptions used in the Black-Scholes option-pricing are as follows:
•
•
•
Determining Fair Value of the Underlying Common Stock. For options awards granted after the completion of the Company’s IPO, the fair value for
its underlying common stock was determined using the fair value of the grant date price as reported on the Nasdaq Global Select Market. Since the
Company’s common stock was not traded in a public stock market exchange prior to the Company’s IPO, prior to such date the Board of Directors
considered numerous factors including new business and economic developments affecting the Company and independent appraisals, when
appropriate, to determine the fair value of the Company’s common stock. Independent appraisal reports were prepared using conventional valuation
techniques, such as discounted cash flow analyses, from which a discount factor for lack of marketability was applied. This determination of the fair
value of the common stock was performed on a contemporaneous basis. Prior to the Company’s initial public offering, the Board of Directors
determined the Company’s common stock fair market value on as needed basis.
Expected Volatility. The Company has limited data regarding company‑specific historical or implied volatility of its share price. Consequently, the
Company estimates its volatility based on the average historical volatility of the stock price from a set of peer companies, since our shares do not
have sufficient trading history. Management considers factors such as stage of life cycle, competitors, size, market capitalization and financial
leverage in the selection of similar entities.
Expected Term. The expected term represents the period of time in which the options granted are expected to be outstanding. The Company estimates
the expected term of options with consideration of vesting date, contractual term, and historical experience. The expected term of “plain vanilla”
options is estimated based on the midpoint between the vesting date and the end of the contractual term under the simplified method permitted by the
SEC implementation guidance. The weighted‑average expected term of the Company’s options is approximately six years.
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
•
•
Risk‑Free Rate. The risk‑free interest rate is selected based upon the implied yields in effect at the time of the option grant on U.S. Treasury
zero‑coupon issues with a term approximately equal to the expected life of the option being valued.
Dividends. The Company does not anticipate paying cash dividends in the foreseeable future. Consequently, the Company uses an expected dividend
yield rate of zero.
The weighted-averages for key assumptions used in determining the fair value of stock options granted were as follows:
Volatility
Risk-free interest rate
Expected life (years)
Dividend yield rate
Year Ended December 31,
2019
59.32%
2.42%
6.17
—%
2018
57.76%
2.65%
6.24
—%
A summary of stock option activity under the Plan for the year ended December 31, 2019, is presented below:
Outstanding, December 31, 2018
Granted
Exercised
Cancelled/forfeited
Outstanding, December 31, 2019
Exercisable, December 31, 2019
Vested and expected to vest, December 31, 2019
Weighted
Average
Exercise
Per Share
Weighted
Average
Remaining
Contractual
Terms (Years)
Aggregate
Intrinsic
Value
11.99
18.63
9.98
15.15
14.07
12.50
14.07
9.26 $
7,119
8.51 $
8.28 $
8.51 $
7,198
1,880
7,198
Stock
Options
3,257,801 $
1,321,451 $
(273,734) $
(328,117) $
3,977,401 $
800,595 $
3,977,401 $
The aggregate intrinsic value of outstanding and exercisable options represents the excess of the fair market value of our common stock over the exercise
price of underlying options as of December 31, 2019 and 2018. The total intrinsic value of options exercised in the years ended December 31, 2019 and
2018 was $2,311 and $0, respectively.
During the years ended December 31, 2019 and 2018, the Company recorded expenses related to stock options of $8,302 and $4,099, respectively. As
of December 31, 2019, there was $21,529 of total unrecognized compensation cost, net of actual forfeitures, related to stock option-based compensation
arrangements granted under the Plan. The cost is expected to be recognized over a weighted-average period of 2.6 years.
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
A summary of RSUs activity under the Plan for the year ended December 31, 2019, is presented below:
Outstanding, December 31, 2018
Granted
Vested
Forfeited
Outstanding, December 31, 2019
Restricted
Stock
Units
Weighted
Average
Grant Date
Fair Value
271,404 $
3,000 $
(25,125) $
(19,409) $
229,870 $
16.53
18.33
24.81
13.71
15.89
During the years ended December 31, 2019 and 2018, the Company recorded expenses related to restricted stock units of $1,216 and $1,304, respectively.
Total fair value of RSUs vested during the years ended December 31, 2019 and 2018 was $357 and $771, respectively. As of December 31, 2019, there was
$1,377 of total unrecognized compensation cost, net of actual forfeitures, related to RSU-based compensation arrangements granted under the Plan. The cost
is expected to be recognized over a weighted-average period of 0.7 years.
The following table summarizes stock-based compensation expense arising from the above Plan:
Selling, general and administrative
Research and development
Total stock-based compensation expense
Year Ended December 31,
2019
2018
$
$
8,862 $
656
9,518 $
5,570
1,401
6,971
In addition, during the years ended December 31, 2019 and 2018, the Company capitalized $106 and $0, respectively, of stock-based compensation expense
in capitalized software. Capitalized software is a component of intangible assets and is presented in the accompanying condensed balance sheets. See Note 4,
Goodwill and Intangible Assets for capitalized software information.
Separation of Service with the Former President and Chief Executive Officer
In May 2018, the Company entered into a separation agreement (the “Separation Agreement”) with its then President and Chief Executive Officer. Pursuant
to the Separation Agreement, the Company modified previously granted stock options resulting in an incremental vesting of 100,424 stock options and related
stock-based compensation expense of $451. As part of the Separation Agreement, the Company issued 34,602 shares of common stock net of tax withholding
for vested restricted stock units. An additional 50,112 shares of common stock were immediately vested and will be issued in February 2020. Stock-based
compensation expense relating to the issuance of common stock and accelerated vesting was approximately $980 and reflected in selling, general and
administrative on the statements of operations and comprehensive loss for the year ended December 31, 2018.
Note 9. Employee Benefit Plan
The Company maintains a defined contribution 401(k) plan covering substantially all employees. On July 1, 2019, the Company began providing matching
contributions, which totaled $479 for the year ended December 31, 2019.
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Note 10. Income Taxes
Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
The Company’s loss before income taxes was entirely generated from its U.S. operations. The current and deferred expense is as follows:
Current provision:
Federal
State
Total current provision
Deferred (benefit) provision:
Federal
State
Total deferred (benefit) provision
Total (benefit) provision for income taxes
Year Ended December 31,
2019
2018
$
$
— $
28
28
(10,299)
(4,756)
(15,055)
(15,027) $
—
—
—
44
21
65
65
As of December 31, 2019, the Company has federal net operating loss (“NOL”) carryforwards of $179,589, which will begin to expire in 2034. The federal
NOLs generated in 2018 and in the subsequent years do not expire. As of December 31, 2019, the Company has state NOL carryforwards of $94,118, which
will begin to expire in 2038. As of December 31, 2019, the Company has federal research and development (“R&D”) credit carryforwards of $1,377, which
will begin to expire in 2034. The Company also has California R&D credit carryforwards of $1,383, which has an indefinite carryforward period.
The NOL and the R&D credit carryforwards generated by the Company in tax years ended February 11, 2018 and prior have been included in the
consolidated and unitary income tax returns of Alphaeon. After the Company left the Alphaeon consolidated and unitary income tax group on February 11,
2018, the Company files its own standalone income tax returns. Deferred tax assets in the accompanying financial statements reflect the Company's
standalone tax attributes that are reportable on its own income tax returns.
In general, if a company experiences a greater than 50 percentage point aggregate change in ownership of certain significant stockholders over a three-year
period, utilization of its pre-change NOL carryforwards and R&D credit carryforwards is subject to an annual limitation under Sections 382 and 383 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. The annual limitations may result in
the expiration of NOL and R&D credit carryforwards before utilization and may be material. The Company has started but has not completed an analysis to
determine whether its NOL and R&D credits generated through December 31, 2019 are likely to be limited by Section 382 and 383. The Company anticipates
that an ownership change as defined under Section 382 may have occurred and that the resulting limitation would significantly reduce the Company’s ability
to utilize its NOL and R&D credit carryforwards before they expire. Additionally, future ownership changes under Section 382 and 383 may also limit the
Company's ability to fully utilize any remaining tax benefits. The Company’s net deferred income tax assets have been offset by a valuation allowance.
Therefore, any resulting reduction to the Company’s NOL and R&D credit carryforwards once the analysis is complete will be offset by a corresponding
reduction of the valuation allowance and there would be no impact on the Company’s balance sheet, statement of operations, or cash flows.
The components of deferred tax assets and liabilities were as follows:
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
Deferred income tax assets:
Net operating losses
Stock compensation
Other deferred assets
Accrued compensation
Operating lease liabilities
Contingent obligation - imputed interest
Other, net
Valuation allowance
Total deferred income tax assets
Deferred income tax liabilities:
Intangible amortization
Operating lease right-of-use assets
Fixed asset depreciation
Total deferred income tax liabilities
Net deferred income taxes
As of December 31,
2019
2018
$
42,756 $
2,430
2,470
1,962
1,274
199
12
(36,972)
14,131
(12,970)
(1,017)
(144)
(14,131)
$
— $
27,929
1,455
2,176
608
—
101
11
(32,280)
—
(15,055)
—
—
(15,055)
(15,055)
Upon FDA approval of Jeuveau® in February 2019, the Company’s IPR&D intangible asset was reclassified to a definite-lived distribution right intangible
asset. As a result, management determined that it was more likely than not that certain deferred tax assets became realizable due to the future reversals of the
deferred tax liability associated with such intangible asset. Accordingly, the Company released $15,055 of its valuation allowance for the year ended
December 31, 2019. The total valuation allowance balance did not significantly change in 2019 due to the increase related to the current year operating loss as
offset by the release as discussed above.
A reconciliation of the difference between the provision (benefit) for income taxes and income taxes at the statutory U.S. federal income tax rate is as follows:
Income tax at statutory rate
State income taxes, net of Federal benefit
California NOL write-off
Revaluation of contingent royalty obligation
Meals and entertainment
Change in state tax rate
Stock compensation
Research and development tax credit
Promissory note - debt discount
Other, net
Valuation allowance
Income tax provision (benefit)
As of December 31,
2019
2018
(22,063) $
(3,905)
5,174
1,040
1,002
(1,371)
521
(294)
128
50
4,691
(15,027) $
(9,828)
(3,148)
—
2,938
17
—
474
(294)
105
—
9,801
65
$
$
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
A reconciliation of the beginning and ending amount of unrecognized tax benefits is as follows:
Beginning balance
Increases to current year tax positions
Ending balance
As of December 31,
2019
2018
$
$
2,435 $
326
2,761 $
2,109
326
2,435
The Company has considered the amounts and probabilities of the outcomes that can be realized upon ultimate settlement with the tax authorities and
determined unrecognized tax benefits primarily related to credits should be established as noted in the summary rollforward above. The Company’s effective
income tax rate would not be impacted if the unrecognized tax benefits are recognized. Additional amounts in the summary rollforward could impact the
Company’s effective tax rate if it did not maintain a full valuation allowance on its net deferred tax assets. The Company does not expect its unrecognized tax
benefits to change significantly over the next 12 months.
The Company’s policy is to recognize interest expense and penalties related to income tax matters as a component of income tax expense. There were no
accrued interest and penalties associated with uncertain tax positions as of December 31, 2019 and 2018. The Company’s tax returns for all years since
inception are open for audit.
Note 11. Related Party Transactions
Services with Alphaeon
Prior to the Company’s IPO in February 2018, the Company had funded its operations primarily through contributions and related party borrowings from
Alphaeon. For 2018, selling, general and administrative expenses included $383 of expenses allocated by Alphaeon. After completion of the Company’s IPO,
Alphaeon did not incur any administrative or research and development expenses on the Company’s behalf.
In January 2018, the Company entered into a services agreement with Alphaeon, or the services agreement, which became effective upon the Company’s IPO.
The services agreement sets forth certain agreements between Alphaeon and the Company that governs the respective responsibilities and obligations between
Alphaeon and the Company as it relates to the services to be performed between them. The services agreement has a one-year term and thereafter will renew
for successive one year terms unless sooner terminated by either party. The Company or Alphaeon may terminate the services agreement upon sixty days’
notice to the other party. In accordance with the services agreement, the Company paid Alphaeon $5,000 during the first quarter of 2018, subsequent to the
IPO. There were no significant services provided under the services agreement after the IPO.
As of December 31, 2019 and 2018, Evolus had no related party accounts receivable or payable with Alphaeon.
Note Obligation
Pursuant to certain debt transactions entered into by Alphaeon in 2016 and 2017 and guaranty provided by the Company, as a co-obligor to these debt
obligations, the Company applied the accounting guidance provided in ASC 405-40, Obligations Resulting from Joint and Several Liability Arrangements
and recorded a note obligation. During the first quarter of 2018, Alphaeon issued $800 additional convertible promissory notes, including $24 convertible
promissory notes to the Company’s former President and Chief Executive Officer and former member of the board of directors. As a result of this additional
issuance, the total note obligations under all the notes increased to $140,688 (2.5 times the total outstanding principal amount of $56,275) immediately prior
to the IPO. Approximately $615 in excess of the then balance of additional paid-in capital was recorded in accumulated deficit.
In January 2018 immediately prior to its IPO, the Company recorded an increase of $1,051 in the receivable from Alphaeon with a corresponding increase in
additional paid-in capital. The related party receivable balance increased to $73,690 immediately prior to the IPO. As of February 12, 2018, the Company was
released of the $140,688 note obligation
98
Table of Contents
Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
for all guaranty and security obligations under the guaranty agreements, and its related party receivable from Alphaeon of $73,690 was settled, resulting in a
capital contribution of $66,998. Alphaeon’s security interest in Evolus’ assets was also terminated.
Evolus Founders
Certain of the Evolus Founders from whom SCH purchased its equity interests included individuals who were previously employed by the Company in
operational roles, including the Company’s former Chief Operating Officer and consultant to the Company through December 31, 2018.
Payment Obligations Related to the Acquisition by Alphaeon
The Company was acquired by SCH in 2013 and subsequently by its subsidiary, Alphaeon Corporation, by means of a stock purchase agreement (“Stock
Purchase Agreement”) pursuant to which Alphaeon assumed certain payment obligations related to the acquisition. On December 14, 2017, the Stock
Purchase Agreement was amended (“Amended Stock Purchase Agreement”), and, as a result, effective upon the closing of the Company’s IPO, the Company
assumed all of Alphaeon’s payment obligations under the Amended Stock Purchase Agreement.
Under the Amended Stock Purchase Agreement, the payment obligations consisted of (i) a $9,200 up-front payment upon obtaining FDA approval for
Jeuveau® for the treatment of glabellar lines which was paid in full in 2019, (ii) quarterly royalty payments of a low single digit percentage of net sales of
Jeuveau®, and (iii) a $20,000 promissory note that matures in November 2021. The payment obligations set forth in (ii) above terminates in the quarter
following the 10-year anniversary of the first commercial sale of Jeuveau® in the United States. Under the Amended Stock Purchase Agreement, the
Company recorded the fair value of all revised payment obligations and the promissory note owed to the Evolus Founders of $55,742 (comprised
of $39,700 related to the contingent royalty obligation payable and $16,042 related to the contingent promissory note) as of February 12, 2018. See Note 3,
Fair Value Measurements and Short-Term Investments for more information about the Company’s accounting thereof. In addition, the outstanding related
party borrowings from Alphaeon as of February 12, 2018 were offset and reduced, on a dollar-for-dollar basis, taking into account the then-fair value of all
payment obligations the Company assumed from Alphaeon, the fair value of which, as of February 12, 2018, was $55,742.
Under the Amended Stock Purchase Agreement, Evolus paid one-time bonuses of $1,575 to certain current and former employees upon FDA approval of
Jeuveau® in February 2019, including a one-time bonus of $700 paid to the Company’s Chief Medical Officer and Head of Research & Development. The
payment is included in research and development expenses in the accompanying statements of operations and comprehensive loss for the year ended
December 31, 2019.
The Company has the right to prepay the promissory note, in whole or in part, at any time and from time to time without penalty. Upon an event of default
under the promissory note, all unpaid principal becomes immediately due and payable at the option of the holder. An event of default occurs under the terms
of the promissory note upon any of the following events: (i) Evolus fails to meet the obligations to make the required payments thereunder, (ii) Evolus makes
an assignment for the benefit of creditors, (iii) Evolus commences any bankruptcy proceeding, or (iv) Evolus materially breaches the Amended Stock
Purchase Agreement or Tax Indemnity Agreement (which is defined below) and such breach is not cured within 30 days.
In addition, upon a change-of-control of Evolus, all unpaid principal becomes immediately due and payable. Under the terms of the promissory note, a
change-of-control is defined as (i) the sale of all or substantially all of Evolus’ assets, (ii) the exclusive license of Jeuveau® or the business related to
Jeuveau® to a third-party (other than a sublicense under the Daewoong Agreement), or (iii) any merger, consolidation, or acquisition of Evolus, except a
merger, consolidation, or acquisition of Evolus in which the holders of capital stock of Evolus immediately prior to such merger, consolidation, or acquisition
hold at least 50% of the voting power of the capital stock of Evolus or the surviving entity. Notwithstanding the foregoing, the promissory note expressly
provides that neither the IPO or any merger with or acquisition by Alphaeon or any of its subsidiaries or affiliates constitutes a change-of-control.
In connection with the Amended Stock Purchase Agreement, the Company entered into a tax indemnity agreement with the Evolus Founders (“Tax Indemnity
Agreement”). Pursuant to the Tax Indemnity Agreement, the Company is obligated to indemnify the Evolus Founders for any tax liability resulting from the
Company’s assumption of the revised payment
99
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
obligations under the Amended Stock Purchase Agreement from Alphaeon. Such assumption of the revised payment obligations occurred upon the
completion of the IPO. Under the Amended Stock Purchase Agreement, the payment obligations are contingent and thus eligible for installment sale reporting
under Section 453 of the Internal Revenue Code of 1986, as amended. Under the Tax Indemnity Agreement, the Company was obligated to indemnify the
Evolus Founders for any taxes or penalties required to be paid by the Evolus Founders in the event the U.S. Internal Revenue Service or other taxing authority
were to determine that Company’s assumption of the revised payment obligations under the Amended Stock Purchase Agreement rendered continued
installment sale reporting unavailable to the Evolus Founders. Any taxes or penalties paid by us on behalf of the Evolus Founders under the Tax Indemnity
Agreement will be offset dollar-for-dollar against the promissory note and future royalties that will be payable to the Evolus Founders under the Amended
Stock Purchase Agreement.
Exclusive Distribution and Supply Agreement with Clarion Medical Technologies Inc.
On November 30, 2017, the Company entered into an exclusive distribution and supply agreement (“Distribution Agreement”), with Clarion Medical
Technologies Inc. (“Clarion”). The Distribution Agreement provides terms pursuant to which the Company will exclusively supply Jeuveau® to Clarion in
Canada. Clarion was previously a wholly-owned subsidiary of Alphaeon. However, pursuant to previous agreements among Alphaeon, Clarion, and previous
equity holders of Clarion, the previous equity holders of Clarion had the option, and have exercised such option, to unwind Alphaeon’s acquisition of Clarion.
As a result, Alphaeon owes the equity holders of Clarion an unwinding fee of $9,600 (“Unwinding Fee”). The Distribution Agreement sets forth that a portion
of the proceeds received by the Company from each unit of Jeuveau® purchased by Clarion shall be paid directly to the previous equity holders of Clarion,
and will reduce, on a dollar-for-dollar basis, the amount of the Unwinding Fee Alphaeon owes. In addition, Alphaeon and SCH have agreed with Clarion to
pay the unpaid amount of the Unwinding Fee on December 31, 2022, if demanded by the previous equity holders of Clarion. The service revenue related to
the sale of Jeuveau® through Clarion in 2019 was recorded based on terms that were not in the scope of the Distribution Agreement.
100
Table of Contents
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.
None.
Item 9A. Controls and Procedures.
Evaluation of Disclosure Controls and Procedures
Our management, under the supervision and with the participation of our Chief Executive Officer and our Chief Financial Officer, our principal executive and
principal financial officers, respectively, conducted an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures, as
defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act of 1934, as amended, as of the end of the period covered by this Annual Report on Form
10-K. Based on this evaluation, our Chief Executive Officer and our Chief Financial Officer have concluded that our disclosure controls and procedures were
effective (a) to ensure that information that we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed,
summarized and reported within the time periods specified in SEC rules and forms and (b) to include, without limitation, controls and procedures designed to
ensure that information required to be disclosed by us in reports filed or submitted under the Exchange Act is accumulated and communicated to our
management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.
Management’s Annual Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Rule 13a-15(f)
under the Exchange Act. Under the supervision and with the participation of senior management, including our Chief Executive Officer and Chief Financial
Officer, we evaluated the effectiveness of our internal control over financial reporting based on the framework in Internal Control-Integrated Framework
issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework). Based on the evaluation under that framework and
applicable SEC rules, our management concluded that our internal control over financial reporting was effective as of December 31, 2019.
This Annual Report on Form 10-K does not include an attestation report of our registered public accounting firm on our internal control over financial
reporting due to an exemption established pursuant to the JOBS Act for “emerging growth companies.”
Changes in Internal Control over Financial Reporting
There were no changes in our internal control over financial reporting identified in connection with the evaluation required by Rule 13a-15(d) and 15d-15(d)
of the Exchange Act that occurred during the quarter ended December 31, 2019 that have materially affected, or are reasonably likely to materially affect, our
internal control over financial reporting.
Inherent Limitations of Internal Controls
Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our disclosure controls and procedures or our
internal controls over financial reporting will prevent or detect all errors and all fraud. A control system, no matter how well designed and operated, can
provide only reasonable, not absolute, assurance that the objectives of the control system are met. Because of the inherent limitations in all control systems,
no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within the Company have been detected. These
inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of a simple error or mistake.
Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management overriding of the
controls. The design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no
assurance that any design will succeed in achieving its stated goals under all potential future conditions. Over time, controls may become inadequate because
of changes in conditions, or the degree of compliance with the policies or procedures may deteriorate. Because of the inherent limitations in a cost-effective
control system, misstatements due to error or fraud may occur and not be detected.
Item 9B. Other Information.
None.
Part III
101
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Evolus, Inc.
Notes to Financial Statements
(in thousands, except share and per share data)
Certain information required by Part III is omitted from this annual report on Form 10‑K and is incorporated herein by reference to our definitive Proxy
Statement for our 2020 Annual Meeting of Stockholders (“Proxy Statement”), which we intend to file pursuant to Regulation 14A of the Securities Exchange
Act of 1934, as amended, within 120 days after December 31, 2019.
102
Table of Contents
Item 10. Directors, Executive Officers and Corporate Governance.
Except as disclosed below with respect to our Code of Conduct, the information required by this item is incorporated herein by reference to information
contained in the Proxy Statement for our 2020 Annual Meeting of Stockholders.
We have a Code of Conduct applicable to all directors, officers and employees of the Company. We have posted the Code of Business Conduct on our website
at www.evolus.com. We will post any amendments to the Code of Conduct on our website. In accordance with the requirements of the SEC and Nasdaq, we
will also post waivers applicable to any of our officers or directors from provisions of the Code of Conduct on our website.
Item 11. Executive Compensation.
The information required by this item is incorporated herein by reference to information contained in the Proxy Statement for our 2020 Annual Meeting of
Stockholders.
Item 12. Security Ownership of Certain of Beneficial Owners and Management and Related Stockholder Matters.
The information required by this item is incorporated herein by reference to information contained in the Proxy Statement for our 2020 Annual Meeting of
Stockholders.
Item 13. Certain Relationships and Related Transactions, and Director Independence.
The information required by this item is incorporated herein by reference to information contained in the Proxy Statement for our 2020 Annual Meeting of
Stockholders.
Item 14. Principal Accounting Fees and Services.
The information required by this item is incorporated herein by reference to information contained in the Proxy Statement for our 2020 Annual Meeting of
Stockholders.
Item 15. Exhibits, Financial Statement Schedules.
(a) The following documents are filed as part of this Annual Report on Form 10-K:
Part IV
(1) Financial Statements. See Item 8 “Financial Statements and Supplemental Information” elsewhere in this Annual Report on Form 10-K.
(2) Financial Statement Schedules. None. Financial statement schedules have been omitted because they are not applicable.
(3) Exhibits. The following exhibits are filed (or incorporated by reference herein) as part of this Annual Report on Form 10-K:
EXHIBIT INDEX
Exhibit
Number
2.1†
Exhibit Title
Contribution Agreement, dated as of October 3, 2013, by and among
Strathspey Crown Holdings, LLC, the Registrant, the Shareholders of
the Registrant, and J. Christopher Marmo, as the Shareholders’
Representative, as amended on September 22, 2014, November 3, 2015,
February 15, 2016 and April 14, 2016.
Incorporated by Reference
Form
File No.
Exhibit
S-1
333-222478
2.1
Filed
Herewith
(x)
Filing
Date
1/9/18
3.1
3.2
Amended and Restated Certificate of Incorporation.
Amended and Restated Bylaws.
8-K
8-K
001-38381
001-38381
3.1
3.2
2/12/18
2/12/18
103
X
X
Table of Contents
4.1
4.2
4.3
10.1†
10.2†
10.3†
10.4†
10.5†
10.6+
10.7+
10.8+
10.9+
10.10+
10.11+
10.12+
10.13
10.14†
10.15
10.16†
10.17†
10.18+
10.19+
Specimen certificate evidencing shares of common stock of the
Registrant.
Stockholders’ Agreement, dated as of December 14, 2017, by and
among ALPHAEON Corporation, Dental Innovations BVBA,
Longitude Venture Partners II, L.P. and the Registrant.
Description of Securities
Stock Purchase Agreement, dated as of September 30, 2014, by and
between Strathspey Crown Holdings, LLC and ALPHAEON
Corporation.
Amendment to Stock Purchase Agreement, dated as of September 30,
2014, by and between Strathspey Crown Holdings, LLC and
ALPHAEON Corporation.
License and Supply Agreement, dated as of September 30, 2013, by and
between Daewoong Pharmaceutical Co., Ltd. and the Registrant.
First Amendment to License and Supply Agreement, dated as of
February 26, 2014, by and between Daewoong Pharmaceutical Co.,
Ltd. and the Registrant.
Second Amendment to License and Supply Agreement, dated as of July
15, 2014, by and between Daewoong Pharmaceutical Co., Ltd. and the
Registrant.
S-1/A
333-222478
S-1
333-222478
4.1
4.2
1/25/18
1/9/18
S-1
333-222478
10.1
1/9/18
S-1
333-222478
10.2
1/9/18
S-1
S-1
333-222478
10.3
1/9/18
333-222478
10.4
1/9/18
S-1
333-222478
10.5
1/9/18
2017 Omnibus Incentive Plan.
Form of Option Award Agreement under 2017 Omnibus Incentive Plan.
Form of Dueling Option Award Agreement under 2017 Omnibus
Incentive Plan.
Form of Restricted Shares Award Agreement under 2017 Omnibus
Incentive Plan.
Form of RSU Award Agreement under 2017 Omnibus Incentive Plan.
S-1
S-1
S-1
S-1
S-1
333-222478
333-222478
333-222478
10.6
10.7
10.8
1/9/18
1/9/18
1/9/18
333-222478
10.9
1/9/18
333-222478
10.10
1/9/18
Form of RSU Award Agreement under 2017 Omnibus Incentive Plan
(Updated 2020)
Form of Indemnification Agreement by and between the Registrant and
its directors and officers.
Services Agreement, dated as of January 23, 2018, by and between
ALPHAEON Corporation and the Registrant.
Second Amendment to Stock Purchase Agreement, dated as of
December 14, 2017, by and among SCH-AEON, LLC (f/k/a Strathspey
Crown Holdings, LLC), ALPHAEON Corporation, the Registrant and
J. Christopher Marmo, as Contributors’ Representative, and
acknowledged by the parties listed as Contributors on the signature
pages thereto.
Tax Indemnity Agreement, dated as of December 14, 2017, by and
among the Registrant, J. Christopher Marmo, as the Contributors’
Representative and each of the individuals listed on the signature pages
thereto.
Exclusive Distribution and Supply Agreement, dated as of November
30, 2017, by and between Clarion Medical Technologies Inc. and the
Registrant.
Therapeutic Option Letter Agreement, dated December 18, 2017, by
and between ALPHAEON Corporation and the Registrant.
Employment Agreement, dated as of May 6, 2018, by and between
David Moatazedi and the Registrant.
Employment Agreement, dated as of May 29, 2018, by and between
Lauren Silvernail and the Registrant.
104
S-1/A
333-222478
10.11
1/25/18
S-1/A
333-222478
10.12
1/25/18
S-1
333-222478
10.20
1/9/18
S-1
333-222478
10.21
1/9/18
S-1
333-222478
10.22
1/9/18
S-1
S-1
S-1
333-222478
10.23
1/9/18
333-226186
10.29
7/16/18
333-226186
10.30
7/16/18
Table of Contents
10.20+
10.21+
10.22‡
10.23
10.24
21.1
23.1
24.1
31.1
31.2
32.1#
Employment Agreement, dated as of June 18, 2018, by and between
Michael Jafar and the Registrant.
Employment Agreement, dated August 15, 2018, by and between Rui
Avelar and the Registrant.
Loan and Security Agreement, dated as of March 15, 2019, by and
between the Company and Oxford Finance, LLC
First Amendment to Loan and Security Agreement, dated as of July 18,
2019, by and between the Registrant and Oxford Finance, LLC
Lease, dated as of May 15, 2019, between the Registrant and 520
Newport Center Drive LLC
List of Subsidiaries.
Consent of Ernst & Young LLP, independent registered public
accounting firm.
Power of Attorney (included on signature page).
Certification of Principal Executive Officer pursuant to Rule 13a-14(a)
or Rule 15d-14(a) of the Securities Exchange Act of 1934, as amended.
Certification of Principal Financial Officer pursuant to Rule 13a-14(a)
or Rule 15d-14(a) of the Securities Exchange Act of 1934, as amended.
Certifications of Principal Executive Officer and Principal Financial
Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
101.INS*
XBRL Instance Document.
101.SCH*
XBRL Taxonomy Extension Schema Document.
101.CAL*
XBRL Taxonomy Extension Calculation Linkbase Document.
101.DEF*
XBRL Taxonomy Extension Definition Linkbase Document.
101.LAB*
XBRL Taxonomy Extension Label Linkbase Document.
101.PRE*
_____________
XBRL Taxonomy Extension Presentation Linkbase Document.
S-1
333-226186
10.31
7/16/18
10-K
001-38381
10.31
3/20/19
10-Q
001-38381
10.1
5/1/19
10-Q
001-38381
10.1
8/12/19
8-K
S-1
001-38381
10.1
5/21/19
333-222478
21.1
1/9/18
X
X
X
X
X
X
X
X
X
X
X
+
†
‡
#
Indicates management contract or compensatory plan.
The Registrant has omitted and filed separately with the Securities and Exchange Commission portions of the exhibit pursuant to a confidential
treatment request under Rule 406 promulgated under the Securities Act of 1933, as amended, or the Securities Act.
Portions of this exhibit have been omitted pursuant to Rule 601(b)(10) of Regulation S-K. The omitted information is not material and would likely
cause competitive harm to the registrant if publicly disclosed.
The information in Exhibit 32.1 shall not be deemed “filed” for purposes of Section 18 of the Exchange Act of 1934, as amended, or the Exchange Act,
or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act or the
Exchange Act (including this Annual Report on Form 10-K), unless the Registrant specifically incorporates the foregoing information into those
documents by reference.
Item 16. Form 10-K Summary.
None.
105
Table of Contents
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized, on February 25, 2020.
SIGNATURES
EVOLUS, INC.
By:
/s/ David Moatazedi
David Moatazedi
President and Chief Executive Officer
POWER OF ATTORNEY
The undersigned directors and officers of Evolus, Inc. constitute and appoint David Moatazedi and Lauren P. Silvernail, and each of them, as their
true and lawful attorneys and agents with power of substitution, to do any and all acts and things in our name and behalf in our capacities as directors and
officers and to execute any and all instruments for us and in our names in the capacities indicated below, which said attorneys and agents may deem necessary
or advisable to enable said corporation to comply with the Securities Exchange Act of 1934, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with this Annual Report on Form 10-K, including specifically but without limitation, power and
authority to sign for us or any of us in our names in the capacities indicated below, any and all amendments hereto; and we do hereby ratify and confirm all
that said attorneys and agents shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Signature
Title
Date
/s/ David Moatazedi
David Moatazedi
/s/ Lauren P. Silvernail
Lauren P. Silvernail
/s/ Vikram Malik
Vikram Malik
/s/ Simone Blank
Simone Blank
/s/ Bosun Hau
Bosun Hau
/s/ Kristine Romine, M.D.
Kristine Romine, M.D.
/s/ Robert Hayman
Robert Hayman
President, Chief Executive Officer and
Member of the Board of Directors
(Principal Executive Officer)
Chief Financial Officer and
Executive Vice President of Corporate Development
(Principal Financial and Accounting Officer)
February 25, 2020
February 25, 2020
Chairman of the Board of Directors
February 25, 2020
Director
Director
Director
Director
February 25, 2020
February 25, 2020
February 25, 2020
February 25, 2020
Table of Contents
Signature
/s/ David Gill
David Gill
/s/ Peter C. Farrell, Ph.D., AM.
Peter C. Farrell, Ph.D., AM.
/s/ Karah Parschauer
Karah Parschauer
Title
Director
Director
Director
Date
February 25, 2020
February 25, 2020
February 25, 2020
DESCRIPTION OF CAPITAL STOCK
Exhibit 4.3
The following is a summary of the rights of our common stock and preferred stock, certain provisions of our certificate of incorporation and our bylaws, and
applicable law. This summary does not purport to be complete and is qualified in its entirety by the provisions of our certificate of incorporation and bylaws,
copies of which are filed as exhibits to our Annual Report on Form 10-K for the year ended December 31, 2019.
General
Our authorized capital stock consists of:
▪
▪
100,000,000 shares of common stock, par value $0.00001 per share; and
10,000,000 shares of preferred stock, par value $0.00001 per share.
As of December 31, 2019, there were 33,562,665 outstanding shares of our common stock. As of that date, there were outstanding options to purchase
3,977,401 shares of our common stock and 229,870 shares of common stock issuable upon the vesting and settlement of restricted stock units.
Common Stock
The following summarizes the rights of holders of our common stock:
Voting
The holders of our common stock are entitled to one vote per share. The number of authorized shares of common stock may be increased or decreased (but
not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of our capital stock entitled
to vote, irrespective of the provisions of Section 242(b)(2) of the Delaware General Corporation Law, or DGCL.
Dividends
Subject to preferences that may be applicable to the holders of outstanding shares of preferred stock, the holders of common stock are entitled to share
equally, on a per share basis, in any dividends when, as and if declared by our board of directors out of assets legally available for dividends (except that in
the event a dividend or distribution is paid in the form of common stock (or rights to acquire such stock), then holders of common stock shall receive common
stock (or rights to acquire such stock, as the case may be).
As a Delaware corporation, we are subject to certain restrictions on dividends under the DGCL. Generally, a Delaware corporation may only pay dividends
either out of “surplus” or out of the current or the immediately preceding year's net profits. Surplus is defined as the excess, if any, at any given time, of the
total assets of a corporation over its total liabilities and statutory capital. The value of a corporation’s assets can be measured in a number of ways and may
not necessarily equal their book value.
Liquidation Rights
Upon our liquidation, dissolution or winding up, after satisfaction of all our liabilities and the payment of any liquidation preference of any outstanding
preferred stock, the holders of shares of common stock will be entitled to share equally, on a per share basis, in all of our assets legally remaining for
distribution after payment of all debt and other liabilities.
Redemption Rights
There are no redemption or sinking fund provisions applicable to our common stock.
Preemptive Rights and Conversion Rights
There are no preemptive or conversion rights applicable to our common stock.
Preferred Stock
We have no shares of our preferred stock outstanding, but our board of directors is authorized, without further action by our stockholders, to create and issue
one or more series of preferred stock and to fix the rights, powers, preferences and privileges thereof. Among other rights, our board of directors may
determine, without further vote or action by our stockholders:
▪
▪
▪
▪
▪
▪
▪
the number of shares constituting the series and the distinctive designation of the series;
the dividend rate on the shares of the series, whether dividends will be cumulative, and if so, from which date or dates, and the relative rights of
priority, if any, of payment of dividends on shares of the series;
whether the series will have voting rights in addition to the voting rights provided by law and, if so, the terms of the voting rights;
whether the series will have conversion privileges and, if so, the terms and conditions of conversion;
whether or not the shares of the series will be redeemable or exchangeable, and, if so, the dates, terms and conditions of redemption or exchange, as
the case may be;
whether the series will have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms and amount of the sinking
fund; and
the rights of the shares of the series in the event of our voluntary or involuntary liquidation, dissolution or winding up and the relative rights or
priority, if any, of payment of shares of the series.
Any future issuance of shares of preferred stock, or the issuance of rights to purchase shares of preferred stock, could, among other things, decrease the
amount of earnings and assets available for distribution to the holders of common stock or could adversely affect the rights and powers, including voting
rights, of the holders of the common stock.
Registration Rights
On December 14, 2017, we entered into a stockholders’ agreement with ALPHAEON Corporation, or Alphaeon, Dental Innovations BVBA, or DI, as
collateral agent, and Longitude Venture Partners II, L.P., or Longitude, as a secured party, that provided Alphaeon (and upon an event of default by Alphaeon
under certain convertible bridge note and convertible promissory notes then-outstanding, DI and Longitude) with registration rights relating to shares of our
common stock held by Alphaeon (and then-pledged to DI and Longitude). Subsequent to December 31, 2019, Alphaeon changed its name to AEON-
Biopharma, Inc. but we continue to refer to the renamed AEON-Biopharma, Inc. as Alphaeon.
Pursuant to the stockholders’ agreement, certain stockholders party thereto may request that we register for resale all or a portion of their shares of common
stock. Certain stockholders party thereto may also request that we file an automatic shelf registration statement on Form S-3 that covers the registrable
securities requested to be registered, to the extent we are eligible to do so. Depending on certain conditions, and in addition to other exclusions, we may defer
a demand registration for up to 90 days in any twelve-month period.
In the event that we propose to register any of our securities under the Securities Act of 1933, as amended (the “Securities Act”), either for our account or for
the account of our other security holders, the stockholders party to the stockholders’ agreement are entitled to certain piggyback registration rights allowing
them to include their shares in the registration, subject to certain marketing and other limitations. As a result, whenever we propose to file a registration
statement under the Securities Act, the stockholders party to the stockholders’ agreement are entitled to notice of the registration and the right to include their
shares in such registration.
The stockholders’ agreement provides that we must pay all registration expenses (other than the underwriting discounts and commissions) in connection with
effecting any demand registration or shelf registration. The stockholders’ agreement contains customary indemnification and contribution provisions by us for
the benefit of the stockholders party thereto and their affiliates and, in limited situations, by the stockholders party thereto for the benefit of us and any
underwriters with respect to written information furnished to us by such stockholders and stated by such stockholders to be specifically included in any
registration statement, prospectus or related document.
The registration rights remain in effect with respect to any shares covered by the stockholders’ agreement until (i) all such shares have been sold pursuant to
an effective registration statement under the Securities Act, or (ii) such time as Rule 144 or another similar exemption under the Securities Act is available for
the sale of all of the shares without limitation during a three-month period without registration.
In November 2018, Alphaeon distributed a certain number of shares of our common stock that it held to certain of its noteholders in exchange for the
extinguishment of outstanding debt obligations. As part of that distribution, such noteholders, including DI and Alpha International Investment Ltd., became
parties to the stockholders’ agreement.
In June 2019, Alphaeon transferred a certain number of shares of our common stock that it held to its majority stockholder, Strathspey Crown Holdings
Group, LLC, or SCH. As part of that transaction, SCH became a party to the stockholders’ agreement.
Subsequent to December 31, 2019, Alphaeon contributed all of the remaining shares of our common stock that it held in us to Alphaeon 1, LLC. As part of
that contribution, Alphaeon 1, LLC became a party to the stockholders’ agreement and succeeded to all of Alphaeon’s rights thereunder.
Anti-Takeover Effects of Provisions of our Certificate of Incorporation, Bylaws and Delaware Law
Delaware Anti-Takeover Law
We are subject to Section 203 of the DGCL, or Section 203. Section 203 generally prohibits a public Delaware corporation from engaging in a “business
combination” with an “interested stockholder” for a period of three years following the time that such stockholder became an interested stockholder, unless:
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prior to such time the board of directors of the corporation approved either the business combination or the transaction which resulted in the
stockholder becoming an interested stockholder;
upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at
least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting
stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned (i) by persons who are directors and
also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange offer; or
at or subsequent to such time the business combination is approved by the board of directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the
interested stockholder.
In general, Section 203 defines a business combination to include:
▪
▪
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any merger or consolidation involving the corporation and the interested stockholder;
any sale, transfer, pledge or other disposition involving the interested stockholder of 10% or more of the assets of the corporation;
subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested
stockholder;
subject to exceptions, any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or
series of the corporation beneficially owned by the interested stockholder; and
the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through
the corporation.
In general, Section 203 defines an interested stockholder as any entity (other than the corporation and any direct or indirect majority-owned subsidiary of the
corporation) or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with, associated
with or controlling or controlled by such entity or person.
Certificate of Incorporation and Bylaws
The following provisions of our certificate of incorporation and bylaws may make a change-of-control of our company more difficult and could delay, defer
or prevent a tender offer or other takeover attempt that a stockholder might consider to be in its best interest, including takeover attempts that might result in
the payment of a premium to stockholders over the market price for their shares. These provisions also may promote the continuity of our management by
making it more difficult for a person to remove or change the incumbent members of our board of directors.
Authorized but Unissued Shares; Undesignated Preferred Stock. The authorized but unissued shares of our common stock will be available for future issuance
without stockholder approval, subject to applicable law and the Nasdaq Marketplace Rules. These additional shares may be used for a variety of corporate
purposes, including future public offerings to raise additional capital, acquisitions and employee benefit plans. In addition, our board of directors may
authorize, without stockholder approval, the issuance of undesignated preferred stock with voting rights or other rights or preferences designated from time to
time by our board of directors (including the right to approve an acquisition or other change in our control). The existence of authorized but unissued shares
of common stock or preferred stock may enable our board of directors to render more difficult or to discourage an attempt to obtain control of us by means of
a merger, tender offer, proxy contest or otherwise.
Election and Removal of Directors. Our board of directors will consist of not less than five nor more than nine directors. The exact number of directors will
be fixed from time to time only by resolution of our board of directors. Our board of directors currently has seven members.
Our certificate of incorporation provides that directors may be removed only for cause and only by the affirmative vote of holders of at least 66 2/3% of our
then outstanding voting stock.
Classified Board of Directors. Our certificate of incorporation provides that our board of directors is classified with approximately one-third of the directors
elected each year. The authorized number of directors may be changed only by resolution of the board of directors. The directors are divided into three
classes, designated class I, class II and class III. Each class consists, as nearly as may be possible, of one-third of the total number of directors constituting the
entire board of directors. At each annual meeting of stockholders, successors to the class of directors whose term expires at that annual meeting will be
elected until the third annual meeting of stockholders next succeeding the elections or until their successors are duly elected and qualified or until their earlier
death, resignation or removal. In addition, if the number of directors is changed, any increase or decrease will be apportioned by our board of directors among
the classes so as to maintain the number of directors in each class as nearly equal as possible, and any additional director of any class elected to fill a vacancy
resulting from an increase in such class or from the removal from office, death, disability, resignation or disqualification of a director or other cause will hold
office for a term that will coincide with the remaining term of that class, but in no case will a decrease in the number of directors have the effect of removing
or shortening the term of any incumbent director.
Director Vacancies. Our certificate of incorporation authorizes only our board of directors to fill vacant directorships.
No Cumulative Voting. Our certificate of incorporation provides that stockholders do not have the right to cumulate votes in the election of directors (therefore
allowing the holders of a majority of the shares of common stock entitled to vote in any election of directors to elect all of the directors standing for election,
if they should so choose).
Special Meetings of Stockholders. Our certificate of incorporation and bylaws provide that special meetings of our stockholders may only be called by the
chairman of the board, our Chief Executive Officer or by our board of directors pursuant to a resolution adopted by a majority of the total number of
authorized directors.
Advance Notice Procedures for Director Nominations. Our bylaws establish advance notice procedures for stockholders seeking to nominate candidates for
election as directors at an annual or special meeting of stockholders. Although our bylaws do not give the board of directors the power to approve or
disapprove stockholder nominations of candidates to be elected at an annual meeting, our bylaws may have the effect of precluding the conduct of certain
business at a meeting if the proper procedures are not followed or may discourage or deter a potential acquiror from conducting a solicitation of proxies to
elect its own slate of directors or otherwise attempting to obtain control of us.
Action by Written Consent. Our certificate of incorporation provides that any action required or permitted to be taken by the stockholders must be effected at a
duly called annual or special meeting of stockholders and may not be effected by any consent in writing in lieu of a meeting of such stockholders, subject to
the rights of the holders of any series of preferred stock.
Amending Our Certificate of Incorporation and Bylaws. Our certificate of incorporation and bylaws may be amended by the affirmative vote of the holders of
at least 66 2/3% of the voting power of our then-outstanding common stock.
Exclusive Jurisdiction. Our certificate of incorporation provides that, unless we consent in writing to the selection of an alternative forum, the Court of
Chancery shall be the sole and exclusive forum for all “internal corporate claims.” “Internal corporate claims” are claims, (i) that are based upon a violation of
a duty by a current or former director or officer or stockholder in such capacity, or (ii) as to which Title 8 of the DGCL confers jurisdiction upon the Court of
Chancery, except for, as to each of (i) and (ii) above, any claim as to which the Court of Chancery determines that there is an indispensable party not subject
to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days
following such determination), which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or for which the Court of
Chancery does not have subject matter jurisdiction. This exclusive forum provision is intended to apply to claims arising under Delaware state law and would
not apply to claims brought pursuant to the Securities Exchange Act of 1934, as amended, or the Securities Act, or any other claim for which the federal
courts have exclusive jurisdiction. The exclusive forum provision in our certificate of incorporation will not relieve us of our duties to comply with the federal
securities laws and the rules and regulations thereunder, and our stockholders will not be deemed to have waived our compliance with these laws, rules and
regulations.
Conflicts of Interest
Delaware law permits corporations to adopt provisions renouncing any interest or expectancy in certain opportunities that are presented to the corporation or
its officers, directors or stockholders. Our certificate of incorporation, to the maximum extent permitted from time to time by Delaware law, renounces any
interest or expectancy that we have in, or right to be offered an opportunity to participate in, specified business opportunities that are from time to time
presented to Alphaeon or any of its officers, directors, stockholders, agents, members, partners, subsidiaries (other than our company) and affiliates, other
than those directors and officers of our company who are offered business opportunities in their capacity as directors and officers of our company, or the
specified parties. Our certificate of incorporation provides that, to the fullest extent permitted by law, none of the specified parties will have any duty to
refrain from engaging in a corporate opportunity that we might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the
opportunity to do so. In addition, to the fullest extent permitted by law, in the event that any of the specified parties acquire knowledge of a potential
transaction or other business opportunity which may be a corporate opportunity for itself or himself or its or his affiliates or for us, such person will have no
duty to communicate or offer such transaction or business opportunity to us and they may take any such opportunity for themselves or offer it to another
person or entity. Our certificate of incorporation does not renounce our interest in any business opportunity that is offered to a director or officer of our
company in his or her capacity as a director or officer of our company. To the fullest extent permitted by law, no business opportunity will be deemed to be a
potential corporate opportunity for us unless we would be permitted to undertake the opportunity under our certificate of incorporation, we have sufficient
financial resources to undertake the opportunity and the opportunity would be in line with our business.
Nasdaq Global Market Listing
Our common stock is listed on the Nasdaq Global Market under the symbol “EOLS.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A. The transfer agent and registrar’s address is 250 Royall Street,
Canton, Massachusetts 02021.
RSU AWARD AGREEMENT
EVOLUS, INC. 2017 OMNIBUS INCENTIVE PLAN
Evolus, Inc. (the “Company”) grants to the Grantee named below (“you”) the number of restricted stock units (“RSUs”) set forth
below (the “Award”).
Plan:
Evolus, Inc. 2017 Omnibus Incentive Plan
Defined Terms:
As set forth in the Plan, unless otherwise defined in this Agreement
Grantee:
Grant Date:
Number of RSUs Granted:
Definition of RSU:
[________]
[________]
[________]
Each RSU will entitle you to receive one Share at such future date or dates and subject to such
terms as set forth in this Agreement.
Vesting Schedule:
The RSUs will become vested and payable on the following schedule, as long as you do not
have a Separation from Service before the applicable vesting date:
Acceleration of Vesting:
All of the RSUs that are then outstanding and unvested will become vested and payable
immediately if you incur a Separation from Service by the Company without Cause on,
immediately prior to, or within two years after a Change in Control.
By signing below, you agree that the Award is granted under and governed by the terms of the Plan and this RSU Award Agreement (including
the attached RSU Terms) (this RSU Award Agreement, include the attached RSU Terms, is referred to as this “Agreement”), as of the Grant
Date. [The “Detrimental Conduct” provisions of Section 3.3.3 of the Plan shall not apply to the Award. Section 3.3.2 of the Plan shall apply to
the Award to the extent of a clawback policy adopted to comply with the Sarbanes-Oxley Act, the Dodd Frank Act, or applicable rules of the
Securities and Exchange Commission (or applicable listing agency) adopted thereunder.]
GRANTEE
EVOLUS, INC.
Sign Name: /s/
Sign Name: /s/
Print Name:
Print Name:
Title:
1
1.
Grant of RSUs.
RSU TERMS
(a) The Award is subject to the terms of the Plan. The terms of the Plan are incorporated into this Agreement by this reference.
(b) You must accept the terms of this Agreement by returning a signed copy to the Company within 60 days after the Agreement is
presented to you for review (or timely completing such other procedures for accepting the terms of this Agreement as the Committee may
establish from time to time). The Award is subject to cancellation in its entirety if you do not timely accept the terms of this Agreement.
2. Restrictions.
(a) You will have no rights or privileges of a Stockholder as to the RSUs before settlement under Section 5 below (“Settlement”),
including no right to vote or receive dividends or other distributions; in addition, the following terms will apply:
(i) you will not be entitled to delivery of any Shares with respect to the RSUs until Settlement (if at all), and upon the
satisfaction of all other terms;
(ii) you may not sell, transfer (other than by will or the laws of descent and distribution), assign, pledge, or otherwise
encumber or dispose of the RSUs before Settlement; and
(iii) you will forfeit all of the RSUs and all of your rights under the RSUs will terminate in their entirety upon the occurrence
of an event described in Section 4 below.
(b) Any attempt to dispose of the RSUs or any interest in the RSUs in a manner contrary to the terms of this Agreement will be void
and of no effect.
3. Vesting Period. The “Vesting Period” is the period beginning on the Grant Date and ending on the date the RSUs, or such applicable
portion of the RSUs, are deemed vested and payable under the terms set forth in table at the beginning of this Agreement.
4. Forfeiture. If, during the Vesting Period, (i) you incur a Separation from Service (for the avoidance of doubt, which does not otherwise
result in the immediate vesting and payment of the RSUs in accordance with the terms hereof), or (ii) you materially breach this Agreement, all
of your rights to the RSUs (to the extent not theretofore vested) will terminate immediately and be forfeited in their entirety.
5. Settlement of RSUs. Delivery of Shares or other amounts under this Agreement will be subject to the following:
(a) The Company will deliver to you one Share for each RSU that has become vested hereunder within 74 days after the vesting date
of the RSU, subject to the tax withholding provisions of Section 6.
(b) Any issuance of Shares under the Award may be effected on a non-certificated basis, to the extent not prohibited by applicable law
or the applicable rules of any securities exchange or similar entity.
In addition, any Shares issued hereunder will be subject to any stop-transfer orders and other restrictions as the Company may deem advisable
under the rules, regulations, and other requirements of the SEC, any
2
securities exchange or similar entity upon which the Shares are then listed, and any applicable federal or state securities law, and the Company
may cause a legend or legends to be placed on any certificates to make appropriate reference to these restrictions.
6. Tax Withholding. You will be required to meet any applicable tax withholding obligation related to the Award in accordance with the tax
withholding provisions of Section 17.3 of the Plan (or any successor provision). By signing this Agreement, you agree that any tax withholding
obligation arising in connection with the vesting and payment of the RSUs subject to your Award will be satisfied as follows:
•
The Company will determine the amount of any federal, state, local or other income, employment, or other taxes which the
Company or any of its subsidiaries may be obligated to withhold with respect to the delivery of Shares in payment of your RSUs
that become vested (such withholding obligations, the “Withholding Obligation”).
• You hereby irrevocably instruct the Company (and any third-party broker designated by the Company) to sell in one or more
transactions on the open market, for and on your behalf, from the Shares otherwise deliverable to you in payment of your vested
RSUs, a number of such Shares (valued at the applicable sale prices applying the applicable broker’s customary methodology) to
satisfy the Withholding Obligation and any brokerage fees and commissions arising in connection with such sale (rounded up to the
nearest whole share). Such sale shall occur in connection with the delivery of the Shares in payment of the vested RSUs subject to
your Award. The proceeds of such sale, in an amount equal to the Withholding Obligation, shall be promptly remitted to the
Company to satisfy the Withholding Obligation. Any brokerage fees and commissions arising in connection with such sale shall
also be satisfied from the proceeds of such sale.
• Any such sale of Shares for and on your behalf will be conducted through a broker designated by the Company. You agree to
execute any and all such other documents as may be requested by the Company or such broker, as applicable, in order to implement
and consummate the transactions contemplated by this letter agreement. You agree to comply with any administrative rules and
procedures established by the Company with respect to such transactions.
•
For clarity, should any tax withholding event arise in connection with the Award other than in connection with the delivery of
Shares in payment of vested RSUs subject to the Award, you remain obligated to satisfy such tax withholding obligations in
accordance with the Plan.
7. Adjustment. Upon any event described in Section 15 of the Plan (or any successor provision) occurring after the Grant Date, the adjustment
provisions of that section will apply to the Award.
8. Bound by Plan and Committee Decisions. By accepting the Award, you acknowledge that you have received a copy of the Plan, have had
an opportunity to review the Plan, and agree to be bound by all of the terms of the Plan. If there is any conflict between this Agreement and the
Plan, the Plan will control. The authority to manage and control the operation and administration of this Agreement and the Plan is vested in the
Committee. The Committee has all powers under this Agreement that it has under the Plan. Any interpretation of this Agreement or the Plan by
the Committee and any decision made by the Committee related to the Agreement or the Plan will be final and binding on all Persons.
9. Your Representations. You represent to the Company that you have read and fully understand this Agreement and the Plan and that your
decision to participate in the Plan is completely voluntary. You also acknowledge that you are relying solely on your own advisors regarding the
tax consequences of the Award.
3
You acknowledge and agree the Company (i) makes no representations or undertakings regarding the tax consequences of the Award and (ii)
does not commit to structure the terms of the Award to reduce or eliminate your liability for taxes in respect of the Award.
10. Regulatory and Other Limitations. Notwithstanding anything else in this Agreement, the Committee may impose conditions, restrictions,
and limitations on the issuance of Shares under the Award unless and until the Committee determines that the issuance complies with (a) all
registration requirements under the Securities Act, (b) all listing requirements of any securities exchange or similar entity on which the Shares
are listed, (c) all Company policies and administrative rules, and (d) all applicable laws.
11. Miscellaneous.
(a) Notices. Any notice that may be required or permitted under this Agreement must be in writing and may be delivered personally,
by intraoffice mail, or by electronic mail or via a postal service (postage prepaid) to the electronic mail or postal address and directed to the
person as the receiving party may designate in writing from time to time.
(b) Waiver. The waiver by any party to this Agreement of a breach of any provision of the Agreement will not operate or be construed
as a waiver of any other or subsequent breach.
(c) Entire Agreement. This Agreement and the Plan constitute the entire agreement between you and the Company related to the
Award. Any prior agreements, commitments, or negotiations concerning the Award are superseded.
(d) Binding Effect; Successors. The obligations and rights of the Company under this Agreement will be binding upon and inure to
the benefit of the Company and any successor corporation or organization resulting from the merger, consolidation, sale, or other reorganization
of the Company, or upon any successor corporation or organization succeeding to substantially all of the assets and business of the Company.
Your obligations and rights under this Agreement will be binding upon and inure to your benefit and the benefit of your beneficiaries,
executors, administrators, heirs, and successors.
(e) Governing Law; Consent to Jurisdiction; Consent to Venue; Service of Process. This Agreement will be construed and interpreted
in accordance with the internal laws of the State of California without regard to principles of conflicts of law thereof, or principles of conflicts
of laws of any other jurisdiction that could cause the application of the laws of any jurisdiction other than the State of California. For purposes
of resolving any dispute that arises directly or indirectly from the relationship of the parties evidenced by this Agreement, you hereby submit to
and consent to the exclusive jurisdiction of the State of California and agree that any related litigation must be conducted solely in the courts of
Orange County, California or the federal courts for the United States for the Central District of California, where this Agreement is made and/or
to be performed, and no other courts. You may be served with process in any manner permitted under State of California law, or by United
States registered or certified mail, return receipt requested.
(f) Amendment. This Agreement may be amended at any time by the Committee, except that no amendment may, without your
consent, materially impair your rights under the Award.
(g) Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of
any other provision of the Agreement, and each other provision will be severable and enforceable to the extent permitted by law.
4
(h) No Rights to Service. Nothing in this Agreement will be construed as giving you any right to be retained in any position with the
Company or its Affiliates. Nothing in this Agreement will interfere with or restrict the rights of the Company or its Affiliates—which are
expressly reserved—to remove, terminate, or discharge you at any time for any reason whatsoever or for no reason, subject to the Company’s
certificate of incorporation, bylaws, and other similar governing documents and applicable law.
(i) Section 409A. The RSUs are intended to be exempt from (or, to the extent not exempt, to comply with) Section 409A, and this
Agreement will be administered and interpreted consistently with that intent. For purposes of Section 409A, each installment payment under
this Agreement or the Plan, or otherwise payable to you, will be treated as a separate payment. This paragraph will not be construed as a
guarantee of any particular tax effect for your benefits under this Agreement and the Company does not guarantee that any such benefits will
satisfy the provisions of Section 409A or any other provision of the Code. Notwithstanding anything else in this Agreement, to the extent
required to avoid accelerated taxation or tax penalties under Section 409A, amounts that would otherwise be payable and benefits that would
otherwise be provided under this Agreement during the six-month period immediately following your Separation from Service will instead be
paid on the first payroll date after the six-month anniversary of your Separation from Service (or your death, if earlier). Notwithstanding the
foregoing, neither the Company nor the Committee will have any obligation to take any action to prevent the assessment of any additional tax
or penalty on you under Section 409A and neither the Company nor the Committee will have any liability to you for such tax or penalty.
(j) Further Assurances. You must, upon request of the Company or the Committee, do all acts and execute, deliver, and perform all
additional documents, instruments, and agreements that may be reasonably required by the Company or the Committee to implement the
provisions and purposes of this Agreement.
(k) Clawback. All awards, amounts, or benefits received or outstanding under the Plan will be subject to clawback, cancellation,
recoupment, rescission, payback, reduction, or other similar action in accordance with the terms of any Company clawback or similar policy or
any applicable law related to such actions, as may be in effect from time to time. You acknowledge and consent to the Company’s application,
implementation, and enforcement of any applicable Company clawback or similar policy that may apply to you, whether adopted before or
after the Grant Date (including the forfeiture, clawback, and detrimental conduct provisions contained in Section 3.3 of the Plan as of the Grant
Date), and any provision of applicable law relating to clawback, cancellation, recoupment, rescission, payback, or reduction of compensation,
and the Company may take such actions as may be necessary to effectuate any such policy or applicable law, without further consideration or
action.
(l) Electronic Delivery and Acceptance. The Company may deliver any documents related to current or future participation in the
Plan by electronic means. You consent to receive those documents by electronic delivery and to participate in the Plan through any on-line or
electronic system established and maintained by the Company or a third party designated by the Company.
(m) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
* * *
5
Consent of Independent Registered Public Accounting Firm
Exhibit 23.1
We consent to the incorporation by reference in the Registration Statement (Forms S-8 No. 333-223068 and 333-229184), pertaining to the Evolus, Inc. 2017
Omnibus Incentive Plan of Evolus, Inc. of our report dated February 25, 2020, with respect to the financial statements of Evolus, Inc. included in this Annual
Report (Form 10-K) for the year ended December 31, 2019.
Irvine, California
February 25, 2020
/s/ Ernst & Young LLP
CERTIFICATION PURSUANT TO
RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 31.1
I, David Moatazedi, certify that:
1.
2.
3.
4.
I have reviewed this Annual Report on Form 10-K of Evolus, Inc.;
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this
report;
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f))
for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness
of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal
quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect,
the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
(b)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control
over financial reporting.
Date: February 25, 2020
/s/ David Moatazedi
David Moatazedi
President, Chief Executive Officer and Director
(Principal Executive Officer)
CERTIFICATION PURSUANT TO
RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 31.2
I, Lauren Silvernail, certify that:
1.
2.
3.
4.
I have reviewed this Annual Report on Form 10-K of Evolus, Inc.;
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this
report;
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f))
for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially
affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control
over financial reporting.
Date: February 25, 2020
/s/ Lauren Silvernail
Lauren Silvernail
Chief Financial Officer and Executive Vice President, Corporate
Development
(Principal Financial Officer)
CERTIFICATION OF THE CHIEF EXECUTIVE OFFICER AND
CHIEF FINANCIAL OFFICER PURSUANT TO 18 U.S.C. § 1350 AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Each of the undersigned hereby certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, in his
or her capacity as an officer of Evolus, Inc., that, to his or her knowledge:
(1) the Annual Report on Form 10-K of Evolus, Inc. for the fiscal year ended December 31, 2019 (the “Report”) fully complies with the requirements of
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Evolus, Inc.
Exhibit 32.1
Date: February 25, 2020
Date: February 25, 2020
By:
/s/ David Moatazedi
David Moatazedi
President and Chief Executive Officer
(Principal Executive Officer)
By:
/s/ Lauren Silvernail
Lauren Silvernail
Chief Financial Officer and Executive Vice President, Corporate
Development
(Principal Financial Officer)