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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
☒
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended: December 31, 2022
☐
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number: 000-31141
INFINITY PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware
33-0655706
(State or other jurisdiction of
incorporation or organization)
(I.R.S. Employer
Identification No.)
1100 Massachusetts Avenue, Floor 4, Cambridge, Massachusetts 02138
(Address of principal executive offices) (zip code)
Registrant’s telephone number, including area code: (617) 453-1000
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading Symbol
Name of each exchange on which registered
Common Stock, $0.001 par value
INFI
Nasdaq Global Select Market
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐ No ☒
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past
90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of
Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such
files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an
emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2
of the Exchange Act.
Large accelerated filer ☐
Accelerated filer ☐
Non-accelerated filer ☒
Smaller reporting
company ☒
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over
financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the register public accounting firm that prepared or issued its audit report. ☐
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing
reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by
any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
The aggregate market value of Common Stock held by non-affiliates of the registrant as of June 30, 2022 was $54,976,690 based on the last reported sale price
of the registrant’s Common Stock on the Nasdaq Global Select Market on that date.
Number of shares outstanding of the registrant’s Common Stock as of March 21, 2023: 89,422,138
Documents incorporated by reference:
None.
Table of Contents
TABLE OF CONTENTS
Page No.
Part I
Item 1:
Business
5
Item 1A:
Risk Factors
40
Item 1B:
Unresolved Staff Comments
75
Item 2:
Properties
75
Item 3:
Legal Proceedings
75
Item 4:
Mine Safety Disclosures
75
Part II
Item 5:
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
75
Item 6:
Reserved
76
Item 7:
Management’s Discussion and Analysis of Financial Condition and Results of Operations
76
Item 7A:
Quantitative and Qualitative Disclosures about Market Risk
87
Item 8:
Financial Statements and Supplementary Data
87
Item 9:
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
111
Item 9A:
Controls and Procedures
111
Item 9B:
Other Information
112
Item 9C:
Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
112
Part III
Item 10:
Directors, Executive Officers and Corporate Governance
112
Item 11:
Executive Compensation
115
Item 12:
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
123
Item 13:
Certain Relationships and Related Transactions, and Director Independence
125
Item 14:
Principal Accounting Fees and Services
125
Part IV
Item 15:
Exhibits, Financial Statement Schedules
126
Item 16:
Form 10-K Summary
128
Signatures
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Cautionary Note Regarding Forward-Looking Information and Industry Data
This Annual Report on Form 10-K contains forward looking statements within the meaning of the U.S. Private Securities Litigation Reform Act of 1999. All
statements, other than statements of historical facts, contained in this Annual Report on Form 10-K, including statements regarding the transactions contemplated by the
Agreement and Plan of Merger, dated as of February 22, 2023, or the Merger Agreement, among us, MEI Pharma, Inc., or MEI, a Delaware corporation and Meadow
Merger Sub, Inc., or Merger Sub, a Delaware corporation and a wholly owned subsidiary of MEI pursuant to which, among other matters, and subject to the satisfaction
or waiver of the conditions set forth in the Merger Agreement, Merger Sub will merge with and into Infinity, with Infinity continuing as a wholly owned subsidiary of MEI
and the surviving corporation of the merger, which we refer to as the Merger, our strategy, future operations, future financial position, future revenue, projected costs,
prospects, plans and objectives of management and expected market growth, are forward-looking statements. The words “anticipate,” “believe,” “continue,” “could,”
“estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “should,” “target,” “would,” and similar expressions are intended to identify
forward-looking statements, although not all forward-looking statements contain these identifying words. In addition, statements that “we believe” and similar statements
reflect our beliefs and opinions on the relevant subject and are limited to the time at which they were made, without any undertaking or duty to update them. The forward-
looking statements contained in this Annual Report on Form 10-K are based upon information available to us as of the date such statements are made and, while we
believe such information forms a reasonable basis for such statements at the time made, such information may be limited or incomplete, and our statements should not be
read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information.
There are a number of important risks and uncertainties that could cause actual results or events to differ materially from those indicated by forward-looking
statements made herein. These risks and uncertainties include those inherent in pharmaceutical research and development, such as adverse results in our drug discovery
and clinical development activities, decisions made by the U.S. Food and Drug Administration, or FDA, and other regulatory authorities with respect to the development
and commercialization of our product candidates, our ability to obtain, maintain and enforce intellectual property rights for our product candidates, our dependence on
our alliance partners, our competitive positions, our ability to obtain any necessary financing to conduct our planned activities, our ability to implement our strategic
plans, and other risks described herein. These risks also include the direct and indirect impact of COVID-19 on our business operations and financial results.
We may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our
forward-looking statements. Actual results or events could differ materially from the plans, intentions and expectations disclosed in the forward-looking statements we
make. New risks and uncertainties emerge from time to time, and it is not possible for us to predict all risks and uncertainties that could have an impact on the forward-
looking statements contained in this Annual Report on Form 10-K. Important factors that could cause actual results to differ materially from those in these forward-
looking statements include the factors discussed below under the heading “Summary of Risk Factors” and the risk factors detailed further in Part I, Item 1A, “Risk
Factors” of Part 1 of this Annual Report on Form 10-K for the year ended December 31, 2022. Unless required by law, we do not undertake any obligation to update any
forward-looking statements.
This Annual Report on Form 10-K also may include statistical and other industry and market data that we obtained from industry publications and research,
surveys and studies conducted by third parties as well as our own estimates. All of the market data used in this Annual Report on Form 10-K involves a number of
assumptions and limitations, and you are cautioned not to give undue weight to such data. Industry publications and third-party research, surveys and studies generally
indicate that their information has been obtained from sources believed to be reliable, although they do not guarantee the accuracy or completeness of such information.
Our estimates of the potential market opportunities for our product candidates include several key assumptions based on our industry knowledge, industry publications,
third-party research and other surveys, which may be based on a small sample size and may fail to accurately reflect market opportunities. While we believe that our
internal assumptions are reasonable, no independent source has verified such assumptions.
Summary of Risk Factors
The risk factors described below are a summary of the principal risk factors associated with an investment in us. These are not the only risks we face. Additional
risks and uncertainties not presently known to us or that we presently deem less significant may also impair our business operations. You should carefully consider these
risk factors, together with the risk factors set forth in “Risk Factors” in Part I, Item 1A of this Annual Report on Form 10-K and the other reports and documents filed by
us with the U.S. Securities and Exchange Commission, or the SEC. If any of the following risks occur, our business, financial condition, and results of operations and
future growth prospects could be materially and adversely affected, and the
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actual outcomes of matters as to which forward-looking statements are made in this report could be materially different from those anticipated in such forward-looking
statements.
•
Substantial doubt exists about our ability to continue as a going concern for at least twelve months from the date these consolidated financial statements are
issued on March 28, 2023.
•
MEI’s obligation to consummate the Merger is subject to certain closing conditions which we may not be able to meet.
•
The Merger with MEI may not be consummated or may not deliver the anticipated benefits we expect.
•
Certain provisions of the Merger Agreement may discourage third parties from submitting alternative acquisition proposals, including proposals that may be
superior to the arrangements contemplated by the Merger Agreement.
•
The announcement and pendency of the Merger, whether or not consummated, may adversely affect the trading price of our common stock and our business
prospects.
•
The exchange ratio set forth in the Merger Agreement is not adjustable based on the market price of our common stock, so the merger consideration at the
closing of the Merger may have a greater or lesser value than at the time the Merger Agreement was signed.
•
Lawsuits may be filed against us and the members of our board of directors arising out of the proposed Merger, which may delay or prevent the proposed
Merger.
•
Failure to consummate the Merger may result in us paying a termination fee to MEI and could harm our common stock price and our future business and
operations.
•
If we do not successfully consummate the Merger, we may resume the process of evaluating a potential strategic transaction, including the sale of the company
or its assets. However, based on our prior assessment, we do not expect that we would have the necessary time or financial resources to pursue another strategic
transaction like the proposed Merger. If the Merger does not close and we are unable to enter into another strategic transaction, our board of directors may
conclude that it is in the best interest of stockholders to cease normal operations and wind down the company through bankruptcy or dissolution proceedings. In
such case, there would be no assurances as to the amount or timing of available cash remaining, if any, to distribute to stockholders after paying our obligations
and setting aside funds for reserves.
•
To further the development of eganelisib, we will need substantial additional funding, which may not be possible if the Merger is not completed. We cannot
provide assurance that plans to secure additional capital will be successful.
•
We cannot provide assurances that our estimates regarding expenses, future revenue, capital requirements and needs for additional financing are accurate.
•
Our common stock may have a volatile trading price and low trading volume. As of December 28, 2022, we are not in compliance with the minimum bid price
listing requirement of the Nasdaq Stock Market, LLC (“Nasdaq”) under Nasdaq Listing Rule 5450(a)(1) (the “Minimum Bid Requirement”). This non-
compliance has no immediate effect on the listing of our common stock. If we are unable to regain compliance with the Minimum Bid Requirement, we may be
delisted from Nasdaq.
•
We have a history of operating losses, expect to incur significant and increasing operating losses in the future, and may never become profitable, or if we become
profitable, we may not remain profitable.
•
We cannot provide assurances that our plans with respect to our ongoing and potential future clinical trials for our product candidates will succeed, including the
timing of these trials and of the anticipated results.
•
We are dependent on the success of eganelisib. If we are unable to complete the clinical development of, obtain marketing approval for, or successfully
commercialize eganelisib, either alone or with a collaborator, or if we experience significant delays in doing so, our business could be substantially harmed.
•
If clinical trials of eganelisib fail to satisfactorily demonstrate safety and efficacy to the FDA and other regulators, we may incur additional costs or experience
delays in completing, or ultimately be unable to complete, the development and commercialization of eganelisib.
•
Adverse events or undesirable side effects caused by, or other unexpected properties of, product candidates that we develop may be identified during
development and could delay or prevent their marketing approval or limit their use.
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•
The immuno-oncology industry is characterized by a rapidly changing competitive landscape and a crowded competitive field. We may be unable to compete
with larger, more established entities in the field.
•
We are reliant on third parties, including collaborators, contract research organizations, manufacturers, and suppliers, to support our business. Should any such
third party perform unsatisfactorily or unilaterally end our relationship, such outcome could have a material negative impact on our business and finances.
•
Our success depends substantially upon our ability to obtain, maintain and enforce intellectual property rights for the protection of eganelisib. We cannot
guarantee the success of our intellectual property position and strategy.
•
The COVID-19 pandemic may materially and adversely affect our clinical trial operations, our future supply chain and our financial results.
•
We need to attract and retain highly skilled personnel; if we cannot, we may be unable to effectively maintain our existing operations or manage growth with our
limited resources.
PART I
Item 1. Business
Summary
We are a clinical-stage innovative biopharmaceutical company dedicated to developing novel medicines for people with cancer. We combine proven scientific
expertise with a passion for developing novel small molecule drugs that target disease pathways for potential applications in oncology. We are focused on advancing
eganelisib, also known as IPI-549, an orally administered, clinical-stage, immuno-oncology product candidate that reprograms macrophages through selective inhibition
of the enzyme phosphoinositide-3-kinase-gamma, or PI3K-gamma. We have retained worldwide development and commercialization rights to eganelisib, subject to
certain success-based milestone payment obligations to our licensor, Takeda Pharmaceutical Company Limited, or Takeda, which are described in more detail under Part
I, Item 1, “Business Overview – Alliances, Collaborations, and Other Arrangements – Takeda.”
Selective inhibition of PI3K-gamma by eganelisib has been shown in preclinical studies to reprogram macrophages from a pro-tumor, immunosuppressive
function, to an anti-tumor, immune activating function and to enhance the activity of, and overcome resistance to, checkpoint inhibitors. These preclinical findings
indicate that eganelisib may have the potential to treat a broad range of solid tumors and represents a potentially additive or synergistic approach to restoring anti-tumor
immunity in combination with other immunotherapies such as checkpoint inhibitors. Further, preclinical studies showed that eganelisib significantly inhibits the regrowth
of tumors that can occur following treatment with chemotherapy.
On February 22, 2023, we, MEI Pharma, Inc., a Delaware corporation, or MEI, and Meadow Merger Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of MEI, or the Merger Sub, entered into an Agreement and Plan of Merger, or the Merger Agreement, pursuant to which, among other matters, and subject to
the satisfaction or waiver of the conditions set forth in the Merger Agreement, Merger Sub will merge with and into Infinity, with Infinity continuing as a wholly owned
subsidiary of MEI and the surviving corporation of the merger, which transaction is referred to herein as the Merger. If the Merger is completed the combined company
will combine the expertise and resources of MEI and Infinity to advance a pipeline of three clinical stage oncology drug candidates.
We expect to devote significant time and resources to the completion of the Merger. However, there can be no assurances that such activities will result in the
completion of the Merger. Further, the completion of the Merger may ultimately not deliver the anticipated benefits or enhance shareholder value. If the Merger is not
completed, we will consider alternative courses of action. We consider one of the following courses of action to be the most likely alternatives if the Merger is not
completed:
•
Pursue another strategic transaction. We may resume the process of evaluating a potential strategic transaction, including the sale of the company or its assets.
Based on our prior assessment, we do not expect that we would have the necessary time or financial resources to pursue another strategic transaction like the
proposed Merger.
•
Wind down the company. If the Merger does not close and we are unable to enter into another strategic transaction, our board of directors may conclude that it is
in the best interest of stockholders to cease normal operations and wind down the company through bankruptcy or dissolution proceedings. In such case, there
would be no assurances as to the amount or timing of available cash remaining, if any, to distribute to stockholders after paying our obligations and setting aside
funds for reserves.
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Merger Agreement
The Merger is intended to qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended. Upon the terms
and subject to the conditions set forth in the Merger Agreement, at the effective time of the Merger, each share of capital stock, par value $0.001 per share, of Infinity
issued and outstanding, or Infinity Stock, will be converted into the right to receive 1.0449, or the Exchange Ratio, shares of common stock, par value $0.00000002 per
share, of MEI, or MEI Common Stock. Holders of Infinity Stock will receive cash in lieu of fractional shares. At the effective time of the Merger, Infinity’s common
stockholders will own approximately 42%, and MEI’s common stockholders will own approximately 58%, of the outstanding shares of common stock of the combined
company.
In addition, as of the effective time of the Merger, MEI will assume each Infinity stock incentive plan and outstanding option to purchase shares of Infinity
Stock, excluding options granted under the Infinity 2013 Employee Stock Purchase Plan, as amended, whether vested or unvested. Each such option so assumed by MEI
will continue to have, and be subject to, the same terms and conditions applicable to such option immediately prior to the effective time of the Merger (after giving effect
to the full acceleration of vesting of such options applicable to the option in connection with the Merger), except that (A) such option will be exercisable for that number
of shares of MEI Common Stock equal to the number of shares of Infinity Stock subject to such option immediately prior to the effective time of the Merger multiplied by
the Exchange Ratio and rounded down to the next nearest share of MEI Common Stock, and (B) the exercise price per share will be the exercise price per share in effect
for that option immediately prior to the effective time of the Merger divided by the Exchange Ratio and rounded up to the next nearest cent.
Consummation of the Merger is subject to certain closing conditions, including, among other things, the (1) approval by the stockholders of MEI of the MEI
Stock Issuance, (2) the adoption by the stockholders of Infinity of the Merger Agreement, (3) authorization for listing on The Nasdaq Capital Market of the shares of MEI
Common Stock (including the shares to be issued in the Merger), subject to official notice of issuance, (4) effectiveness of the Registration Statement and (5) the absence
of any law, judgment, order, injunction, ruling, writ award or decree by any governmental entity of competent jurisdiction restraining, enjoining or otherwise prohibiting
consummation of the Merger. Each party’s obligation to consummate the Merger is also subject to other specified customary conditions, including (1) the representations
and warranties of the other party being true and correct as of the date of the Merger Agreement and as of the closing date of the Merger, generally subject to an overall
material adverse effect qualification, (2) the performance in all material respects by the other party of its obligations under the Merger Agreement required to be
performed on or prior to the date of the closing of the Merger, and (3) the absence of a continuing material adverse effect with respect to the other party. Infinity’s
obligation to consummate the Merger is also subject to the condition that MEI’s final net cash is greater than or equal to $80,000,000 at closing if closing occurs on or
before June 30, 2023, $78,000,000 at closing if closing occurs after June 30, 2023 but on or before July 31, 2023 and $76,000,000 at closing if closing occurs after July
31, 2023 but on or before August 31, 2023. MEI’s obligation to consummate the Merger is also subject to the condition that Infinity’s final net cash is greater than or
equal to $4,000,000 at closing if closing occurs on or before June 30, 2023, $3,000,000 at closing if closing occurs after June 30, 2023 but on or before July 31, 2023, and
$2,000,000 at closing if closing occurs after July 31, 2023 but on or before August 31, 2023.
The Merger Agreement contains certain termination rights for both Infinity and MEI. Upon termination of the Merger Agreement by MEI under specified
circumstances, MEI may be required to pay Infinity a termination fee of $4,000,000 and/or reimburse Infinity’s reasonable out of pocket fees and expenses incurred in
connection with the Merger Agreement and the transaction contemplated thereby up to a maximum of $1,000,000. Upon termination of the Merger Agreement by Infinity
under specified circumstances, Infinity may be required to pay MEI a termination fee of $2,900,000 and/or reimburse MEI’s reasonable out of pocket fees and expenses
incurred in connection with the Merger Agreement and the transaction contemplated thereby up to a maximum of $1,000,000.
MEI and Infinity have agreed to use reasonable best efforts and take all necessary action such that, as of the effective time of the Merger, the Board of Directors
of the combined company will consist of eight members, with four such members designated by MEI, three such members designated by Infinity (one of whom shall be
designated by Infinity as the chair of the Board of Directors of the combined company) and one such member designated jointly by MEI and Infinity, with at least one
MEI designee and one Infinity designee appointed to each of the three classes of the Meadow classified board and MEI’s fourth designee and the jointly designated
designee appointed to the class of MEI directors whose terms expire at the next annual meeting of MEI’s stockholders. The parties have also agreed that David M. Urso
will be elected as Chief Executive Officer, Robert Ilaria, Jr. will be elected as Chief Medical Officer, and Stéphane Peluso will be elected as Chief Scientific Officer.
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Scientific Overview
Preclinical Rationale for Development of Eganelisib: Targeting the Immunosuppressive Microenvironment in Solid Tumors
Role of PI3K-gamma in Cancer Growth and Survival
The body’s immune system is responsible for fighting infections and disease, including cancer, and helping the body to heal. The immune system functions by
identifying and destroying foreign cells and substances within the body. When confronted by pathogens or disease, an early response of the body’s immune system comes
in the form of macrophages, a type of white blood cell that produces pro-inflammatory proteins called cytokines. These cytokines activate T cells, another type of immune
cell, to attack the threat to the body’s health. The macrophages then transition to producing other types of cytokines that dampen T cell activation and promote tissue
growth, which, in turn, stimulates repair of the affected tissue.
Cancer cells arise from normal cells that have changed in a way that allows them to grow in an unregulated manner. Cancer cells are not always recognized by
the body’s immune system as foreign cells that should be destroyed. However, even if cancer cells are recognized by the immune system, both normal homeostatic and
cancer cell-induced mechanisms exist to dampen this immune response, including upregulation of “checkpoint proteins,” such as programmed death receptor 1, or PD-1,
on T cells and programmed-death ligand 1, or PD-L1, on tumor and immune cells. Additionally, in solid tumors there exists a tumor microenvironment, or TME, which
refers to the non-cancerous cells present in the tumor. Cells within the TME, including macrophages, can suppress the body’s immune response and provide signals to
cancer cells that facilitate tumor growth. The presence of the pro-tumor, immunosuppressive TME is thought to be one reason why some cancer therapies, including
checkpoint inhibitors, have shown limited efficacy and durability to date. PI3K-gamma expression is restricted to the myeloid cell compartment within the TME,
including tumor-associated macrophages and myeloid-derived suppressor cells, or MDSCs, where it plays a key role in maintaining the immunosuppressive function of
these cells. Targeting these pro-tumor, immunosuppressive cells represents an emerging approach within the field of cancer immunotherapy, and inhibition of PI3K-
gamma by eganelisib represents a novel approach to targeting this immunosuppressive microenvironment that has the potential to be nonredundant and complementary to
current approaches such as checkpoint inhibitor therapy.
Anti-Tumor Activity of Eganelisib in Preclinical Models
Our preclinical research has demonstrated that blockade of PI3K-gamma by treatment with eganelisib leads to a shift in the type of macrophages present in the
TME from pro-tumor, immunosuppressive macrophages, known as M2 macrophages, to anti-tumor, immune activating macrophages, known as M1 macrophages. In
preclinical studies, treatment with eganelisib in tumor models was shown to increase the ratio of M1 to M2 macrophages, the number of T cells that attack the tumor, and
the production of pro-inflammatory, anti-tumor cytokines. The body’s natural defense to prevent an over-active immune response involves upregulation of checkpoint
proteins, including the upregulation of PD-L1 in response to T cell dependent interferon-gamma signaling. Preclinical data has shown that blocking the PD-1/PD-L1 axis
with a checkpoint inhibitor in combination with eganelisib both expanded the number of anti-tumor T cells and enhanced the anti-tumor activity of expanded T cells in
preclinical models.
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Preclinical studies to investigate the anti-tumor activity of eganelisib have demonstrated dose-dependent, single-agent anti-tumor activity in multiple solid tumor
models, including syngeneic models of lung cancer, colon cancer and breast cancer. Additionally, in preclinical models, treatment with eganelisib in combination with a
checkpoint inhibitor showed greater tumor growth inhibition and extended survival, including a greater number of complete tumor regressions, compared to treatment
with either eganelisib or the checkpoint inhibitor alone. The combination treatment resulted in long-lasting anti-tumor immune memory as evidenced by the lack of tumor
growth when animals were re-challenged post-treatment with the same tumor cells in the absence of any treatment.
Overcoming Resistance to Checkpoint Inhibition
In recent years, checkpoint inhibitors, or CPIs, have shown promising results as a treatment for multiple types of cancer, but most patients do not respond, and
most who do respond eventually become resistant to and require treatment with an additional therapy. Our preclinical studies in a number of tumor models demonstrated
that resistance to checkpoint inhibition is associated with increased numbers of tumor-associated macrophages (TAMs) and is directly mediated by the
immunosuppressive activity of these macrophages on T cells. Furthermore, the data demonstrated that inhibition of PI3K-gamma by eganelisib reprogrammed
macrophages to a less immunosuppressive state, enhanced anti-tumor cytotoxic T cell activity, and restored sensitivity to checkpoint inhibitors. These data demonstrated
that eganelisib treatment was able to reverse the lack of response to checkpoint inhibitors in models that were refractory to checkpoint inhibitor therapy due to the
presence of enhanced numbers of immunosuppressive macrophage.
Eganelisib Clinical Development Program
2023 Eganelisib Development Strategy
Subject to the successful close of the Merger, the combined company plans to initiate in the third quarter of 2023, subject to FDA review, a global, randomized,
controlled Phase 2 clinical trial of eganelisib plus pembrolizumab versus pembrolizumab for the potential treatment of first line relapsed or metastatic head and neck
squamous cell carcinoma, or HNSCC.
The primary endpoint of the Phase 2 study is anticipated to be overall survival, and we plan to have initial safety and progression free survival, or PFS, data in
the second half of 2024. This planned study is intended to address a clear medical need, as patients with recurrent or metastatic HNSCC with a PD-L1 combined positive
score, or CPS, of 1 or greater have relatively short median progression free survival (3.2 months) and overall survival (12.3 months) when treated with pembrolizumab
monotherapy. CPS is a scoring system used to determine the proportion of cells (includes tumor and immune cells) that stain positive for PD-L1 relative to all viable
tumor cells. Head and neck cancers include cancers of the oral cavity, oropharynx, hypopharynx, and larynx, and it is estimated that squamous cell carcinomas account for
more than 90% of these tumors (Tandon P, et al, Contemp Oncol (Pozn) 2017). In 2022, it is estimated that there were 66,470 new cases of head and neck cancer, or
approximately 3.5% of new cancer cases in the United States, and an estimated 15,050 deaths (Siegel R., et al, Cancer J Clin, Cancer Statistics 2022). Worldwide, an
estimated 798,577 people were diagnosed with head and neck cancer in 2020 with an estimated 387,117 people dying from the disease (Sung H., et al, CA Cancer J Clin,
Global Cancer Statistics 2020).The incidence of HNSCC continues to rise, with a 30% anticipated increase by 2030, mostly attributed to the increase in human
papillomavirus, or HPV, associated oropharyngeal squamous cell carcinoma in younger individuals. (Ruffin et al, Nature Reviews Cancer, 2022).
This study follows an encouraging signal from our MAcrophage Reprogramming in Immuno-Oncology-1 study, or MARIO-1, our Phase 1/1b clinical study
designed to evaluate the safety, tolerability, pharmacokinetics, pharmacodynamics, and activity for eganelisib — both as a monotherapy and in combination with
nivolumab — in 224 patients with advanced solid tumors. As of the study’s December 13, 2021 database lock, the median progression free survival, or mPFS, rate of 3.7
months (1.9, 5.5) was observed in the HNSCC cohort in patients with immediate prior progression on CPI therapy. The mPFS for all patients receiving pembrolizumab
monotherapy was 2.3 months in KEYNOTE-048, the benchmark study investigating pembrolizumab monotherapy and pembrolizumab plus chemotherapy or cetuximab
plus chemotherapy as a first-line therapy in
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advanced HNSCC patients. However, we caution you that the risks in cross-trial comparisons limit our ability to reach definitive conclusions without a prospective,
adequately powered, randomized controlled trial. Consequently, the data and results from the HNSCC cohort in MARIO-1 may not be comparable to KEYNOTE-048 for
reasons including, but not limited to, differences in clinical trial protocols, patient characteristics, safety management, sample sizes, duration of treatment, median
duration of follow up, and other factors. Further, in MARIO-1, a disease control rate, or DCR, of 36.4% (4 of 11 patients), an overall response rate, or ORR, of 18.2% (2
of 11 patients), and an mPFS rate of 5.3 months (1.9, 11.1) were observed in the HNSCC cohort in patients with immediate prior progression on CPI therapy and two or
fewer prior lines of therapy.
MARIO-3
MARIO-3 is a multi-arm Phase 2 study designed to evaluate eganelisib in the front-line treatment for metastatic triple negative breast cancer, or mTNBC, and
metastatic renal cell carcinoma, or mRCC. We have completed enrollment in both cohorts. The mTNBC cohort is evaluating eganelisib in combination with
atezolizumab, an anti-PD-L1 monoclonal antibody also known as Tecentriq , and nab-paclitaxel, an albumin-bound chemotherapy drug also known as Abraxane , in
approximately 60 patients with unresectable locally advanced or mTNBC. The mRCC cohort is evaluating eganelisib in combination with atezolizumab and
bevacizumab, also known as Avastin , in approximately 30 patients with mRCC. Using the same cutoff standard used in the F. Hoffmann-La Roche Ltd., or Roche,
benchmark IMpassion130 study for PD-L1, we refer to tumors that test below 1% PD-L1 at baseline as “PD-L1(-) tumors” and tumors that test equal to or greater than
1% as “PD-L1(+) tumors.” We entered into clinical supply agreements with Roche, under which Roche has agreed to supply atezolizumab and bevacizumab for our use in
MARIO-3.
As of an October 8, 2022, data cut from the mTNBC cohort, 62 patients were enrolled and evaluable for safety, and 57 patients were evaluable for efficacy, with
a median duration of follow-up of 10.0 (8.1,14.2) months. Of the 57 evaluable patients:
•
35 patients (61.4%) had PD-L1(-) tumors;
•
18 patients (31.6%) had PD-L1(+) tumors; and
•
4 patients (7.0%) had tumors of undetermined PD-L1 status
The October 8, 2022 data snapshot suggests a potential long-term PFS benefit with a one-year PFS rate of 36.0% (23.7, 49.3) in MARIO-3, including in patients
with both PD-L1(+) and PD-L1(-) tumors, compared to 23.7% (19.6, 27.9) in the benchmark IMpassion130 study evaluating atezolizumab in combination with nab-
paclitaxel compared to placebo with nab-paclitaxel in patients with mTNBC. We designed the MARIO-3 trial to be substantially similar to the IMpassion130 study with
respect to inclusion and exclusion criteria, PD-L1 diagnostic, and other factors; however, the risks in cross-trial comparisons limit our ability to reach definitive
conclusions without a prospective, adequately powered, randomized controlled trial. Consequently, the data and results from MARIO-3 may not be comparable to
IMpassion130 for reasons including differences in clinical trial protocols, safety management, sample sizes, duration of treatment, median duration of follow up, and
other factors.
MARIO-3 One-Year Progression-Free Survival Rate Compared to IMpassion130 Data
ITT
PD-L1 (+)
PD-L1 (-)
MARIO-3
n=57^
IMpassion130
n=451^^
MARIO-3
n=18
IMpassion130
n=185
MARIO-3
n=35
IMpassion130
n=266
One-Year PFS Rate, %
(95% CI)
36.0%
(23.7, 49.3)
23.7%
(19.6, 27.9)
37.5%
(16.8, 60.9)
29.1%
(22.2, 36.1)
34.7%
(19.6, 51.6)
NR*
One-Year PFS Rate
improvement compared
to IMpassion130
52%
relative improvement
29%
relative improvement
NE**
(46% relative improvement compared to
IMpassion130 ITT)
Median duration of
follow up, months (95%
CI)
10.0
(8.1, 14.2)
13.0
(NR*)
9.9
(5.5, NA)
NR*
9.3
(5.9, 14.2)
NR*
Data Snapshot: October 8, 2022, analysis date November 4, 2022
^ 4 patients of unknown PD-L1 status
^^ Schmid et al NEJM 2018
* NR = Not Reported
** NE = Not Evaluable
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Additional MARIO-3 Data by Patient Population Compared to IMpassion130 Data
PD-L1 (+)
PD-L1 (-)
MARIO-3
n=18
IMpassion130^
n=185
MARIO-3
n=35
IMpassion130^
n=265
CR, % (n)^^
16.7 (3)
10.3 (19)
5.7 (2)
4.9 (13)
ORR, % (n)^^
66.7 (12)
58.9 (109)
54.3 (19)
54.0 (143)
mDOR (mos)
n (95% CI)^
11.7
n=12
(1.8, NA)
8.5
n=109
(7.3, 9.7)
7.4
n=19
(3.7, NA)
NR*
mDOR increase compared to
IMpassion130
3.2 mos
(37.6% increase)
NE**
mPFS, mos
(95% CI)
6.4
(3.6, NA)
7.5
(6.7, 9.2)
7.3
(5.2, 13.3)
5.6
(5.5, 7.3)
Data Snapshot: October 8, 2022, analysis date November 4, 2022
^ Schmid et al NEJM 2018 with PD-L1(-) data calculated based on ITT and PD-L1(+) data
^^ Includes unconfirmed and confirmed responses for MARIO-3
* NR = Not Reported
** NE = Not Evaluable
No new safety signals were observed as of the October 8, 2022, data snapshot, and the MARIO-3 safety profile continued to be consistent with expectations for
the three component drugs.
Most Common Treatment-Related TEAEs in ≥ 10% of All Treated Patients^* (n=62)
Preferred Term/Grouped Term
Treatment-related TEAE (All), n
(%)
Treatment-related TEAE (≥ Gr. 3), n
(%)
Fatigue
30 (48.4)
4 (6.5)
Skin AEs
29 (46.8)
7 (11.3)
Nausea
28 (45.2)
0 (0.0)
Hepatic AEs**
24 (38.7)
15 (24.2)
Peripheral neuropathy
19 (30.6)
7 (11.3)
Diarrhea
18 (29.0)
3 (4.8)
Alopecia
16 (25.8)
0 (0.0)
Neutropenia AEs
16 (25.8)
9 (14.5)
Vomiting
13(21.0)
1 (1.6)
Pyrexia
10 (16.1)
0 (0.0)
Peripheral neuropathy
19 (30.6)
7 (11.3)
Stomatitis
9 (14.5)
0 (0.0)
Decreased appetite
8 (12.9)
0 (0.0)
Headache
8 (12.9)
0 (0.0)
Weight decreased
7 (11.3)
1 (1.6)
Dysgeusia
7 (11.3)
0 (0.0)
Constipation
7 (11.3)
0 (0.0)
Data Snapshot: July 23, 2022
Presented in descending order of all treatment-related treatment-emergent adverse effect, or TEAE
^ Treatment-related is related to any of the study drugs (eganelisib, atezolizumab, nab-paclitaxel)
* No treatment-related Grade 5 AEs
** One Grade 4 event and no event met Hy’s Law criteria
Hepatic, skin, neutropenia, and peripheral neuropathy represent grouped preferred terms
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Treatment Discontinuation: 74% of MARIO-3 Patients Remained on Triplet Regimen Compared to 81% of Patients with the IMpassion130 Doublet
MARIO-3
Egan+
Atezo+Nab-Pac
(n=62), n (%)
IMpassion130*
Atezo+Nab-Pac
(n=460), n (%)
All-causality AEs
Any grade
61 (98.4)
457 (99.3)
Grade 3 or 4
41 (66.1)
233 (50.7)
Grade 5
5 (8.1)
6 (1.3)
Serious AEs
22 (35.5)
110 (23.9)
AE leading to any drug withdraw
16 (25.8)
88 (19.1)
AE leading to Atezo withdraw
14 (22.6)
37 (8.0)
AE leading to Nab-Pac withdraw
11 (17.7)
85 (18.5)
Treatment-related AEs**
Any grade
60 (96.8)
444 (96.5)
Grade 3 or 4
42 (67.7)
191 (41.5)
Grade 5
0 (0.0)
2 (0.4)
Serious AEs
9 (14.5)
58 (12.6)
Data Snapshot: July 23, 2022
* Emens et al., Annals of Oncology 2021
** MARIO-3 data listed are for TEAEs related to any study drug
The Unmet Needs of Patients with Triple Negative Breast Cancer
There were estimated to be 287,850 new cases of breast cancer in 2022. Compared to other breast cancer subtypes, TNBC, which is so named because the cancer
cells lack estrogen and progesterone receptors and do not make much of the protein called human epidermal growth factor receptor 2, or HER2, is aggressive and TNBC
patients have limited treatment options. TNBC accounts for up to 15% of all breast cancer in women, and the 5-year survival rate of metastatic TNBC patients is only
12%. Available therapies for advanced front-line TNBC offer limited efficacy, particularly in PD-L1(-) patients.
MARIO-275
MARIO-275 is our global, randomized, placebo-controlled Phase 2 study evaluating the effect of adding eganelisib to nivolumab, also known as Opdivo , in
checkpoint-naïve advanced urothelial cancer, or UC, patients whose cancer has progressed or recurred following treatment with platinum-based chemotherapy.
Nivolumab is an immune checkpoint inhibitor therapy commercialized by Bristol Myers Squibb Company, or BMS, that targets programmed death receptor 1, or PD-1, a
checkpoint protein that helps regulate the body’s immune system. MARIO-275 is complete and all sites have been closed.
We presented MARIO-275 data at the American Society of Clinical Oncology Genitourinary Cancers Symposium, or ASCO GU, in February 2021, and
presented updates on overall survival data in July 2021 and January 2022, as well as a two-year landmark analysis announced in a press release issued on August 9, 2022.
The data from the 49 patients enrolled in the trial include the following findings:
•
At a two-year landmark survival analysis presented on of July 29, 2022, 45% of patients in the eganelisib plus nivolumab arm are alive compared to 24% of
patients in the nivolumab control arm. The data also suggests a potential durable survival benefit in the PD-L1(-) subgroup, with 38% of patients alive at two
years in the eganelisib plus nivolumab arm versus 17% in the control group. No new safety signals were observed during the extended period on treatment.
•
Median overall survival (mOS) in the intent to treat population as presented in July 2021 was 15.4 months (6.2, NE) on the eganelisib plus nivolumab
combination arm as compared to 7.9 months (2.3, NE) on the control arm of nivolumab alone with a hazard ratio (HR) 0.62 (0.28, 1.36), reflecting a 38% lower
probability of death.
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•
The mOS in PD-L1(-) patients, as updated in January 2022, was 15.3 months (4.7, NE) on the eganelisib plus nivolumab arm versus 7.9 months (1.9, NE) on the
nivolumab control arm with an HR 0.58 (0.21, 1.66), reflecting a 42% lower probability of death.
The most common TEAEs for the eganelisib plus nivolumab combination arm across all doses, all causality, were pyrexia (33.3%), decreased appetite (30.3%),
pruritus (27.3%), asthenia (27.3%), rash (27.3%), and increased alanine aminotransferase (24.2%); and the most common ≥Grade 3 TEAEs across all doses, all causality,
were anemia (12.1%), and hepatic AEs including hepatotoxicity (15.2%), increased ALT (12.1%), and increased AST (12.1%) with no Hy’s Law. No Grade 5 AEs were
reported.
Data presented at ASCO GU demonstrated the greatest benefit of the combination of eganelisib and nivolumab was observed in the patient population (n=23)
with tumors expressing low levels of PD-L1, with improvement over nivolumab monotherapy (n=7) in ORR (26% vs. 14%); DCR (57% vs. 14%); and best responses of
complete response, or CR, (9% vs. 0%) and stable disease, or SD, (30% vs. 0%). Of patients with PD-L1 low tumors in the combination arm, 58% (11 of 19) achieved a
reduction in tumor burden, compared to 17% (1 of 6) in the nivolumab plus placebo arm.
The Unmet Needs of Patients with Urothelial Cancer
Approximately 95% of bladder cancers are urothelial cancer. According to SEER Cancer Statistics Review estimations of 2022 data, bladder cancer was
estimated to be the sixth most common form of cancer in the U.S., with 81,180 new cases, or 4.2% of all new cancers, and 17,100 deaths, or 2.8% of all cancer deaths.
According to a recent meta-analysis of clinical studies investigating PD-L1 status in metastatic UC, the ORR in PD-L1 high UC patients is approximately 25% in contrast
to an ORR of 14% for patients with low levels of PD-L1 expression. The patients with low levels of PD-L1 expression have a poorer PFS and a poorer OS relative to the
PD-L1 high patients. (Tan WP et al. Bladder Cancer. 2019;5(3):211-223.) Compounding these disparate outcomes, the majority of patients with metastatic UC are PD-L1
low. (Bellmunt J et al. Ann Oncol. 2015;26(4):812-817). Despite significant progress in the advancement of therapeutic options for UC in recent years, including the use
of checkpoint inhibitors, there remains an opportunity to improve outcomes.
MARIO-1
MARIO-1, our Phase 1/1b clinical study designed to evaluate the safety, tolerability, pharmacokinetics, pharmacodynamics, and activity for eganelisib — both as
a monotherapy and in combination with nivolumab — in 224 patients with advanced solid tumors, reached primary completion in December 2021. The study included a
dose escalation portion and a combination therapy expansion portion evaluating patients dosed at 40 mg daily, or QD, of eganelisib in combination with the standard
regimen of nivolumab in the following forms of cancer: non-small cell lung cancer, melanoma, HNSCC, TNBC, mesothelioma, adrenocortical carcinoma, and those with
high baseline blood levels of MDSCs.
As of the study’s December 13, 2021 database lock, an mPFS rate of 3.7 months (1.9, 5.5) was observed in the HNSCC cohort in patients with immediate prior
progression on CPI therapy. The mPFS for all patients receiving pembrolizumab monotherapy was 2.3 months in KEYNOTE-048, the benchmark study investigating
pembrolizumab monotherapy, pembrolizumab plus chemotherapy, or cetuximab plus chemotherapy as a first-line therapy in recurrent or metastatic HNSCC patients.
However, we caution you that the risks in cross-trial comparisons limit our ability to reach definitive conclusions without a prospective, adequately powered, randomized
controlled trial. Consequently, the data and results from the HNSCC cohort in MARIO-1 may not be comparable to KEYNOTE-048 for reasons including, but not limited
to, differences in clinical trial protocols, patient characteristics, safety management, sample sizes, duration of treatment, median duration of follow up, and other factors.
Further, in MARIO-1, a disease control rate, or DCR, of 36.4% (4 of 11 patients), an overall response rate, or ORR, of 18.2% (2 of 11 patients), and an mPFS rate of 5.3
months (1.9, 11.1) were observed in the HNSCC cohort in patients with immediate prior progression on CPI therapy and two or fewer prior lines of therapy.
These findings build on data released regarding the HNSCC cohort at the 2020 Annual Meeting of the Society for Immunotherapy of Cancers, which
demonstrated clinical activity of the combination therapy in patients not expected to benefit from checkpoint inhibitor alone, or CPI, having progressed on an immediate
prior CPI therapy prior to entering MARIO-1.
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MARIO-1: Activity of Eganelisib in Combination with Nivolumab in HNSCC Patients Having Progressed on Immediate Prior Check-Point Inhibitor
Therapy
Source: Cohen, et al., SITC 2020
Safety data across all eganelisib combination cohorts suggests the combination therapy was generally well tolerated and associated with a manageable safety
profile at all eganelisib doses tested, up to and including the selected combination therapy expansion dose of eganelisib at 40 mg QD plus the standard regimen of
nivolumab. No maximum tolerated dose was determined, and there were no treatment-related deaths. The pharmacokinetic/pharmacodynamic profile of eganelisib (up to
the recommended combination expansion dose of 40 mg QD) was unaffected by nivolumab co-administration, and eganelisib in combination with nivolumab reduced
immune suppression and increased immune activation, as indicated by analyses of peripheral blood. In eganelisib as monotherapy, no Grade 3 or higher drug related
toxicity was observed at eganelisib doses of 10 to 40 mg daily. At an eganelisib monotherapy dose of 60 mg daily, Grade 3 or higher drug-related adverse events were
observed, consisting of mainly reversible hepatic enzyme elevations and skin rash. Additional data demonstrated that eganelisib as a monotherapy reduced immune
suppression and increased immune activation, as indicated by analyses of peripheral blood.
Alliances, Collaborations, and Other Arrangements
Since our inception, corporate alliances, license agreements and other strategic arrangements, as well as the sale of securities, have been integral to our strategy.
Many of these arrangements have provided access to breakthrough science, significant research and development support and funding, supply of clinical trial materials,
and innovative drug development programs, all intended to help us realize the full potential of our product pipeline. For more information related to the arrangements
described below, please see Note 9 (Liabilities Related to Sale of Future Royalties) and Note 11 (Strategic Agreements) to our Consolidated Financial Statements in this
Annual Report on Form 10-K.
Mundipharma and Purdue
We are obligated to pay Mundipharma International Corporation Limited, or Mundipharma, and Purdue Pharmaceutical Products L.P., or Purdue, a 4% royalty in
the aggregate on worldwide net sales of eganelisib, duvelisib, or Copiktra , a product we out-licensed in 2016; and IPI-926, or patidegib, a product we out-licensed in
2013. After a threshold is met the royalty will be reduced to a 1% royalty on net sales in the United States of such products.
Verastem, Secura Bio, and HCR
In 2016, we and Verastem Inc., or Verastem, entered into a license agreement, or the Verastem Agreement, under which we granted to Verastem an exclusive
worldwide license for the research, development, commercialization, and manufacture of duvelisib, and products containing duvelisib, which we refer to as the Licensed
Products, in each case in oncology indications. In September 2020, Verastem completed a disposition of its rights, title, and interest in and to duvelisib to Secura Bio, Inc.,
or Secura Bio, wherein Secura Bio assumed all liabilities and obligations under the Verastem Agreement, including obligations to pay us royalties on worldwide net sales
of Licensed Products ranging from the mid-single digits to the high-single digits, a portion of which we are obligated to share as described in the section below entitled
“Takeda.” We now refer to the Verastem Agreement as the Secura Bio Agreement.
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In 2019, we and HealthCare Royalty Partners III, L.P., or HCR, entered into a purchase and sale agreement, or the HCR Transaction, providing for the
acquisition by HCR of our interest in certain royalty payments, or the Purchased Assets, based on worldwide annual net sales of Licensed Products pursuant to the Secura
Bio Agreement. See Note 9 of the notes to our consolidated financial statements included in Part II, Item 8, “Financial Statements and Supplementary Data” of this
Annual Report on Form 10-K for details of the HCR transaction.
Secura Bio is obligated to pay us a royalty of 4% on worldwide net sales of Licensed Products to cover the obligations owed by us to Mundipharma and Purdue,
which will reduce to a 1% royalty of net sales in the United States after a certain threshold is met.
PellePharm / Sol-Gel Technologies
In June 2013, we entered into a license agreement with PellePharm, Inc., or PellePharm, under which we granted PellePharm exclusive global development and
commercialization rights to our hedgehog inhibitor program, including patidegib. In January 2023, PellePharm announced that such license agreement was assigned to
Sol-Gel Technologies, Ltd., or Sol-Gel, upon Sol-Gel acquiring all rights and obligations under the license agreement. We now refer to the license agreement with
PellePharm as the Sol-Gel Agreement and products covered by the Sol-Gel Agreement as Hedgehog Products. We assessed this arrangement in accordance with ASC 606
and concluded that at the date of contract inception there was only one performance obligation, consisting of the license, which was satisfied at contract inception.
Under the Sol-Gel Agreement, Sol-Gel is obligated to pay us up to $9.0 million in remaining regulatory and commercial-based milestone payments through the
first commercial sale of a Hedgehog Product. Sol-Gel is also obligated to pay us up to $37.5 million in success-based milestone payments upon the achievement of certain
annual net sales thresholds, as well as a share of certain revenue received by Sol-Gel in the event that Sol-Gel sublicenses its rights under the Sol-Gel Agreement and
tiered royalties on annual net sales of Hedgehog Products subject to specified conditions. The remaining milestones have not been recognized as they represent variable
consideration that is constrained. In making this assessment, we considered numerous factors, including the fact that achievement of the milestones is outside of our
control and contingent upon the future success of clinical trials, Sol-Gel’s actions, and the receipt of regulatory approval. As the single performance obligation was
previously satisfied, all regulatory and commercial-based milestones will be recognized as revenue in full in the period in which the constraint is removed. Any
consideration related to sales-based milestone payments, including royalties, will be recognized when the related sales occur as these amounts have been determined to
relate predominantly to the license granted to Sol-Gel and therefore are recognized at the later of when the performance obligation is satisfied, or the related sales occur.
Sol-Gel is also obligated to pay us tiered royalties on annual net sales of Hedgehog Products, which are subject to reduction after a certain aggregate funding
threshold has been achieved. On January 8, 2020, we entered into the BVF Funding Agreement, as further described in Note 9, pursuant to which we sold our interest in
all royalty payments based on worldwide annual net sales of the BVF Licensed Product, excluding Trailing Mundipharma Royalties related to patidegib.
Takeda
In 2010, we entered into a development and license agreement with Intellikine, Inc., or Intellikine, under which we obtained rights to discover, develop and
commercialize pharmaceutical products targeting the gamma and/or delta isoforms of PI3K, including eganelisib and duvelisib. In January 2012, Intellikine was acquired
by Takeda Pharmaceutical Company Limited, or Takeda. In December 2012, we amended and restated our development and license agreement with Takeda and further
amended the agreement in July 2014, September 2016, July 2017, and March 2019. We refer to the amended and restated development and license agreement, as
amended, as the Takeda Agreement.
Eganelisib
Pursuant to the Takeda Agreement, we are obligated to pay Takeda the remaining $3.0 million success-based development milestone and up to $165.0 million in
remaining success-based regulatory and commercial milestones for one product candidate other than duvelisib that inhibits the PI3K pathway, which could be eganelisib.
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The Takeda Agreement expires on the later of the expiration of certain patents and the expiration of the royalty payment terms for the products, unless earlier
terminated in accordance with its terms. Either party may terminate the Takeda Agreement on 75 days’ prior written notice if the other party materially breaches the
agreement and fails to cure such breach within the applicable notice period, provided that the notice period is reduced to 30 days where the alleged breach is non-
payment. Takeda may also terminate the Takeda Agreement if we are not diligent in developing or commercializing the licensed products and do not, within three months
after notice from Takeda, demonstrate to Takeda’s reasonable satisfaction that we have not failed to be diligent. The foregoing periods are subject to extension in certain
circumstances. Additionally, Takeda may terminate the Takeda Agreement upon 30 days’ prior written notice if we or a related party bring an action challenging the
validity of any of the licensed patents, provided that we have not withdrawn such action before the end of the 30-day notice period. We may terminate the agreement at
any time upon 180 days’ prior written notice. The Takeda Agreement also provides for customary reciprocal indemnification obligations of the parties.
Intellectual Property
Our intellectual property consists of patents, trademarks, trade secrets and know-how. Our ability to compete effectively depends in large part on our ability to
obtain patents and trademarks for our technologies and products, maintain trade secrets, operate without infringing the rights of others and prevent others from infringing
our proprietary rights. We will be able to protect our proprietary technologies from unauthorized use by third parties only to the extent that they are covered by valid and
enforceable patents, or are effectively maintained as trade secrets. As a result, patents or other proprietary rights are an essential element of our business.
We have sixteen issued or allowed U.S. patents related to our PI3K-gamma program, which expire on various dates between 2033 and 2037, excluding any
potential patent term extension. In addition, we have approximately 115 patents and patent applications pending worldwide related to our PI3K-gamma program. Any
patents that may issue from our pending patent applications would expire between 2033 and 2041, excluding any potential patent term extension. These patents and patent
applications disclose compositions of matter, pharmaceutical compositions, methods of use and synthetic methods.
The term of individual patents depends upon the legal term for patents in the countries in which they are obtained. In most countries, including the United States,
the patent term is 20 years from the earliest filing date of a non-provisional patent application. In the United States, a patent's term may be extended by patent term
adjustment, which compensates a patentee for administrative delays by the United States Patent and Trademark Office, or USPTO, in examining and granting a patent, or
may be shortened if a patent is terminally disclaimed over an earlier filed patent. The term of a patent that covers a drug or biological product may also be eligible for
patent term extension when FDA approval is granted, provided statutory and regulatory requirements are met. In the future, if and when our product candidates receive
approval by the FDA or foreign regulatory authorities, we expect to apply for patent term extensions on issued patents covering those drugs, depending upon the length of
the clinical trials for each drug and other factors. There can be no assurance that any of our pending patent applications will issue or that we will benefit from any patent
term extension or favorable adjustment to the term of any of our patents.
As with other biotechnology and pharmaceutical companies, our ability to maintain and solidify our proprietary and intellectual property position for our product
candidates and technologies will depend on our success in obtaining effective patent claims and enforcing those claims, if granted. However, our pending patent
applications, and any patent applications that we may in the future file or license from third parties may not result in the issuance of patents. We also cannot predict the
breadth of claims that may be allowed or enforced in our patents. Any issued patents that we may receive in the future may be challenged, invalidated or circumvented.
For example, we cannot be certain of the priority of inventions covered by pending third-party patent applications. If third parties prepare and file patent applications in
the United States that also claim technology or therapeutics to which we have rights, we may have to participate in interference proceedings in the USPTO to determine
priority of invention, which could result in substantial costs to us, even if the eventual outcome is favorable to us, which is highly unpredictable. In addition, because of
the extensive time required for clinical development and regulatory review of a product candidate we may develop, it is possible that, before any of our product
candidates can be commercialized, any related patent may expire or remain in force for only a short period following commercialization, thereby limiting protection such
patent would afford the respective product and any competitive advantage such patent may provide.
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Our policy is to obtain and enforce the patents and proprietary technology rights that are commercially important to our business, and we intend to continue to
file patent applications to protect such technology and compounds in countries where we believe it is commercially reasonable and advantageous to do so. We also rely on
trade secrets to protect our technology where patent protection is deemed inappropriate or unobtainable. We seek to protect our proprietary information, in part, by
executing confidentiality agreements with our collaborators and scientific advisors, and non-competition, non-solicitation, confidentiality, and invention assignment
agreements with our employees and consultants. We have also executed agreements requiring assignment of inventions with selected scientific advisors and collaborators.
The confidentiality agreements we enter into are designed to protect our proprietary information, and the agreements or clauses requiring assignment of inventions to us
are designed to grant us ownership of technologies that are developed through our relationship with the respective counterparty. We cannot guarantee, however, that these
agreements will afford us adequate protection of our intellectual property and proprietary information rights.
Competition
The pharmaceutical and biotechnology industries are intensely competitive, including the field of immuno-oncology, or IO, within which we are competing
directly. Many companies are actively engaged in the research and development of drugs for the treatment of the same diseases and conditions as our current and potential
future product candidates, and many have substantially greater financial and other resources, larger research and development staffs, and more extensive marketing and
manufacturing organizations than we do. In addition, some of them have considerably more experience than us in preclinical testing, clinical trials and other regulatory
approval procedures. There are also academic institutions, governmental agencies and other research organizations that are conducting research in areas in which we are
working. They may also develop products that may be competitive with our product candidates, either on their own or through collaborative efforts.
We expect to encounter significant competition for any drugs we develop. Companies that complete clinical trials, obtain required regulatory approvals and
commence commercial sales of their products before their competitors may achieve a significant competitive advantage. We are aware that many other companies or
institutions are pursuing the development of drugs in the areas in which we are currently seeking to develop our own product candidates, and there may be other
companies working on competitive projects of which we are not aware.
Our competitors may commence and complete clinical testing of their product candidates, obtain regulatory approvals and begin commercialization of their
products sooner than we may for our own product candidates. These competitive products may have superior safety or efficacy, or be manufactured less expensively, than
our product candidates. If we are unable to compete effectively against these companies on the basis of safety, efficacy or cost, then we may not be able to commercialize
our product candidates or achieve a competitive position in the market. This would adversely affect our business.
Selective inhibition of PI3K-gamma by eganelisib has been shown in preclinical studies to reprogram macrophages from a pro-tumor, immunosuppressive
function, to an anti-tumor, immune activating function and to enhance the activity of, and overcome resistance to, immune checkpoint inhibitors. We believe the following
competitors are also investigating drug or product candidates targeting one or more aspects of macrophage reprogramming biology: Arcus Biosciences, Inc. (PI3K-
gamma inhibitor, pre-clinical); AstraZeneca plc (PI3K-gamma, pre-clinical); Jounce Therapeutics, Inc.; Macomics Ltd; Merck & Co.; Nanjing Zenshine Pharmaceuticals,
Co. Ltd. (PI3K-gamma, clinical); Pathios Therapeutics Ltd; and Pionyr Immunotherapeutics, Inc.
Subject to the successful close of the Merger, the combined company plans to initiate in the third quarter of 2023, subject to U.S. Food and Drug Administration
review, a global, randomized, controlled Phase 2 clinical trial of eganelisib plus pembrolizumab versus pembrolizumab for the potential treatment of first line relapsed or
metastatic HNSCC. Many additional companies have therapies in clinical development in HNSCC, including but not limited to: Eisai Co. Ltd., Immutep Ltd., Vaccinex
Inc., Calliditas Therapeutics AB, Seagen Inc., Incyte Corp., BioNTech SE, Gilead Sciences Inc., Exelixis Inc.
Further, the broader field of IO is crowded with innovative therapies that may compete with eganelisib, including checkpoint inhibitor therapies, including: PD-1
inhibitors such as nivolumab, pembrolizumab, and cemiplimab; PD-L1 inhibitors such as atezolizumab, avelumab, and durvalumab; CTLA-4 inhibitors such as
ipilimumab, and tremelimumab; and LAG3 inhibitors such as relatlimab. Many of these checkpoint inhibitor therapies are being evaluated in combination with other non-
checkpoint inhibitor IO product candidates. For instance, nivolumab, which we are currently testing in combination with eganelisib, is being evaluated by others in
multiple clinical trials in combination with non-checkpoint inhibitor candidates such as sitravatinib, a small-molecule inhibitor of tyrosine kinases including Tyro3, MER,
AXL, VEGFR, and KIT; linrodostat, a small-molecule inhibitor of IDO; elotuzumab, a CD319 antibody; urelumab, a CD137 antibody; and cabiralizumab, an anti-CSF1R
antibody. In January 2021, the FDA approved the combination of nivolumab and cabozantinib, Exelixis, Inc’s small-molecule inhibitor of tyrosine kinases, including
MET, AXL, VEGFR, and RET, as first-line treatment for patients with advanced RCC. The success of competing IO therapies may limit the number of patients available
for enrollment in our clinical trials.
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Research and Development
As of March 15, 2023, our research and development group consisted of 17 employees, of whom eight hold Ph.D. or M.D. degrees and eight hold a master’s
degree. Our research and development group is focused on preclinical research, translational medicine, clinical trials and manufacturing technologies. In addition, we rely
on several consultants to fill strategic and tactical roles that support our research and development group.
Manufacturing and Supply
We rely on third parties and, in some instances, we rely on only one third party, to manufacture critical raw materials, drug substance and final drug product for
our research, preclinical development and clinical trial activities. Commercial quantities of any drugs we seek to develop will have to be manufactured in facilities and by
processes that comply with regulations of the FDA and other foreign regulatory authorities, and we plan to rely on third parties to manufacture commercial quantities of
any products we successfully develop.
Throughout the COVID-19 pandemic, our manufacturing processes have continued uninterrupted, and we have established contingency strategies intended to
prevent potential supply chain interruptions related to the COVID-19 pandemic and any future pandemic. To date, we believe we have enough eganelisib drug product to
conduct our current clinical trials. Further, we believe that we have enough drug product intermediate for additional drug product manufacturing necessary to support our
clinical development program and potential preclinical studies, and we estimate that drug substance currently being manufactured may be available by the end of 2023.
We expect COVID-19 to have limited impact to existing manufacturing operations because all eganelisib drug product necessary to conduct our current clinical trials has
been manufactured or is scheduled to be manufactured with sufficient lead times to accommodate potential delays. However, variants of the SARS-COV-2 virus have
continued to develop, and potential future variants could be more virulent or more contagious than variants to date. Such variants may worsen or prolong the impact of the
COVID-19 pandemic or any future pandemic, and may be so extreme that we cannot fully mitigate their impact on our manufacturing timeline.
Sales and Marketing
We currently have no marketing, commercial sales, or distribution capabilities. We do, however, currently have worldwide commercialization rights for
eganelisib. In order to commercialize eganelisib, if and when it is approved for sale, we will need to develop the necessary marketing, sales and distribution capabilities or
establish a collaboration with a company that has commercial capabilities.
Government Regulation and Product Approvals
Government authorities in the United States, at the federal, state and local level, and in other countries and jurisdictions, including the European Union, or EU,
extensively regulate, among other things, the research, development, testing, manufacture, pricing, quality control, approval, packaging, storage, recordkeeping, labeling,
advertising, promotion, distribution, marketing, sales, pricing, reimbursement, post-approval monitoring and reporting, and import and export of biopharmaceutical
products. The processes for obtaining marketing approvals in the United States and in foreign countries and jurisdictions, along with compliance with applicable statutes
and regulations and other regulatory authorities, require the expenditure of substantial time and financial resources.
Approval and Regulation of Drugs in the United States
In the United States, drug products are regulated under the Federal Food, Drug and Cosmetic Act, or FDCA, and applicable implementing regulations and
guidance. A company, institution, or organization which takes responsibility for the initiation and management of a clinical development program for such products, and
for their regulatory approval, is typically referred to as a sponsor. The failure of a sponsor to comply with the applicable regulatory requirements at any time during the
product development process, including non-clinical testing, clinical testing, the approval process or post-approval process, may result in delays to the conduct of a study,
regulatory review and approval and/or administrative or judicial sanctions.
A sponsor seeking approval to market and distribute a new drug in the United States generally must satisfactorily complete each of the following steps before the
product candidate will be approved by the FDA:
•
preclinical testing including laboratory tests, animal studies and formulation studies, which must be performed in accordance with the FDA’s good
laboratory practice, or GLP, regulations and standards;
•
design of a clinical protocol and submission to the FDA of an investigational new drug, or IND, for human clinical testing, which must become effective
before human clinical trials may begin;
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•
approval by an independent institutional review board, or IRB, representing each clinical site before each clinical trial may be initiated;
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performance of adequate and well-controlled human clinical trials to establish the safety, potency and purity of the product candidate for each proposed
indication, in accordance with current good clinical practices, or GCP;
•
preparation and submission to the FDA of a new drug application, or NDA, for a drug product which includes not only the results of the clinical trials, but
also, detailed information on the chemistry, manufacture and quality controls for the product candidate and proposed labeling for one or more proposed
indication(s);
•
review of the product candidate by an FDA advisory committee, where appropriate or if applicable;
•
satisfactory completion of any FDA audits of the non-clinical and clinical trial sites to assure compliance with GCP and the integrity of clinical data in
support of the NDA;
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compliance with any post-approval requirements, including the potential requirement to implement a Risk Evaluation and Mitigation Strategy, or REMS,
and the potential requirement to conduct any post-approval studies required by the FDA;
•
satisfactory completion of an FDA inspection of the manufacturing facility or facilities, including those of third parties, at which the product candidate or
components thereof are manufactured to assess compliance with current good manufacturing practices, or cGMP, requirements and to assure that the
facilities, methods and controls are adequate to preserve the product’s identity, strength, quality and purity; and
•
payment of user fees and securing FDA approval of the NDA to allow marketing of the new drug product.
Preclinical Studies and Investigational New Drug Application
Before a sponsor begins testing a product candidate with potential therapeutic value in humans, the product candidate enters the preclinical testing stage.
Preclinical tests include laboratory evaluations of product chemistry, formulation and stability, as well as other studies to evaluate, among other things, the toxicity of the
product candidate. These studies are generally referred to as IND-enabling studies. The conduct of the preclinical tests and formulation of the compounds for testing must
comply with federal regulations and requirements, including GLP regulations and standards and the United States Department of Agriculture’s Animal Welfare Act, if
applicable. The results of the preclinical tests, together with manufacturing information and analytical data, are submitted to the FDA as part of an IND. Some long-term
preclinical testing, such as animal tests of reproductive adverse events and carcinogenicity, and long-term toxicity studies, may continue after the IND is submitted.
The IND and IRB Processes
Clinical trials involve the administration of the investigational product to human subjects under the supervision of qualified investigators in accordance with
GCP requirements, which include, among other things, the requirement that all research subjects provide their voluntary informed consent in writing before their
participation in any clinical trial. Clinical trials are conducted under written study protocols detailing, among other things, the inclusion and exclusion criteria, the
objectives of the study, the parameters to be used in monitoring safety and the effectiveness criteria to be evaluated. A protocol for each clinical trial and any subsequent
protocol amendments must be submitted to the FDA as part of the IND.
An IND is an exemption from the FDCA that allows an unapproved product candidate to be shipped in interstate commerce for use in an investigational clinical
trial and a request for FDA authorization to administer such investigational product to humans. Such authorization must be secured prior to interstate shipment and
administration of any product candidate that is not the subject of an approved NDA. In support of a request for an IND, sponsors must submit a protocol for each clinical
trial and any subsequent protocol amendments must be submitted to the FDA as part of the IND. The FDA requires a 30-day waiting period after the filing of each IND
before clinical trials may begin. This waiting period is designed to allow the FDA to review the IND to determine whether human research subjects will be exposed to
unreasonable health risks. At any time during this 30-day period, or thereafter, the FDA may raise concerns or questions about the conduct of the trials as outlined in the
IND and impose a clinical hold or partial clinical hold. In this case, the IND sponsor and the FDA must resolve any outstanding concerns before clinical trials can begin.
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Following commencement of a clinical trial under an IND, the FDA may also place a clinical hold or partial clinical hold on that trial. Clinical holds are imposed
by the FDA whenever there is concern for patient safety and may be a result of new data, findings, or developments in clinical, nonclinical, and/or chemistry,
manufacturing, and controls, commonly known as CMC, matters. A clinical hold is an order issued by the FDA to the sponsor to delay a proposed clinical investigation or
to suspend an ongoing investigation. A partial clinical hold is a delay or suspension of only part of the clinical work requested under the IND. For example, a specific
protocol or part of a protocol is not allowed to proceed, while other protocols may do so. No more than 30 days after imposition of a clinical hold or partial clinical hold,
the FDA will provide the sponsor a written explanation of the basis for the hold. Following issuance of a clinical hold or partial clinical hold, an investigation may only
resume after the FDA has notified the sponsor that the investigation may proceed. The FDA will base that determination on information provided by the sponsor
correcting the deficiencies previously cited or otherwise satisfying the FDA that the investigation can proceed.
A sponsor may choose, but is not required, to conduct a foreign clinical study under an IND. When a foreign clinical study is conducted under an IND, all FDA
IND requirements must be met unless waived. When a foreign clinical study is not conducted under an IND, the sponsor must ensure that the study complies with certain
regulatory requirements of the FDA in order to use the study as support for an IND or application for marketing approval. The FDA’s regulations are intended to help
ensure the protection of human subjects enrolled in non-IND foreign clinical studies, as well as the quality and integrity of the resulting data. They further help ensure that
non-IND foreign studies are conducted in a manner comparable to that required for IND studies.
In addition to the foregoing IND requirements, an IRB representing each institution participating in the clinical trial must review and approve the plan for any
clinical trial before it commences at that institution, and the IRB must conduct continuing review and reapprove the study at least annually. The IRB must review and
approve, among other things, the study protocol and informed consent information to be provided to study subjects. An IRB must operate in compliance with FDA
regulations. An IRB can suspend or terminate approval of a clinical trial at its institution, or an institution it represents, if the clinical trial is not being conducted in
accordance with the IRB’s requirements or if the product candidate has been associated with unexpected serious harm to patients.
Additionally, some trials are overseen by an independent group of qualified experts organized by the trial sponsor, known as a data safety monitoring board or
committee, or DSMB. This group provides authorization as to whether or not a trial may move forward at designated check points based on access that only the group
maintains to available data from the study. Suspension or termination of development during any phase of clinical trials can occur if it is determined that the participants
or patients are being exposed to an unacceptable health risk. Other reasons for suspension or termination may be made by us based on evolving business objectives and/or
competitive climate.
Expanded Access to an Investigational Drug for Treatment Use
Expanded access, sometimes called “compassionate use,” is the use of investigational new drug products outside of clinical trials to treat patients with serious or
immediately life-threatening diseases or conditions when there are no comparable or satisfactory alternative treatment options. The rules and regulations related to
expanded access are intended to improve access to investigational drugs for patients who may benefit from investigational therapies. FDA regulations allow access to
investigational drugs under an IND by the company or the treating physician for treatment purposes on a case-by-case basis for: individual patients (single-patient IND
applications for treatment in emergency settings and non-emergency settings); intermediate-size patient populations; and larger populations for use of the drug under a
treatment protocol or Treatment IND Application.
When considering an IND application for expanded access to an investigational product with the purpose of treating a patient or a group of patients, the sponsor
and treating physicians or investigators will determine suitability when all of the following criteria apply: patient(s) have a serious or immediately life-threatening disease
or condition, and there is no comparable or satisfactory alternative therapy to diagnose, monitor, or treat the disease or condition; the potential patient benefit justifies the
potential risks of the treatment and the potential risks are not unreasonable in the context or condition to be treated; and the expanded use of the investigational drug for
the requested treatment will not interfere initiation, conduct, or completion of clinical investigations that could support marketing approval of the product or otherwise
compromise the potential development of the product.
There is no obligation for a sponsor to make its drug products available for expanded access; however, as required by the 21st Century Cures Act, or Cures Act,
passed in 2016, sponsors are required to make policies for evaluating and responding to requests for expanded access for patients publicly available upon the earlier of
initiation of a Phase 2 or Phase 3 clinical trial, or 15 days after the investigational drug or biologic receives designation as a breakthrough therapy, fast track product, or
regenerative medicine advanced therapy.
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In addition, on May 30, 2018, the Right to Try Act was signed into law. The law, among other things, provides a federal framework for certain patients to access
certain investigational new drug products that have completed a Phase I clinical trial and that are undergoing investigation for FDA approval. Under certain
circumstances, eligible patients can seek treatment without enrolling in clinical trials and without obtaining FDA permission under the FDA expanded access program.
There is no obligation for a drug manufacturer to make its drug products available to eligible patients as a result of the Right to Try Act, but the manufacturer must
develop an internal policy and respond to patient requests according to that policy.
Human Clinical Trials in Support of an NDA
Clinical trials involve the administration of the investigational product candidate to human subjects under the supervision of a qualified investigator in
accordance with GCP requirements which include, among other things, the requirement that all research subjects provide their informed consent in writing before their
participation in any clinical trial. Clinical trials are conducted under written clinical trial protocols detailing, among other things, the objectives of the study, inclusion and
exclusion criteria, the parameters to be used in monitoring safety and the effectiveness criteria to be evaluated.
Human clinical trials are typically conducted in three sequential phases, but the phases may overlap or be combined. Additional studies may also be required
after approval.
Phase 1 clinical trials are initially conducted in a limited population to test the product candidate for safety, including adverse effects, dose tolerance, absorption,
metabolism, distribution, excretion and pharmacodynamics in healthy humans or in patients. During Phase 1 clinical trials, information about the investigational drug
product’s pharmacokinetics and pharmacological effects may be obtained to permit the design of well-controlled and scientifically valid Phase 2 clinical trials.
Phase 2 clinical trials are generally conducted in a limited patient population to identify possible adverse effects and safety risks, evaluate the efficacy of the
product candidate for specific targeted indications and determine dose tolerance and optimal dosage. Multiple Phase 2 clinical trials may be conducted by the sponsor to
obtain information prior to beginning larger and more costly Phase 3 clinical trials. Phase 2 clinical trials are well controlled, closely monitored and conducted in a limited
patient population.
Phase 3 clinical trials proceed if the Phase 2 clinical trials demonstrate that a dose range of the product candidate is potentially effective and has an acceptable
safety profile. Phase 3 clinical trials are undertaken within an expanded patient population to further evaluate dosage, provide substantial evidence of clinical efficacy and
further test for safety in an expanded and diverse patient population at multiple, geographically dispersed clinical trial sites. A well-controlled, statistically robust Phase 3
clinical trial may be designed to deliver the data that regulatory authorities will use to decide whether or not to approve, and, if approved, how to appropriately label a
drug. Such Phase 3 studies are referred to as “pivotal.”
A clinical trial may combine the elements of more than one phase and the FDA often requires more than one Phase 3 trial to support marketing approval of a
product candidate. A company’s designation of a clinical trial as being of a particular phase is not necessarily indicative that the study will be sufficient to satisfy the FDA
requirements of that phase because this determination cannot be made until the protocol and data have been submitted to and reviewed by the FDA. Moreover, as noted
above, a pivotal trial is a clinical trial that is believed to satisfy FDA requirements for the evaluation of a product candidate’s safety and efficacy such that it can be used,
alone or with other pivotal or non-pivotal trials, to support regulatory approval. Generally, pivotal trials are Phase 3 trials, but they may be Phase 2 trials if the design
provides a well-controlled and reliable assessment of clinical benefit, particularly in an area of unmet medical need.
In December 2022, with the passage of the Food and Drug Omnibus Reform Act, or FDORA, Congress required sponsors to develop and submit a diversity
action plan for each Phase 3 clinical trial or any other “pivotal study” of a new drug or biological product. These plans are meant to encourage the enrollment of more
diverse patient populations in late-stage clinical trials of FDA-regulated products. Specifically, actions plans must include the sponsor’s goals for enrollment, the
underlying rationale for those goals, and an explanation of how the sponsor intends to meet them. In addition to these requirements, the legislation directs the FDA to
issue new guidance on diversity action plans.
In some cases, the FDA may approve an NDA for a product candidate but require the sponsor to conduct additional clinical trials to further assess the product
candidate’s safety and effectiveness after approval. Such post-approval trials are typically referred to as Phase 4 clinical trials. These studies are used to gain additional
experience from the treatment of a larger number of patients in the intended treatment group and to further document a clinical benefit in the case of drugs approved under
accelerated approval regulations. Failure to exhibit due diligence with regard to conducting Phase 4 clinical trials could result in withdrawal of approval for products.
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In March 2022, the FDA released a final guidance entitled “Expansion Cohorts: Use in First-In-Human Clinical Trials to Expedite Development of Oncology
Drugs and Biologics,” which outlines how sponsors can utilize an adaptive trial design in the early stages of oncology product development (i.e., the first-in-human
clinical trial) to compress the first two traditional phases of trials into one continuous trial called an expansion cohort trial. Information to support the design of individual
expansion cohorts are included in IND applications and assessed by FDA. Expansion cohort trials can potentially bring efficiency to product development and reduce
developmental costs and time.
Progress reports detailing the results of the clinical trials must be submitted at least annually to the FDA and more frequently if serious adverse events occur. In
addition, IND safety reports must be submitted to the FDA for any of the following: serious and unexpected suspected adverse reactions; findings from other studies or
animal or in vitro testing that suggest a significant risk in humans exposed to the product; and any clinically important increase in the case of a serious suspected adverse
reaction over that listed in the protocol or investigator brochure. Phase 1, Phase 2 and Phase 3 clinical trials may not be completed successfully within any specified
period, or at all. The FDA will typically inspect one or more clinical sites to assure compliance with GCP and the integrity of the clinical data submitted.
Finally, sponsors of clinical trials are required to register and disclose certain clinical trial information on a public registry (clinicaltrials.gov) maintained by the
U.S. National Institutes of Health, or NIH. In particular, information related to the product, patient population, phase of investigation, study sites and investigators and
other aspects of the clinical trial is made public as part of the registration of the clinical trial. The failure to submit clinical trial information to clinicaltrials.gov, as
required, is a prohibited act under the FDCA with violations subject to potential civil monetary penalties of up to $10,000 for each day the violation continues. Although
the FDA has historically not enforced these reporting requirements due to the United States Department of Health and Human Services’, or HHS, long delay in issuing
final implementing regulations, those regulations have now been issued and the FDA has issued several Notices of Noncompliance to manufacturers since April 2021.
Manufacturing and Other Regulatory Requirements
Concurrent with clinical trials, companies often complete additional animal studies and must also develop additional information about the chemistry and
physical characteristics of the drug as well as finalize a process for manufacturing the product in commercial quantities in accordance with cGMP requirements. The
manufacturing process must be capable of consistently producing quality batches of the drug candidate and, among other things, must develop methods for testing the
identity, strength, quality, purity, and potency of the final drug. Additionally, appropriate packaging must be selected and tested, and stability studies must be conducted to
demonstrate that the drug candidate does not undergo unacceptable deterioration over its shelf life.
The FDA’s regulations also require that pharmaceutical products be manufactured in specific approved facilities and in accordance with cGMPs. The cGMP
regulations include requirements relating to organization of personnel, buildings and facilities, equipment, control of components and product containers and closures,
production and process controls, packaging and labeling controls, holding and distribution, laboratory controls, records and reports and returned or salvaged products.
Manufacturers and other entities involved in the manufacture and distribution of approved pharmaceuticals are required to register their establishments with the FDA and
some state agencies, and they are subject to periodic unannounced inspections by the FDA for compliance with cGMPs and other requirements. Inspections must follow a
“risk-based schedule” that may result in certain establishments being inspected more frequently. Manufacturers may also have to provide, on request, electronic or
physical records regarding their establishments. Delaying, denying, limiting, or refusing inspection by the FDA may lead to a product being deemed to be adulterated.
Changes to the manufacturing process, specifications or container closure system for an approved product are strictly regulated and often require prior FDA approval
before being implemented. The FDA’s regulations also require, among other things, the investigation and correction of any deviations from cGMP and the imposition of
reporting and documentation requirements upon the sponsor and any third-party manufacturers involved in producing the approved product. The PREVENT Pandemics
Act, which was enacted in December 2022, clarifies that foreign drug manufacturing establishments are subject to registration and listing requirements even if a drug
undergoes further manufacture, preparation, propagation, compounding, or processing at a separate establishment outside the United States prior to being imported or
offered for import into the United States.
Pediatric Studies
Under the Pediatric Research Equity Act of 2003, or PREA, a BLA or supplement thereto must contain data that are adequate to assess the safety and
effectiveness of the product for the claimed indications in all relevant pediatric subpopulations, and to support dosing and administration for each pediatric subpopulation
for which the product is safe and effective. Sponsors must also submit pediatric study plans prior to the assessment data. Those plans must contain an outline of the
proposed pediatric study or studies the sponsor plans to conduct, including study objectives and design, any deferral or
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waiver requests, and other information required by regulation. The sponsor, the FDA, and the FDA’s internal review committee must then review the information
submitted, consult with each other, and agree upon a final plan. The FDA or the sponsor may request an amendment to the plan at any time.
The FDA may, on its own initiative or at the request of the sponsor, grant deferrals for submission of some or all pediatric data until after approval of the product
for use in adults, or full or partial waivers from the pediatric data requirements. A deferral may be granted for several reasons, including a finding that the product or
therapeutic candidate is ready for approval for use in adults before pediatric trials are complete or that additional safety or effectiveness data needs to be collected before
the pediatric trials begin. Pursuant to the Food and Drug Administration Safety and Innovation Act of 2012, or FDASIA, the FDA must send a PREA Non-Compliance
letter to sponsors who have failed to submit their pediatric assessments required under PREA, have failed to seek or obtain a deferral or deferral extension or have failed
to request approval for a required pediatric formulation. It further requires the FDA to publicly post the PREA Non-Compliance letter and sponsor’s response. Unless
otherwise required by regulation, the pediatric data requirements do not apply to products with orphan designation, although FDA has recently taken steps to limit what it
considers abuse of this statutory exemption.
Review and Approval of an NDA
In order to obtain approval to market a drug product in the United States, a marketing application must be submitted to the FDA that provides sufficient data
establishing the safety, purity and potency of the proposed drug product for its intended indication. The application includes all relevant data available from pertinent
preclinical and clinical trials, including negative or ambiguous results as well as positive findings, together with detailed information relating to the product’s chemistry,
manufacturing, controls and proposed labeling, among other things. Data can come from company-sponsored clinical trials intended to test the safety and effectiveness of
a use of a product, or from a number of alternative sources, including studies initiated by investigators. To support marketing approval, the data submitted must be
sufficient in quality and quantity to establish the safety and efficacy of the drug product to the satisfaction of the FDA.
The NDA is a vehicle through which sponsors formally propose that the FDA approve a new product for marketing and sale in the United States for one or more
indications. Every new drug product candidate must be the subject of an approved NDA before it may be commercialized in the United States. Under federal law, the
submission of most NDAs is subject to an application user fee, which for federal fiscal year 2023 is approximately $3.25 million for an application requiring clinical data.
The sponsor of an approved NDA is also subject to an annual program fee, which for federal fiscal year 2023 is $394,000. Certain exceptions and waivers are available
for some of these fees, such as an exception from the application fee for products with orphan designation and a waiver for certain small businesses.
Following submission of an NDA, the FDA conducts a preliminary review of the application within 60 calendar days of its receipt and it must inform the
sponsor by that time or before as to whether the application is sufficiently complete to permit substantive review. In the event that the FDA determines that an application
does not satisfy this standard, it will issue a Refuse to File, or RTF, determination to the sponsor. The FDA may request additional information rather than accept the
application for filing. In this event, the application must be resubmitted with the additional information. The resubmitted application is also subject to review before the
FDA accepts it for filing. Once the submission is accepted for filing, the FDA begins an in-depth substantive review. The FDA has agreed to specified performance goals
in the review process of NDAs. Under that agreement, 90% of applications seeking approval of New Molecular Entities, or NMEs, are meant to be reviewed within ten
months from the date on which the FDA accepts the application for filing, and 90% of applications for NMEs that have been designated for “priority review” are meant to
be reviewed within six months of the filing date.
In connection with its review of an application, the FDA typically will inspect the facility or facilities where the product is or will be manufactured. These pre-
approval inspections may cover all facilities associated with an NDA submission, including component manufacturing, finished product manufacturing and control testing
laboratories. The FDA will not approve an application unless it determines that the manufacturing processes and facilities are in compliance with cGMP requirements and
adequate to assure consistent production of the product within required specifications. Additionally, before approving an NDA, the FDA will typically inspect one or
more clinical sites to assure compliance with GCP. Under the FDA Reauthorization Act of 2017, the FDA must implement a protocol to expedite review of responses to
inspection reports pertaining to certain applications, including applications for products in shortage or those for which approval is dependent on remediation of conditions
identified in the inspection report. Further, with passage of FDORA, Congress clarified FDA’s authority to conduct inspections by expressly permitting inspection of
facilities involved in the preparation, conduct, or analysis of clinical and non-clinical studies submitted to FDA as well as other persons holding study records or involved
in the study process.
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In addition, as a condition of approval, the FDA may require a sponsor to develop a REMS. REMS use risk minimization strategies beyond the professional
labeling to ensure that the benefits of the product outweigh the potential risks. To determine whether a REMS is needed, the FDA will consider the size of the population
likely to use the product, seriousness of the disease, expected benefit of the product, expected duration of treatment, seriousness of known or potential adverse events and
whether the product is a new molecular entity.
The FDA may refer an application for a novel product to an advisory committee or explain why such referral was not made. Typically, an advisory committee is
a panel of independent experts, including clinicians and other scientific experts, that reviews, evaluates and provides a recommendation as to whether the application
should be approved and under what conditions. The FDA is not bound by the recommendations of an advisory committee, but it considers such recommendations
carefully when making decisions.
Expedited Review Programs
The FDA is authorized to expedite the review of NDAs in several ways. Under the Fast Track program, the sponsor of a product candidate may request the FDA
to designate the product for a specific indication as a Fast Track product concurrent with or after the filing of the IND. Candidate products are eligible for Fast Track
designation if they are intended to treat a serious or life-threatening condition and demonstrate the potential to address unmet medical needs for the condition. Fast Track
designation applies to the combination of the product candidate and the specific indication for which it is being studied. In addition to other benefits, such as the ability to
have greater interactions with the FDA, the FDA may initiate review of sections of a Fast Track application before the application is complete, a process known as rolling
review.
Any product candidate submitted to the FDA for marketing, including under a Fast Track program, may be eligible for other types of FDA programs intended to
expedite development and review, such as breakthrough therapy designation, priority review and accelerated approval.
•
Breakthrough therapy designation. To qualify for the breakthrough therapy program, product candidates must be intended to treat a serious or life-threatening
disease or condition and preliminary clinical evidence must indicate that such product candidates may demonstrate substantial improvement on one or more
clinically significant endpoints over existing therapies. The FDA will seek to ensure the sponsor of a breakthrough therapy product candidate receives intensive
guidance on an efficient drug development program, intensive involvement of senior managers and experienced staff on a proactive, collaborative and cross-
disciplinary review and rolling review.
•
Priority review. A product candidate is eligible for priority review if it treats a serious condition and, if approved, it would be a significant improvement in the
safety or effectiveness of the treatment, diagnosis or prevention compared to marketed products. FDA aims to complete its review of priority review applications
within six months as opposed to 10 months for standard review.
•
Accelerated approval. Drug or biologic products studied for their safety and effectiveness in treating serious or life-threatening illnesses and that provide
meaningful therapeutic benefit over existing treatments may receive accelerated approval. Accelerated approval means that a product candidate may be approved
on the basis of adequate and well controlled clinical trials establishing that the product candidate has an effect on a surrogate endpoint that is reasonably likely to
predict a clinical benefit, or on the basis of an effect on a clinical endpoint other than survival or irreversible morbidity or mortality or other clinical benefit,
taking into account the severity, rarity and prevalence of the condition and the availability or lack of alternative treatments. As a condition of approval, the FDA
may require that a sponsor of a drug or biologic product candidate receiving accelerated approval perform adequate and well controlled post-marketing clinical
trials. In addition, the FDA currently requires as a condition for accelerated approval pre-approval of promotional materials.
With passage of FDORA in December 2022, Congress modified certain provisions governing accelerated approval of drug and biologic products. Specifically,
the new legislation authorized the FDA to: require a sponsor to have its confirmatory clinical trial underway before accelerated approval is awarded, require a sponsor of
a product granted accelerated approval to submit progress reports on its post-approval studies to FDA every six months (until the study is completed), and use expedited
procedures to withdraw accelerated approval of an NDA or BLA after the confirmatory trial fails to verify the product’s clinical benefit. Further, FDORA requires the
agency to publish on its website “the rationale for why a post-approval study is not appropriate or necessary” whenever it decides not to require such a study upon
granting accelerated approval.
•
Regenerative advanced therapy. With passage of the 21st Century Cures Act, or the Cures Act, in December 2016, Congress authorized the FDA to accelerate
review and approval of products designated as regenerative advanced therapies. A product is eligible for this designation if it is a regenerative medicine therapy
that is intended to treat, modify, reverse or cure a serious or life-threatening disease or condition and preliminary clinical evidence indicates that the product
candidate has the potential to address unmet medical needs for such disease or condition. The benefits
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of a regenerative advanced therapy designation include early interactions with the FDA to expedite development and review, benefits available to breakthrough
therapies, potential eligibility for priority review and accelerated approval based on surrogate or intermediate endpoints.
None of these expedited programs change the standards for approval but they may help expedite the development or approval process of product candidates.
Project Optimus
Project Optimus is an initiative of the Oncology Center of Excellence at FDA. This project focuses on dose optimization and dose selection in oncology drug
development, and whether the current paradigm based on cytotoxic chemotherapeutics leads to doses and schedules of molecularly targeted therapies that provide more
toxicity without additional efficacy, among other things. By participating in Project Optimus, drug developments have the opportunity to meet with FDA’s Oncology
Review Divisions early in development programs, well before conducting trials intended for registration, to discuss dose-finding and dose optimization. The program thus
allows sponsors to develop strategies for dose finding and dose optimization that leverages nonclinical and clinical data in dose selection, including randomized
evaluations of a range of doses in trials, with the objective of performing these studies as early as possible in the development program to bring promising new therapies
to patients.
The FDA’s Decision on an NDA
After evaluating the application and all related information, including the advisory committee recommendations, if any, and inspection reports of manufacturing
facilities and clinical trial sites, the FDA will issue either a Complete Response Letter, or CRL, or an approval letter. To reach this determination, the FDA must determine
that the drug is effective and that its expected benefits outweigh its potential risks to patients. This “benefit-risk” assessment is informed by the extensive body of
evidence about the product’s safety and efficacy in the NDA. This assessment is also informed by other factors, including: the severity of the underlying condition and
how well patients’ medical needs are addressed by currently available therapies; uncertainty about how the premarket clinical trial evidence will extrapolate to real-world
use of the product in the post-market setting; and whether risk management tools are necessary to manage specific risks.
A CRL indicates that the review cycle of the application is complete, and the application will not be approved in its present form. The CRL generally outlines the
deficiencies in the submission and may require substantial additional testing or information in order for the FDA to reconsider the application. If and when those
deficiencies have been addressed to the FDA’s satisfaction in a resubmission of the NDA, the FDA will issue an approval letter. The FDA has committed to reviewing
such resubmissions in two or six months depending on the type of information included. Even with submission of this additional information, the FDA ultimately may
decide that the application does not satisfy the regulatory criteria for approval. For those seeking to challenge FDA’s CRL decision, the agency has indicated that sponsors
may request a formal hearing on the CRL or they may file a request for reconsideration or a request for a formal dispute resolution.
An approval letter, on the other hand, authorizes commercial marketing of the product with specific prescribing information for specific indications. The agency
may require testing and surveillance programs to monitor the product after commercialization, or impose other conditions, including distribution restrictions or other risk
management mechanisms such as risk evaluation and mitigation strategies, or REMS, to help ensure that the benefits of the product outweigh the potential risks. REMS
can include medication guides, communication plans for health care professionals, and elements to assure safe use, or ETASU. ETASU can include, but are not limited to,
special training or certification for prescribing or dispensing, dispensing only under certain circumstances, special monitoring and the use of patent registries. The FDA
may prevent or limit further marketing of a product based on the results of post-market studies or surveillance programs. After approval, many types of changes to the
approved product, such as adding new indications, manufacturing changes and additional labeling claims, are subject to further testing requirements and FDA review and
approval.
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Post-Approval Regulation
If regulatory approval for marketing of a product or new indication for an existing product is obtained, the sponsor will be required to comply with all regular
post-approval regulatory requirements as well as any post-approval requirements that the FDA may have imposed as part of the approval process. The sponsor will be
required to report, among other things, certain adverse reactions and manufacturing problems to the FDA, provide updated safety and efficacy information and comply
with requirements concerning advertising and promotional labeling requirements. 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 and certain state agencies for compliance with
ongoing regulatory requirements, including cGMP regulations, which impose certain procedural and documentation requirements upon manufacturers. Accordingly, the
sponsor and its third-party manufacturers must continue to expend time, money and effort in the areas of production and quality control to maintain compliance with
cGMP regulations and other regulatory requirements.
A product may also be subject to official lot release, meaning that the manufacturer is required to perform certain tests on each lot of the product before it is
released for distribution. If the product is subject to official release, the manufacturer must submit samples of each lot, together with a release protocol showing a
summary of the history of manufacture of the lot and the results of all of the manufacturer’s tests performed on the lot, to the FDA. The FDA may in addition perform
certain confirmatory tests on lots of some products before releasing the lots for distribution. Finally, the FDA will conduct laboratory research related to the safety, purity,
potency and effectiveness of pharmaceutical products.
Once an approval is granted, the FDA may withdraw the approval if compliance with regulatory requirements is not maintained or if problems occur after the
product reaches the market. Later discovery of previously unknown problems with a product, including adverse events of unanticipated severity or frequency, or with
manufacturing processes, or failure to comply with regulatory requirements, may result in revisions to the approved labeling to add new safety information; imposition of
post-market studies or clinical trials to assess safety risks; or imposition of distribution or other restrictions under a REMS program. Other potential consequences
include, among other things:
•
restrictions on the marketing or manufacturing of the product, complete withdrawal of the product from the market or product recalls;
•
fines, warning letters or holds on post-approval clinical trials;
•
refusal of the FDA to approve pending applications or supplements to approved applications, or suspension or revocation of product license approvals;
•
product seizure or detention, or refusal to permit the import or export of products; or
•
injunctions or the imposition of civil or criminal penalties.
The FDA strictly regulates the marketing, labeling, advertising and promotion of prescription drug products placed on the market. This regulation includes,
among other things, standards and regulations for direct-to-consumer advertising, communications regarding unapproved uses, industry-sponsored scientific and
educational activities, and promotional activities involving the Internet and social media. Promotional claims about a drug’s safety or effectiveness are prohibited before
the drug is approved. After approval, a drug product generally may not be promoted for uses that are not approved by the FDA, as reflected in the product’s prescribing
information. In the United States, health care professionals are generally permitted to prescribe drugs for such uses not described in the drug’s labeling, known as off-label
uses, because the FDA does not regulate the practice of medicine. However, FDA regulations impose rigorous restrictions on manufacturers’ communications, prohibiting
the promotion of off-label uses. In September 2021, the FDA published final regulations which describe the types of evidence that the agency will consider in determining
the intended use of a drug product.
If a company is found to have promoted off-label uses, it may become subject to adverse public relations and administrative and judicial enforcement by the
FDA, the DOJ, or the Office of the Inspector General of the Department of Health and Human Services, as well as state authorities. This could subject a company to a
range of penalties that could have a significant commercial impact, including civil and criminal fines and agreements that materially restrict the manner in which a
company promotes or distributes drug products. The federal government has levied large civil and criminal fines against companies for alleged improper promotion, and
has also requested that companies enter into consent decrees or permanent injunctions under which specified promotional conduct is changed or curtailed.
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Pediatric Exclusivity
Pediatric exclusivity is another type of non-patent marketing exclusivity in the United States and, if granted, provides for the attachment of an additional six
months of regulatory exclusivity to the term of any existing patent or regulatory exclusivity, including orphan exclusivity. This six-month exclusivity may be granted if an
NDA sponsor submits pediatric data that fairly respond to a written request from the FDA for such data. The data do not need to show the product to be effective in the
pediatric population studied; rather, if the clinical trial is deemed to fairly respond to the FDA’s request, the additional protection is granted. If reports of requested
pediatric studies are submitted to and accepted by the FDA within the statutory time limits, whatever statutory or regulatory periods of exclusivity or patent protection
cover the product are extended by six months. This is not a patent term extension, but it effectively extends the regulatory period during which the FDA cannot approve
another application.
Orphan Drug Designation and Exclusivity
Under the Orphan Drug Act, the FDA may designate a drug product as an “orphan drug” if it is intended to treat a rare disease or condition, generally meaning
that it affects fewer than 200,000 individuals in the United States, or more in cases in which there is no reasonable expectation that the cost of developing and making a
product available in the United States for treatment of the disease or condition will be recovered from sales of the product. A company must seek orphan drug designation
before submitting an NDA for the candidate product. If the request is granted, the FDA will disclose the identity of the therapeutic agent and its potential use. Orphan
drug designation does not shorten the PDUFA goal dates for the regulatory review and approval process, although it does convey certain advantages such as tax benefits
and exemption from the PDUFA application fee.
If a product with orphan designation receives the first FDA approval for the disease or condition for which it has such designation or for a select indication or use
within the rare disease or condition for which it was designated, the product generally will receive orphan drug exclusivity. Orphan drug exclusivity means that the FDA
may not approve another sponsor’s marketing application for the same drug for the same condition for seven years, except in certain limited circumstances. Orphan
exclusivity does not block the approval of a different product for the same rare disease or condition, nor does it block the approval of the same product for different
conditions. If a drug designated as an orphan drug ultimately receives marketing approval for an indication broader than what was designated in its orphan drug
application, it may not be entitled to exclusivity.
Orphan drug exclusivity will not bar approval of another product under certain circumstances, including if the company with orphan drug exclusivity is not able
to meet market demand or the subsequent product with the same drug for the same condition is shown to be clinically superior to the approved product on the basis of
greater efficacy or safety, or providing a major contribution to patient care. This is the case despite an earlier court opinion holding that the Orphan Drug Act
unambiguously required the FDA to recognize orphan drug exclusivity regardless of a showing of clinical superiority. Under Omnibus legislation signed by President
Trump on December 27, 2020, the requirement for a product to show clinical superiority applies to drugs and biologics that received orphan drug designation before
enactment of FDARA in 2017, but have not yet been approved or licensed by FDA.
In September 2021, the Court of Appeals for the 11th Circuit held that, for the purpose of determining the scope of market exclusivity, the term “same disease or
condition” in the statute means the designated “rare disease or condition” and could not be interpreted by the FDA to mean the “indication or use.” Thus, the court
concluded, orphan drug exclusivity applies to the entire designated disease or condition rather than the “indication or use.” Although there have been legislative proposals
to overrule this decision, they have not been enacted into law. On January 23, 2023, FDA announced that, in matters beyond the scope of that court order, FDA will
continue to apply its existing regulations tying orphan-drug exclusivity to the uses or indications for which the orphan drug was approved.
Section 505(b)(2) NDAs
NDAs for most new drug products are based on two full clinical studies which must contain substantial evidence of the safety and efficacy of the proposed new
product for the proposed use. These applications are submitted under Section 505(b)(1) of the FDCA. The FDA is, however, authorized to approve an alternative type of
NDA under Section 505(b)(2) of the FDCA. This type of application allows the sponsor to rely, in part, on the FDA’s previous findings of safety and efficacy for a similar
product, or published literature. Specifically, Section 505(b)(2) applies to NDAs for a drug for which the investigations made to show whether or not the drug is safe for
use and effective in use and relied upon by the sponsor for approval of the application “were not conducted by or for the sponsor and for which the sponsor has not
obtained a right of reference or use from the person by or for whom the investigations were conducted.”
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Section 505(b)(2) thus authorizes the FDA to approve an NDA based on safety and effectiveness data that were not developed by the sponsor. NDAs filed under
Section 505(b)(2) may provide an alternate and potentially more expeditious pathway to FDA approval for new or improved formulations or new uses of previously
approved products. If the 505(b)(2) sponsor can establish that reliance on the FDA’s previous approval is scientifically appropriate, the sponsor may eliminate the need to
conduct certain preclinical or clinical studies of the new product. The FDA may also require companies to perform additional studies or measurements to support the
change from the approved product. The FDA may then approve the new drug candidate for all or some of the label indications for which the referenced product has been
approved, as well as for any new indication sought by the Section 505(b)(2) sponsor
Abbreviated New Drug Applications for Generic Drugs
In 1984, with passage of the Hatch-Waxman Amendments to the FDCA, Congress established an abbreviated regulatory scheme authorizing the FDA to approve
generic drugs that are shown to contain the same active ingredients as, and to be bioequivalent to, drugs previously approved by the FDA pursuant to NDAs.
In order for an ANDA to be approved, the FDA must find that the generic version is identical to the drug product previously approved under an NDA (the
reference-listed drug, or RLD), with respect to the active ingredients, the route of administration, the dosage form, the strength of the drug and the conditions of use of the
drug. At the same time, the FDA must also determine that the generic drug is “bioequivalent” to the innovator drug. Under the statute, a generic drug is bioequivalent to a
RLD if “the rate and extent of absorption of the drug do not show a significant difference from the rate and extent of absorption of the listed drug.” Upon approval of an
ANDA, the FDA indicates whether the generic product is “therapeutically equivalent” to the RLD in its publication “Approved Drug Products with Therapeutic
Equivalence Evaluations,” also referred to as the “Orange Book.” Physicians and pharmacists consider a therapeutic equivalent generic drug to be fully substitutable for
the RLD.
Under the Hatch-Waxman Amendments, the FDA may not approve an ANDA until any applicable period of non-patent exclusivity for the RLD has expired. The
FDCA provides a period of five years of non-patent data exclusivity for a new drug containing a new chemical entity. For the purposes of this provision, a new chemical
entity, or NCE, is a drug that contains no active moiety that has previously been approved by the FDA in any other NDA. An active moiety is the molecule or ion
responsible for the physiological or pharmacological action of the drug substance. In cases where such NCE exclusivity has been granted, an ANDA may not be filed with
the FDA until the expiration of five years unless the submission is accompanied by a Paragraph IV certification, in which case the sponsor may submit its application four
years following the original product approval. The FDCA also provides for a period of three years of exclusivity if the NDA includes reports of one or more new clinical
investigations, other than bioavailability or bioequivalence studies, that were conducted by or for the sponsor and are essential to the approval of the application.
Hatch-Waxman Patent Certification and the 30-Month Stay
Upon approval of an NDA or a supplement thereto, NDA sponsors are required to list with the FDA each patent with claims that cover the sponsor’s product or
an approved method of using the product. Each of the patents listed by the NDA sponsor is published in the Orange Book. When an ANDA sponsor files its application
with the FDA, the sponsor is required to certify to the FDA concerning any patents listed for the reference product in the Orange Book, except for patents covering
methods of use for which the ANDA sponsor is not seeking approval. To the extent that the Section 505(b)(2) sponsor is relying on studies conducted for an already
approved product, the sponsor is required to certify to the FDA concerning any patents listed for the approved product in the Orange Book to the same extent that an
ANDA sponsor would.
Specifically, the sponsor must certify with respect to each patent that:
•
the required patent information has not been filed;
•
the listed patent has expired;
•
the listed patent has not expired, but will expire on a particular date and approval is sought after patent expiration; or
•
the listed patent is invalid, unenforceable or will not be infringed by the new product.
A certification that the new product will not infringe the already approved product’s listed patents or that such patents are invalid or unenforceable is called a
Paragraph IV certification. If the sponsor does not challenge the listed patents or indicates that it is not seeking approval of a patented method of use, the application will
not be approved until all the listed patents claiming the referenced product have expired (other than method of use patents involving indications for which the sponsor is
not seeking approval).
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If the ANDA sponsor has provided a Paragraph IV certification to the FDA, the sponsor must also send notice of the Paragraph IV certification to the NDA and
patent holders once the ANDA has been accepted for filing by the FDA. The NDA and patent holders may then initiate a patent infringement lawsuit in response to the
notice of the Paragraph IV certification. The filing of a patent infringement lawsuit within 45 days after the receipt of a Paragraph IV certification automatically prevents
the FDA from approving the ANDA until the earlier of 30 months after the receipt of the Paragraph IV notice, expiration of the patent, or a decision in the infringement
case that is favorable to the ANDA sponsor.
Patent Term Restoration and Extension
A patent claiming a new drug product may be eligible for a limited patent term extension under the Hatch-Waxman Act, which permits a patent restoration of up
to five years for patent term lost during product development and the FDA regulatory review. The restoration period granted on a patent covering a product is typically
one-half the time between the effective date for the IND for the clinical investigation and the submission date of an application, plus the time between the submission date
of an application and the ultimate approval date. Patent term restoration cannot be used to extend the remaining term of a patent past a total of 14 years from the product’s
approval date. Only one patent applicable to an approved product is eligible for the extension, and the application for the extension must be submitted prior to the
expiration of the patent in question. A patent that covers multiple products for which approval is sought can only be extended in connection with one of the approvals.
The USPTO reviews and approves the application for any patent term extension or restoration in consultation with the FDA.
Health Care Law and Regulation
Health care providers and third-party payors play a primary role in the recommendation and prescription of drug products that are granted marketing approval.
Arrangements with providers, consultants, third-party payors and customers are subject to broadly applicable fraud and abuse, anti-kickback, false claims laws, patient
privacy laws and regulations and other health care laws and regulations that may constrain business and/or financial arrangements.
Restrictions under applicable federal and state health care laws and regulations include the federal Anti-Kickback Statute, which prohibits, among other things,
persons and entities from knowingly and willfully soliciting, offering, paying, receiving or providing remuneration, directly or indirectly, in cash or in kind, to induce or
reward either the referral of an individual for, or the purchase, order or recommendation of, any good or service, for which payment may be made, in whole or in part,
under a federal health care program such as Medicare and Medicaid; the federal civil and criminal false claims laws, including the civil False Claims Act, and civil
monetary penalties laws, which prohibit individuals or entities from, among other things, knowingly presenting, or causing to be presented, to the federal government,
claims for payment that are false, fictitious or fraudulent or knowingly making, using or causing to made or used a false record or statement to avoid, decrease or conceal
an obligation to pay money to the federal government; HIPAA, which prohibits, among other things, executing or attempting to execute a scheme to defraud any
healthcare benefit program or making false statements relating to healthcare matters; the Foreign Corrupt Practices Act, or FCPA, which prohibits companies and their
intermediaries from making, or offering or promising to make, improper payments to non-U.S. officials for the purpose of obtaining or retaining business or otherwise
seeking favorable treatment; and the federal transparency requirements known as the federal Physician Payments Sunshine Act, which requires certain manufacturers of
drugs, devices, biologics and medical supplies to report annually to the Centers for Medicare & Medicaid Services, or CMS, within the United States Department of
Health and Human Services, information related to payments and other transfers of value made by that entity to physicians (as defined under the Sunshine Act), other
healthcare providers and teaching hospitals, as well as ownership and investment interests held by physicians and their immediate family members.
Further, some state laws require pharmaceutical companies to comply with the pharmaceutical industry’s voluntary compliance guidelines and the relevant
compliance guidance promulgated by the federal government in addition to requiring manufacturers to report information related to payments to physicians and other
health care providers or marketing expenditures. Additionally, some state and local laws require the registration of pharmaceutical sales representatives in the jurisdiction.
State and foreign laws also govern the privacy and security of health information in some circumstances, many of which differ from each other in significant ways and
often are not preempted by HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act and its implementing regulations, which
also imposes obligations, including mandatory contractual terms, with respect to safeguarding the privacy, security and transmission of individually identifiable health
information, thus complicating compliance efforts.
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Pharmaceutical Insurance Coverage and Health Care Reform
In the United States and markets in other countries, patients who are prescribed treatments for their conditions and providers performing the prescribed services
generally rely on third-party payors to reimburse all or part of the associated healthcare costs. Significant uncertainty exists as to the coverage and reimbursement status
of products approved by the FDA and other government authorities. Thus, even if a product candidate is approved, sales of the product will depend, in part, on the extent
to which third-party payors, including government health programs in the United States such as Medicare and Medicaid, commercial health insurers and managed care
organizations, provide coverage and establish adequate reimbursement levels for, the product. The process for determining whether a payor will provide coverage for a
product may be separate from the process for setting the price or reimbursement rate that the payor will pay for the product once coverage is approved. Third-party payors
are increasingly challenging the prices charged, examining the medical necessity and reviewing the cost-effectiveness of medical products and services and imposing
controls to manage costs. Third-party payors may limit coverage to specific products on an approved list, also known as a formulary, which might not include all of the
approved products for a particular indication.
In order to secure coverage and reimbursement for any product that might be approved for sale, a company may need to conduct expensive pharmacoeconomic
studies in order to demonstrate the medical necessity and cost-effectiveness of the product, in addition to the costs required to obtain FDA or other comparable marketing
approvals. Nonetheless, product candidates may not be considered medically necessary or cost effective. A decision by a third-party payor not to cover a product could
reduce physician utilization once the product is approved and have a material adverse effect on sales, results of operations and financial condition. Additionally, a payor’s
decision to provide coverage for a product does not imply that an adequate reimbursement rate will be approved. Further, one payor’s determination to provide coverage
for a product does not assure that other payors will also provide coverage and reimbursement for the product, and the level of coverage and reimbursement can differ
significantly from payor to payor.
The containment of healthcare costs also has become a priority of federal, state and foreign governments and the prices of products have been a focus in this
effort. Governments have shown significant interest in implementing cost-containment programs, including price controls, restrictions on reimbursement and
requirements for substitution of generic products. Adoption of price controls and cost-containment measures, and adoption of more restrictive policies in jurisdictions
with existing controls and measures, could further limit a company’s revenue generated from the sale of any approved products. Coverage policies and third-party
reimbursement rates may change at any time. Even if favorable coverage and reimbursement status is attained for one or more products for which a company or its
collaborators receive marketing approval, less favorable coverage policies and reimbursement rates may be implemented in the future.
In March 2010, the United States Congress enacted the ACA, which, among other things, includes changes to the coverage and payment for drug products under
government health care programs. Other legislative changes have been proposed and adopted since the ACA was enacted. In August 2011, the Budget Control Act of
2011, among other things, created measures for spending reductions by Congress. A Joint Select Committee on Deficit Reduction, tasked with recommending a targeted
deficit reduction of at least $1.2 trillion for the years 2013 through 2021, was unable to reach required goals, thereby triggering the legislation’s automatic reduction to
several government programs. These changes included aggregate reductions to Medicare payments to providers of up to 2% per fiscal year, which went into effect in
April 2013 and will remain in effect through 2031 under the Coronavirus Aid, Relief, and Economic Security Act, or the CARES Act. These Medicare sequester
reductions were suspended and reduced through the end of June 2022, with the full 2% cut resuming thereafter. The American Taxpayer Relief Act of 2012, among other
things, reduced Medicare payments to several providers and increased the statute of limitations period for the government to recover overpayments to providers from
three to five years. These laws may result in additional reductions in Medicare and other healthcare funding and otherwise affect the prices we may obtain for any of our
product candidates for which we may obtain regulatory approval or the frequency with which any such product candidate is prescribed or used. Indeed, under current
legislation, the actual reductions in Medicare payments may vary up to 4%.
Since enactment of the ACA, there have been, and continue to be, numerous legal challenges and Congressional actions to repeal and replace provisions of the
law. For example, with enactment of the Tax Cuts and Jobs Act of 2017, which was signed by President Trump on December 22, 2017, Congress repealed the “individual
mandate.” The repeal of this provision, which requires most Americans to carry a minimal level of health insurance, became effective in 2019. On December 14, 2018, a
U.S. District Court judge in the Northern District of Texas ruled that the individual mandate portion of the PPACA is an essential and inseverable feature of the PPACA,
and therefore because the mandate was repealed as part of the Tax Act, the remaining provisions of the PPACA are invalid as well. The U.S. Supreme Court heard this
case on November 10, 2020 and, on June 17, 2021, dismissed this action after finding that the plaintiffs do not have standing to challenge the constitutionality of the
ACA. Litigation and legislation over the PPACA are likely to continue, with unpredictable and uncertain results.
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The Trump Administration also took executive actions to undermine or delay implementation of the ACA, including directing federal agencies with authorities
and responsibilities under the ACA to waive, defer, grant exemptions from, or delay the implementation of any provision of the ACA that would impose a fiscal or
regulatory burden on states, individuals, healthcare providers, health insurers, or manufacturers of pharmaceuticals or medical devices. On January 28, 2021, however,
President Biden rescinded those orders and issued a new Executive Order which directs federal agencies to reconsider rules and other policies that limit Americans’
access to health care, and consider actions that will protect and strengthen that access. Under this Order, federal agencies are directed to re-examine: policies that
undermine protections for people with pre-existing conditions, including complications related to COVID-19; demonstrations and waivers under Medicaid and the ACA
that may reduce coverage or undermine the programs, including work requirements; policies that undermine the Health Insurance Marketplace or other markets for health
insurance; policies that make it more difficult to enroll in Medicaid and the ACA; and policies that reduce affordability of coverage or financial assistance, including for
dependents.
Pharmaceutical Prices
The prices of prescription pharmaceuticals have also been the subject of considerable discussion in the United States. There have been several recent U.S.
congressional inquiries, as well as proposed and enacted state and federal legislation designed to, among other things, bring more transparency to pharmaceutical pricing,
review the relationship between pricing and manufacturer patient programs, and reduce the costs of pharmaceuticals under Medicare and Medicaid. In 2020, President
Trump issued several executive orders intended to lower the costs of prescription products and certain provisions in these orders have been incorporated into regulations.
These regulations include an interim final rule implementing a most favored nation model for prices that would tie Medicare Part B payments for certain physician-
administered pharmaceuticals to the lowest price paid in other economically advanced countries, effective January 1, 2021. That rule, however, has been subject to a
nationwide preliminary injunction and, on December 29, 2021, CMS issued a final rule to rescind it. With issuance of this rule, CMS stated that it will explore all options
to incorporate value into payments for Medicare Part B pharmaceuticals and improve beneficiaries' access to evidence-based care.
In addition, in October 2020, the HHS and the FDA published a final rule allowing states and other entities to develop a Section 804 Importation Program, or
SIP, to import certain prescription products from Canada into the United States. The final rule is currently the subject of ongoing litigation, but at least six states
(Vermont, Colorado, Florida, Maine, New Mexico, and New Hampshire) have passed laws allowing for the importation of products from Canada with the intent of
developing SIPs for review and approval by the FDA. Further, on November 20, 2020, HHS finalized a regulation removing safe harbor protection for price reductions
from pharmaceutical manufacturers to plan sponsors under Part D, either directly or through pharmacy benefit managers, unless the price reduction is required by law.
The final rule would also eliminate the current safe harbor for Medicare drug rebates and create new safe harbors for beneficiary point-of-sale discounts and pharmacy
benefit manager ("PBM") service fees. It originally was set to go into effect on January 1, 2022, but with passage of the Inflation Reduction Act has been delayed by
Congress to January 1, 2032.
In September 2021, acting pursuant to an executive order signed by President Biden, the Department of Health and Human Services, or HHS, released its plan to
reduce pharmaceutical prices. The key features of that plan are to: (a) make pharmaceutical prices more affordable and equitable for all consumers and throughout the
health care system by supporting pharmaceutical price negotiations with manufacturers; (b) improve and promote competition throughout the prescription pharmaceutical
industry by supporting market changes that strengthen supply chains, promote biosimilars and generic drugs, and increase transparency; and (c) foster scientific
innovation to promote better healthcare and improve health by supporting public and private research and making sure that market incentives promote discovery of
valuable and accessible new treatments.
More recently, on August 16, 2022, the Inflation Reduction Act of 2022, or IRA, was signed into law by President Biden. The new legislation has implications
for Medicare Part D, which is a program available to individuals who are entitled to Medicare Part A or enrolled in Medicare Part B to give them the option of paying a
monthly premium for outpatient prescription drug coverage. Among other things, the IRA requires manufacturers of certain drugs to engage in price negotiations with
Medicare (beginning in 2026), with prices that can be negotiated subject to a cap; imposes rebates under Medicare Part B and Medicare Part D to penalize price increases
that outpace inflation (first due in 2023); and replaces the Part D coverage gap discount program with a new discounting program (beginning in 2025). The IRA permits
the Secretary of the Department of Health and Human Services (HHS) to implement many of these provisions through guidance, as opposed to regulation, for the initial
years.
Specifically, with respect to price negotiations, Congress authorized Medicare to negotiate lower prices for certain costly single-source drug and biologic
products that do not have competing generics or biosimilars and are reimbursed under Medicare Part B and Part D. CMS may negotiate prices for ten high-cost drugs paid
for by Medicare Part D starting in 2026, followed by 15 Part D drugs in 2027, 15 Part B or Part D drugs in 2028, and 20 Part B or Part D drugs in 2029 and beyond.
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This provision applies to drug products that have been approved for at least 9 years and biologics that have been licensed for 13 years, but it does not apply to drugs and
biologics that have been approved for a single rare disease or condition. Further, the legislation subjects drug manufacturers to civil monetary penalties and a potential
excise tax for failing to comply with the legislation by offering a price that is not equal to or less than the negotiated “maximum fair price” under the law or for taking
price increases that exceed inflation. The legislation also requires manufacturers to pay rebates for drugs in Medicare Part D whose price increases exceed inflation. The
new law also caps Medicare out-of-pocket drug costs at an estimated $4,000 a year in 2024 and, thereafter beginning in 2025, at $2,000 a year.
At the state level, legislatures are increasingly passing legislation and implementing regulations designed to control pharmaceutical and biological product
pricing, including price or patient reimbursement constraints, discounts, restrictions on certain product access and marketing cost disclosure and transparency measures,
and, in some cases, designed to encourage importation from other countries and bulk purchasing. In addition, regional health care authorities and individual hospitals are
increasingly using bidding procedures to determine what pharmaceutical products and which suppliers will be included in their prescription drug and other health care
programs. These measures could reduce the ultimate demand for our products, once approved, or put pressure on our product pricing. We expect that additional state and
federal healthcare reform measures will be adopted in the future, any of which could limit the amounts that federal and state governments will pay for healthcare products
and services, which could result in reduced demand for our product candidates or additional pricing pressures.
In the European Union, pricing and reimbursement schemes vary widely from country to country. Some countries provide that products may be marketed only
after a reimbursement price has been agreed. Some countries may require the completion of additional studies that compare the cost-effectiveness of a particular drug
candidate to currently available therapies or so-called health technology assessments, in order to obtain reimbursement or pricing approval. For example, the European
Union provides options for its member states to restrict the range of products for which their national health insurance systems provide reimbursement and to control the
prices of medicinal products for human use. European Union member states may approve a specific price for a product or it may instead adopt a system of direct or
indirect controls on the profitability of the company placing the product on the market. Other member states allow companies to fix their own prices for products, but
monitor and control prescription volumes and issue guidance to physicians to limit prescriptions. Recently, many countries in the European Union have increased the
amount of discounts required on pharmaceuticals and these efforts could continue as countries attempt to manage healthcare expenditures, especially in light of the severe
fiscal and debt crises experienced by many countries in the European Union. The downward pressure on health care costs in general, particularly prescription drugs, has
become intense. As a result, increasingly high barriers are being erected to the entry of new products. Political, economic and regulatory developments may further
complicate pricing negotiations, and pricing negotiations may continue after reimbursement has been obtained. Reference pricing used by various European Union
member states, and parallel trade, i.e., arbitrage between low-priced and high-priced member states, can further reduce prices. There can be no assurance that any country
that has price controls or reimbursement limitations for pharmaceutical products will allow favorable reimbursement and pricing arrangements for any products, if
approved in those countries.
Review and Approval of Medicinal Products in the European Union
In order to market any product outside of the United States, a company must also comply with numerous and varying regulatory requirements of other countries
and jurisdictions regarding quality, safety and efficacy and governing, among other things, clinical trials, marketing authorization, commercial sales and distribution of
products. Whether or not it obtains FDA approval for a product, a sponsor will need to obtain the necessary approvals by the comparable non-U.S. regulatory authorities
before it can commence clinical trials or marketing of the product in those countries or jurisdictions. Specifically, the process governing approval of medicinal products in
the EU generally follows the same lines as in the United States. It entails satisfactory completion of preclinical studies and adequate and well-controlled clinical trials to
establish the safety and efficacy of the product for each proposed indication. It also requires the submission to the relevant competent authorities of a marketing
authorization application, or MAA, and granting of a marketing authorization by these authorities before the product can be marketed and sold in the EU.
Clinical Trial Approval
On January 31, 2022, the new Clinical Trials Regulation (EU) No 536/2014 became effective in the European Union and replaced the prior Clinical Trials
Directive 2001/20/EC. The new regulation aims at simplifying and streamlining the authorization, conduct and transparency of clinical trials in the European Union.
Under the new coordinated procedure for the approval of clinical trials, the sponsor of a clinical trial to be conducted in more than one Member State of the European
Union, or EU Member State, will only be required to submit a single application for approval. The submission will be made through the Clinical Trials Information
System, a new clinical trials portal overseen by the EMA and available to clinical trial sponsors, competent authorities of the EU Member States and the public.
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Beyond streamlining the process, the new Regulation includes a single set of documents to be prepared and submitted for the application as well as simplified
reporting procedures for clinical trial sponsors, and a harmonized procedure for the assessment of applications for clinical trials, which is divided in two parts. Part I is
assessed by the competent authorities of all EU Member States in which an application for authorization of a clinical trial has been submitted (Member States concerned).
Part II is assessed separately by each Member State concerned. Strict deadlines have been established for the assessment of clinical trial applications. The role of the
relevant ethics committees in the assessment procedure will continue to be governed by the national law of the concerned EU Member State. However, overall related
timelines will be defined by the Clinical Trials Regulation.
The new regulation did not change the preexisting requirement that a sponsor must obtain prior approval from the competent national authority of the EU
Member State in which the clinical trial is to be conducted. If the clinical trial is conducted in different EU Member States, the competent authorities in each of these EU
Member States must provide their approval for the conduct of the clinical trial. Furthermore, the sponsor may only start a clinical trial at a specific study site after the
applicable ethics committee has issued a favorable opinion.
As in the United States, similar requirements for posting clinical trial information are present in the European Union (EudraCT) website:
https://eudract.ema.europa.eu/ and other countries.
Pediatric Studies
Prior to obtaining a marketing authorization in the European Union, sponsors must demonstrate compliance with all measures included in an EMA-approved PIP
covering all subsets of the pediatric population, unless the EMA has granted a product-specific waiver, a class waiver, or a deferral for one or more of the measures
included in the PIP. The respective requirements for all marketing authorization procedures are laid down in Regulation (EC) No 1901/2006, the so-called Paediatric
Regulation. This requirement also applies when a company wants to add a new indication, pharmaceutical form or route of administration for a medicine that is already
authorized. The Paediatric Committee of the EMA, or PDCO, may grant deferrals for some medicines, allowing a company to delay development of the medicine for
children until there is enough information to demonstrate its effectiveness and safety in adults. The PDCO may also grant waivers when development of a medicine for
children is not needed or is not appropriate, such as for diseases that only affect the elderly population. Before an MAA can be filed, or an existing marketing
authorization can be amended, the EMA determines that companies actually comply with the agreed studies and measures listed in each relevant PIP.
PRIME Designation in the EU
In March 2016, the European Medicines Agency, or EMA, launched an initiative to facilitate development of product candidates in indications, often rare, for
which few or no therapies currently exist. The PRIority MEdicines, or PRIME, scheme is intended to encourage drug development in areas of unmet medical need and
provides accelerated assessment of products representing substantial innovation reviewed under the centralized procedure. Products from small- and medium-sized
enterprises may qualify for earlier entry into the PRIME scheme than larger companies. Many benefits accrue to sponsors of product candidates with PRIME designation,
including, but not limited to, early and proactive regulatory dialogue with the EMA, frequent discussions on clinical trial designs and other development program
elements, and accelerated marketing authorization application assessment once a dossier has been submitted. Importantly, a dedicated Agency contact and rapporteur from
the Committee for Human Medicinal Products, or CHMP, or Committee for Advanced Therapies are appointed early in PRIME scheme facilitating increased
understanding of the product at EMA’s Committee level. A kick-off meeting initiates these relationships and includes a team of multidisciplinary experts at the EMA to
provide guidance on the overall development and regulatory strategies.
Marketing Authorization
To obtain a marketing authorization for a product under EU regulatory systems, a sponsor must submit an MAA either under a centralized procedure
administered by the EMA, or one of the procedures administered by competent authorities in the EU member states (decentralized procedure, national procedure or
mutual recognition procedure). A marketing authorization may be granted only to a sponsor established in the EU. Regulation (EC) No 1901/2006 provides that prior to
obtaining a marketing authorization in the EU, sponsors have to demonstrate compliance with all measures included in an EMA-approved Paediatric Investigation Plan,
or PIP, covering all subsets of the pediatric population, unless the EMA has granted (1) a product-specific waiver, (2) a class waiver or (3) a deferral for one or more of
the measures included in the PIP.
The centralized procedure provides for the grant of a single marketing authorization by the European Commission that is valid across the European Economic
Area (i.e. the EU as well as Iceland, Liechtenstein and Norway). Pursuant to Regulation (EC) No 726/2004, the centralized procedure is compulsory for specific products,
including for medicines produced by certain biotechnological processes, products designated as orphan medicinal products, advanced therapy medicinal products, and
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products with a new active substance indicated for the treatment of certain diseases, including products for the treatment of cancer. For products with a new active
substance indicated for the treatment of other diseases and products that are highly innovative or for which a centralized process is in the interest of patients, the
centralized procedure may be optional. The centralized procedure may at the request of the sponsor also be used in certain other cases. We anticipate that the centralized
procedure will be mandatory for the product candidates we are developing.
Under the centralized procedure, the CHMP is also responsible for several post-authorization and maintenance activities, such as the assessment of modifications
or extensions to an existing marketing authorization. Under the centralized procedure in the EU, the maximum timeframe for the evaluation of an MAA is 210 days,
excluding clock stops, when additional information or written or oral explanation is to be provided by the sponsor in response to questions of the CHMP. Accelerated
evaluation might be granted by the CHMP in exceptional cases, when a medicinal product is of major interest from the point of view of public health and in particular
from the viewpoint of therapeutic innovation. If the CHMP accepts such request, the time limit of 210 days will be reduced to 150 days but it is possible that the CHMP
can revert to the standard time limit for the centralized procedure if it considers that it is no longer appropriate to conduct an accelerated assessment. At the end of this
period, the CHMP provides a scientific opinion on whether or not a marketing authorization should be granted in relation to a medicinal product. Within 15 calendar days
of receipt of a final opinion from the CHMP, the European Commission must prepare a draft decision concerning an application for marketing authorization. This draft
decision must take the opinion and any relevant provisions of EU law into account. Before arriving at a final decision on an application for centralized authorization of a
medicinal product the European Commission must consult the Standing Committee on Medicinal Products for Human Use. The Standing Committee is composed of
representatives of the EU member states and chaired by a non-voting European Commission representative. The European Parliament also has a related “droit de regard”.
The European Parliament’s role is to ensure that the European Commission has not exceeded its powers in deciding to grant or refuse to grant a marketing authorization.
The European Commission may also grant a so-called “conditional marketing authorization” prior to obtaining the comprehensive clinical data required for an
application for a full marketing authorization. Such conditional marketing authorizations may be granted for product candidates (including medicines designated as
orphan medicinal products), if (i) the risk-benefit balance of the product candidate is positive, (ii) it is likely that the sponsor will be in a position to provide the required
comprehensive clinical trial data, (iii) the product fulfills an unmet medical need and (iv) the benefit to public health of the immediate availability on the market of the
medicinal product concerned outweighs the risk inherent in the fact that additional data are still required. A conditional marketing authorization may contain specific
obligations to be fulfilled by the marketing authorization holder, including obligations with respect to the completion of ongoing or new studies, and with respect to the
collection of pharmacovigilance data. Conditional marketing authorizations are valid for one year, and may be renewed annually, if the risk-benefit balance remains
positive, and after an assessment of the need for additional or modified conditions and/or specific obligations. The timelines for the centralized procedure described above
also apply with respect to the review by the CHMP of applications for a conditional marketing authorization.
The EU medicines rules expressly permit the EU member states to adopt national legislation prohibiting or restricting the sale, supply or use of any medicinal
product containing, consisting of or derived from a specific type of human or animal cell, such as embryonic stem cells. While the products we have in development do
not make use of embryonic stem cells, it is possible that the national laws in certain EU member states may prohibit or restrict us from commercializing our products,
even if they have been granted an EU marketing authorization.
Unlike the centralized authorization procedure, the decentralized marketing authorization procedure requires a separate application to, and leads to separate
approval by, the competent authorities of each EU Member State in which the product is to be marketed. This application is identical to the application that would be
submitted to the EMA for authorization through the centralized procedure. The reference EU Member State prepares a draft assessment and drafts of the related materials
within 120 days after receipt of a valid application. The resulting assessment report is submitted to the concerned EU member states who, within 90 days of receipt, must
decide whether to approve the assessment report and related materials. If a concerned EU Member State cannot approve the assessment report and related materials due to
concerns relating to a potential serious risk to public health, disputed elements may be referred to the European Commission, whose decision is binding on all EU member
states.
The mutual recognition procedure similarly is based on the acceptance by the competent authorities of the EU member states of the marketing authorization of a
medicinal product by the competent authorities of other EU member states. The holder of a national marketing authorization may submit an application to the competent
authority of an EU Member State requesting that this authority recognize the marketing authorization delivered by the competent authority of another EU Member State.
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Regulatory Data Protection in the EU
In the EU, innovative medicinal products approved on the basis of a complete independent data package qualify for eight years of data exclusivity upon
marketing authorization and an additional two years of market exclusivity pursuant to Directive 2001/83/EC. Regulation (EC) No 726/2004 repeats this entitlement for
medicinal products authorized in accordance the centralized authorization procedure. Data exclusivity prevents sponsors for authorization of generics of these innovative
products from referencing the innovator’s data to assess a generic (abridged) application for a period of eight years. During an additional two-year period of market
exclusivity, a generic marketing authorization application can be submitted and authorized, and the innovator’s data may be referenced, but no generic medicinal product
can be placed on the EU market until the expiration of the market exclusivity. The overall ten-year period will be extended to a maximum of 11 years if, during the first
eight years of those ten years, the marketing authorization holder obtains an authorization for one or more new therapeutic indications which, during the scientific
evaluation prior to their authorization, are held to bring a significant clinical benefit in comparison with existing therapies. Even if a compound is considered to be a new
chemical entity so that the innovator gains the prescribed period of data exclusivity, another company nevertheless could also market another version of the product if
such company obtained marketing authorization based on an MAA with a complete independent data package of pharmaceutical tests, preclinical tests and clinical trials.
Periods of Authorization and Renewals
A marketing authorization has an initial validity for five years in principle. The marketing authorization may be renewed after five years on the basis of a re-
evaluation of the risk-benefit balance by the EMA or by the competent authority of the EU Member State. To this end, the marketing authorization holder must provide
the EMA or the competent authority with a consolidated version of the file in respect of quality, safety and efficacy, including all variations introduced since the
marketing authorization was granted, at least six months before the marketing authorization ceases to be valid. The European Commission or the competent authorities of
the EU member states may decide, on justified grounds relating to pharmacovigilance, to proceed with one further five-year period of marketing authorization. Once
subsequently definitively renewed, the marketing authorization shall be valid for an unlimited period. Any authorization which is not followed by the actual placing of the
medicinal product on the EU market (in case of centralized procedure) or on the market of the authorizing EU Member State within three years after authorization ceases
to be valid.
Orphan Drug Designation and Exclusivity
Regulation (EC) No. 141/2000, as implemented by Regulation (EC) No. 847/2000, provides that a drug can be designated as an orphan drug by the European
Commission if its sponsor can establish that the product is intended for the diagnosis, prevention or treatment of (1) a life-threatening or chronically debilitating condition
affecting not more than five in ten thousand persons in the EU when the application is made, or (2) a life-threatening, seriously debilitating or serious and chronic
condition in the EU and that without incentives it is unlikely that the marketing of the drug in the EU would generate sufficient return to justify the necessary investment.
For either of these conditions, the sponsor must demonstrate that there exists no satisfactory method of diagnosis, prevention or treatment of the condition in question that
has been authorized in the EU or, if such method exists, the drug will be of significant benefit to those affected by that condition.
Once authorized, orphan medicinal products are entitled to 10 years of market exclusivity in all EU member states and a range of other benefits during the
development and regulatory review process, including scientific assistance for study protocols, authorization through the centralized marketing authorization procedure
covering all member countries and a reduction or elimination of registration and marketing authorization fees. However, marketing authorization may be granted to a
similar medicinal product with the same orphan indication during the 10-year period with the consent of the marketing authorization holder for the original orphan
medicinal product or if the manufacturer of the original orphan medicinal product is unable to supply sufficient quantities. Marketing authorization may also be granted to
a similar medicinal product with the same orphan indication if this product is safer, more effective or otherwise clinically superior to the original orphan medicinal
product. The period of market exclusivity may, in addition, be reduced to six years if it can be demonstrated on the basis of available evidence that the original orphan
medicinal product is sufficiently profitable not to justify maintenance of market exclusivity.
Pediatric Exclusivity
If a sponsor obtains a marketing authorization in all EU Member States, or a marketing authorization granted in the centralized procedure by the European
Commission, and the study results for the pediatric population are included in the product information, even when negative, the medicine is then eligible for an additional
six-month period of qualifying patent protection through extension of the term of the Supplementary Protection Certificate, or SPC.
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Regulatory Requirements after a Marketing Authorization has been Obtained
In case an authorization for a medicinal product in the EU is obtained, the holder of the marketing authorization is required to comply with a range of
requirements applicable to the manufacturing, marketing, promotion and sale of medicinal products. These include:
•
Compliance with the EU’s stringent pharmacovigilance or safety reporting rules must be ensured. These rules can impose post-authorization studies and
additional monitoring obligations.
•
The manufacturing of authorized medicinal products, for which a separate manufacturer’s license is mandatory, must also be conducted in strict compliance
with the applicable EU laws, regulations and guidance, including Directive 2001/83/EC, Directive 2003/94/EC, Regulation (EC) No 726/2004 and the
European Commission Guidelines for Good Manufacturing Practice. These requirements include compliance with EU cGMP standards when manufacturing
medicinal products and active pharmaceutical ingredients, including the manufacture of active pharmaceutical ingredients outside of the EU with the
intention to import the active pharmaceutical ingredients into the EU.
•
The marketing and promotion of authorized drugs, including industry-sponsored continuing medical education and advertising directed toward the
prescribers of drugs and/or the general public, are strictly regulated in the EU notably under Directive 2001/83EC, as amended, and EU Member State laws.
Direct-to-consumer advertising of prescription medicines is prohibited across the EU.
Brexit and the Regulatory Framework in the United Kingdom
The United Kingdom’s withdrawal from the EU took place on January 31, 2020. The EU and the U.K. reached an agreement on their new partnership in the
Trade and Cooperation Agreement, or the Agreement, which was applied provisionally beginning on January 1, 2021 and which entered into force on May 1, 2021. The
Agreement focuses primarily on free trade by ensuring no tariffs or quotas on trade in goods, including healthcare products such as medicinal products. Thereafter, the EU
and the U.K. will form two separate markets governed by two distinct regulatory and legal regimes. As such, the Agreement seeks to minimize barriers to trade in goods
while accepting that border checks will become inevitable as a consequence that the U.K. is no longer part of the single market. As of January 1, 2021, the Medicines and
Healthcare products Regulatory Agency, or the MHRA, became responsible for supervising medicines and medical devices in Great Britain, comprising England,
Scotland and Wales under domestic law whereas Northern Ireland continues to be subject to EU rules under the Northern Ireland Protocol. The MHRA will rely on the
Human Medicines Regulations 2012 (SI 2012/1916) (as amended), or the HMR, as the basis for regulating medicines. The HMR has incorporated into the domestic law
the body of EU law instruments governing medicinal products that pre-existed prior to the U.K.’s withdrawal from the EU. The MHRA may rely on a decision taken by
the European Commission on the approval of a new marketing authorization via the centralized procedure, until December 31, 2023.
As with other issues related to Brexit, there are open questions about how personal data will be protected in the UK and whether personal information can
transfer from the EU to the UK. Following the withdrawal of the U.K. from the EU, the U.K. Data Protection Act 2018 applies to the processing of personal data that
takes place in the U.K. and includes parallel obligations to those set forth by GDPR. While the Data Protection Act of 2018 in the United Kingdom that “implements” and
complements the European Union General Data Protection Regulation, or GDPR, has achieved Royal Assent on May 23, 2018 and is now effective in the United
Kingdom, it is still unclear whether transfer of data from the European Economic Area, or EEA, to the United Kingdom will remain lawful under GDPR. The United
Kingdom government has already determined that it considers all European Union and EEA member states to be adequate for the purposes of data protection, ensuring
that data flows from the United Kingdom to the European Union/EEA remain unaffected. In addition, a recent decision from the European Commission appears to deem
the UK as being “essentially adequate” for purposes of data transfer from the EU to the UK, although this decision may be re-evaluated in the future. We may, however,
incur liabilities, expenses, costs, and other operational losses under GDPR and applicable EU Member States and the United Kingdom privacy laws in connection with
any measures we take to comply with them.
Data Privacy Regulation
U.S. Privacy Law
There are multiple privacy and data security laws that may impact our business activities, in the United States and in other countries where we conduct trials or
where we may do business in the future. These laws are evolving and may increase both our obligations and our regulatory risks in the future. In the health care industry
generally, for example, under the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, the U.S. Department of Health and Human Services,
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or HHS, has issued regulations to protect the privacy and security of protected health information, or PHI, used or disclosed by specific covered entities including certain
healthcare providers, health plans and healthcare clearinghouses. HIPAA also imposes certain obligations on the business associates of covered entities that obtain
protected health information in providing services to or on behalf of covered entities. HIPAA may apply to us in certain circumstances and may also apply to our business
partners in ways that may impact our relationships with them. Our clinical trials are or will be regulated by the Common Rule, which also includes specific privacy-
related provisions. In addition to federal privacy regulations, there are a number of state laws governing confidentiality and security of health information that may be
applicable to our business. In addition to possible federal civil and criminal penalties for HIPAA violations, state attorneys general are authorized to file civil actions for
damages or injunctions in federal courts to enforce HIPAA and seek attorney’s fees and costs associated with pursuing federal civil actions. In addition, state attorneys
general (along with private plaintiffs) have brought civil actions seeking injunctions and damages resulting from alleged violations of HIPAA’s privacy and security rules.
State attorneys general also have authority to enforce state privacy and security laws. Moreover, new laws and regulations governing privacy and security may be adopted
in the future as well.
There have been several developments in recent years with respect to U.S. state data privacy laws. In 2018, California passed into law the California Consumer
Privacy Act, or the CCPA, which took effect on January 1, 2020 and imposed many requirements on businesses that process the personal information of California
residents. The CCPA’s requirements include requiring businesses to provide notice to data subjects regarding the information collected about them and how such
information is used and shared, and providing data subjects the right to request access to such personal information and, in certain cases, request the erasure of such
personal information. The CCPA also affords California residents the right to opt-out of “sales” of their personal information. The CCPA contains significant penalties for
companies that violate its requirements. It also provides California residents a private right of action in certain circumstances, including the ability to seek statutory
damages, in the event of a breach involving their personal information. Compliance with the CCPA is a rigorous and time-intensive process that may increase the cost of
doing business or require companies to change their business practices to ensure full compliance. . In November 2020, California voters passed a ballot initiative for the
California Privacy Rights Act (the “CPRA”), which went into effect on January 1, 2023 and significantly expanded the CCPA to incorporate additional GDPR-like
provisions including requiring that the use, retention, and sharing of personal information of California residents be reasonably necessary and proportionate to the
purposes of collection or processing, granting additional protections for sensitive personal information, and requiring greater disclosures related to notice to residents
regarding retention of information. The CPRA also created a new enforcement agency – the California Privacy Protection Agency – whose sole responsibility is to
enforce the CPRA, which will further increase compliance risk. The provisions in the CPRA may apply to some of our business activities. In addition, other states,
including Virginia, Colorado, Utah, and Connecticut already have passed state privacy laws. Virginia’s privacy law also went into effect on January 1, 2023, and the laws
in the other three states will go into effect later in the year. Other states will be considering these laws in the future, and Congress has also been debating passing a federal
privacy law. These laws may impact our business activities, including our identification of research subjects, relationships with business partners and ultimately the
marketing and distribution of our products.
General Data Protection Regulation
The collection, use, disclosure, transfer, or other processing of personal data regarding individuals in the EU, including personal health data, is subject to the EU
General Data Protection Regulation, or GDPR, which became effective on May 25, 2018. The GDPR is wide-ranging in scope and imposes numerous requirements on
companies that process personal data, including requirements relating to processing health and other sensitive data, obtaining consent of the individuals to whom the
personal data relates, providing information to individuals regarding data processing activities, implementing safeguards to protect the security and confidentiality of
personal data, providing notification of data breaches, and taking certain measures when engaging third-party processors. The GDPR also imposes strict rules on the
transfer of personal data to countries outside the EU, including the U.S., and permits data protection authorities to impose large penalties for violations of the GDPR,
including potential fines of up to €20 million or 4% of annual global revenues, whichever is greater. The GDPR also confers a private right of action on data subjects and
consumer associations to lodge complaints with supervisory authorities, seek judicial remedies, and obtain compensation for damages resulting from violations of the
GDPR. Compliance with the GDPR is a rigorous and time-intensive process that may increase the cost of doing business or require companies to change their business
practices to ensure full compliance.
There are ongoing concerns about the ability of companies to transfer personal data from the EU to other countries. In July 2020, the Court of Justice of the
European Union, or the CJEU, invalidated the EU-U.S. Privacy Shield framework, one of the mechanisms used to legitimize the transfer of personal data from the EEA to
the United States. The CJEU decision also drew into question the long-term viability of an alternative means of data transfer, the standard contractual clauses, for transfers
of personal data from the EEA to the United States. This CJEU decision may lead to increased scrutiny on data transfers from the EU to the U.S. generally and increase
our costs of compliance with data privacy legislation as well as our costs of negotiating appropriate privacy and security agreements with our vendors and business
partners.
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Additionally, in October 2022, President Biden signed an executive order to implement the EU-U.S. Data Privacy Framework, which would serve as a
replacement to the EU-US Privacy Shield. The EC initiated the process to adopt an adequacy decision for the EU-US Data Privacy Framework in December 2022. It is
unclear if and when the framework will be finalized and whether it will be challenged in court. The uncertainty around this issue may further impact our business
operations in the EU.
As a result of these uncertainties, there is increased scrutiny on the extent to which clinical trial sites located in the EEA should apply the GDPR to transfers of
personal data from such sites to countries that are considered to lack an adequate level of data protection, such as the United States. The GDPR also permits data
protection authorities to require destruction of improperly gathered or used personal information and/or impose substantial fines for violations of the GDPR, which can be
up to four percent of global revenues or 20 million Euros, whichever is greater, and it also confers a private right of action on data subjects and consumer associations to
lodge complaints with supervisory authorities, seek judicial remedies, and obtain compensation for damages resulting from violations of the GDPR. In addition, the
GDPR provides that EU member states may make their own further laws and regulations limiting the processing of personal data, including genetic, biometric or health
data.
Beyond GDPR, there are privacy and data security laws in a growing number of countries around the world. While many loosely follow GDPR as a model, other
laws contain different or conflicting provisions. These laws will impact our ability to conduct our business activities, including both our clinical trials and any eventual
sale and distribution of commercial products. These laws also impose compliance obligations and related costs and may complicate both our business activities overall
and our relationships with our business partners and service providers.
For these laws, both now and in the future, there is a wide range of enforcement agencies at the state, federal and international levels that can review companies
for privacy and data security concerns based on general consumer protection laws. The Federal Trade Commission and state Attorneys General all are aggressive in
reviewing privacy and data security protections for consumers. New laws also are being considered at both the state and federal levels. For example, the California
Consumer Privacy Act, or CCPA, which went into effect on January 1, 2020, is creating similar risks and obligations as those created by GDPR, though the Act does
exempt certain information collected as part of a clinical trial subject to the Federal Policy for the Protection of Human Subjects (the Common Rule). Many other states
are considering similar legislation. A broad range of legislative measures also have been introduced at the federal level. Accordingly, failure to comply with federal and
state laws (both those currently in effect and future legislation) regarding privacy and security of personal information could expose us to fines and penalties under such
laws. There also is the threat of consumer class actions related to these laws and the overall protection of personal data. Even if we are not determined to have violated
these laws, government investigations into these issues typically require the expenditure of significant resources and generate negative publicity, which could harm our
reputation and our business.
In addition to the foregoing, any breach of privacy laws or data security laws, particularly resulting in a significant security incident or breach involving the
misappropriation, loss or other unauthorized use or disclosure of sensitive or confidential patient or consumer information, could have a material adverse effect on our
business, reputation and financial condition. As a data controller, we will be accountable for any third-party service providers we engage to process personal data on our
behalf, including our CROs. There is no assurance that privacy and security-related safeguards we implement will protect us from all risks associated with the third-party
processing, storage and transmission of such information. In certain situations, both in the United States and in other countries, we also may be obligated as a result of a
security breach to notify individuals and/or government entities about these breaches.
New privacy and security legislation continues to be proposed or enacted across the United States. These laws impose, or have the potential to impose, additional
obligations on companies that collect, store, use, retain, disclose, transfer and otherwise process confidential, sensitive and personal information, and will continue to
shape the data privacy environment nationally. State laws are changing rapidly and there is discussion in Congress of a new federal data protection and privacy law to
which we would become subject if it is enacted. There is also discussion of an executive order on cybersecurity that could affect how we collect and process information.
All of these evolving compliance and operational requirements impose significant costs that are likely to increase over time, may require us to modify our data processing
practices and policies, divert resources from other initiatives and projects, and could restrict the way products and services involving data are offered, all of which could
significantly harm our business, financial condition, results of operations and prospects. Further, certain state laws may be more stringent or broader in scope, or offer
greater individual rights, with respect to confidential, sensitive and personal information than federal, international or other state laws, and such laws may differ from each
other, which may complicate compliance efforts.
Given the breadth and depth of changes in data protection obligations, preparing for and complying with such requirements is rigorous and time intensive and
requires significant resources and a review of our technologies, systems and
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practices, as well as those of any third-party collaborators, service providers, contractors or consultants that process or transfer personal data. The GDPR and other
changes in laws or regulations associated with the enhanced protection of certain types of sensitive data, such as healthcare data or other personal information from our
clinical trials, could require us to change our business practices and put in place additional compliance mechanisms, may interrupt or delay our development, regulatory
and commercialization activities and increase our cost of doing business, and could lead to government enforcement actions, private litigation and significant fines and
penalties against us and could have a material adverse effect on our business, financial condition or results of operations.
Pricing Decisions for Approved Products
In the EU, pricing and reimbursement schemes vary widely from country to country. Some countries provide that products may be marketed only after a
reimbursement price has been agreed. Some countries may require the completion of additional studies that compare the cost-effectiveness of a particular product
candidate to currently available therapies or so-called health technology assessments, in order to obtain reimbursement or pricing approval. For example, the EU provides
options for its member states to restrict the range of products for which their national health insurance systems provide reimbursement and to control the prices of
medicinal products for human use. Member states may approve a specific price for a product or it may instead adopt a system of direct or indirect controls on the
profitability of the company placing the product on the market. Other member states allow companies to fix their own prices for products, but monitor and control
prescription volumes and issue guidance to physicians to limit prescriptions. Recently, many countries in the EU have increased the amount of discounts required on
pharmaceuticals and these efforts could continue as countries attempt to manage health care expenditures, especially in light of the severe fiscal and debt crises
experienced by many countries in the EU. The downward pressure on health care costs in general, particularly prescription products, has become intense. As a result,
increasingly high barriers are being erected to the entry of new products. Political, economic and regulatory developments may further complicate pricing negotiations,
and pricing negotiations may continue after reimbursement has been obtained. Reference pricing used by various member states, and parallel trade, i.e., arbitrage between
low-priced and high-priced member states, can further reduce prices. There can be no assurance that any country that has price controls or reimbursement limitations for
pharmaceutical products will allow favorable reimbursement and pricing arrangements for any products, if approved in those countries.
Human Capital
As of March 15, 2023, we had 30 full-time employees, 17 of whom were engaged in research and development and 13 of whom were engaged in general
business management, administration and finance. Approximately 80% of our employees hold advanced degrees, including 10 that hold Ph.D., M.D., or other
professional degrees and 14 that hold a master’s degree. Our success depends, in part, on our ability to recruit and retain talented and trained scientific and business
personnel and senior leadership, as well as our ability to leverage key consultants in supporting strategic and tactical roles. We believe that we have been successful to
date in obtaining and retaining these individuals, but we do not know whether we will be successful in doing so in the future. None of our employees are represented by a
labor union or covered by a collective bargaining agreement, nor have we experienced work stoppages.
Corporate Information
We were incorporated in California on March 22, 1995 under the name IRORI and, in 1998, we changed our name to Discovery Partners International, Inc., or
DPI. In July 2000, we reincorporated in Delaware. On September 12, 2006, DPI completed a merger with Infinity Pharmaceuticals, Inc., or IPI, pursuant to which a
wholly owned subsidiary of DPI merged with and into IPI. IPI, the surviving corporation in the merger, changed its name to Infinity Discovery, Inc., or IDI, and became a
wholly owned subsidiary of DPI. In addition, we changed our corporate name from Discovery Partners International, Inc. to Infinity Pharmaceuticals, Inc., and our ticker
symbol on the Nasdaq Global Market to “INFI.” Our common stock currently trades on the Nasdaq Global Select Market.
Our principal executive offices are located at 1100 Massachusetts Avenue, Floor 4, Cambridge Massachusetts 02138, and our telephone number is (617) 453-
1000.
The Infinity logo and all other Infinity product names are trademarks of Infinity Pharmaceuticals, Inc. or its subsidiaries in the United States and in other select
countries. We may indicate U.S. trademark registrations and U.S. trademarks with the symbols “ ” and “™”, respectively. Other third-party logos and product/trade
names are registered trademarks or trade names of their respective owners.
®
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Information about our Executive Officers
The following table lists the positions, names and ages of our executive officers as of March 21, 2023:
Name
Age
Position
Adelene Q. Perkins
63
Chief Executive Officer
Lawrence E. Bloch, M.D., J.D.
57
President and Treasurer
Robert Ilaria, Jr., M.D.
62
Chief Medical Officer
Stéphane Peluso, Ph.D.
53
Chief Scientific Officer
Seth A. Tasker, J.D.
44
Senior Vice President, Chief Business Officer, General Counsel, and Secretary
Adelene Q. Perkins has served as our Chief Executive Officer since January 2010. She previously served as our President between October 2008 and January
2017, our Chief Business Officer from October 2008 through December 2009 and our Executive Vice President and Chief Business Officer between September 2006 and
October 2008. Ms. Perkins served as Executive Vice President of IPI from February 2006 until its merger with DPI in September 2006 and Chief Business Officer of IPI
from June 2002 until the DPI merger. Prior to joining IPI, Ms. Perkins served as Vice President of Business and Corporate Development of TransForm Pharmaceuticals,
Inc., a private pharmaceutical company, from 2000 to 2002. From 1992 to 1999, Ms. Perkins held various positions at Genetics Institute, most recently serving as Vice
President of Emerging Business and General Manager of the DiscoverEase® business unit. Ms. Perkins has served on the board of directors for the Biotechnology
Industry Organization since 2012; the Bruker Corporation, a publicly traded manufacturer of analytic instruments, since 2017; Massachusetts General Hospital since
2017; the Massachusetts Biotechnology Council, a not-for-profit organization, since 2014; and Project Hope, a not-for-profit social services company, since 2013. From
1985 to 1992, Ms. Perkins held a variety of positions at Bain & Company, a strategy consulting firm. Ms. Perkins received a B.S. in Chemical Engineering from
Villanova University and an M.B.A. from Harvard Business School.
Lawrence E. Bloch, M.D., J.D., has served as our President since January 2017. He previously served as our Executive Vice President, Chief Financial Officer
and Chief Business Officer from July 2012 to January 2017. Prior to joining Infinity, Dr. Bloch served as Chief Executive Officer of NeurAxon, Inc., a privately held
biopharmaceutical company, from 2007 to 2011. Previously, he served as Chief Financial Officer and Chief Business Officer of NitroMed, Inc., a publicly held
biopharmaceutical company, from 2004 to 2006. From 2000 to 2004, Dr. Bloch served as Chief Financial Officer, and from 1999 to 2002 as Vice President, Business
Development, of Applied Molecular Evolution, Inc., a publicly held biopharmaceutical company. Dr. Bloch began his career as an emergency medicine resident physician
at Massachusetts General Hospital and Brigham and Woman’s Hospital. He holds a J.D. from Harvard Law School, an M.D. from Harvard Medical School and an M.B.A.
from Harvard Business School.
Robert Ilaria, Jr., M.D., has served as our Chief Medical Officer since September 2021. Dr. Ilaria joined Infinity from Bristol Myers Squibb and Celgene, where
he worked from 2017 to 2021 and focused on immune-oncology drug development, serving leadership roles on the CTLA-4 and PD-1 inhibitor drug development teams,
respectively. Prior to joining Celgene, Dr. Ilaria was at Eli Lilly from 2005 to 2017 in leadership roles of increasing responsibility in both early and late phase drug
development. During his time at Eli Lilly, Dr. Ilaria was responsible for the clinical strategy of multiple assets ranging from pre-clinical development through regulatory
approval. Prior to joining the pharmaceutical industry, Dr. Ilaria had academic clinical and basic science research careers at UT Southwestern and Harvard Medical
School. He holds a BA in biology and philosophy from Rice University and an MD from UT Southwestern Medical School. He did his internal medicine and hematology
and medical oncology training at Brigham and Women’s Hospital and the Dana Farber Cancer Institute. Dr. Ilaria has remained clinically active during his pharmaceutical
career through volunteer oncology staff service at academic teaching institutions.
Stéphane Peluso, Ph.D., has served as our Chief Scientific Officer since August 2021. Dr. Peluso returns to Infinity from Ipsen Bioscience where he was most
recently Vice President, Global Head of Oncology External Innovation. Prior to Ipsen, Dr. Peluso worked at Infinity where he held positions of increasing responsibility
in medicinal chemistry and drug discovery from 2006 to August 2016, ultimately leading the Company’s early drug discovery and pipeline expansion efforts through both
internal research and development and business development. Dr. Peluso started his career as a medicinal chemist at Millennium Pharmaceuticals. He graduated from the
Ecole Supérieure de Chimie Industrielle de Lyon (ESCIL), France, obtained his Ph.D. from the University of Lausanne, Switzerland, and completed postdoctoral studies
at the Massachusetts Institute of Technology.
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Seth A. Tasker, J.D., has served as our Senior Vice President, Chief Business Officer, General Counsel, and Secretary since December 2019. Mr. Tasker
previously served as our Vice President, General Counsel and Secretary between July 2016 and December 2019, our Deputy General Counsel between March 2015 and
July 2016, our Associate General Counsel between March 2013 and March 2015, our Assistant General Counsel between March 2010 and March 2013, and our
Corporate Counsel between March 2008 and March 2010. Prior to joining Infinity, Mr. Tasker served in varying levels of responsibility in the legal function at Surface
Logix, Inc., a privately held biopharmaceutical company, from 2001 to 2008. Mr. Tasker holds a B.S. in Microbiology from the University of Vermont, a J.D. from
Suffolk University Law School, and an M.B.A. from Suffolk University Sawyer School of Management.
Available Information
Our Internet website is http://www.infi.com. We make available free of charge through our website our annual report on Form 10-K, quarterly reports on
Form 10-Q, current reports on Form 8-K and amendments to those reports filed or furnished pursuant to Sections 13(a) and 15(d) of the Securities Exchange Act of 1934,
as amended. We make these reports available through our website as soon as reasonably practicable after we electronically file such reports with, or furnish such reports
to, the U.S. Securities and Exchange Commission. In addition, we regularly use our website to post information regarding our business, product development programs
and governance, and we encourage investors to use our website, particularly the information in the section entitled “Investors/Media,” as a source of information about us.
Our Code of Conduct and Ethics and the charters of the Audit, Compensation, Nominating & Corporate Governance and Research & Development Committees
of our Board of Directors are all available on our website at http://www.infi.com at the “Investors/Media” section under “Corporate Governance.” Stockholders may
request a free copy of any of these documents by writing to Investor Relations, Infinity Pharmaceuticals, Inc., 1100 Massachusetts Avenue, Floor 4, Cambridge,
Massachusetts 02138, U.S.A.
The foregoing references to our website are not intended to, nor shall they be deemed to, incorporate information on our website into this report by reference.
Item 1A. RISK FACTORS
The following risk factors and other information included in this Annual Report on Form 10-K, including the Management’s Discussion and Analysis of Financial
Condition and Results of Operations section and the consolidated financial statements and related notes, should be carefully considered in evaluating our business. The
risks and uncertainties described below are not the only risks and uncertainties we face. Additional risks and uncertainties not presently known to us or that we presently
deem less significant may also impair our business operations. Therefore, historical operating results, financial and business performance, events and trends are often not
a reliable indicator of future operating results, financial and business performance, events or trends. Please see the Cautionary Note Regarding Forward-Looking
Information and Industry Data in this Annual Report on Form 10-K for a discussion of some of the forward-looking statements that are qualified by these risk factors. If
any of the following risks occur, our business, financial condition, results of operations and future growth prospects could be materially and adversely affected.
Risks Related to the Proposed Merger
The Merger with MEI may not be consummated or may not deliver the anticipated benefits.
On February 22, 2023, we, MEI Pharma, Inc., a Delaware corporation, or MEI, and Meadow Merger Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of MEI, or the Merger Sub, entered into an Agreement and Plan of Merger, or the Merger Agreement, pursuant to which, among other matters, and subject to
the satisfaction or waiver of the conditions set forth in the Merger Agreement, Merger Sub will merge with and into Infinity, with Infinity continuing as a wholly owned
subsidiary of MEI and the surviving corporation of the merger, which transaction is referred to herein as the Merger. Consummation of the Merger is subject to certain
closing conditions, including, among other things, the (1) approval by the stockholders of MEI of the issuance of shares of MEI’s common stock to our stockholders
pursuant to the Merger Agreement, (2) the adoption by our stockholders of the Merger Agreement, (3) authorization for listing on The Nasdaq Capital Market of the
shares of MEI’s common stock (including the shares to be issued in the Merger), (4) effectiveness of the registration statement on Form S-4 that MEI will file to register
the shares of MEI’s common stock to be issued pursuant to the Merger Agreement and (5) the absence of any law, judgment, order, injunction, ruling, writ award or
decree by any governmental entity of competent jurisdiction restraining, enjoining or otherwise prohibiting consummation of the Merger. The closing of the Merger is
also dependent upon the accuracy of representations and warranties made by the parties to the Merger Agreement (subject to customary materiality qualifiers and other
customary exceptions) and the performance in all material respects by the parties of obligations imposed under the Merger Agreement. There can be no assurance as to
whether or when
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the conditions to the closing of the Merger will be satisfied or waived or as to whether or when the Merger will be consummated. If the conditions are not satisfied or
waived, the Merger may not occur or the closing may be delayed, and we may lose some or all of the intended benefits of the Merger.
Certain provisions of the Merger Agreement may discourage third parties from submitting alternative acquisition proposals, including proposals that may be superior
to the arrangements contemplated by the Merger Agreement.
The terms of the Merger Agreement prohibit each party from soliciting or engaging in discussions with third parties regarding alternative acquisition proposals,
except in limited circumstances when such party’s board of directors determines in good faith after consultation with outside legal counsel that an unsolicited acquisition
proposal constitutes or could reasonably be expected to lead to a superior proposal and that failure to take such action would reasonably be expected to be inconsistent
with its fiduciary duties under applicable law. In addition, if the Merger Agreement is terminated by us or MEI under certain circumstances, including because of a
decision of our board of directors to accept a superior proposal, we would be required to pay MEI a termination fee of $2.9 million. This termination fee may discourage
third parties from submitting alternative takeover proposals to us or our stockholders and may cause our board of directors to be less inclined to recommend an alternative
proposal.
The announcement and pendency of the Merger, whether or not consummated, may adversely affect the trading price of our common stock and our business
prospects.
The announcement and pendency of the Merger, whether or not consummated, may adversely affect the trading price of our common stock and our business
prospects. In the event that the Merger is not completed, the announcement of the termination of the Merger Agreement may also adversely affect the trading price of our
common stock and our business prospects.
Failure to consummate the Merger may result in us paying a termination fee to MEI and could harm our common stock price and our future business and
operations.
The Merger will not be consummated if the conditions precedent to the consummation of the transaction are not satisfied or waived, or if the Merger
Agreement is terminated in accordance with its terms. If the Merger is not consummated, we are subject to the following risks:
•
if the Merger Agreement is terminated under certain circumstances, we will be required to pay MEI a termination fee of $2.9 million and/or reimburse MEI’s
reasonable out of pocket fees and expenses incurred in connection with the Merger Agreement and the transaction contemplated thereby up to a maximum of
$1.0 million; and
•
the price of our common stock may decline and remain volatile.
If the Merger is not completed for any reason, our board of directors may resume the process of evaluating a potential strategic transaction, including the sale
of the company or its assets. However, based on our prior assessment, we do not expect that we would have the necessary time or financial resources to pursue another
strategic transaction like the proposed Merger. If the Merger does not close and we are unable to enter into another strategic transaction, our board of directors may
conclude that it is in the best interest of stockholders to cease normal operations and wind down the company through bankruptcy or dissolution proceedings. In such
case, there would be no assurances as to the amount or timing of available cash remaining, if any, to distribute to stockholders after paying our obligations and setting
aside funds for reserves. There can be no assurance that we would be able to find a partner with whom a strategic transaction would yield greater benefits than the benefits
to be provided under the Merger Agreement.
The exchange ratio set forth in the Merger Agreement is not adjustable based on the market price of our common stock, so the merger consideration at the closing of
the Merger may have a greater or lesser value than at the time the Merger Agreement was signed.
The Merger Agreement has set the exchange ratio for our capital stock being converted into MEI common stock, and the exchange ratio is based on the
outstanding capital stock of MEI and our outstanding common stock, in each case immediately prior to the closing of the Merger. Applying the exchange ratio formula in
the Merger Agreement, our pre-Merger stockholders will own approximately 42% of the outstanding common stock of the combined company and pre-Merger MEI
stockholders will own approximately 58% of the combined.
Changes in the market price of MEI’s common stock before the completion of the Merger that do not directly result from a recapitalization, stock split, reverse
split or similar change to MEI’s common stock will not affect the number of shares of MEI’s common stock issuable to our stockholders pursuant to the Merger
Agreement. Therefore, if before the completion of the Merger the market price of MEI’s common stock declines from the market price on the date of the Merger
Agreement, then
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our stockholders could receive merger consideration with substantially lower value than the value of such merger consideration on the date of the Merger Agreement.
Similarly, if before the completion of the Merger the market price of MEI’s common stock increases from the market price of MEI’s common stock on the date of the
Merger Agreement, then our stockholders could receive merger consideration with substantially greater value than the value of such merger consideration on the date of
the Merger Agreement. The Merger Agreement does not include a price-based termination right.
Our stockholders may not realize a benefit from the Merger commensurate with the ownership dilution they will experience in connection with the Merger.
After the completion of the Merger, our current stockholders will own a smaller percentage of the combined company than their ownership prior to the Merger.
Applying the exchange ratio formula in the Merger Agreement, our pre-Merger stockholders will own approximately 42% of the outstanding common stock of the
combined company and pre-Merger MEI stockholders will own approximately 58%. As a result of this reduced ownership and voting interest, our stockholders will
exercise less influence over the management of the combined company following the completion of the Merger as compared to their current ownership and voting
interests. If the combined company is unable to realize the full strategic and financial benefits currently anticipated from the Merger, our stockholders will have
experienced substantial dilution of their ownership interests without receiving any commensurate benefit, or only receiving part of the commensurate benefit to the extent
the combined company is able to realize only part of the strategic and financial benefits currently anticipated from the Merger.
Lawsuits may be filed against us and the members of our board of directors arising out of the proposed Merger, which may delay or prevent the proposed Merger.
Putative stockholder complaints, including stockholder class action complaints, and other complaints may be filed against us, our board of directors, MEI,
MEI’s board of directors and others in connection with the transactions contemplated by the Merger Agreement. The outcome of litigation is uncertain, and we may not
be successful in defending against any such future claims. Lawsuits that may be filed against us, our board of directors, MEI, or MEI’s board of directors could delay or
prevent the Merger, divert the attention of our management and employees from our day-to-day business and otherwise adversely affect our financial condition.
Certain of our officers and directors may have interests in the proposed Merger that are different from, or in conflict with or in addition to, those of our stockholders
generally.
Certain officers and directors of ours may have interests in the proposed Merger that are different from the interests of our stockholders generally, including
potentially, among others, the continued service as a director of the combined company, the acceleration of stock option vesting, and continued indemnification.
The closing of the Merger may also result in the acceleration of vesting of options to purchase shares of our common stock held by our executive officers and
directors, whether or not there is a covered termination of such officer's employment. In addition, certain of our current directors and executive officers are expected to
become directors and executive officers of the surviving company upon the closing of the Merger, and all of our directors and executive officers are entitled to certain
indemnification and liability insurance coverage pursuant to the terms of the Merger Agreement. These interests, among others, may influence our officers and directors
and cause them to view the Merger differently from how our stockholders generally may view it.
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Risks Related to Our Financial Position and Need for Additional Capital
If the Merger is not completed, substantial doubt exists as to our ability to continue as a going concern.
As of December 31, 2022 and 2021, we had cash and cash equivalents of $38.3 million and $80.7 million, respectively. As of December 31, 2022, we had an
accumulated deficit of $856.0 million and during the year ended December 31, 2022 used $42.4 million in cash and cash equivalents to fund operating activities. We
expect to continue to incur substantial operating losses and negative cash flows from operations for the foreseeable future. These conditions raise substantial doubt about
our ability to continue as a going concern for at least twelve months from the date these consolidated financial statements are issued on March 28, 2023. Moreover, we
have not established a source of revenue and we expect to continue to incur losses for the foreseeable future as we continue our development of, and seek marketing
approvals for, our product candidates. These factors individually and collectively raise substantial doubt about our ability to continue as a going concern and therefore it
may be more difficult for us to attract investors. Unless we are able to raise additional capital to finance our operations, our long-term business plan may not be
accomplished, and we may be forced to cease, reduce, or delay operations.
Raising additional capital may cause dilution to our stockholders, restrict our operations or require us to relinquish rights to our technologies or product candidates.
If the Merger is not completed, we may seek additional funding through public or private financings of equity or debt securities, but such financing may not be
available on acceptable terms, if at all. If we raise additional funds through the issuance of additional debt or equity securities, we may not be able to raise capital at the
price we desire, as underscored by our current noncompliance with the Minimum Bid Requirement, as defined in the risk factor entitled “If we fail to meet the
requirements for continued listing on the Nasdaq Global Select Market, our common stock could be delisted from trading, which would decrease the liquidity of our
common stock and our ability to raise additional capital.” Any public offering could result in dilution to our existing stockholders, increased fixed payment obligations
and the existence of securities with rights that may adversely affect the rights of our existing stockholders including liquidation or other preferences and anti-dilution
protections.
In addition, securing financing could require a substantial amount of time and attention from our management and may divert a disproportionate amount of their
attention away from day-to-day activities, which may adversely affect our management’s ability to oversee the development of our product candidates.
We may also seek additional funds through arrangements with collaborators or other third parties, or through project financing. These arrangements would
generally require us to relinquish or encumber valuable rights to our technologies, future revenue streams, or product candidates, and we may not be able to enter into
such agreements on acceptable terms, if at all.
If we are unable to obtain additional funding on a timely basis, our board of directors may conclude that it is in the best interest of stockholders to cease normal
operations and wind down the company through bankruptcy or dissolution proceedings. In such case, there would be no assurances as to the amount or timing of available
cash remaining, if any, to distribute to stockholders after paying our obligations and setting aside funds for reserves.
We have a history of operating losses, expect to incur significant and increasing operating losses in the future, and may never become profitable, or if we become
profitable, we may not remain profitable.
We have no approved products, have generated no product revenue from sales, and have primarily incurred operating losses. As of December 31, 2022, we had
an accumulated deficit of $856.0 million. We expect to continue to spend significant resources to fund eganelisib, our selective inhibitor of phosphoinositide-3-kinase, or
PI3K-gamma. While we may have net income in some periods as the result of non-recurring collaboration revenue, we expect to incur substantial operating losses over
the next several years as our clinical trial and drug manufacturing activities continue. In addition, if we proceed to seek and possibly obtain regulatory approval of
eganelisib, we would expect to incur significant commercialization expenses for product sales, marketing, manufacturing and distribution, to the extent such sales,
marketing, manufacturing and distribution are not the responsibility of a future collaborator. As a result, we expect that our accumulated deficit would also increase
significantly.
Eganelisib is under clinical development and may never be approved for sale or generate any revenue. We will not be able to generate product revenue unless
and until eganelisib successfully completes clinical trials and receives regulatory approval. We do not expect to generate revenue from product sales for the foreseeable
future. Even if we eventually generate revenues, we may never be profitable, and if we do achieve profitability, we may not be able to sustain or increase profitability on a
quarterly or annual basis. Our failure to become and remain profitable would decrease the value of our company and could impair our ability to raise capital, expand our
business, and maintain our research and development efforts, and cause a decline in the value of our common stock.
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If the Merger is not completed, we will need substantial additional funding, and if we are unable to raise capital when needed, we could be forced to delay, reduce or
eliminate the development of eganelisib or future efforts to commercialize eganelisib.
Developing pharmaceutical products, including conducting preclinical studies and clinical trials, is a time consuming, expensive and uncertain process that takes
years to complete. We will need substantial additional funds to support our planned operations, but substantial doubt exists about our ability to continue as a going
concern for at least twelve months from the date these consolidated financial statements are issued on March 28, 2023. See the risk factor “If the Merger is not completed,
substantial doubt exists as to our ability to continue as a going concern” for more information.
Our estimate as to how long we expect our existing cash and cash equivalents to be able to continue to fund our operations will depend on many factors, which
assumptions may prove to be wrong, and we could use our available capital resources sooner than we currently expect. Further, changing circumstances, some of which
may be beyond our control, could cause us to consume capital significantly faster than we currently anticipate, and we may need to seek additional funds sooner than
planned. Our future funding requirements, both short-term and long-term, will depend on many factors, including, but not limited to, the scope, progress, results and costs
of developing and marketing eganelisib, including costs of acquiring raw materials and manufacturing, as well as the impact of delays as a result of the COVID-19
pandemic. Our funding requirements will further depend on the timing and amount of additional revenues, if any, received from commercial sales of eganelisib and from
collaboration agreements and funding arrangements, including milestone payments from entities affiliated with BVF, regulatory and commercial-based milestone
payments from Sol-Gel related to patidegib, and additional royalty and milestone payments owed to Takeda.
We have broad discretion in the use of our available cash and other sources of funding and may not use them effectively.
Our management has broad discretion in the use of our available cash and other sources of funding and could spend those resources in ways that do not improve
our results of operations or enhance the value of our common stock. The failure by our management to apply these funds effectively could result in financial losses that
could cause the price of our common stock to decline and delay the development of eganelisib or any future product candidate. We may invest our available cash pending
its use in a manner that does not produce income or that loses value.
Risks Related to the Development and Commercialization of Eganelisib and Any Future Product Candidate
We are dependent on the success of eganelisib, our only product candidate, which remains subject to clinical testing and regulatory approval. If we are unable to
initiate or complete clinical development of, obtain marketing approval for or successfully commercialize eganelisib, either alone or with a collaborator, or if we
experience significant delays in doing so, our business could be substantially harmed.
We currently have no products approved for sale and are investing substantially all of our efforts and financial resources in the development of eganelisib. The
success of eganelisib will depend on our ability to generate product revenue, which will heavily depend on the successful completion of the Merger and the successful
clinical development and eventual commercialization of eganelisib. We also expect that the success of eganelisib will depend primarily on its therapeutic potential in
combination with other therapeutics, such as checkpoint inhibitor therapies, and not as a monotherapy.
To date, we have not obtained approval from the FDA or any comparable foreign regulatory authority to market or sell eganelisib or any other product
candidates. Rigorous preclinical testing, testing in clinical trials, and an extensive regulatory approval process are required in the United States and in many foreign
jurisdictions prior to the commercial sale of medicinal products. If our current clinical trials for eganelisib are successful, we will need to conduct further clinical trials
and will need to apply for regulatory approval before we may market or sell any products based on eganelisib. Satisfaction of these and other regulatory requirements is
costly, time consuming, uncertain and subject to unanticipated delays. It is possible that eganelisib will not obtain marketing approval. Even if eganelisib has a beneficial
effect, that effect may not be detected during clinical evaluation as a result of one or more of a variety of factors, including the size, duration, design, measurements,
conduct or analysis of our clinical trials. Conversely, as a result of the same factors, our clinical trials may indicate an apparent positive effect of eganelisib that is greater
than the actual positive effect, if any. Similarly, in our clinical trials we may fail to detect toxicity of or intolerability caused by eganelisib or mistakenly believe that
eganelisib is toxic or not well tolerated when that is not in fact the case.
We cannot predict whether we will encounter problems with any of our ongoing or planned clinical trials that will cause us or regulatory authorities to delay,
suspend, or discontinue clinical trials or to delay the analysis of data from ongoing clinical trials. Moreover, we, or any collaborators, may experience any of a number of
possible unforeseen adverse events in connection with clinical trials, many of which are beyond our control, including:
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•
insufficient or inadequate supply, delays in distribution or deficient quality of, or inability to purchase or manufacture drug product, combination drugs,
comparator drugs or other materials necessary to conduct our or any collaborators’ clinical trials. For example, in 2021 BMS experienced a temporary global
manufacturing-related supply shortage of nab-paclitaxel, or Abraxane , a drug used in the MARIO-3 combination study of patients with unresectable locally
advanced or metastatic front-line TNBC;
•
unfavorable results of discussions with the FDA or comparable foreign authorities regarding the scope or design of our, or any collaborators’, clinical trials or
our or their interpretation of data from preclinical studies and clinical trials;
•
delays in receiving, or the inability to obtain, required approvals from institutional review boards or other reviewing entities at clinical sites selected for
participation in our clinical trials;
•
delays in enrolling patients into clinical trials;
•
a lower than anticipated retention rate of patients in clinical trials due to, among other reasons, patients that enroll in a clinical trial misrepresenting their
eligibility to do so or otherwise not complying with the clinical trial protocol, resulting in the need to drop the patients from the clinical trial, increase the needed
enrollment size for the clinical trial or extend the clinical trial’s duration and cost;
•
the number of patients required for clinical trials of eganelisib, the speed of patient enrollment and the rate of participant drop outs may differ from the
expectations of us or our collaborators;
•
the cost of planned clinical trials of eganelisib may be greater than we anticipate;
•
comparator or combination drugs, or components or ingredients thereof or conducting clinical trials on our behalf or on behalf of any collaborators, to comply
with regulatory requirements or meet their contractual obligations to us or any collaborators in a timely manner or at all;
•
the requirement by regulators or institutional review boards that we, or any collaborators, or our or their investigators, suspend or terminate clinical research for
various reasons, including noncompliance with regulatory requirements or their standards of conduct, a finding that the participants are being exposed to
unacceptable health risks, undesirable side effects or other unexpected characteristics of eganelisib, or findings of undesirable effects caused by a chemically or
mechanistically similar product or product candidate;
•
the need to repeat or discontinue clinical trials as a result of inconclusive or negative results or unforeseen complications in testing, or because the results of later
trials may not confirm positive results from earlier preclinical studies or clinical trials;
•
unfavorable FDA or other foreign regulatory inspection and review of a clinical trial site, us, or a vendor of ours, or records of any clinical or preclinical
investigation;
•
delays or failures by us or any collaborators in reaching agreement on acceptable clinical trial contracts or clinical trial protocols with prospective trial sites;
•
failures by the FDA or comparable foreign regulatory authorities to approve the manufacturing processes or facilities of third-party manufacturers with which
we, or any collaborators, enter into agreements for clinical and commercial supplies, or subsequent findings of fault with such processes or facilities;
•
insufficient or inadequate supply or quality of raw materials, manufactured product candidates, combination or comparator drugs or other materials necessary to
conduct clinical trials of eganelisib, or the inability to acquire such materials at acceptable cost, which may result in interruptions in supply;
•
significant changes in the approval policies or regulations of the FDA or comparable foreign regulatory authorities, which may rendering our clinical data
insufficient to obtain marketing approval;
•
serious and unexpected drug-related side effects experienced by participants in our or any collaborators’ clinical trials, which may occur even if they were not
observed in earlier trials or only observed in a limited number of participants;
•
a finding that the trial participants are being exposed to unacceptable health risks, undesirable side effects or other unexpected characteristics of eganelisib;
•
the placement by the FDA or a foreign regulatory authority of a clinical hold on a trial;
•
outcomes of third party trials of drugs and drug candidates that we also use in our combination trials, such as Roche’s decision to voluntarily withdraw its
accelerated approval in the United States for atezolizumab in combination with nab-paclitaxel for patients with PD-L1(+) metastatic TNBC after IMpassion131,
Roche’s post marketing study evaluating atezolizumab and paclitaxel in TNBC patients, did not meet its primary endpoint; and
•
any restrictions on, or post-approval commitments with regard to, any regulatory approval we ultimately obtain that render the product candidate not
commercially viable.
®
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The delay, suspension or discontinuation of any of our or any collaborators’ clinical trials, or a delay in the analysis of clinical data for eganelisib, for any of the
foregoing reasons, could adversely affect our ability to obtain regulatory approval for and to commercialize eganelisib, increase our operating expenses and have a
material adverse effect on our financial results.
Product development costs for us, or any collaborators, will increase if we, or they, experience delays in testing or pursuing marketing approvals and we, or they,
may be required to obtain additional funds to complete clinical trials and prepare for possible commercialization of eganelisib. We do not know whether our clinical trials
will begin as planned, will need to be restructured, or will be completed on schedule or at all. Significant preclinical study or clinical trial delays also could shorten any
periods during which we, or any collaborators, may have the exclusive right to commercialize eganelisib or allow our competitors, or the competitors of any current or
future collaborators, to bring products to market before we, or any collaborators, do and impair our ability, or the ability of any collaborators, to successfully
commercialize eganelisib and may harm our business and results of operations. In addition, many of the factors that lead to clinical trial delays may ultimately lead to the
denial of marketing approval of eganelisib, or, in the event that our clinical trials remain unable to demonstrate meaningful clinical benefit, our failure to reach the
marketing approval stage at all.
Adverse events or undesirable side effects caused by, or other unexpected properties of, eganelisib, alone or in combination with other agents, may be identified
during clinical development and could delay or prevent eganelisib marketing approval or limit its use.
Adverse events or undesirable side effects caused by, or other unexpected properties of, eganelisib, alone or in combination with other agents, could cause us,
any collaborators, an institutional review board or regulatory authorities to interrupt, delay or halt clinical trials of eganelisib and could result in a more restrictive label or
the delay or denial of marketing approval by the FDA or comparable foreign regulatory authorities. If eganelisib is associated with adverse events or undesirable side
effects or has properties that are unexpected, we, or any collaborators, may need to abandon or delay development of eganelisib, or limit its development to certain uses or
subpopulations in which the undesirable side effects or other characteristics are less prevalent, less severe or more acceptable from a risk-benefit perspective. Even though
eganelisib has initially shown promise in earlier stage testing, it may later be found to cause undesirable or unexpected side effects that prevent its further development.
Combining two or more agents may increase the instances of or severity of adverse events or undesirable effects.
Interim top-line and preliminary results from our clinical trials that we announce or publish from time to time may change as more patient data become available
and are subject to audit and verification procedures, which could result in material changes in the final data.
From time to time, we may publish interim top-line or preliminary results from our clinical trials. Interim results from clinical trials that we may complete are
subject to the risk that one or more of the clinical outcomes may materially change as patient enrollment continues and more patient data become available. Preliminary or
top-line results also remain subject to audit and verification procedures that may result in the final data being materially different from the preliminary data we previously
published. As a result, interim and preliminary data should be viewed with caution until the final data are available. Differences between preliminary or interim data and
final data could significantly harm our business prospects and may cause the trading price of our common stock to fluctuate significantly.
Even assuming approval of a drug candidate, our business may suffer if the market opportunities for eganelisib or product candidates we may develop in the future
are smaller than we believe them to be.
Our projections of both the number of people who are affected by disease within our target indications, as well as the subset of these people who have the
potential to benefit from treatment with eganelisib or product candidates we may develop in the future, are based on our beliefs and estimates. These estimates have been
derived from a variety of sources, including the scientific literature, healthcare utilization databases and market research, and may prove to be incorrect. Further, new
studies may change the estimated incidence or prevalence of these diseases. The potentially addressable patient population for eganelisib may be limited or may not be
amenable to treatment with eganelisib, and new patients may become increasingly difficult to identify or gain access to, which would adversely affect our results of
operations and our business.
We are conducting clinical trials for eganelisib, and may conduct additional clinical trials in the future, at sites outside the United States. The FDA may not accept
data from trials conducted in such locations and the conduct of trials outside the United States could subject us to additional delays and expense.
MARIO-275, our Phase 2 global study, is being conducted, and we may choose to conduct future clinical trials, at trial sites located in the United States and
Europe. Although the FDA may accept data from clinical trials conducted outside the United States, acceptance of these data is subject to certain conditions imposed by
the FDA, such as the clinical trial must be well designed and conducted and performed by qualified investigators in accordance with good clinical practices; the FDA
must
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be able to validate the data from the trial through an onsite inspection if necessary; the trial population must also have a similar profile to the U.S. population; and the data
must be applicable to the U.S. population and U.S. medical practice in ways that the FDA deems clinically meaningful, except to the extent the disease being studied does
not typically occur in the United States. In addition, while these clinical trials are subject to the applicable local laws, FDA acceptance of the data will be dependent upon
its determination that the trials also complied with all applicable U.S. laws and regulations. There can be no assurance that the FDA will accept data from trials conducted
outside of the United States. If the FDA does not accept the data from any trial that we conduct outside the United States, it would likely result in the need for additional
trials, which would be costly and time-consuming and delay or permanently halt our development of eganelisib or any future product candidates.
In addition, the conduct of clinical trials outside the United States could have a significant adverse impact on us. Risks inherent in conducting international
clinical trials include:
•
clinical practice patterns and standards of care that vary widely among countries;
•
non-U.S. regulatory authority requirements that could restrict or limit our ability to conduct our clinical trials;
•
administrative burdens of conducting clinical trials under multiple non-U.S. regulatory authority schema;
•
foreign exchange fluctuations;
•
diminished protection of intellectual property in some countries; and
•
geopolitical actions, including war and terrorism, disease outbreak, such as the COVID-19 pandemic, or natural disasters including earthquakes, typhoons,
floods and fires.
If we are slow or unable to adapt to changes in existing requirements or the adoption of new requirements or policies governing clinical trials, our development plans
may be impacted.
In addition, the FDA’s and other regulatory authorities’ policies with respect to clinical trials may change and additional government regulations may be enacted.
For example, in December 2022, with the passage of Food and Drug Omnibus Reform Act, or FDORA, Congress required sponsors to develop and submit a diversity
action plan for each phase 3 clinical trial or any other “pivotal study” of a new drug or biological product. These plans are meant to encourage the enrollment of more
diverse patient populations in late-stage clinical trials of FDA-regulated products. Specifically, actions plans must include the sponsor’s goals for enrollment, the
underlying rationale for those goals, and an explanation of how the sponsor intends to meet them. In addition to these requirements, the legislation directs the FDA to
issue new guidance on diversity action plans. Similarly, the regulatory landscape related to clinical trials in the EU recently evolved. The EU Clinical Trials Regulation, or
CTR, which was adopted in April 2014 and repeals the EU Clinical Trials Directive, became applicable on January 31, 2022. While the Clinical Trials Directive required
a separate clinical trial application, or CTA, to be submitted in each member state, to both the competent national health authority and an independent ethics committee,
the CTR introduces a centralized process and only requires the submission of a single application to all member states concerned. The CTR allows sponsors to make a
single submission to both the competent authority and an ethics committee in each member state, leading to a single decision per member state. The assessment procedure
of the CTA has been harmonized as well, including a joint assessment by all member states concerned, and a separate assessment by each member state with respect to
specific requirements related to its own territory, including ethics rules. Each member state’s decision is communicated to the sponsor via the centralized EU portal. Once
the CTA is approved, clinical study development may proceed.
Results of preclinical studies and early clinical trials may not be predictive of results of future late-stage clinical trials.
The outcome of preclinical studies and early clinical trials may not be predictive of the success of later clinical trials, and interim results of clinical trials do not
necessarily predict success in future clinical trials. Many companies in the pharmaceutical and biotechnology industries have suffered significant setbacks in late-stage
clinical trials after achieving positive results in earlier development, and we could face similar setbacks. In some instances, there can be significant variability in safety or
efficacy results between different clinical trials of the same product candidate due to numerous factors, including changes in trial procedures set forth in protocols,
differences in the size and type of the patient populations, changes in and adherence to the dosing regimen and other clinical trial protocols and the rate of dropout among
clinical trial participants. If we fail to receive positive results in clinical trials of eganelisib, the development timeline and regulatory approval and commercialization
prospects for eganelisib and, correspondingly, our business and financial prospects, would be negatively impacted.
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Our inability to enroll sufficient numbers of patients in our clinical trials, or any delays in patient enrollment, could result in increased costs and longer development
periods for our product candidates.
Clinical trials require sufficient patient enrollment. Our failure to enroll patients in a clinical trial could delay the initiation or completion of the clinical trial
beyond current expectations. In addition, the FDA or other comparable foreign regulatory authorities could require us to conduct clinical trials with a larger number of
patients than has been projected for eganelisib or any product candidates we may develop in the future. As a result of these factors, we may not be able to enroll a
sufficient number of patients in a timely or cost-effective manner. Furthermore, enrolled patients may drop out of a clinical trial for reasons such as being included in a
placebo or comparator arm in a trial, the occurrence of adverse side effects, whether or not related to our product candidate, or low or no activity of our product candidate
at one or more dose levels being testes, which could impair the validity or statistical significance of the clinical trial. Please refer to “Risks Related to COVID-19
Pandemic” for a further discussion of the impact of COVID-19 on enrollment in our clinical trials. A delay in our clinical trial activities could adversely affect our ability
to obtain regulatory approval for and to commercialize our product candidates, increase our operating expenses, and have a material adverse effect on our financial
results.
Even if a product candidate receives marketing approval in the future, we or others may later discover that the product is less effective than previously believed or
causes undesirable side effects that were not previously identified, which could compromise our ability, or that of any future collaborator, to market such product
candidate.
Even if we receive regulatory approval for a product candidate, we will have tested it in only a small number of patients in carefully defined subsets and over a
limited period of time during our clinical trials, such as is the case for eganelisib. If any future applications for marketing are approved and more patients begin to use our
products, or patients use such products for a longer period of time, such products might be less effective than indicated by our clinical trials. Furthermore, new risks and
side effects associated with such products may be discovered or previously observed risks and side effects may become more prevalent and/or clinically significant.
In addition, supplemental clinical trials that may be conducted on a drug following its initial approval may produce findings that are inconsistent with the trial
results previously submitted to regulatory authorities. As a result, regulatory authorities may revoke their approvals, or we may be required to conduct additional clinical
trials, make changes in labeling of a product (including a “black box” warning or a contraindication) or the manner in which it is administered, reformulate such product
or make changes to and obtain new approvals for our and our suppliers’ manufacturing facilities. We also might have to withdraw or recall such product from the
marketplace, and regulators might seize such product. We might be subject to fines, injunctions, or the imposition of civil or criminal penalties. Any of these results could
decrease or prevent any sales of our approved product or substantially increase the costs and expenses of commercializing and marketing our product, harm our
reputation, business and operations, result in our and our collaborators’ becoming subject to lawsuits, including class actions and could negatively impact our stock price.
Even if a product candidate receives marketing approval, it may fail to achieve the degree of market acceptance by physicians, patients, third-party payors and others
in the medical community necessary for commercial success, in which case we may not be able to generate significant revenues from product sales to become
profitable.
Even if a product candidate obtains regulatory approval, it may not gain market acceptance among physicians, patients, managed care organizations, third-party
payors, and the medical community for a variety of reasons including:
•
timing of our receipt of any marketing approvals, the terms of any such approvals and the countries in which any such approvals are obtained;
•
timing of market introduction of competitive products;
•
lower demonstrated clinical safety or efficacy, or less convenient or more difficult route of administration, compared to competitive products;
•
lack of cost-effectiveness;
•
lack of reimbursement from government payors, managed care plans and other third-party payors;
•
prevalence and severity of side effects;
•
potential advantages of alternative treatment methods;
•
whether it is designated under physician treatment guidelines as a first, second or third line therapy;
•
changes in the standard of care for targeted indications;
•
limitations or warnings, including distribution or use restrictions, contained in the product’s approved labeling;
•
safety concerns with similar products marketed by others;
•
the reluctance of the target population to try new therapies and of physicians to prescribe those therapies;
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•
the lack of success of our physician education programs; and
•
ineffective sales, marketing and distribution support.
If any product candidate we develop, such as eganelisib, received marketing approval but fails to achieve market acceptance, we would not be able to generate
significant revenue, which may adversely impact our ability to become profitable.
If we obtain approval to commercialize a product candidate outside of the United States, a variety of risks associated with international operations could materially
adversely affect our business.
We expect that we will be subject to additional risks in commercializing any product candidate outside the United States, including:
•
different regulatory requirements for approval of drugs and biologics in foreign countries;
•
reduced protection for intellectual property rights;
•
unexpected changes in tariffs, trade barriers and regulatory requirements;
•
economic weakness, including inflation, or political instability in particular foreign economies and markets;
•
compliance with tax, employment, immigration and labor laws for employees living or traveling abroad;
•
foreign currency fluctuations, which could result in increased operating expenses and reduced revenue, and other obligations incident to doing business in
another country;
•
workforce uncertainty in countries where labor unrest is more common than in the United States;
•
production shortages resulting from any events affecting raw material supply or manufacturing capabilities abroad; and
•
business interruptions resulting from geopolitical actions, including war and terrorism, disease outbreak, or natural disasters including earthquakes,
typhoons, floods and fires.
Even if we receive regulatory approvals for marketing any product candidates we may develop, we could lose our regulatory approvals and our business would be
adversely affected if we, our collaborators, or our contract manufacturers fail to comply with continuing regulatory requirements.
The FDA and other regulatory agencies continue to review products even after they receive initial approval. If we receive approval to commercialize any product
candidates, the manufacturing, marketing and sale of these drugs will be subject to continuing regulation, including compliance with quality systems regulations, the
FDA’s current good manufacturing practices, or cGMPs, adverse event requirements and prohibitions on promoting a product for unapproved uses. Enforcement actions
resulting from our failure to comply with government and regulatory requirements could result in fines, suspension of approvals, withdrawal of approvals, product recalls,
product seizures, mandatory operating restrictions, criminal prosecution, civil penalties and other actions that could impair the manufacturing, marketing and sale of any
product candidates and our ability to conduct our business.
If we are unable to establish sales, marketing and distribution capabilities or enter into sales, marketing and distribution arrangements with third parties, we may not
be successful in commercializing any product candidates if approved.
We have no experience in the sale, marketing or distribution of pharmaceutical products and do not currently have the necessary infrastructure to do so. To
achieve commercial success for any approved product, we must either develop a sales and marketing organization or outsource these functions to third parties. The
development of sales, marketing and distribution capabilities would require substantial resources, would be time consuming and could delay any product launch. If the
commercial launch of a product candidate for which we recruit a sales force and establish marketing and distribution capabilities is delayed or does not occur for any
reason, we could have prematurely or unnecessarily incurred these commercialization costs, and our investment could be lost if we cannot retain or reposition our sales
and marketing personnel. In addition, we may not be able to hire or retain a sales force that is sufficient in size or has adequate expertise in the medical markets that we
choose to target. If we are unable to establish or retain a sales force and marketing and distribution capabilities, our operating results may be adversely affected. We may
seek to collaborate with potential partners if we believe they have development or commercialization expertise relevant to one or more of our products, even if we believe
we could otherwise develop and commercialize the product independently. As a result of entering into these arrangements, our product revenues or the profitability of
these product revenues may be lower, perhaps substantially lower, than if we were to directly market and sell our products in those markets. Furthermore, we may be
unsuccessful in entering into the necessary arrangements with third parties or may be unable to do so on terms that are favorable to us. In addition, we may have little or
no control over such third parties, and any of them may fail to devote the necessary resources and attention to sell and market our products effectively.
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Our competitors and potential competitors may develop products that make eganelisib less attractive or obsolete.
Immuno-oncology, or IO, is a highly competitive and rapidly changing segment of the pharmaceutical industry. Many large pharmaceutical and biotechnology
companies, academic institutions, governmental agencies and other public and private research organizations are pursuing the development of novel drugs that target
various oncology diseases. We currently face, and expect to continue to face, intense and increasing competition as new products enter the market and advanced
technologies become available. We believe that there are competitors in clinical and pre-clinical development of their PI3K-gamma selective inhibitors and that other
competitors are developing or commercializing therapies targeting macrophage reprogramming biology. For more information on our competitors, please see Part I, Item
1 “Business Overview – Competition” to this Annual Report on Form 10-K.
Our competitors may commence and complete clinical testing of their product candidates, obtain regulatory approvals and begin commercialization of their
products sooner than we and/or our collaborators may for eganelisib. These competitive products may have superior safety or efficacy, have more attractive
pharmacologic properties, or be manufactured less expensively than eganelisib. Mergers and acquisitions in the pharmaceutical and biotechnology industries may result in
even more resources being concentrated among a smaller number of our competitors. Smaller or early stage companies may also prove to be significant competitors,
particularly through collaborative arrangements with large and established companies. These competitors also compete with us in recruiting and retaining qualified
scientific and management personnel and establishing clinical trial sites and patient registration for clinical trials, as well as in acquiring technologies complementary to,
or necessary for, the development of eganelisib or future product candidates we may develop. If we are unable to compete effectively against these companies on the basis
of safety, efficacy or cost, then we may not be able to commercialize eganelisib or achieve a competitive position in the market. This would adversely affect our ability to
generate revenues.
Even if we, or any future collaborators, are able to commercialize eganelisib, the product may become subject to unfavorable pricing regulations, third-party payor
reimbursement practices or healthcare reform initiatives, any of which could harm our business.
The commercial success of eganelisib will depend substantially, both domestically and abroad, on the extent to which the costs of eganelisib will be paid by
third-party payors, including government healthcare programs and private health insurers. If coverage is not available, or reimbursement is limited, we, or any future
collaborators, may not be able to successfully commercialize eganelisib. Even if coverage is provided, the approved reimbursement amount may not be high enough to
allow us, or any future collaborators, to establish or maintain pricing sufficient to realize a sufficient return on our or their investments. In the United States, no uniform
policy of coverage and reimbursement for products exists among third-party payors and coverage and reimbursement levels for products can differ significantly from
payor to payor. As a result, the coverage determination process is often a time consuming and costly process that may require us to provide scientific and clinical support
for the use of our products to each payor separately, with no assurance that coverage and adequate reimbursement will be applied consistently or obtained in the first
instance.
The extent to which patients have third-party payor coverage that could in principle cover treatment with eganelisib may be affected by legislative and regulatory
changes relating to the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Affordability Reconciliation Act, or collectively the
ACA. For instance, the so-called “individual mandate” provisions of the ACA require most individuals to carry acceptable insurance for themselves and their family,
whether through the government or a private insurer, or else incur a penalty. However, the tax reform legislation signed into law on December 22, 2017, eliminated the
penalty for failure to comply with the individual mandate, effective for periods beginning after December 31, 2018. This change and other legislative or regulatory actions
in relation to the ACA may increase the pool of patients lacking third-party payor coverage. There is significant uncertainty related to third-party payor coverage and
reimbursement of newly approved drugs. Marketing approvals, pricing and reimbursement for new drug products vary widely from country to country. Some countries
require approval of the sale price of a drug before it can be marketed. In many countries, the pricing review period begins after marketing or product licensing approval is
granted. In some foreign markets, prescription pharmaceutical pricing remains subject to continuing governmental control even after initial approval is granted. As a
result, we, or any future collaborators, might obtain marketing approval for a product in a particular country, but then be subject to price regulations that delay commercial
launch of the product, possibly for lengthy time periods, or prevent it altogether, which may negatively impact the revenues we are able to generate from the sale of the
product in that country. Adverse pricing limitations may hinder our ability or the ability of any future collaborators to recoup our or their investment in eganelisib, even if
eganelisib obtains marketing approval.
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Patients who are provided medical treatment for their conditions generally rely on third-party payors to reimburse all or part of the costs associated with their
treatment. Therefore, our ability, and the ability of any future collaborators, to successfully commercialize eganelisib will depend in part on the extent to which coverage
and adequate reimbursement for eganelisib and related treatments will be available from third-party payors. Third-party payors decide which medications they will cover
and establish reimbursement levels. The healthcare industry is acutely focused on cost containment, both in the United States and elsewhere. Government authorities and
other third-party payors have attempted to control costs by limiting coverage and the amount of reimbursement for particular medications, which could affect our ability
or that of any future collaborators to sell eganelisib profitably. These payors may not view eganelisib as cost-effective, and coverage and reimbursement may not be
available to our customers, or those of any future collaborators, or may not be sufficient to allow eganelisib to be marketed on a competitive basis. Cost-control initiatives
could cause us, or any future collaborators, to decrease the price we, or they, might establish for eganelisib, which could result in lower than anticipated product revenues.
If the prices for eganelisib decrease or if governmental and other third-party payors do not provide coverage or adequate reimbursement, our prospects for revenue and
profitability will suffer.
There may also be delays in obtaining coverage and reimbursement for newly approved drugs, and coverage may be more limited than the indications for which
the drug is approved by the FDA or comparable foreign regulatory authorities. Moreover, eligibility for reimbursement does not imply that any drug will be paid for in all
cases or at a rate that covers our costs, including research, development, manufacture, sale and distribution. Reimbursement rates may vary, by way of example, according
to the use of the product and the clinical setting in which it is used. Reimbursement rates may also be based on reimbursement levels already set for lower cost drugs or
may be incorporated into existing payments for other services.
In addition, third-party payors are requiring higher levels of evidence of the benefits and clinical outcomes of new technologies and are challenging the prices
charged. Further, the net reimbursement for drug products may be subject to additional reductions if there are changes to laws that presently restrict imports of drugs from
countries where they may be sold at lower prices than in the United States. An inability to promptly obtain coverage and adequate payment rates from both government-
funded and private payors for eganelisib could significantly harm our operating results, our ability to raise capital needed to commercialize eganelisib and our overall
financial condition.
If the FDA or comparable foreign regulatory authorities grant marketing approval for generic versions of eganelisib, or such authorities do not grant eganelisib
appropriate periods of data exclusivity before approving generic versions of eganelisib, sales of eganelisib could be adversely affected.
Once an NDA is approved, the product covered thereby becomes a “reference-listed drug” in the FDA’s publication, “Approved Drug Products with Therapeutic
Equivalence Evaluations,” or the Orange Book. Manufacturers may seek approval of generic versions of reference-listed drugs through submission of abbreviated new
drug applications, or ANDAs, in the United States. In support of an ANDA, a generic manufacturer need not conduct clinical trials. Rather, the applicant generally must
show that its product has the same active ingredient(s), dosage form, strength, route of administration and conditions of use or labeling as the reference-listed drug and
that the generic version is bioequivalent to the reference-listed drug, meaning it is absorbed in the body at the same rate and to the same extent. Generic products may be
significantly less costly to bring to market than the reference-listed drug and companies that produce generic products are generally able to offer them at lower prices.
Thus, following the introduction of a generic drug, a significant percentage of the sales of any branded product or reference-listed drug may be lost to the generic product.
The FDA may not approve an ANDA for a generic product until any applicable period of non-patent exclusivity for the reference-listed drug has expired. The
FDCA provides a period of five years of non-patent exclusivity for a new drug containing a new chemical entity, or NCE. Specifically, in cases where such exclusivity
has been granted, an ANDA may not be filed with the FDA until the expiration of five years unless the submission is accompanied by a Paragraph IV certification that a
patent covering the reference-listed drug is either invalid or will not be infringed by the generic product, in which case the applicant may submit its application four years
following approval of the reference-listed drug. When the composition of matter patents underlying our product candidates expire, it is possible that another applicant
could obtain approval to produce generic versions of our product candidates. If any product we develop does not receive five years of NCE exclusivity, the FDA may
approve generic versions of such product three years after its date of approval, subject to the requirement that the ANDA applicant certifies to any patents listed for our
products in the Orange Book. Manufacturers may seek to launch these generic products following the expiration of the applicable marketing exclusivity period, even if we
still have patent protection for our product.
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Product liability lawsuits against us or any licensees could cause us or our licensees to incur substantial liabilities and could limit commercialization of any products
that we or they may develop.
We face an inherent risk of product liability exposure related to the testing of eganelisib or any future product candidates in human clinical trials, and we and any
licensees will face an even greater risk as we or they commercially sell any products that we or they may develop, such as duvelisib. If we or our licensees cannot
successfully defend ourselves or themselves against claims that our product candidates or products caused injuries, we could incur substantial liabilities. Regardless of
merit or eventual outcome, liability claims may result in, among other consequences, decreased demand for any product candidates or medicines that we may develop,
injury to our reputation and significant negative media attention, withdrawal of clinical trial participants, significant costs to defend the related litigation, substantial
monetary awards to trial participants or patients, loss of revenue, reduced resources of our management to pursue our business strategy, and the inability to commercialize
any medicines that we may develop. Although we maintain product liability insurance coverage, it may not be adequate to cover all liabilities that we may incur. We
anticipate that we will need to increase our insurance coverage as we advance or expand our clinical trials and if we successfully commercialize any products. Insurance
coverage is increasingly expensive. We may not be able to maintain insurance coverage at a reasonable cost or in an amount adequate to satisfy any liability that may
arise. In addition, if one of our licensees were to become subject to product liability claims or were unable to successfully defend themselves against such claims, any
such licensee could be more likely to terminate such relationship with us and therefore substantially limit the commercial potential of our products.
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. The 2008 global financial
crisis caused extreme volatility and disruptions in the capital and credit markets. More recently, the COVID-19 pandemic has also adversely impacted the global
economy. A severe or prolonged economic downturn, such as that in 2008, could result in a variety of risks to our business, including weakened demand for eganelisib or
any future product candidates we may develop and our ability to raise additional capital when needed on acceptable terms, if at all. A weak or declining economy could
strain our suppliers, possibly resulting in supply disruption, or cause delays in payments for our services by third-party payors or our collaborators. Any of the foregoing
could harm our business and we cannot anticipate all of the ways in which the current economic climate and financial market conditions could adversely impact our
business.
Risks Related to the COVID-19 Pandemic
Public health epidemics or outbreaks, including the COVID-19 pandemic, have had, and may continue to have, an adverse impact on our business.
In December 2019, a novel strain of coronavirus emerged in China causing the disease COVID-19. This disease has spread worldwide and was deemed a
“pandemic” by the World Health Organization on March 11, 2020.. As of March 2023, case rates for COVID-19 have dropped considerably, and most government-
mandated COVID-19 precautions were lifted in 2022. However, given the volatile nature of COVID-19 to date, such restrictions could return in part or in whole during a
future spike in case rates. We have highlighted the key risks associated with the COVID-19 pandemic on our operations throughout these risk factors, including without
limitation the following:
•
The COVID-19 pandemic may materially and adversely affect our clinical trial operations and our financial results. We are conducting our clinical trials at
sites in geographies that were seriously impacted by the COVID-19 pandemic and could be in the event of a future spike. We are continuing to evaluate
enrollment trends in our studies as well as the impact of COVID-19 on our clinical programs. Patients currently enrolled on MARIO-275, MARIO-3 and
MARIO-1 have continued treatment and study visits with limited disruption, and we are working closely with trial sites to support the continued treatment of
patients in compliance with study protocols. At this time, there are no anticipated disruptions to drug supply.
•
The COVID-19 pandemic could impact our future supply chain. We currently rely on third-party manufacturers to produce our preclinical and clinical drug
supplies, and we may also rely upon third-party manufacturers to produce commercial supplies of eganelisib, also known as IPI-549. We believe we have already
manufactured all drug product necessary to conduct our current clinical trials. Further, we believe that a sufficient supply of drug substance and drug product
intermediates is available in the United States for additional drug product manufacturing if required to support our clinical development program and potential
preclinical studies. However, a future spike of the COVID-19 pandemic or any future pandemic could impact our future supply chain. Refer to the risk factor
entitled “We currently rely on third-party manufacturers to produce our preclinical and clinical drug supplies, and we may also rely upon third-party
manufacturers to produce commercial supplies of eganelisib” for more information related to the risks
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related to our dependence on third-party manufacturers to produce preclinical, clinical, and commercial supplies of eganelisib.
•
COVID safety protocols, quarantine requirements, and social distancing measures adopted by or imposed upon us and our vendors may impact our business
operations. Governments and employers have combated the COVID-19 pandemic through implementation of safety protocols and quarantine requirements that
may require prolonged absences from work and social distancing measures intended to keep individuals physically distant from one another. Such measures,
which have been lifted at the present time, may be re-instated during periods of increased COVID case rates and have had or may have an adverse impact on our
business operations.
On January 30, 2023, the Biden Administration announced that it will end the public health emergency declarations related to COVID-19 on May 11, 2023. On
January 31, 2023, the FDA indicated that it would soon issue a Federal Register notice describing how the termination of the public health emergency will impact the
agency’s COVID-19 related guidance’s, including the clinical trial guidance and updates thereto.
Risks Related to Our Dependence on Third Parties
If a collaborator terminates or fails to perform its obligations under agreements with us, the development and commercialization of eganelisib or any future product
candidates we may develop could be delayed or terminated.
We currently have worldwide development and commercialization rights to eganelisib, subject to certain success-based milestone payment obligations to our
licensor, Takeda Pharmaceutical Company Limited, or Takeda, as described in more detail under Part I, Item 1, “Business Overview – Alliances, Collaborations, and
Other Arrangements – Takeda.” We license certain patent and other intellectual property rights under the Takeda Agreement and the Secura Bio Agreement. We may in
the future seek other third-party collaborators. The success of a strategic alliance with any partner is largely dependent on the resources, efforts, technology and skills
brought to such alliance by such partner. The benefits of such alliances will be reduced or eliminated if any such partner:
•
does not or cannot devote the necessary resources to the development, marketing and distribution of such product or products;
•
decides not to pursue development and commercialization of the program or to continue or renew development or commercialization programs, based on
clinical trial results, changes in the collaborators’ strategic focus or available funding, the belief that other product candidates may have a higher likelihood
of obtaining regulatory approval or potential to generate a greater return on investment, or external factors, such as an acquisition, that divert resources or
create competing priorities;
•
does not perform its obligations as expected;
•
does not have sufficient resources necessary or is otherwise unable to carry the program through clinical development, regulatory approval and
commercialization;
•
cannot obtain the necessary regulatory approvals;
•
delays clinical trials, provides insufficient funding for a clinical trial program, stops a clinical trial or abandons the program, repeats or conducts new clinical
trials or requires a new formulation of the program for clinical testing;
•
independently develops, or develops with third parties, products that compete directly or indirectly with the program;
•
does not properly maintain or defend our intellectual property rights or uses our proprietary information in such a way as to invite litigation that could
jeopardize or invalidate our intellectual property or proprietary information or expose us to potential litigation;
•
infringes the intellectual property rights of third parties, which may expose us to litigation and potential liability; or
•
terminates the collaboration prior to its completion.
If such partner were to terminate its arrangements with us, or breach such arrangements, or fail to maintain the financial resources necessary to continue
financing its portion of development, manufacturing, and commercialization costs, as applicable, we may not have the financial resources or capabilities necessary to
continue development and commercialization of the product candidate on our own. Consequently, the development and commercialization of the affected product
candidate could be delayed, curtailed or terminated, and we may find it difficult to attract a new collaborator for such product candidate.
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Disputes and difficulties in these types of relationships are common, often due to priorities changing over time, conflicting priorities or conflicting interests.
Merger and acquisition activity may exacerbate these conflicts. Much of the potential revenue from alliances consists of payments contingent upon the achievement of
specified milestones and royalties payable on sales of any successfully developed drugs. Any such contingent revenue will depend upon our, and our collaborators’,
ability to successfully develop, launch, market and sell new drugs. In some cases, we will not be involved in some or all of these processes, and we will depend entirely
on our collaborators.
If any future collaborator fails to develop or effectively commercialize a product candidate that is the subject of our strategic alliance with them, we may not be
able to develop and commercialize such product candidate independently, and our financial condition and operations would be negatively impacted.
We rely on third parties to conduct our clinical trials, and those third parties may not perform satisfactorily.
We rely on third parties such as contract research organizations, medical institutions and external investigators to enroll qualified patients, conduct our clinical
trials and provide services in connection with such clinical trials, and we intend to rely on these and other similar entities in the future. Our reliance on these third parties
for clinical development activities reduces our control over these activities. Accordingly, these third-party contractors may not complete activities on schedule or conduct
our clinical trials in accordance with regulatory requirements or the trial design. If these third parties do not successfully carry out their contractual obligations or meet
expected deadlines, we may be required to replace them. Replacing a third-party contractor may result in a delay of the affected trial and unplanned costs. If this were to
occur, our ability to obtain regulatory approval for and to commercialize eganelisib or any product candidate that we may develop in the future could be delayed.
In addition, we are responsible for ensuring that each of our clinical trials is conducted in accordance with the general investigational plan and protocol for the
trial. The FDA requires us to comply with certain standards, referred to as good clinical practices, for conducting, recording and reporting the results of clinical trials to
assure that data and reported results are credible and accurate and that the rights, integrity and confidentiality of trial participants are protected. Our reliance on third
parties that we do not control does not relieve us of these responsibilities and requirements. If any of our trial investigators or third-party contractors does not comply with
good clinical practices, we may not be able to use the data and reported results from the trial. If this noncompliance were to occur, our ability to obtain regulatory
approval for and to commercialize our product candidate could be delayed or put at risk.
We currently rely on third-party manufacturers to produce our preclinical and clinical drug supplies, and we may also rely upon third-party manufacturers to
produce commercial supplies of eganelisib.
Eganelisib requires precise, high quality manufacturing under cGMP. The third-party manufacturers on which we rely may fail to comply with cGMPs and other
applicable government regulations and corresponding foreign standards. These regulations govern manufacturing processes and procedures and the implementation and
operation of systems to control and assure the quality of products. The FDA and foreign regulatory authorities may, at any time, audit or inspect a manufacturing facility
to ensure compliance with cGMPs and other quality standards. Any failure by our contract manufacturers to achieve and maintain high manufacturing and quality control
standards could result in the inability of eganelisib to be released for use in one or more countries. In addition, such a failure could result in, among other things, patient
injury or death, product liability claims, penalties or other monetary sanctions, the failure of regulatory authorities to grant marketing approval of eganelisib, delays,
suspension or withdrawal of approvals, license revocation, seizures or recalls of eganelisib, operating restrictions and/or criminal prosecution, any of which could
significantly and adversely affect supply of eganelisib and seriously hurt our business.
Contract manufacturers may also encounter difficulties involving production yields or delays in performing their services. We do not have control over third-
party manufacturers’ performance and compliance with applicable regulations and standards. If, for any reason, including natural disaster, epidemic or pandemic, such as
the ongoing COVID-19 pandemic, our manufacturers cannot perform as agreed, we may be unable to replace such third-party manufacturers in a timely manner, and the
production of eganelisib or any future product candidates would be interrupted, resulting in delays in clinical trials and additional costs. Switching manufacturers may be
difficult because the number of potential manufacturers is limited, the demand for such services is high and, depending on the type of material manufactured at the
contract facility, the change in contract manufacturer must be submitted to and/or approved by the FDA and comparable regulatory authorities outside of the United
States. In addition, a new manufacturer would have to be educated in, or develop substantially equivalent processes for, production of our product candidates after receipt
of regulatory approval. It may be difficult or impossible for us to quickly find a replacement manufacturer on acceptable terms, or at all.
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To date, eganelisib has been manufactured for preclinical testing and clinical trials primarily by third-party manufacturers. If the FDA or other regulatory
agencies approve eganelisib for commercial sale, we expect that we would continue to rely, at least initially, on third-party manufacturers to produce commercial
quantities of eganelisib. These manufacturers may not be able to successfully increase the manufacturing capacity for eganelisib in a timely or economical manner, or at
all, particularly if impacted by COVID-19. Significant scale-up of manufacturing might entail changes in the manufacturing process that would have to be submitted to or
approved by the FDA or other regulatory agencies. If contract manufacturers engaged by us are unable to successfully increase the manufacturing capacity for eganelisib,
or we are unable to establish our own manufacturing capabilities, the commercial launch of any approved products may be delayed or there may be a shortage in supply.
Risks Related to Our Intellectual Property
If we fail to obtain or maintain necessary or useful intellectual property rights, we could encounter substantial delays in the research, development and
commercialization of eganelisib and any product candidates that we may develop in the future.
We currently have rights to certain intellectual property through the Takeda Agreement to develop eganelisib and other product candidates that we may in the
future develop under our PI3K inhibitor program. In addition, we have rights to certain intellectual property through the Takeda Agreement that we have exclusively
licensed to Secura Bio pursuant to the Secura Bio Agreement. We may decide to license additional third-party technology that we deem necessary or useful for our
business. However, we may be unable to acquire or in-license any compositions, methods of use, processes or other intellectual property rights from third parties that we
identify as necessary for eganelisib at a reasonable cost, or at all. The licensing or acquisition of third-party intellectual property rights is a competitive area, and several
more established companies may pursue strategies to license or acquire third-party intellectual property rights that we may consider attractive. These established
companies may have a competitive advantage over us due to their size, capital resources and greater clinical development and commercialization capabilities. In addition,
companies that perceive us to be a competitor may be unwilling to assign or license rights to us.
We sometimes collaborate with non-profit and academic institutions to accelerate our preclinical research or development under written agreements with these
institutions. Typically, these institutions provide us with an option to negotiate a license to any of the institution’s rights in technology resulting from the collaboration.
Regardless of such option, we may be unable to negotiate a license within the specified timeframe or under terms that are acceptable to us or we may decide not to
execute such option if we believe such license is not necessary to pursue our program. If we are unable or opt not to do so, the institution may offer the intellectual
property rights to other parties, potentially blocking our ability to pursue our program.
If we do not obtain or maintain these intellectual property rights which we require, we could encounter substantial delays in developing and commercializing
eganelisib or any other potential product candidate while we attempt to develop alternative technologies, methods and product candidates, which we may not be able to
accomplish. If we are ultimately unable to do so, we may be unable to develop or commercialize our product candidate, which could harm our business significantly.
If we fail to comply with our obligations under our existing and any future intellectual property licenses with third parties, we could lose license rights that are
important to our business.
We are party to several license agreements under which we license patent rights and other intellectual property related to our business including the Takeda
Agreement, under which we obtained rights to discover, develop and commercialize pharmaceutical products targeting the delta and/or gamma isoforms of PI3K,
including eganelisib and duvelisib. We may enter into additional license agreements in the future. For example, pursuant to the Takeda Agreement, we paid a $2.0 million
success-based milestone payment to Takeda in October 2019 associated with MARIO-275. We are obligated to pay Takeda up to $3.0 million in remaining success-based
development milestone payments and up to $165.0 million in remaining regulatory and commercialization success-based milestone payments for one product candidate
other than duvelisib, which could be eganelisib. Our license agreements impose, and we expect that future license agreements will impose, various diligence, milestone
payment, royalty, insurance and other obligations on us. If we fail to comply with our obligations under these licenses, our licensors may have the right to terminate these
license agreements, in which event we might not be able to market eganelisib or any other product candidate that is covered by these agreements, or our licensors may
convert the license to a non-exclusive license, which could adversely affect the value of eganelisib or any other product candidate being developed under the license
agreement. Termination of these license agreements or reduction or elimination of our licensed rights may also result in our having to negotiate new or reinstated licenses
with less favorable terms. For example, if we fail to use diligent efforts to develop and commercialize products licensed under the Takeda Agreement, or if Secura Bio
materially breaches the Secura Bio Agreement, we could lose our license rights under the Takeda Agreement, including rights to eganelisib.
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Our intellectual property licenses with third parties may be subject to disagreements over contract interpretations, which could narrow the scope of our rights to the
relevant intellectual property or technology or increase our financial or other obligations to our licensors.
The agreements under which we currently license intellectual property or technology from third parties are complex, and certain provisions in such agreements
may be susceptible to multiple interpretations. The resolution of any contract interpretation disagreement that may arise could narrow what we believe to be the scope of
our rights to the relevant intellectual property or technology, or increase what we believe to be our financial or other obligations under the relevant agreement, either of
which could harm our business, financial condition, results of operations and prospects.
Our success depends substantially upon our ability to obtain and maintain intellectual property protection for eganelisib.
We own or hold exclusive licenses to a number of U.S. and foreign patents and patent applications directed to eganelisib. Our success depends on our ability to
obtain patent protection both in the United States and in other countries for eganelisib, our methods of manufacture and our methods of use. Our ability to protect
eganelisib from unauthorized or infringing use by third parties depends substantially on our ability to obtain and enforce our patents.
Due to evolving legal standards relating to the patentability, validity and enforceability of patents covering pharmaceutical inventions and molecular diagnostics
and the claim scope of these patents, our ability to obtain and enforce patents that may issue from any pending or future patent applications is uncertain and involves
complex legal, scientific and factual questions. The standards that the United States Patent and Trademark Office, or USPTO, and its foreign counterparts use to grant
patents are not always applied predictably or uniformly and are subject to change. To date, no consistent policy has emerged regarding the breadth of claims allowed in
pharmaceutical or molecular diagnostics patents. Thus, we cannot guarantee that any patents will issue from any pending or future patent applications owned by or
licensed to us. Even if patents do issue, we cannot guarantee that the claims of these patents will be held valid or enforceable by a court of law, will provide us with any
significant protection against competitive products or will afford us a commercial advantage over competitive products.
The Leahy-Smith America Invents Act, or the America Invents Act, reforms United States patent law in part by changing the standard for patent approval for
certain patents from a “first to invent” standard to a “first to file” standard and developing a post-grant review system. This new law changes United States patent law in a
way that may severely weaken our ability to obtain patent protection in the United States. Additionally, recent judicial decisions establishing new case law and a
reinterpretation of past case law, as well as regulatory initiatives, may make it more difficult for us to protect our intellectual property.
Issued patents that we have or may obtain or license may not provide us with any meaningful protection, prevent competitors from competing with us or
otherwise provide us with any competitive advantage. Our competitors may be able to circumvent our patents by developing similar or alternative technologies or
products in a non-infringing manner.
If we do not obtain adequate intellectual property protection for our products in the United States, competitors could duplicate them without repeating the
extensive testing that we will have been required to undertake to obtain approval by the FDA. Regardless of any patent protection, under the current statutory framework,
the FDA is prohibited by law from approving any generic version of any of our products for up to five years after it has approved our product. Upon the expiration of that
period, or if that time period is altered, the FDA could approve a generic version of our product unless we have patent protection sufficient for us to block that generic
version. Without sufficient patent protection, the applicant for a generic version of our product would only be required to conduct a relatively inexpensive study to show
that its product is bioequivalent to our product and would not have to repeat the studies that we conducted to demonstrate that the product is safe and effective.
In the absence of adequate patent protection in other countries, competitors may similarly be able to obtain regulatory approval in those countries for products
that duplicate eganelisib. The laws of some foreign jurisdictions do not protect intellectual property rights to the same extent as in the United States. Many companies
have encountered significant difficulties in protecting and defending such rights in foreign jurisdictions. Some of our development efforts may be performed in China,
India and other countries outside of the United States through third-party contractors. We may not be able to monitor and assess intellectual property developed by these
contractors effectively; therefore, we may not be able to appropriately protect this intellectual property and could lose valuable intellectual property rights. In addition, the
legal protection afforded to inventors and owners of intellectual property in countries outside of the United States may not be as protective of intellectual property rights
as in the United States, and we may, therefore, be unable to acquire and protect intellectual property developed by these contractors to the same extent as if these
development activities were being conducted in the United States. If we encounter difficulties in protecting our intellectual property rights in foreign jurisdictions, our
business prospects could be substantially harmed.
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In addition, we rely on intellectual property assignment agreements with our collaborators, vendors, employees, consultants, clinical investigators, scientific
advisors and other collaborators to grant us ownership of new intellectual property that is developed by them. These agreements may not result in the effective assignment
to us of that intellectual property.
Other agreements through which we license patent rights may not give us control over patent prosecution or maintenance, so that we may not be able to control
which claims or arguments are presented and may not be able to secure, maintain, or successfully enforce necessary or desirable patent protection from those patent
rights. If we are unable to obtain control over patent prosecution in these other agreements, we cannot be certain that patent prosecution and maintenance activities by our
licensors have been or will be conducted in compliance with applicable laws and regulations or will result in valid and enforceable patents.
We, or any future partners, collaborators or licensees, may fail to identify patentable aspects of inventions made in the course of development and
commercialization activities before it is too late to obtain patent protection for them. Therefore, we may miss potential opportunities to strengthen our patent position.
It is possible that defects of form in the preparation or filing of our patents or patent applications may exist, or may arise in the future, for example with respect
to proper priority claims, inventorship, claim scope or patent term adjustments. If we or our partners, collaborators, licensees, or licensors, whether current or future, fail
to establish, maintain or protect such patents and other intellectual property rights, such rights may be reduced or eliminated. If our partners, collaborators, licensees or
licensors are not fully cooperative or disagree with us as to the prosecution, maintenance or enforcement of any patent rights, such patent rights could be compromised. If
there are material defects in the form, preparation, prosecution, or enforcement of our patents or patent applications, such patents may be invalid and/or unenforceable,
and such applications may never result in valid, enforceable patents. Any of these outcomes could impair our ability to prevent competition from third parties, which may
have an adverse impact on our business. As a result, our ownership of key intellectual property could be compromised.
Confidentiality agreements may not adequately prevent disclosure of trade secrets and other proprietary information.
To protect our proprietary technology, we rely in part on confidentiality agreements with our vendors, collaborators, employees, consultants, scientific advisors,
clinical investigators and other collaborators. We generally require each of these individuals and entities to execute a confidentiality agreement at the commencement of a
relationship with us. These agreements may not effectively prevent disclosure of confidential information and may not provide an adequate remedy in the event of
unauthorized disclosure or misuse of confidential information or other breaches of the agreements.
In addition, we may rely on trade secrets to protect our technology, especially where we do not believe patent protection is appropriate or obtainable. Trade
secrets are, however, difficult to protect. Others may independently discover our trade secrets and proprietary information, and in such case we could not assert any trade
secret rights against such party. Enforcing a claim that a party illegally obtained and is using our trade secrets is difficult, expensive and time consuming, and the outcome
is unpredictable. In addition, courts outside of the United States may be less willing to protect trade secrets. Costly and time-consuming litigation could be necessary to
seek to enforce and determine the scope of our proprietary rights and could result in a diversion of management’s attention, and failure to obtain or maintain trade secret
protection could adversely affect our competitive business position.
Patent interference, opposition or similar proceedings relating to our intellectual property portfolio are costly, and an unfavorable outcome could prevent us from
commercializing eganelisib.
Patent applications in the United States are maintained in confidence for up to 18 months after their filing. In some cases, however, patent applications remain
confidential in the USPTO for the entire time prior to issuance as a U.S. patent. Similarly, publication of discoveries in the scientific or patent literature often lags behind
actual discoveries. Consequently, we cannot be certain that we were the first to invent, or the first to file patent applications on, eganelisib or its therapeutic use. In the
event that a third party has also filed a U.S. patent application relating to eganelisib or a similar invention, we may have to participate in interference or derivation
proceedings declared by the USPTO or the third party to determine priority of invention in the United States. An adverse decision in an interference or derivation
proceeding may result in the loss of rights under a patent or patent application. In addition, the cost of interference proceedings could be substantial.
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Claims by third parties of intellectual property infringement are costly and distracting, and could deprive us of valuable rights we need to develop or commercialize
eganelisib and any product candidate that we might develop in the future or impact the commercialization of duvelisib and the royalties owed to us under the Secura
Bio Agreement.
Our commercial success will depend on whether there are third-party patents or other intellectual property relevant to our potential products that may block or
hinder our ability to develop and commercialize eganelisib. We may not have identified all U.S. and foreign patents or published applications that may adversely affect
our business either by blocking our ability to manufacture or commercialize our drugs or by covering similar technologies that adversely affect the applicable market. In
addition, we may undertake research and development with respect to eganelisib, even when we are aware of third-party patents that may be relevant to eganelisib, on the
basis that we may challenge or license such patents. There are no assurances that such licenses will be available on commercially reasonable terms, or at all. If such
licenses are not available, we may become subject to patent litigation and, while we cannot predict the outcome of any litigation, it may be expensive and time
consuming. If we are unsuccessful in litigation concerning patents owned by third parties, we may be precluded from selling eganelisib.
While we are not currently aware of any litigation or third-party claims of intellectual property infringement related to eganelisib or duvelisib, the
biopharmaceutical industry is characterized by extensive litigation regarding patents and other intellectual property rights. Other parties may obtain patents and claim that
the use of our or Secura Bio’s technologies infringes these patents or that we or Secura Bio are employing their proprietary technology without authorization. We or
Secura Bio could incur substantial costs and diversion of management and technical personnel in defending against any claims that the manufacture and sale of our
potential products or use of our or Secura Bio’s technologies infringes any patents, or defending against any claim that we or Secura Bio are employing any proprietary
technology without authorization. The outcome of patent litigation is subject to uncertainties that cannot be adequately quantified in advance, including the demeanor and
credibility of witnesses and the identity of the adverse party, especially in pharmaceutical patent cases that may turn on the testimony of experts as to technical facts upon
which experts may reasonably disagree. In the event of a successful claim of infringement against us, we or Secura Bio may be required to:
•
pay substantial damages;
•
stop developing, manufacturing and/or commercializing eganelisib or duvelisib (as applicable);
•
develop non-infringing product candidates, technologies and methods; and
•
obtain one or more licenses from other parties, which could result in our or Secura Bio paying substantial royalties or the granting of cross-licenses to our or
Secura Bio’s technologies.
If any of the foregoing were to occur, we may be unable to commercialize eganelisib, or we may elect to cease certain of our business operations, either of which
could severely harm our business.
We may undertake infringement or other legal proceedings against third parties, causing us to spend substantial resources on litigation and exposing our own
intellectual property portfolio to challenge.
Competitors may infringe our patents. To prevent infringement or unauthorized use, we may need to file infringement suits, which are expensive and time-
consuming. In an infringement proceeding, a court may decide that one or more of our patents is invalid, unenforceable, or both. Even if the validity of our patents is
upheld, a court may refuse to stop the other party from using the technology at issue on the ground that the other party’s activities are not covered by our patents. In this
case, third parties may be able to use our patented technology without paying licensing fees or royalties. Policing unauthorized use of our intellectual property is difficult,
and we may not be able 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. In addition, third parties may affirmatively challenge our rights to, or the scope or validity of, our patent rights.
Patent terms may be inadequate to protect our competitive position on our products for an adequate amount of time.
Given the amount of time required for the development, testing and regulatory review of new product candidates, patents protecting such candidates might expire
before or shortly after such candidates are commercialized. We expect to seek extensions of patent terms in the United States and, if available, in other countries where we
are prosecuting patents. In the United States, the Drug Price Competition and Patent Term Restoration Act of 1984 permits a patent term extension of up to five years
beyond the normal expiration of the patent, which is limited to the approved indication (or any additional indications approved during the period of extension). However,
the applicable authorities, including the FDA and the USPTO in the United States, and any equivalent regulatory authority in other countries, may not agree with our
assessment of whether such extensions are available, and may refuse to grant extensions to our patents, or may grant more limited extensions than we request. If this
occurs, our competitors may be able to take advantage of our investment in development and clinical trials by referencing our clinical and preclinical data and launch their
product earlier than might otherwise be the case.
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We may be subject to claims by third parties asserting that we or our employees have misappropriated their intellectual property, or claiming ownership of what we
regard as our own intellectual property.
Many of our employees and our licensors’ employees, including our senior management, were previously employed at universities or at other biotechnology or
pharmaceutical companies, some of which may be competitors or potential competitors. Some of these employees, including each member of our senior management,
executed proprietary rights, non-disclosure and non-competition agreements, or similar agreements, in connection with such previous employment. Although we try to
ensure that our employees do not use the proprietary information or know-how of others in their work for us, we may be subject to claims that we or these employees
have used or disclosed intellectual property, including trade secrets or other proprietary information, of any such third party. Litigation may be necessary to defend against
such claims. If we fail in defending any such claims, in addition to paying monetary damages, we may lose valuable intellectual property rights or personnel or sustain
damages. Such intellectual property rights could be awarded to a third party, and we could be required to obtain a license from such third party to commercialize our
technology or products. Such a license may not be available on commercially reasonable terms or at all. Even if we are successful in defending against such claims,
litigation could result in substantial costs and be a distraction to our senior management and scientific personnel.
In addition, while we typically require our employees, consultants and contractors who may be involved in the development of intellectual property to execute
agreements assigning such intellectual property to us, we may be unsuccessful in executing such an agreement with each party who in fact develops intellectual property
that we regard as our own, which may result in claims by or against us related to the ownership of such intellectual property. If we fail in prosecuting or defending any
such claims, in addition to paying monetary damages, we may lose valuable intellectual property rights. Even if we are successful in prosecuting or defending against
such claims, litigation could result in substantial costs and be a distraction to our senior management and scientific personnel.
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.
We have not yet registered trademarks in our potential markets. Any registered trademarks or trade names may be challenged, circumvented or declared generic
or determined to be infringing on other marks. We may not be able to protect our rights to these trademarks and trade names, which we need to build name recognition
among potential partners or customers in our markets of interest. At times, competitors may adopt trade names or trademarks similar to ours, thereby impeding our ability
to build brand identity and possibly leading to market confusion. In addition, there could be potential trade name or trademark infringement claims brought by owners of
other registered trademarks or trademarks that incorporate variations of our registered or unregistered trademarks or trade names. Over the long term, if we are unable to
establish name recognition based on our trademarks and trade names, then we may not be able to compete effectively and our business may be adversely affected. Our
efforts to enforce or protect our proprietary rights related to trademarks, trade secrets, domain names, copyrights or other intellectual property may be ineffective and
could result in substantial costs and diversion of resources and could adversely impact our financial condition or results of operations.
Obtaining and maintaining our patent protection depends on compliance with various procedural, document submission, fee payment and other requirements
imposed by governmental patent agencies, and our patent protection could be reduced or eliminated for non-compliance with these requirements.
The USPTO and various foreign governmental patent agencies require compliance with a number of procedural, documentary, fee payment and other provisions
during the patent process. There are situations in which non-compliance can result in abandonment or lapse of a patent or patent application, resulting in partial or
complete loss of patent rights in the relevant jurisdiction. If we or our sublicensees fail to comply with these requirements, competitors might be able to enter the market
earlier than would otherwise have been the case, which could decrease our revenue from that product.
Intellectual property rights do not necessarily address all potential threats.
The degree of future protection afforded by our intellectual property rights is uncertain because intellectual property rights have limitations, and may not
adequately protect our business or permit us to maintain our competitive advantage. For example:
•
others may be able to make products that are similar to eganelisib or any future product candidates we may develop but that are not covered by the claims of
the patents that we own or license or may own in the future;
•
we, or any partners or collaborators, might not have been the first to make the inventions covered by the issued patent or pending patent application that we
license or may own in the future;
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•
we, or any partners or collaborators, might not have been the first to file patent applications covering certain of our or their inventions;
•
others may independently develop similar or alternative technologies or duplicate any of our technologies without infringing our owned or licensed
intellectual property rights;
•
it is possible that our pending licensed patent applications or those that we may own in the future will not lead to issued patents;
•
issued patents that we hold rights to may be held invalid or unenforceable, including as a result of legal challenges by our competitors;
•
our competitors might conduct research and development activities in countries where we do not have patent rights and then use the information learned
from such activities to develop competitive products for sale in our major commercial markets;
•
we may not develop additional proprietary technologies that are patentable;
•
the patents of others may have an adverse effect on our business; and
•
we may choose not to file a patent for certain trade secrets or know-how, and a third party may subsequently file a patent covering such intellectual property.
Risks Related to Regulatory Approval and Marketing of Eganelisib and Other Legal Compliance Matters
Even if we complete the necessary preclinical studies and clinical trials, the regulatory approval process is expensive, time-consuming and uncertain and may prevent
us from obtaining approvals for the commercialization of eganelisib. If we or our collaborators are not able to obtain, or if there are delays in obtaining, required
regulatory approvals, we or they will not be able to commercialize eganelisib, and our ability to generate revenue will be materially impaired.
Eganelisib and the activities associated with its development and commercialization, including its design, testing, manufacture, safety, efficacy, record keeping,
labeling, storage, approval, advertising, promotion, sale and distribution, export and import, are subject to comprehensive regulation by the FDA and other regulatory
agencies in the United States and by the European Medicines Agency and comparable regulatory authorities in other countries. Failure to obtain marketing approval for
eganelisib will prevent us from commercializing eganelisib. We and our collaborators have not received approval to market eganelisib from regulatory authorities in any
jurisdiction. We have only limited experience in filing and supporting the applications necessary to gain marketing approvals and expect to rely on third-party contract
research organizations to assist us in this process.
Securing marketing approval requires the submission of extensive preclinical and clinical data and supporting information, including manufacturing information,
to the various regulatory authorities for each therapeutic indication to establish the product candidate’s safety and efficacy. Eganelisib may not be effective, may be only
moderately effective or may prove to have undesirable or unintended side effects, toxicities or other characteristics that may preclude our obtaining marketing approval or
prevent or limit commercial use.
The process of obtaining marketing approvals, both in the United States and abroad, is expensive, may take many years if additional clinical trials are required, if
approval is obtained at all, and can vary substantially based upon a variety of factors, including the type, complexity and novelty of the product candidates involved.
Changes in marketing approval policies during the development period, changes in or the enactment of additional statutes or regulations, or changes in regulatory review
for each submitted product application, may cause delays in the approval or rejection of an application. The FDA and comparable authorities in other countries have
substantial discretion in the approval process and may refuse to accept any application or may decide that our data is insufficient for approval and require additional
preclinical, clinical or other studies. In addition, varying interpretations of the data obtained from preclinical and clinical testing could delay, limit or prevent marketing
approval of eganelisib. Any marketing approval we or our collaborators ultimately obtain may be limited or subject to restrictions or post-approval commitments that
render the approved product not commercially viable.
Accordingly, if we or our collaborators experience delays in obtaining approval or if we or they fail to obtain approval of eganelisib, the commercial prospects
for eganelisib may be harmed, and our ability to generate revenues will be materially impaired.
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Failure to obtain marketing approval in foreign jurisdictions would prevent eganelisib from being marketed in such jurisdictions.
In order to market and sell our medicines in the European Union and many other jurisdictions, we or our third-party collaborators must obtain separate marketing
approvals and comply with numerous and varying regulatory requirements. The approval procedure varies among countries and can involve additional testing. The time
required to obtain approval may differ substantially from that required to obtain FDA approval. The regulatory approval process outside the United States generally
includes all of the risks associated with obtaining FDA approval. In addition, in many countries outside the United States, a product must be approved for reimbursement
before the product can be approved for sale in that country. We or our third-party collaborators may not obtain approvals from regulatory authorities outside the United
States on a timely basis, if at all. Approval by the FDA does not ensure approval by regulatory authorities in other countries or jurisdictions, and approval by one
regulatory authority outside the United States does not ensure approval by regulatory authorities in other countries or jurisdictions or by the FDA. We may not be able to
file for marketing approvals and may not receive necessary approvals to commercialize eganelisib in any market.
Additionally, we could face heightened risks with respect to seeking marketing approval in the United Kingdom as a result of the withdrawal of the United
Kingdom from the EU, commonly referred to as Brexit. The United Kingdom is no longer part of the European Single Market and European Union Customs Union. As of
January 1, 2021, the Medicines and Healthcare products Regulatory Agency, or the MHRA, became responsible for supervising medicines and medical devices in Great
Britain, comprising England, Scotland and Wales under domestic law, whereas Northern Ireland will continue to be subject to European Union rules under the Northern
Ireland Protocol. The MHRA will rely on the Human Medicines Regulations 2012 (SI 2012/1916) (as amended), or the HMR, as the basis for regulating medicines. The
HMR has incorporated into the domestic law of the body of European Union law instruments governing medicinal products that pre-existed prior to the United
Kingdom’s withdrawal from the European Union. Since a significant proportion of the regulatory framework for pharmaceutical products in the U.K. covering the quality,
safety, and efficacy of pharmaceutical products, clinical trials, marketing authorization, commercial sales, and distribution of pharmaceutical products is derived from EU
directives and regulations, Brexit may have a material impact upon the regulatory regime with respect to the development, manufacture, importation, approval and
commercialization of our product candidates in the U.K. Any delay in obtaining, or an inability to obtain, any marketing approvals, as a result of Brexit or otherwise, may
force us to restrict or delay efforts to seek regulatory approval in the United Kingdom for our product candidates, which could significantly and materially harm our
business.
We may seek certain designations for our product candidates, including Breakthrough Therapy, Fast Track and Priority Review designations in the US, and PRIME
Designation in the EU, but we might not receive such designations, and even if we do, such designations may not lead to a faster development or regulatory review or
approval process.
We may seek certain designations for one or more of our product candidates that could expedite review and approval by the FDA. A Breakthrough Therapy
product is defined as a product that is intended, alone or in combination with one or more other products, to treat a serious condition, and preliminary clinical evidence
indicates that the product may demonstrate substantial improvement over existing therapies on one or more clinically significant endpoints, such as substantial treatment
effects observed early in clinical development. For products that have been designated as Breakthrough Therapies, interaction and communication between the FDA and
the sponsor of the trial can help to identify the most efficient path for clinical development while minimizing the number of patients placed in ineffective control
regimens.
The FDA may also designate a product for Fast Track review if it is intended, whether alone or in combination with one or more other products, for the treatment
of a serious or life threatening disease or condition, and it demonstrates the potential to address unmet medical needs for such a disease or condition. For Fast Track
products, sponsors may have greater interactions with the FDA and the FDA may initiate review of sections of a Fast Track product’s application before the application is
complete. This rolling review may be available if the FDA determines, after preliminary evaluation of clinical data submitted by the sponsor, that a Fast Track product
may be effective.
We may also seek a priority review designation for one or more of our product candidates. If the FDA determines that a product candidate offers major advances
in treatment or provides a treatment where no adequate therapy exists, the FDA may designate the product candidate for priority review. A priority review designation
means that the goal for the FDA to review an application is six months, rather than the standard review period of ten months.
These designations are within the discretion of the FDA. Accordingly, even if we believe that one of our product candidates meets the criteria for these
designations, the FDA may disagree and instead determine not to make such designation. Further, even if we receive a designation, the receipt of such designation for a
product candidate may not result in a faster development or regulatory review or approval process compared to products considered for approval under conventional FDA
procedures and does not assure ultimate approval by the FDA. In addition, even if one or more of our product candidates
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qualifies for these designations, the FDA may later decide that the product candidates no longer meet the conditions for qualification or decide that the time period for
FDA review or approval will not be shortened.
In the EU, we may seek PRIME designation for our product candidates in the future. PRIME is a voluntary program aimed at enhancing the EMA’s role to
reinforce scientific and regulatory support in order to optimize development and enable accelerated assessment of new medicines that are of major public health interest
with the potential to address unmet medical needs. The program focuses on medicines that target conditions for which there exists no satisfactory method of treatment in
the EU or even if such a method exists, it may offer a major therapeutic advantage over existing treatments. PRIME is limited to medicines under development and not
authorized in the EU and the applicant intends to apply for an initial marketing authorization application through the centralized procedure. To be accepted for PRIME, a
product candidate must meet the eligibility criteria in respect of its major public health interest and therapeutic innovation based on information that is capable of
substantiating the claims.
The benefits of a PRIME designation include the appointment of a CHMP rapporteur to provide continued support and help to build knowledge ahead of a
marketing authorization application, early dialogue and scientific advice at key development milestones, and the potential to qualify products for accelerated review,
meaning reduction in the review time for an opinion on approvability to be issued earlier in the application process. PRIME enables an applicant to request parallel EMA
scientific advice and health technology assessment advice to facilitate timely market access. Even if we receive PRIME designation for any of our product candidates, the
designation may not result in a materially faster development process, review or approval compared to conventional EMA procedures. Further, obtaining PRIME
designation does not assure or increase the likelihood of EMA’s grant of a marketing authorization.
Even if we or our collaborators obtain marketing approvals for eganelisib, the terms of approvals and ongoing regulation of eganelisib may limit how we
manufacture and market eganelisib, which could impair our ability to generate revenue.
Once marketing approval has been granted, an approved product and its manufacturer and marketer are subject to ongoing review and extensive regulation. We,
and any collaborators, must therefore comply with requirements concerning advertising and promotion for eganelisib. Promotional communications with respect to
prescription drugs are subject to a variety of legal and regulatory restrictions and must be consistent with the information in the product’s approved labeling. Thus, we and
any collaborators will not be able to promote any products we develop for indications or uses for which they are not approved.
In addition, manufacturers of approved products and those manufacturers’ facilities are required to comply with extensive FDA requirements, including ensuring
that quality control and manufacturing procedures conform to cGMPs applicable to drug manufacturers or quality assurance standards applicable to medical device
manufacturers, which include requirements relating to quality control and quality assurance as well as the corresponding maintenance of records and documentation and
reporting requirements. We, any contract manufacturers we may engage in the future, our current or future collaborators and their contract manufacturers will also be
subject to other regulatory requirements, including submissions of safety and other post-marketing information and reports, registration and listing requirements,
requirements regarding the distribution of samples to physicians, recordkeeping, and costly post-marketing studies or clinical trials and surveillance to monitor the safety
or efficacy of the product such as the requirement to implement a risk evaluation and mitigation strategy.
Accordingly, assuming we, or any of our collaborators, receive marketing approval for eganelisib, we, our collaborators, and our and their contract manufacturers
will continue to expend time, money and effort in all areas of regulatory compliance, including manufacturing, production, product surveillance and quality control.
If we, and any collaborators, are not able to comply with post-approval regulatory requirements, we, and our collaborators, could have the marketing approvals
for our products withdrawn by regulatory authorities and our, or any collaborators’, ability to market any future products could be limited, which could adversely affect
our ability to achieve or sustain profitability. Further, the cost of compliance with post-approval regulations may have a negative effect on our operating results and
financial condition.
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Eganelisib could be subject to restrictions or withdrawal from the market, and we may be subject to substantial penalties, if we or our collaborators fail to comply
with regulatory requirements or if we or they experience unanticipated problems with eganelisib, when and if it is approved.
Any product candidate for which we or our collaborators obtain marketing approval, along with the manufacturing processes, post-approval clinical data,
labeling, advertising and promotional activities for such product, will be subject to continual requirements of and review by the FDA and other regulatory authorities.
These requirements include submissions of safety and other post-marketing information and reports, registration and listing requirements, cGMP requirements relating to
quality control and manufacturing, quality assurance and corresponding maintenance of records and documents, and requirements regarding the distribution of samples to
physicians and recordkeeping. Even if marketing approval of eganelisib is granted, the approval may be subject to limitations on the indicated uses for which the product
may be marketed or to the conditions of approval, or contain requirements for costly post-marketing testing and surveillance to monitor the safety or efficacy of the
medicine, including the requirement to implement a risk evaluation and mitigation strategy.
The FDA and other agencies, including the Department of Justice, or the DOJ, closely regulate and monitor the post-approval marketing and promotion of
products to ensure that they are marketed and distributed only for the approved indications and in accordance with the provisions of the approved labeling. The FDA and
DOJ impose stringent restrictions on manufacturers’ communications regarding off-label use and if we do not market our products for their approved indications, we may
be subject to enforcement action for off-label marketing. Violations of the FDCA and other statutes, including the False Claims Act, relating to the promotion and
advertising of prescription drugs may lead to investigations and enforcement actions alleging violations of federal and state health care fraud and abuse laws, as well as
state consumer protection laws.
In addition, later discovery of previously unknown adverse events or other problems with our products, manufacturers or manufacturing processes, or failure to
comply with regulatory requirements, may yield various results, including:
•
restrictions on such products, manufacturers or manufacturing processes;
•
restrictions on the labeling or marketing of a product;
•
restrictions on distribution or use of a product;
•
requirements to conduct post-marketing studies or clinical trials;
•
warning letters or untitled letters;
•
withdrawal of the products from the market;
•
refusal to approve pending applications or supplements to approved applications that we submit;
•
recall of products;
•
damage to relationships with any potential collaborators;
•
unfavorable press coverage and damage to our reputation;
•
fines, restitution or disgorgement of profits or revenues;
•
suspension or withdrawal of marketing approvals;
•
refusal to permit the import or export of our products;
•
product seizure;
•
injunctions or the imposition of civil or criminal penalties; and
•
litigation involving patients using our products.
Similar restrictions apply to the approval of our products in the EU. The holder of a marketing authorization is required to comply with a range of requirements
applicable to the manufacturing, marketing, promotion and sale of medicinal products. These include: compliance with the EU’s stringent pharmacovigilance or safety
reporting rules, which can impose post-authorization studies and additional monitoring obligations; the manufacturing of authorized medicinal products, for which a
separate manufacturer’s license is mandatory; and the marketing and promotion of authorized drugs, which are strictly regulated in the EU and are also subject to EU
Member State laws.
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Our relationships with health care providers, physicians and third-party payors will be subject to applicable anti-kickback, fraud and abuse and other health care
laws and regulations, which, in the event of a violation, could expose us to criminal sanctions, civil penalties, contractual damages, reputational harm and
diminished profits and future earnings.
Health care providers, physicians and third-party payors will play a primary role in the recommendation and prescription of any product candidates for which we
obtain marketing approval. Our future arrangements with health care providers, physicians and third-party payors may expose us to broadly applicable fraud and abuse
and other health care laws and regulations that may constrain the business or financial arrangements and relationships through which we market, sell and distribute any
products for which we obtain marketing approval. Restrictions under applicable federal and state health care laws and regulations include the following:
•
the federal Anti-Kickback Statute prohibits, among other things, persons from knowingly and willfully soliciting, offering, receiving or providing
remuneration, directly or indirectly, in cash or in kind, to induce or reward, or in return for, either the referral of an individual for, or the purchase, order or
recommendation or arranging of, any good or service, for which payment may be made under a federal health care program such as Medicare and Medicaid;
•
the federal False Claims Act imposes criminal and civil penalties, including through civil whistleblower or qui tam actions, against individuals or entities
for, among other things, knowingly presenting, or causing to be presented, false or fraudulent claims for payment by a federal health care program or making
a false statement or record material to payment of a false claim or avoiding, decreasing or concealing an obligation to pay money to the federal government,
with potential liability including mandatory treble damages and significant per-claim penalties;
•
the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, imposes criminal and civil liability for executing a scheme to defraud
any health care benefit program or making false statements relating to health care matters;
•
HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act and its implementing regulations, also imposes
obligations, including mandatory contractual terms, with respect to safeguarding the privacy, security and transmission of individually identifiable health
information;
•
the federal Physician Payments Sunshine Act requires applicable manufacturers of covered drugs to report payments and other transfers of value to
physicians, other healthcare providers, and teaching hospitals, as well as ownership and investment interests held by physicians and teaching hospitals; and
•
analogous state and foreign laws and regulations, such as state anti-kickback and false claims laws and transparency statutes, may apply to sales or
marketing arrangements and claims involving health care items or services reimbursed by non-governmental third-party payors, including private insurers.
Some state laws require pharmaceutical companies to comply with the pharmaceutical industry’s voluntary compliance guidelines and the relevant compliance
guidance promulgated by the federal government and may require drug manufacturers to report information related to payments and other transfers of value to physicians
and other health care providers or marketing expenditures. State and foreign laws also govern the privacy and security of health information in some circumstances, many
of which differ from each other in significant ways and often are not preempted by HIPAA, thus complicating compliance efforts.
If our operations are found to be in violation of any of the laws described above or any governmental regulations that apply to us, we may be subject to penalties,
including civil and criminal penalties, damages, fines and the curtailment or restructuring of our operations. Any penalties, damages, fines, curtailment or restructuring of
our operations could adversely affect our financial results. As we move toward potential commercialization of eganelisib, any corporate compliance program we design
would be intended to ensure that we will market and sell any future products that we successfully develop from eganelisib or other product candidates we may develop in
compliance with all applicable laws and regulations. However, if implemented, we cannot guarantee that such program would protect 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 fines or
other sanctions.
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Efforts to ensure that our business arrangements with third parties will comply with applicable health care laws and regulations will involve substantial costs. It
is possible that governmental authorities will conclude that our business practices may not comply with current or future statutes, regulations or case law involving
applicable fraud and abuse or other health care laws and regulations. If our operations are found to be in violation of any of these laws or any other governmental
regulations that may apply to us, we may be subject to significant civil, criminal and administrative penalties, damages, fines, imprisonment, exclusion of products from
government funded health care programs, such as Medicare and Medicaid, and the curtailment or restructuring of our operations. If any of the physicians or other health
care providers or entities with whom we expect to do business is found to be not in compliance with applicable laws, they may be subject to criminal, civil or
administrative sanctions, including exclusions from government funded health care programs.
Existing and future legislation may increase the difficulty and cost for us and any future collaborators to obtain marketing approval of and commercialize eganelisib
or any product candidates we may develop and affect the prices we, or they, may obtain.
In the United States and some foreign jurisdictions, there have been a number of legislative and regulatory changes and proposed changes regarding the
healthcare system that could, among other things, prevent or delay marketing approval of our product candidates, restrict or regulate post-approval activities and affect
our ability, or the ability of any future collaborators, to profitably sell any products for which we, or they, obtain marketing approval. We expect that current laws, as well
as other healthcare reform measures that may be adopted in the future, may result in more rigorous coverage criteria and in additional downward pressure on the price that
we, or any future collaborators, may receive for any approved products.
In March 2010, President Obama signed into law the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation
Act of 2010, or collectively the ACA. In addition, other legislative changes have been proposed and adopted since the ACA was enacted. In August 2011, the Budget
Control Act of 2011, among other things, created measures for spending reductions by Congress. A Joint Select Committee on Deficit Reduction, tasked with
recommending a targeted deficit reduction of at least $1.2 trillion for the years 2013 through 2021, was unable to reach required goals, thereby triggering the legislation’s
automatic reduction to several government programs. These changes included aggregate reductions to Medicare payments to providers of up to 2% per fiscal year, which
went into effect in April 2013 and will remain in effect through 2031. These Medicare sequester reductions were suspended and reduced through the end of June 2022,
with the full 2% cut resuming thereafter., The American Taxpayer Relief Act of 2012, among other things, reduced Medicare payments to several providers and increased
the statute of limitations period for the government to recover overpayments to providers from three to five years. These new laws may result in additional reductions in
Medicare and other healthcare funding and otherwise affect the prices we may obtain for any of our product candidates for which we may obtain regulatory approval or
the frequency with which any such product candidate is prescribed or used. Indeed, under current legislation, the actual reductions in Medicare payments may vary up to
4%.
Since enactment of the ACA, there have been, and continue to be, numerous legal challenges and Congressional actions to repeal and replace provisions of the
law. For example, with enactment of the Tax Cuts and Jobs Act of 2017, or the TCJA, Congress repealed the “individual mandate.” The repeal of this provision, which
requires most Americans to carry a minimal level of health insurance, became effective in 2019. On December 14, 2018, a U.S. District Court judge in the Northern
District of Texas ruled that the individual mandate portion of the PPACA is an essential and inseverable feature of the PPACA, and therefore because the mandate was
repealed as part of the TCJA, the remaining provisions of the PPACA are invalid as well. The U.S. Supreme Court heard this case on November 10, 2020 and, on June 17,
2021, dismissed this action after finding that the plaintiffs do not have standing to challenge the constitutionality of the ACA. Litigation and legislation over the PPACA
are likely to continue, with unpredictable and uncertain results.
The Trump Administration also took executive actions to undermine or delay implementation of the ACA, including directing federal agencies with authorities
and responsibilities under the ACA to waive, defer, grant exemptions from, or delay the implementation of any provision of the ACA that would impose a fiscal or
regulatory burden on states, individuals, healthcare providers, health insurers, or manufacturers of pharmaceuticals or medical devices. On January 28, 2021, however,
President Biden issued a new Executive Order which directs federal agencies to reconsider rules and other policies that limit Americans’ access to health care, and
consider actions that will protect and strengthen that access. Under this Order, federal agencies are directed to re-examine: policies that undermine protections for people
with pre-existing conditions, including complications related to COVID-19; demonstrations and waivers under Medicaid and the ACA that may reduce coverage or
undermine the programs, including work requirements; policies that undermine the Health Insurance Marketplace or other markets for health insurance; policies that
make it more difficult to enroll in Medicaid and the ACA; and policies that reduce affordability of coverage or financial assistance, including for dependents. This
Executive Order also directs the U.S. Department of Health and Human Services to create a special enrollment period for the Health Insurance Marketplace in response to
the COVID-19 pandemic.
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We expect that these healthcare reforms, as well as other healthcare reform measures that may be adopted in the future, may result in additional reductions in
Medicare and other healthcare funding, more rigorous coverage criteria, new payment methodologies and additional downward pressure on the price that we receive for
any approved product and/or the level of reimbursement physicians receive for administering any approved product we might bring to market. Reductions in
reimbursement levels may negatively impact the prices we receive or the frequency with which our products are prescribed or administered. Any reduction in
reimbursement from Medicare or other government programs may result in a similar reduction in payments from private payors. Accordingly, such reforms, if enacted,
could have an adverse effect on anticipated revenue from product candidates that we may successfully develop and for which we may obtain marketing approval and may
affect our overall financial condition and ability to develop or commercialize product candidates.
The prices of prescription pharmaceuticals in the United States and foreign jurisdictions is subject to considerable legislative and executive actions and could impact
the prices we obtain for our products, if and when licensed.
The prices of prescription pharmaceuticals have also been the subject of considerable discussion in the United States. There have been several recent U.S.
congressional inquiries, as well as proposed and enacted state and federal legislation designed to, among other things, bring more transparency to pharmaceutical pricing,
review the relationship between pricing and manufacturer patient programs, and reduce the costs of pharmaceuticals under Medicare and Medicaid. In 2020, President
Trump issued several executive orders intended to lower the costs of prescription products and certain provisions in these orders have been incorporated into regulations.
These regulations include an interim final rule implementing a most favored nation model for prices that would tie Medicare Part B payments for certain physician-
administered pharmaceuticals to the lowest price paid in other economically advanced countries, effective January 1, 2021. That rule, however, has been subject to a
nationwide preliminary injunction and, on December 29, 2021, CMS issued a final rule to rescind it. With issuance of this rule, CMS stated that it will explore all options
to incorporate value into payments for Medicare Part B pharmaceuticals and improve beneficiaries' access to evidence-based care.
In addition, in October 2020, HHS and the FDA published a final rule allowing states and other entities to develop a Section 804 Importation Program, or SIP, to
import certain prescription drugs from Canada into the United States. The final rule is currently the subject of ongoing litigation, but at least six states (Vermont,
Colorado, Florida, Maine, New Mexico, and New Hampshire) have passed laws allowing for the importation of drugs from Canada with the intent of developing SIPs for
review and approval by the FDA. Further, on November 20, 2020, HHS finalized a regulation removing safe harbor protection for price reductions from pharmaceutical
manufacturers to plan sponsors under Part D, either directly or through pharmacy benefit managers, unless the price reduction is required by law. The final rule would
eliminate the current safe harbor for Medicare drug rebates and create new safe harbors for beneficiary point-of-sale discounts and pharmacy benefit manager ("PBM")
service fees. It originally was set to go into effect on January 1, 2022, but with passage of the Inflation Reduction Act, or IRA, has been delayed by Congress to January 1,
2032.
More recently, on August 16, 2022, the Inflation Reduction Act of 2022, or IRA, was signed into law by President Biden. The new legislation has implications
for Medicare Part D, which is a program available to individuals who are entitled to Medicare Part A or enrolled in Medicare Part B to give them the option of paying a
monthly premium for outpatient prescription drug coverage. Among other things, the IRA requires manufacturers of certain drugs to engage in price negotiations with
Medicare (beginning in 2026), with prices that can be negotiated subject to a cap; imposes rebates under Medicare Part B and Medicare Part D to penalize price increases
that outpace inflation (first due in 2023); and replaces the Part D coverage gap discount program with a new discounting program (beginning in 2025). The IRA permits
the Secretary of the Department of Health and Human Services (HHS) to implement many of these provisions through guidance, as opposed to regulation, for the initial
years.
Specifically, with respect to price negotiations, Congress authorized Medicare to negotiate lower prices for certain costly single-source drug and biologic
products that do not have competing generics or biosimilars and are reimbursed under Medicare Part B and Part D. CMS may negotiate prices for ten high-cost drugs paid
for by Medicare Part D starting in 2026, followed by 15 Part D drugs in 2027, 15 Part B or Part D drugs in 2028, and 20 Part B or Part D drugs in 2029 and beyond. This
provision applies to drug products that have been approved for at least 9 years and biologics that have been licensed for 13 years, but it does not apply to drugs and
biologics that have been approved for a single rare disease or condition. Nonetheless, since CMS may establish a maximum price for these products in price negotiations,
we would be fully at risk of government action if our products are the subject of Medicare price negotiations. Moreover, given the risk that could be the case, these
provisions of the IRA may also further heighten the risk that we would not be able to achieve the expected return on our drug products or full value of our patents
protecting our products if prices are set after such products have been on the market for nine years.
Further, the legislation subjects drug manufacturers to civil monetary penalties and a potential excise tax for failing to comply with the legislation by offering a
price that is not equal to or less than the negotiated “maximum fair price” under the
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law or for taking price increases that exceed inflation. The legislation also requires manufacturers to pay rebates for drugs in Medicare Part D whose price increases
exceed inflation. The new law also caps Medicare out-of-pocket drug costs at an estimated $4,000 a year in 2024 and, thereafter beginning in 2025, at $2,000 a year. In
addition, the IRA potentially raises legal risks with respect to individuals participating in a Medicare Part D prescription drug plan who may experience a gap in coverage
if they required coverage above their initial annual coverage limit before they reached the higher threshold, or “catastrophic period” of the plan. Individuals requiring
services exceeding the initial annual coverage limit and below the catastrophic period, must pay 100% of the cost of their prescriptions until they reach the catastrophic
period. Among other things, the IRA contains many provisions aimed at reducing this financial burden on individuals by reducing the co-insurance and co-payment costs,
expanding eligibility for lower income subsidy plans, and price caps on annual out-of-pocket expenses, each of which could have potential pricing and reporting
implications.
Accordingly, while it is currently unclear how the IRA will be effectuated, we cannot predict with certainty what impact any federal or state health reforms will
have on us, but such changes could impose new or more stringent regulatory requirements on our activities or result in reduced reimbursement for our products, any of
which could adversely affect our business, results of operations and financial condition.
At the state level, individual states are increasingly aggressive in passing legislation and implementing regulations designed to control pharmaceutical and
biological product pricing, including price or patient reimbursement constraints, discounts, restrictions on certain product access and marketing cost disclosure and
transparency measures, and, in some cases, designed to encourage importation from other countries and bulk purchasing. In addition, regional health care organizations
and individual hospitals are increasingly using bidding procedures to determine what pharmaceutical products and which suppliers will be included in their prescription
drug and other health care programs. These measures could reduce the ultimate demand for our products, once approved, or put pressure on our product pricing. We
expect that additional state and federal healthcare reform measures will be adopted in the future, any of which could limit the amounts that federal and state governments
will pay for healthcare products and services, which could result in reduced demand for our product candidates or additional pricing pressures.
In the European Union, similar political, economic and regulatory developments may affect our ability to profitably commercialize our product candidates, if
approved. In markets outside of the United States and the European Union, reimbursement and healthcare payment systems vary significantly by country, and many
countries have instituted price ceilings on specific products and therapies. In some countries, particularly the countries of the European Union, the pricing of prescription
pharmaceuticals is subject to governmental control. In these countries, pricing negotiations with governmental authorities can take considerable time after the receipt of
marketing approval for a product. To obtain reimbursement or pricing approval in some countries, we may be required to conduct a clinical trial that compares the cost-
effectiveness of our product candidate to other available therapies. If reimbursement of our products is unavailable or limited in scope or amount, or if pricing is set at
unsatisfactory levels, our business could be harmed, possibly materially.
We are subject to U.S. and foreign anti-corruption and anti-money laundering laws with respect to our operations and non-compliance with such laws can subject us
to criminal and/or civil liability and harm our business.
We are subject to the U.S. Foreign Corrupt Practices Act of 1977, as amended, or the FCPA, the U.S. domestic bribery statute contained in 18 U.S.C. § 201, the
U.S. Travel Act, the USA PATRIOT Act, and possibly other state and national anti-bribery and anti-money laundering laws in countries in which we conduct activities.
Anti-corruption laws are interpreted broadly and prohibit companies and their employees, agents, third-party intermediaries, joint venture partners and collaborators from
authorizing, promising, offering, or providing, directly or indirectly, improper payments or benefits to recipients in the public or private sector. We may have direct or
indirect interactions with officials and employees of government agencies or government-affiliated hospitals, universities, and other organizations. In addition, we may
engage third-party intermediaries to promote our clinical research activities abroad and/or to obtain necessary permits, licenses, and other regulatory approvals. We can be
held liable for the corrupt or other illegal activities of these third-party intermediaries, our employees, representatives, contractors, partners, and agents, even if we do not
explicitly authorize or have actual knowledge of such activities.
Compliance with the FCPA is expensive and difficult, particularly in countries in which corruption is a recognized problem. The FCPA presents particular
challenges in the pharmaceutical industry, because, in many countries, hospitals are operated by the government, and doctors and other hospital employees are considered
foreign officials. Certain payments to hospitals in connection with clinical trials and other work have been deemed to be improper payments to government officials and
have led to FCPA enforcement actions.
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We cannot ensure that our employees and third-party intermediaries will comply with such anti-corruption laws. Noncompliance with anti-corruption and anti-
money laundering laws could subject us to whistleblower complaints, investigations, sanctions, settlements, prosecution, other enforcement actions, disgorgement of
profits, significant fines, damages, other civil and criminal penalties or injunctions, suspension and/or debarment from contracting with certain persons, the loss of export
privileges, reputational harm, adverse media coverage, and other collateral consequences. If any subpoenas, investigations, or other enforcement actions are launched, or
governmental or other sanctions are imposed, or if we do not prevail in any possible civil or criminal litigation, our business, results of operations and financial condition
could be materially harmed. In addition, responding to any action will likely result in a materially significant diversion of management’s attention and resources and
significant defense and compliance costs and other professional fees. In certain cases, enforcement authorities may even cause us to appoint an independent compliance
monitor which can result in added costs and administrative burdens.
Further, the provision of benefits or advantages to physicians to induce or encourage the prescription, recommendation, endorsement, purchase, supply, order, or
use of medicinal products is prohibited in the European Union. The provision of benefits or advantages to physicians is also governed by the national anti-bribery laws of
European Union Member States, such as the UK Bribery Act 2010. Infringement of these laws could result in substantial fines and imprisonment. Payments made to
physicians in certain European Union Member States must be publicly disclosed. Moreover, agreements with physicians often must be the subject of prior notification and
approval by the physician’s employer, his or her competent professional organization, and/or the regulatory authorities of the individual European Union Member States.
These requirements are provided in the national laws, industry codes, or professional codes of conduct applicable in the European Union Member States. Failure to
comply with these requirements could result in reputational risk, public reprimands, administrative penalties, fines, or imprisonment.
We are subject to governmental export and import controls that could impair our ability to compete in international markets due to licensing requirements and
subject us to liability if we are not in compliance with applicable laws.
Our products and solutions are subject to export control and import laws and regulations, including the U.S. Export Administration Regulations, U.S. Customs
regulations, and various economic and trade sanctions regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Controls. Exports of our
products and solutions outside of the United States must be made in compliance with these laws and regulations. If we fail to comply with these laws and regulations, we
and certain of our employees could be subject to substantial civil or criminal penalties, including the possible loss of export or import privileges; fines, which may be
imposed on us and responsible employees or managers; and, in extreme cases, the incarceration of responsible employees or managers.
In addition, changes in our products or solutions or changes in applicable export or import laws and regulations may create delays in the introduction, provision,
or sale of our products and solutions in international markets, prevent customers from using our products and solutions or, in some cases, prevent the export or import of
our products and solutions to certain countries, governments or persons altogether. Any limitation on our ability to export, provide, or sell our products and solutions
could adversely affect our business, financial condition and results of operations.
If we fail to comply with environmental, health and safety laws and regulations, we could become subject to fines or penalties or incur costs that could harm our
business.
We are subject to numerous environmental, health and safety laws and regulations, including those governing laboratory procedures and the handling, use,
storage, treatment and disposal of hazardous materials and wastes. From time to time and in the future, our operations may involve the use of hazardous and flammable
materials, including chemicals and biological materials, and may also produce hazardous waste products. Even if we contract with third parties for the disposal of these
materials and waste products, we cannot completely eliminate the risk of contamination or injury resulting from these materials. In the event of contamination or injury
resulting from the use or disposal of our hazardous materials, we could be held liable for any resulting damages, and any liability could exceed our resources. We also
could incur significant costs associated with civil or criminal fines and penalties for failure to comply with such laws and regulations.
We maintain workers’ compensation insurance to cover us for costs and expenses we may incur due to injuries to our employees resulting from the use of
hazardous materials, as well as other work-related injuries, but this insurance may not provide adequate coverage against potential liabilities. However, we do not
maintain insurance for environmental liability or toxic tort claims that may be asserted against us.
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In addition, we may incur substantial costs in order to comply with current or future environmental, health and safety laws and regulations. Current or future
environmental laws and regulations may impair our research, development or production efforts. In addition, failure to comply with these laws and regulations may result
in substantial fines, penalties or other sanctions.
Our internal computer systems, or those of any collaborators or contractors or consultants, may fail or suffer security breaches, which could result in a material
disruption of our product development programs.
Despite the implementation of security measures and certain data recovery measures, our internal computer systems and those of third parties with which we
contract are vulnerable to damage from cyber-attacks, computer viruses, unauthorized access, sabotage, natural disasters, terrorism, war, and telecommunication and
electrical failures. Any system failure, accident or security breach that causes interruptions in our operations, for us or those third parties with which we contract, could
result in a material disruption of our product development programs and business operations, in addition to possibly requiring substantial expenditures of resources to
remedy. For example, the loss of clinical trial data from completed clinical trials could result in delays in our regulatory approval efforts and significantly increase our
costs to recover or reproduce the data. To the extent that any disruption or security breach results in a loss of, or damage to, our data or applications, or inappropriate
disclosure of confidential or proprietary information, we may incur liabilities and the further development of eganelisib, or any future product candidates we may develop,
may be delayed. In addition, we may not have adequate insurance coverage to provide compensation for any losses associated with such events.
We could be subject to risks caused by misappropriation, misuse, leakage, falsification or intentional or accidental release or loss of information maintained in
the information systems and networks of our company, including personal information of our employees. In addition, outside parties may attempt to penetrate our systems
or those of our vendors or fraudulently induce our employees or employees of our vendors to disclose sensitive information to gain access to our data. Like other
companies, we may experience threats to our data and systems, including malicious codes and viruses, and other cyber-attacks. The number and complexity of these
threats continue to increase over time. If a material breach of our security or that of our vendors occurs, the market perception of the effectiveness of our security
measures could be harmed, we could lose business and our reputation and credibility could be damaged. We could be required to expend significant amounts of money
and other resources to repair or replace information systems or networks. Although we develop and maintain systems and controls designed to prevent these events from
occurring, and we have a process to identify and mitigate threats, the development and maintenance of these systems, controls and processes is costly and requires
ongoing monitoring and updating as technologies change and efforts to overcome security measures become more sophisticated. Moreover, despite our efforts, the
possibility of these events occurring cannot be eliminated entirely.
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Compliance with global privacy and data security requirements could result in additional costs and liabilities to us or inhibit our ability to collect and process data
globally, and the failure to comply with such requirements could have a material adverse effect on our business, financial condition or results of operations.
The regulatory framework for the collection, use, safeguarding, sharing, transfer and other processing of information worldwide is rapidly evolving and is likely
to remain uncertain for the foreseeable future. Globally, virtually every jurisdiction in which we operate has established its own data security and privacy frameworks
with which we must comply. For example, the European Union’s General Data Protection Regulation 2016/679, or GDPR, imposes strict obligations on the processing of
personal data, including personal health data, and the free movement of such data. The GDPR applies to any company established in the European Union as well as any
company outside the European Union that processes personal data in connection with the offering of goods or services to individuals in the European Union or the
monitoring of their behavior. The GDPR enhances data protection obligations for processors and controllers of personal data, including, for example, obligations relating
to: processing health and other sensitive data; obtaining consent of individuals; providing notice to individuals regarding data processing activities; responding to data
subject requests; taking certain measures when engaging third-party processors; notifying data subjects and regulators of data breaches; implementing safeguards to
protect the security and confidentiality of personal data; and transferring personal data to countries outside the European Union, including the United States. The GDPR
imposes additional obligations and risks upon our business and substantially increases the penalties to which we could be subject in the event of any non-compliance,
including fines of up to €20 million or 4% of total worldwide annual turnover, whichever is higher. The GDPR also confers a private right of action on data subjects and
consumer associations to lodge complaints with supervisory authorities, seek judicial remedies and obtain compensation for damages. In July 2020, the Court of Justice of
the European Union (the “CJEU”) invalidated the EU-U.S. Privacy Shield, one of the mechanisms used to legitimize the transfer of personal data from the EEA to the
U.S. The CJEU decision also drew into question the long-term viability of an alternative means of data transfer, the standard contractual clauses, for transfers of personal
data from the EEA to the U.S. While we were not self-certified under the Privacy Shield, this CJEU decision may lead to increased scrutiny on data transfers from the
EEA to the U.S. generally and increase our costs of compliance with data privacy legislation as well as our costs of negotiating appropriate privacy and security
agreements with our vendors and business partners. Additionally, in October 2022, President Joe Biden signed an executive order to implement the EU-U.S. Data Privacy
Framework, which would serve as a replacement to the EU-US Privacy Shield. The EC initiated the process to adopt an adequacy decision for the EU-US Data Privacy
Framework in December 2022. It is unclear if and when the framework will be finalized and whether it will be challenged in court. The uncertainty around this issue may
further impact our business operations in the EU.
Given the breadth and depth of changes in data protection obligations, preparing for and complying with the GDPR’s requirements has required and will
continue to require significant time, resources and a review of our technologies, systems and practices, as well as those of any third-party collaborators, service providers,
contractors or consultants that process or transfer personal data collected in the European Union. The GDPR and other changes in laws or regulations associated with the
enhanced protection of certain types of sensitive data, such as health care data or other personal information from our clinical trials, could require us to change our
business practices or lead to government enforcement actions, private litigation or significant fines and penalties against us, reputational harm and could have a material
adverse effect on our business, financial condition or results of operations.
Our employees may engage in misconduct or other improper activities, including non-compliance with regulatory standards and requirements, which could cause
significant liability for us and harm our reputation.
We are exposed to the risk of employee fraud or other misconduct, including intentional failures to comply with FDA regulations or similar regulations of
comparable foreign regulatory authorities, provide accurate information to the FDA or comparable foreign regulatory authorities, comply with manufacturing standards
we have established, comply with federal and state health care fraud and abuse laws and regulations and similar laws and regulations established and enforced by
comparable foreign regulatory authorities, report financial information or data accurately or disclose unauthorized activities to us. Employee misconduct could also
involve the improper use of information obtained in the course of clinical trials, which could result in regulatory sanctions and serious harm to our reputation. It is not
always possible to identify and deter employee misconduct, and the precautions we take to detect and prevent this activity may not be effective in controlling unknown or
unmanaged risks or losses or in protecting us from governmental investigations or other actions or lawsuits stemming from a failure to be in compliance with such laws,
standards 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 and results of operations, including the imposition of significant fines or other sanctions.
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Risks Related to Employee Matters and Managing Potential Future Growth
If we are not able to retain key personnel and advisors, we may not be able to operate our business successfully.
We are highly dependent on our executive leadership team. All of these individuals are employees-at-will, which means that neither we nor the employee is
obligated to a fixed term of service and that the employment relationship may be terminated by either us or the employee at any time, without notice and whether or not
cause or good reason exists for such termination. The loss of the services of any of these individuals might impede the achievement of our research, development and
commercialization objectives. We do not maintain “key person” insurance on any of our employees. Our planned Merger with MEI creates additional risk that our key
personnel may explore other opportunities outside of our Company.
Retaining qualified scientific and business personnel is also critical to our success. Our industry has experienced a high rate of turnover of management
personnel in recent years. If we lose one or more of our executive officers or other key employees, our ability to implement our business strategy successfully could be
seriously harmed. This competition is particularly intense near our headquarters in Cambridge, Massachusetts. We may not be able to attract or retain these personnel on
acceptable terms given the competition among numerous pharmaceutical and biotechnology companies for similar personnel. In addition, we may face additional
challenges in retaining our existing senior management and key employees for our company as our business needs change.
We also experience competition in the hiring of scientific personnel from universities and research institutions. In addition, we rely on consultants and advisors,
including scientific and clinical advisors, to assist us in formulating our research and development strategy. Our consultants and advisors may be employed by other
entities, have commitments under consulting or advisory contracts with third parties that limit their availability to us, or both.
Risks Related to Our Common Stock
Our common stock may have a volatile trading price and low trading volume.
The market price of our common stock has been and we expect it to continue to be subject to significant fluctuations. Some of the factors that may cause the
market price of our common stock to fluctuate include:
•
the results of our current and any future clinical trials of eganelisib;
•
future sales of, and the trading volume in, our common stock;
•
the impact of the COVID-19 pandemic on the economy or our business;
•
announcements regarding the timing of enrollment and data readouts from our trials, including any delays;
•
announcements of strategic transactions relating to our programs or our company;
•
our entry into key agreements, including those related to the acquisition or in-licensing of new programs, or the termination of key agreements, including the
Takeda Agreement or the Secura Bio Agreement;
•
the results and timing of regulatory reviews relating to the approval of eganelisib;
•
the initiation of, material developments in, or conclusion of litigation, including but not limited to litigation to enforce or defend any of our intellectual
property rights or to defend product liability claims;
•
the failure of eganelisib, if approved, to achieve commercial success;
•
the results of clinical trials conducted by others on drugs that would compete with eganelisib;
•
the regulatory approval of drugs that would compete with eganelisib;
•
issues in manufacturing eganelisib;
•
the loss of executive officers or other key employees;
•
changes in estimates or recommendations, or publication of inaccurate or unfavorable research about our business, by securities analysts who cover our
common stock;
•
future financings through the issuance of equity or debt securities or otherwise;
•
health care reform measures, including changes in the structure of health care payment systems;
•
our cash position and period-to-period fluctuations in our financial results; and
•
general and industry-specific economic and/or capital market conditions.
Moreover, the stock markets in general have experienced substantial volatility that has often been unrelated to the operating performance of individual
companies. These broad market fluctuations may also adversely affect the trading price of our common stock.
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In the past, when the market price of a stock has been volatile, as our stock price may be, holders of that stock have occasionally brought securities class action
litigation against the company that issued the stock. If any of our stockholders were to bring a lawsuit of this type against us, even if the lawsuit is without merit, negative
publicity could be generated, and we could incur substantial costs defending the lawsuit. A stockholder lawsuit could also divert the time and attention of our
management.
If we fail to meet the requirements for continued listing on the Nasdaq Global Select Market, our common stock could be delisted from trading, which would decrease
the liquidity of our common stock and our ability to raise additional capital.
Our common stock is currently listed for quotation on the Nasdaq Global Select Market. We are required to meet specified requirements in order to maintain our
listing on the Nasdaq Global Select Market, including, among other things, a minimum bid price of $1.00 per share, or the Minimum Bid Price, under Nasdaq Listing
Rule 5450(a)(1), or the Minimum Bid Requirement. On December 28, 2022, we received a deficiency letter, or Notice, from the Listing Qualifications Department of the
Nasdaq Stock Market, LLC, or Nasdaq, notifying us that, for the last 30 consecutive business days, the bid price for our common stock was below the Minimum Bid Price
required to maintain continued listing on the Nasdaq Global Select Market. We have 180 days to regain compliance by maintaining the Minimum Bid Price for a
minimum of ten consecutive business days.
The Notice has no immediate effect on the listing of our common stock. We have 180 calendar days, or until June 26, 2023, to regain compliance with the
Minimum Bid Requirement. To regain compliance, the closing bid price of our common stock must be at least $1.00 per share for a minimum of ten consecutive business
days during this 180-day period. We intend to actively monitor the closing bid price of our common stock and will evaluate available options to regain compliance with
the Minimum Bid Requirement. If we fail to do so within the initial 180 calendar day period, we may be eligible for an additional 180 calendar day compliance period.
However, there can be no assurance that we can secure such additional compliance period, that we will be able to regain compliance with the Minimum Bid Requirement,
or that we can maintain compliance with the other listing requirements.
If we fail to satisfy the Nasdaq Global Select Market’s continued listing requirements, including the Minimum Bid Requirement, we may transfer to the Nasdaq
Capital Market, which generally has lower financial requirements for initial listing, to avoid delisting, or, if we fail to meet its listing requirements, the OTC Bulletin
Board. A transfer of our listing to the Nasdaq Capital Market or having our common stock trade on the OTC Bulletin Board could adversely affect the liquidity of our
common stock. Any such event could make it more difficult to dispose of, or obtain accurate quotations for the price of, our common stock, and there also would likely be
a reduction in our coverage by securities analysts and the news media, which could cause the price of our common stock to decline further. We may also face other
material adverse consequences in such event, such as negative publicity, a decreased ability to obtain additional financing, diminished investor and/or employee
confidence, and the loss of business development opportunities, some or all of which may contribute to a further decline in our stock price.
The estimates and judgments we make, or the assumptions on which we rely, in preparing our consolidated financial statements could prove inaccurate.
Our consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of
these consolidated financial statements requires us to make estimates and judgments that affect the reported amounts of our assets, liabilities, revenues and expenses. Such
estimates and judgments include those related to revenue recognition, impairment of long-lived assets, accrued expenses, assumptions in the valuation of stock-based
compensation and income taxes. We base our estimates and judgments on historical experience, facts and circumstances known to us and on various assumptions that we
believe to be reasonable under the circumstances. These estimates and judgments, or the assumptions underlying them, may change over time or prove inaccurate. If this
is the case, we may be required to restate our financial statements, which could in turn subject us to securities class action litigation. Defending against such potential
litigation relating to a restatement of our financial statements would be expensive and would require significant attention and resources of our management. Moreover,
our insurance to cover our obligations with respect to the ultimate resolution of any such litigation may be inadequate. As a result of these factors, any such potential
litigation could have a material adverse effect on our financial results and cause our stock price to decline.
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If we are not able to maintain effective internal control under Section 404 of the Sarbanes-Oxley Act, our business and stock price could be adversely affected.
Section 404 of the Sarbanes-Oxley Act of 2002 requires us, on an annual basis, to review and evaluate our internal control. Any failure by us to maintain the
effectiveness of our internal control in accordance with the requirements of Section 404 of the Sarbanes-Oxley Act, which could be impacted by employee turnover, as
such requirements exist today or may be modified, supplemented or amended in the future, could have a material adverse effect on our business, operating results and
stock price.
We might not be able to utilize a significant portion of our net operating loss carryforwards and research and development tax credit carryforwards.
We have incurred significant net losses since our inception and cannot guarantee when, if ever, we will become profitable. To the extent that we continue to
generate federal and state taxable losses, unused net operating loss and tax credit carryforwards will carry forward to offset future taxable income, subject to applicable
limitations on the use of those losses. Federal net operating losses incurred in taxable years ending on or before December 31, 2017, are eligible to be carried forward for
up to 20 years, and to be deducted in full against income for the years to which they may be carried. Federal net operating losses incurred in taxable years ending after
December 31, 2017, are eligible to be carried forward indefinitely, but may offset no more than 80% of the taxable income for the years to which they are carried
(computed without regard to the deduction for carryovers of net operating losses). Federal net operating loss carryovers from periods ending on or before December 31,
2017, and state net operating loss carryovers and federal and state tax credit carryovers from all periods, could expire unused and be unavailable to offset future income
tax liabilities.
In addition, under Sections 382 and 383 of the Internal Revenue Code of 1986, as amended, or the Internal Revenue Code, and corresponding provisions of state
law, if a corporation undergoes an “ownership change,” which is generally defined as a greater than 50% change, by value, in its equity ownership over a three-year
period, the corporation’s ability to use its pre-change net operating loss and credit carryovers to reduce its tax liability for post-change periods may be limited. We have
had ownership changes in the past and may experience future ownership changes as a result of subsequent shifts in our stock ownership and because of our planned
Merger with MEI, some of which may be outside of our control. In addition, we have not conducted a detailed study to document whether our historical activities qualify
to support the research and development credits currently claimed as a carryover. A detailed study could result in adjustment to our research and development credit
carryovers. Our ability to use our historical net operating loss and tax credit carryovers to offset future income tax liabilities is limited by prior ownership changes and
may become limited by additional ownership changes in the future. In addition, if our research and development credit carryforwards are adjusted, our use of those
attributes to offset future income tax liabilities would be adversely impacted.
Changes in tax laws or in their implementation could adversely affect our business and financial condition.
Changes in tax law may adversely affect our business or financial condition. The TCJA, as amended by the Coronavirus Aid, Relief, and Economic Security Act,
or the CARES Act, among other things, contains significant changes to corporate taxation, including reduction of the corporate tax rate from a top marginal rate of 35% to
a flat rate of 21% and limitation of the deduction for net operating losses to 80% of current year taxable income for losses arising in taxable years beginning after
December 31, 2017 (though any such net operating losses may be carried forward indefinitely) In addition, beginning in 2022, the TCJA eliminates the option to deduct
research and development expenditures currently and requires corporations to capitalize and amortize them over five years.
In addition to the CARES Act, as part of Congress’ response to the COVID-19 pandemic, economic relief legislation has been enacted in 2020 and 2021
containing tax provisions. The Inflation Reduction Act of 2022, or IRA, which was signed into law in August 2022, also introduced new tax provisions, including a one
percent excise tax imposed on certain stock repurchases by publicly traded corporations. The one percent excise tax generally applies to any acquisition of stock by the
publicly traded corporation (or certain of its affiliates) from a stockholder of the corporation in exchange for money or other property (other than stock of the corporation
itself), subject to a de minimis exception. Thus, the excise tax could apply to certain transactions that are not traditional stock repurchases.
Regulatory guidance under the TCJA, the IRA, and additional legislation is and continues to be forthcoming, and such guidance could ultimately increase or
lessen their impact on our business and financial condition. In addition, it is uncertain if and to what extent various states will conform to the TCJA, the IRA and
additional tax legislation.
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Our effective tax rate may fluctuate, and we may incur obligations in tax jurisdictions in excess of accrued amounts.
Our effective tax rate may be different than experienced in the past due to numerous factors, including as a result of applying the provisions of the TCJA (as such
provisions may be elaborated on or further developed in guidance, regulations and technical corrections pertaining to the TCJA), changes in the mix of our profitability
apportioned to tax jurisdictions in which we may operate, the results of examinations and audits of our tax filings, our inability to secure or sustain acceptable agreements
with tax authorities, changes in accounting for income taxes and changes in tax laws. Any of these factors could cause us to experience an effective tax rate significantly
different from previous periods or our current expectations and may result in tax obligations in excess of amounts accrued in our financial statements.
Because we do not anticipate paying cash dividends, stock price appreciation, if any, will be our stockholders’ sole return on investment.
We anticipate retaining any future earnings for reinvestment in the infrastructure and personnel necessary to support our development and potential
commercialization efforts. Therefore, we do not anticipate paying cash dividends in the future. As a result, only appreciation of the price of our common stock will
provide a return to stockholders. Investors seeking cash dividends should not invest in our common stock.
Inadequate funding for the FDA, the SEC and other government agencies could hinder their ability to hire and retain key leadership and other personnel, prevent
new products and services from being developed or commercialized in a timely manner or otherwise prevent those agencies from performing normal business
functions on which the operation of our business may rely, which could negatively impact our business.
The ability of the FDA to review and approve new products can be affected by a variety of factors, including government budget and funding levels, ability to
hire and retain key personnel and accept the payment of user fees, and statutory, regulatory, and policy changes. Average review times at the agency have fluctuated in
recent years as a result. In addition, government funding of the SEC and other government agencies on which our operations may rely, including those that fund research
and development activities, is subject to the political process, which is inherently fluid and unpredictable.
Disruptions at the FDA and other agencies may also slow the time necessary for new drugs to be reviewed and/or approved by necessary government agencies,
which would adversely affect our business. For example, over the last several years, the U.S. government has shut down several times and certain regulatory agencies,
such as the FDA and the SEC, have had to furlough critical employees and stop critical activities and it is possible that the government may shutdown again. If a
prolonged government shutdown occurs, it could significantly impact the ability of the FDA to timely review and process our regulatory submissions, which could have a
material adverse effect on our business. Further, future government shutdowns could impact our ability to access the public markets and obtain necessary capital in order
to properly capitalize and continue our operations.
Anti-takeover provisions in our organizational documents and Delaware law may make an acquisition of us difficult.
We are incorporated in Delaware. Anti-takeover provisions of Delaware law and our organizational documents may make a change in control more difficult.
Also, under Delaware law, our Board of Directors may adopt additional anti-takeover measures. For example, our charter authorizes our Board of Directors to issue up to
1,000,000 shares of undesignated preferred stock and to determine the terms of those shares of stock without any further action by our stockholders. If our Board of
Directors exercises this power, it could be more difficult for a third party to acquire a majority of our outstanding voting stock. Our charter and bylaws also contain
provisions limiting the ability of stockholders to call special meetings of stockholders.
Our stock incentive plan generally permits our Board of Directors to provide for acceleration of vesting of options granted under that plan in the event of certain
transactions that result in a change of control. If our Board of Directors uses its authority to accelerate vesting of options, this action could make an acquisition more
costly, and it could prevent an acquisition from going forward.
Moreover, because we are incorporated in Delaware, we are governed by the provisions of Section 203 of the Delaware General Corporation Law statute, which
generally prohibits a person who owns in excess of 15% of our outstanding voting stock from engaging in a transaction with us for a period of three years after the date on
which such person acquired in excess of 15% of our outstanding voting common stock, unless the transaction is approved by our Board of Directors and holders of at
least two-thirds of our outstanding voting stock, excluding shares held by such person. The prohibition against such transactions does not apply if, among other things,
prior to the time that such person became an interested stockholder, our Board of Directors approved the transaction in which such person acquired 15% or more of our
outstanding voting stock. The existence of the foregoing provisions could limit the price that investors might be willing to pay in the future for shares of our common
stock.
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Our investments are subject to risks that may cause losses and affect the liquidity of these investments.
As of December 31, 2022, we had $38.3 million in cash and cash equivalents. We historically have invested these amounts in money market funds, corporate
obligations, U.S. government-sponsored enterprise obligations, and U.S. Treasury securities meeting the criteria of our investment policy, which prioritizes the
preservation of our capital. Corporate obligations may include obligations issued by corporations in countries other than the United States, including some issues that
have not been guaranteed by governments and government agencies. Our investments are subject to general credit, liquidity, market and interest rate risks and instability
in the financial markets. We may realize losses in the fair value of these investments or a complete loss of these investments. In addition, should our investments cease
paying or reduce the amount of interest paid to us, our interest income would suffer. These market risks associated with our investment portfolio may have a material
adverse effect on our financial results and the availability of cash to fund our operations.
Item 1B. Unresolved Staff Comments
None.
Item 2. Properties
On April 5, 2019, we entered into a lease, effective April 3, 2019, for 10,097 square feet of office space at 1100 Massachusetts Avenue, Cambridge,
Massachusetts. The lease expires on August 1, 2024.
Item 3. Legal Proceedings
We are not a party to any material legal proceedings.
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 and Holders
Our common stock is traded on the Nasdaq Global Select Market under the symbol “INFI.” As of March 21, 2023, there were 46 holders of record of our
common stock. This number does not include beneficial owners whose shares are held by nominees in street name.
Dividends
We have not declared or paid any cash dividends on our common stock since our inception. We intend to retain all available funds and any future earnings to
finance the operation and expansion of our business and do not anticipate paying any cash dividends in the foreseeable future.
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Securities Authorized for Issuance under Equity Compensation Plans
The following table provides information about the securities authorized for issuance under our equity compensation plans as of December 31, 2022.
Equity Compensation Plan Information
Plan Category
Number of securities
to be issued
upon exercise of
outstanding options,
warrants and rights
Weighted-average
exercise price of
outstanding options,
warrants and rights
($)
Number of securities
remaining available for
future issuance under
equity compensation plans
(excluding securities reflected in
Column (a))
Equity compensation plans approved by security holders
17,603,513
2.93
2,982,043
Total
17,603,513
2.93
2,982,043
1.
Weighted average exercise price does not take into account the 2,939,816 shares of common stock subject to outstanding RSUs. Such shares of common stock will be issued at the time such awards vest,
without any cash consideration payable for those shares.
2.
Consists of (i) 2,564,077 shares of our common stock available for future issuance under our 2019 Plan and (ii) 417,966 shares of our common stock available for future issuance under our employee
stock purchase plan.
Sales of Unregistered Securities
None.
Repurchase of Equity Securities
We did not purchase any of our registered equity securities during the period covered by this Annual Report on Form 10-K.
Item 6. Reserved
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion of our financial condition and results of operations should be read in conjunction with our consolidated financial statements and related
notes included elsewhere in this report. Some of the information contained in this discussion and analysis and set forth elsewhere in this report, including information
with respect to our plans and strategy for our business, includes forward-looking statements that involve risks and uncertainties. You should review the section titled “Risk
Factors” in Part I, Item 1A of this Annual Report on Form 10-K for a discussion of important factors that could cause actual results to differ materially from the results
described in or implied by the forward-looking statements contained in the following discussion and analysis.
Business Overview
We are a clinical-stage innovative biopharmaceutical company dedicated to developing novel medicines for people with cancer. We combine proven scientific
expertise with a passion for developing novel small molecule drugs that target disease pathways for potential applications in oncology. We are focused on advancing
eganelisib, also known as IPI-549, an orally administered, clinical-stage, immuno-oncology product candidate that reprograms macrophages through selective inhibition
of the enzyme phosphoinositide-3-kinase-gamma, or PI3K-gamma. We have retained worldwide development and commercialization rights to eganelisib, subject to
certain success-based milestone payment obligations to our licensor, Takeda Pharmaceutical Company Limited, or Takeda, as described in more detail under Part I, Item
1, “Business Overview – Alliances, Collaborations, and Other Arrangements – Takeda.”
(1)
(2)
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On February 23, 2023, we, MEI Pharma, Inc., a Delaware corporation, or MEI, and Meadow Merger Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of MEI, or the Merger Sub, entered into an Agreement and Plan of Merger, or the Merger Agreement, pursuant to which, among other matters, and subject to
the satisfaction or waiver of the conditions set forth in the Merger Agreement, Merger Sub will merge with and into Infinity, with Infinity continuing as a wholly owned
subsidiary of MEI and the surviving corporation of the merger, which transaction is referred to herein as the Merger. If the Merger is completed, the combined company
will combine the expertise and resources of MEI and Infinity to advance a pipeline of three clinical-stage oncology drug candidates.
We expect to devote significant time and resources to the completion of the Merger. However, there can be no assurances that such activities will result in the
completion of the Merger. Further, the completion of the Merger may ultimately not deliver the anticipated benefits or enhance shareholder value. If the Merger is not
completed, we will consider alternative courses of action. We consider one of the following courses of action to be the most likely alternatives if the Merger is not
completed:
•
Pursue another strategic transaction. We may resume the process of evaluating a potential strategic transaction, including the sale of the company or its assets.
Based on our prior assessment, we do not expect that we would have the necessary time or financial resources to pursue another strategic transaction like the
proposed Merger.
•
Wind down the company. If the Merger does not close and we are unable to enter into another strategic transaction, our board of directors may conclude that it is
in the best interest of stockholders to cease normal operations and wind down the company through bankruptcy or dissolution proceedings. In such case, there
would be no assurances as to the amount or timing of available cash remaining, if any, to distribute to stockholders after paying our obligations and setting aside
funds for reserves.
Merger Agreement
The Merger is intended to qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended. Upon the terms
and subject to the conditions set forth in the Merger Agreement, at the effective time of the Merger, each share of capital stock, par value $0.001 per share, of Infinity
issued and outstanding, or Infinity Stock, will be converted into the right to receive 1.0449, or the Exchange Ratio, shares of common stock, par value $0.00000002 per
share, of MEI, or MEI Common Stock. Holders of Infinity Stock will receive cash in lieu of fractional shares. At the effective time of the Merger, Infinity’s common
stockholders will own approximately 42%, and MEI’s common stockholders will own approximately 58%, of the outstanding shares of common stock of the combined
company on a fully diluted basis.
In addition, as of the effective time of the Merger, MEI will assume each Infinity stock incentive plan and outstanding option to purchase shares of Infinity
Stock, excluding options granted under the Infinity 2013 Employee Stock Purchase Plan, as amended, whether vested or unvested. Each such option so assumed by MEI
will continue to have, and be subject to, the same terms and conditions applicable to such option immediately prior to the effective time of the Merger (after giving effect
to the full acceleration of vesting of such options applicable to the option in connection with the Merger), except that (A) such option will be exercisable for that number
of shares of MEI Common Stock equal to the number of shares of Infinity Stock subject to such option immediately prior to the effective time of the Merger multiplied by
the Exchange Ratio and rounded down to the next nearest share of MEI Common Stock, and (B) the exercise price per share will be the exercise price per share in effect
for that option immediately prior to the effective time of the Merger divided by the Exchange Ratio and rounded up to the next nearest cent.
Consummation of the Merger is subject to certain closing conditions, including, among other things, the (1) approval by the stockholders of MEI of the MEI
Stock Issuance, (2) the adoption by the stockholders of Infinity of the Merger Agreement, (3) authorization for listing on The Nasdaq Capital Market of the shares of MEI
Common Stock (including the shares to be issued in the Merger), subject to official notice of issuance, (4) effectiveness of the Registration Statement and (5) the absence
of any law, judgment, order, injunction, ruling, writ award or decree by any governmental entity of competent jurisdiction restraining, enjoining or otherwise prohibiting
consummation of the Merger. Each party’s obligation to consummate the Merger is also subject to other specified customary conditions, including (1) the representations
and warranties of the other party being true and correct as of the date of the Merger Agreement and as of the closing date of the Merger, generally subject to an overall
material adverse effect qualification, (2) the performance in all material respects by the other party of its obligations under the Merger Agreement required to be
performed on or prior to the date of the closing of the Merger, and (3) the absence of a continuing material adverse effect with respect to the other party. Infinity’s
obligation to consummate the Merger is also subject to the condition that MEI’s final net cash is greater than or equal to $80,000,000 at closing if closing occurs on or
before June 30, 2023, $78,000,000 at closing if closing occurs after June 30, 2023 but on or before July 31, 2023 and $76,000,000 at closing if closing occurs after July
31, 2023 but on or before August 31, 2023. MEI’s obligation to consummate the Merger is also subject to the condition that Infinity’s final net cash is greater than or
equal to $4,000,000 at
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closing if closing occurs on or before June 30, 2023, $3,000,000 at closing if closing occurs after June 30, 2023 but on or before July 31, 2023, and $2,000,000 at closing
if closing occurs after July 31, 2023 but on or before August 31, 2023.
The Merger Agreement contains certain termination rights for both Infinity and MEI. Upon termination of the Merger Agreement by MEI under specified
circumstances, MEI may be required to pay Infinity a termination fee of $4,000,000 and/or reimburse Infinity’s reasonable out of pocket fees and expenses incurred in
connection with the Merger Agreement and the transaction contemplated thereby up to a maximum of $1,000,000. Upon termination of the Merger Agreement by Infinity
under specified circumstances, Infinity may be required to pay MEI a termination fee of $2,900,000 and/or reimburse MEI’s reasonable out of pocket fees and expenses
incurred in connection with the Merger Agreement and the transaction contemplated thereby up to a maximum of $1,000,000.
MEI and Infinity have agreed to use reasonable best efforts and take all necessary action such that, as of the effective time of the Merger, the Board of Directors
of the combined company will consist of eight members, with four such members designated by MEI, 3 such members designated by Infinity (one of whom shall be
designated by Infinity as the chair of the Board of Directors of the combined company) and one such member designated jointly by MEI and Infinity, with at least one
MEI designee and one Infinity designee appointed to each of the three classes of the Meadow classified board and MEI’s fourth designee and the jointly designated
designee appointed to the class of MEI directors whose terms expire at the next annual meeting of MEI’s stockholders. The parties have also agreed that David M. Urso
will be elected as Chief Executive Officer, Robert Ilaria, Jr. will be elected as Chief Medical Officer, and Stéphane Peluso will be elected as Chief Scientific Officer.
Clinical Development Overview
2023 Eganelisib Development Strategy
Subject to the successful close of the Merger, the combined company plans to initiate in the third quarter of 2023, subject to U.S. Food and Drug Administration
review, a global, randomized, controlled Phase 2 clinical trial of eganelisib plus pembrolizumab versus pembrolizumab for the potential treatment of first line relapsed or
metastatic head and neck squamous cell carcinoma, or HNSCC.
The primary endpoint of the Phase 2 study is anticipated to be overall survival, and we plan to have initial safety and progression free survival, or PFS, data in
the second half of 2024. This planned study is intended to address a clear medical need, as patients with recurrent or metastatic HNSCC with a PD-L1 combined positive
score, or CPS, of 1 or greater have relatively short median progression free survival (3.2 months) and overall survival (12.3 months) when treated with pembrolizumab
monotherapy. CPS is a scoring system used to determine the proportion of cells (includes tumor and immune cells) that stain positive for PD-L1 relative to all viable
tumor cells. Head and neck cancers include cancers of the oral cavity, oropharynx, hypopharynx, and larynx, and it is estimated that squamous cell carcinomas account for
more than 90% of these tumors (Tandon P, et al, Contemp Oncol (Pozn) 2017). In 2022, it is estimated that there were 66,470 new cases of head and neck cancer, or
approximately 3.5% of new cancer cases in the United States, and an estimated 15,050 deaths (Siegel R., et al, Cancer J Clin, Cancer Statistics 2022). Worldwide, an
estimated 798,577 people were diagnosed with head and neck cancer in 2020 with an estimated 387,117 people dying from the disease (Sung H., et al, CA Cancer J Clin,
Global Cancer Statistics 2020).The incidence of HNSCC continues to rise, with a 30% anticipated increase by 2030, mostly attributed to the increase in human
papillomavirus, or HPV, associated oropharyngeal squamous cell carcinoma in younger individuals. (Ruffin et al, Nature Reviews Cancer, 2022).
This study follows an encouraging signal from our MAcrophage Reprogramming in Immuno-Oncology-1 study, or MARIO-1, our Phase 1/1b clinical study
designed to evaluate the safety, tolerability, pharmacokinetics, pharmacodynamics, and activity for eganelisib — both as a monotherapy and in combination with
nivolumab — in 224 patients with advanced solid tumors. As of the study’s December 13, 2021 database lock, the median progression free survival, or mPFS, rate of 3.7
months (1.9, 5.5) was observed in the HNSCC cohort in patients with immediate prior progression on CPI therapy. The mPFS for all patients receiving pembrolizumab
monotherapy was 2.3 months in KEYNOTE-048, the benchmark study investigating
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pembrolizumab monotherapy and pembrolizumab plus chemotherapy or cetuximab plus chemotherapy as a first-line therapy in advanced HNSCC patients. However, we
caution you that the risks in cross-trial comparisons limit our ability to reach definitive conclusions without a prospective, adequately powered, randomized controlled
trial. Consequently, the data and results from the HNSCC cohort in MARIO-1 may not be comparable to KEYNOTE-048 for reasons including, but not limited to,
differences in clinical trial protocols, patient characteristics, safety management, sample sizes, duration of treatment, median duration of follow up, and other factors.
Further, in MARIO-1, a disease control rate, or DCR, of 36.4% (4 of 11 patients), an overall response rate, or ORR, of 18.2% (2 of 11 patients), and an mPFS rate of 5.3
months (1.9, 11.1) were observed in the HNSCC cohort in patients with immediate prior progression on CPI therapy and two or fewer prior lines of therapy.
MARIO-3
MARIO-3 is a multi-arm Phase 2 study designed to evaluate eganelisib in the front-line treatment for metastatic triple negative breast cancer, or mTNBC, and
metastatic renal cell carcinoma, or mRCC. We have completed enrollment in both cohorts. The mTNBC cohort is evaluating eganelisib in combination with
atezolizumab, an anti-PD-L1 monoclonal antibody also known as Tecentriq , and nab-paclitaxel, an albumin-bound chemotherapy drug also known as Abraxane , in
approximately 60 patients with unresectable locally advanced or mTNBC. The mRCC cohort is evaluating eganelisib in combination with atezolizumab and
bevacizumab, also known as Avastin , in approximately 30 patients with mRCC. Using the same cutoff standard used in the F. Hoffmann-La Roche Ltd., or Roche,
benchmark IMpassion130 study for PD-L1, we refer to tumors that test below 1% PD-L1 at baseline as “PD-L1(-) tumors” and tumors that test equal to or greater than
1% as “PD-L1(+) tumors.” We entered into clinical supply agreements with Roche, under which Roche has agreed to supply atezolizumab and bevacizumab for our use in
MARIO-3.
As of an October 8, 2022 data cut from the mTNBC cohort, 62 patients were enrolled and evaluable for safety, and 57 patients were evaluable for efficacy, with a
median duration of follow-up of 10.0 (8.1,14.2) months. Of the 57 evaluable patients:
•
35 patients (61.4%) had PD-L1(-) tumors;
•
18 patients (31.6%) had PD-L1(+) tumors; and
•
4 patients (7.0%) had tumors of undetermined PD-L1 status
The October 8, 2022 data snapshot suggests a potential long-term PFS benefit with a one-year PFS rate of 36.0% (23.7, 49.3) in MARIO-3, including in patients
with both PD-L1(+) and PD-L1(-) tumors, compared to 23.7% (19.6, 27.9) in the benchmark IMpassion130 study evaluating atezolizumab in combination with nab-
paclitaxel compared to placebo with nab-paclitaxel in patients with mTNBC. We designed the MARIO-3 trial to be substantially similar to the IMpassion130 study with
respect to inclusion and exclusion criteria, PD-L1 diagnostic, and other factors; however, the risks in cross-trial comparisons limit our ability to reach definitive
conclusions without a prospective, adequately powered, randomized controlled trial. Consequently, the data and results from MARIO-3 may not be comparable to
IMpassion130 for reasons including differences in clinical trial protocols, safety management, sample sizes, duration of treatment, median duration of follow up, and
other factors.
MARIO-275
MARIO-275 is our global, randomized, placebo-controlled Phase 2 study evaluating the effect of adding eganelisib to nivolumab, also known as Opdivo , in
checkpoint-naïve advanced urothelial cancer, or UC, patients whose cancer has progressed or recurred following treatment with platinum-based chemotherapy.
Nivolumab is an immune checkpoint inhibitor therapy commercialized by Bristol Myers Squibb Company, or BMS, that targets programmed death receptor 1, or PD-1, a
checkpoint protein that helps regulate the body’s immune system. MARIO-275 is complete and all sites have been closed.
We presented MARIO-275 data at the American Society of Clinical Oncology Genitourinary Cancers Symposium, or ASCO GU, in February 2021, and
presented updates on overall survival data in July 2021 and January 2022, as well as a two-year landmark analysis announced in a press release issued on August 9, 2022.
The data from the 49 patients enrolled in the trial include the following findings:
•
At a two-year landmark survival analysis presented on of July 29, 2022, 45% of patients in the eganelisib plus nivolumab arm are alive compared to 24% of
patients in the nivolumab control arm. The data also suggests a potential durable survival benefit in the PD-L1(-) subgroup, with 38% of patients alive at two
years in the eganelisib plus nivolumab arm versus 17% in the control group. No new safety signals were observed during the extended period on treatment.
•
Median overall survival (mOS) in the intent to treat population as presented in July 2021 was 15.4 months (6.2, NE) on the eganelisib plus nivolumab
combination arm as compared to 7.9 months (2.3, NE) on the control arm of nivolumab alone with a hazard ratio (HR) 0.62 (0.28, 1.36), reflecting a 38% lower
probability of death.
®
®
®
®
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•
The mOS in PD-L1(-) patients, as updated in January 2022, was 15.3 months (4.7, NE) on the eganelisib plus nivolumab arm versus 7.9 months (1.9, NE) on the
nivolumab control arm with an HR 0.58 (0.21, 1.66), reflecting a 42% lower probability of death.
The most common treatment-emergent adverse events, or TEAEs, for the eganelisib plus nivolumab combination arm across all doses, all causality, were pyrexia
(33.3%), decreased appetite (30.3%), pruritus (27.3%), asthenia (27.3%), rash (27.3%), and increased alanine aminotransferase (24.2%); and the most common ≥Grade 3
TEAEs across all doses, all causality, were anemia (12.1%), and hepatic AEs including hepatotoxicity (15.2%), increased ALT (12.1%), and increased AST (12.1%) with
no Hy’s Law. No treatment-related Grade 5 AEs were reported.
Data presented at ASCO GU demonstrated the greatest benefit of the combination of eganelisib and nivolumab was observed in the patient population (n=23)
with tumors expressing low levels of PD-L1, with improvement over nivolumab monotherapy (n=7) in ORR (26% vs. 14%); DCR (57% vs. 14%); and best responses of
CR (9% vs. 0%) and SD (30% vs. 0%). Of patients with PD-L1 low tumors in the combination arm, 58% (11 of 19) achieved a reduction in tumor burden, compared to
17% (1 of 6) in the nivolumab plus placebo arm.
MARIO-1
MARIO-1, our Phase 1/1b clinical study designed to evaluate the safety, tolerability, pharmacokinetics, pharmacodynamics, and activity for eganelisib — both as
a monotherapy and in combination with nivolumab — in 224 patients with advanced solid tumors, reached primary completion in December 2021. The study included a
dose escalation portion and a combination therapy expansion portion evaluating patients dosed at 40 mg daily, or QD, of eganelisib in combination with the standard
regimen of nivolumab in the following forms of cancer: non-small cell lung cancer, melanoma, HNSCC, TNBC, mesothelioma, adrenocortical carcinoma, and those with
high baseline blood levels of MDSCs.
As of the study’s December 13, 2021 database lock, an mPFS rate of 3.7 months (1.9, 5.5) was observed in the HNSCC cohort in patients with immediate prior
progression on CPI therapy. The mPFS for all patients receiving pembrolizumab monotherapy was 2.3 months in KEYNOTE-048, the benchmark study investigating
pembrolizumab monotherapy, pembrolizumab plus chemotherapy, or cetuximab plus chemotherapy as a first-line therapy in recurrent or metastatic HNSCC patients.
However, we caution you that the risks in cross-trial comparisons limit our ability to reach definitive conclusions without a prospective, adequately powered, randomized
controlled trial. Consequently, the data and results from the HNSCC cohort in MARIO-1 may not be comparable to KEYNOTE-048 for reasons including, but not limited
to, differences in clinical trial protocols, patient characteristics, safety management, sample sizes, duration of treatment, median duration of follow up, and other factors.
Further, in MARIO-1 a disease control rate, or DCR, of 36.4% (4 of 11 patients), an overall response rate, or ORR, of 18.2% (2 of 11 patients), and an mPFS rate of 5.3
months (1.9, 11.1) were observed in the HNSCC cohort in patients with immediate prior progression on CPI therapy and two or fewer prior lines of therapy. These
findings build on data released regarding the HNSCC cohort at the 2020 Annual Meeting of the Society for Immunotherapy of Cancers, which demonstrated clinical
activity of the combination therapy in patients not expected to benefit from checkpoint inhibitor, or CPI, alone, having progressed on an immediate prior CPI therapy prior
to entering MARIO-1.
Financial Overview
Going Concern
We believe that there is substantial doubt about our ability to continue as a going concern for at least twelve months from the date these consolidated financial
statement are issued on March 28, 2023. The conditions which raise substantial doubt about our ability to continue as a going concern, as well as our plan to mitigate
these conditions is discussed in the section below titled “Liquidity and Capital Resources.”
Revenue
To date, all of our revenue has been generated under collaboration agreements, including payments to us of upfront license fees, funding or reimbursement of
research and development efforts, milestone payments if specified objectives are achieved, and royalties on product sales. In the future, we may generate revenue from a
combination of product sales, research and development support services and milestone payments in connection with strategic relationships, as well as royalties resulting
from the sales of products developed under licenses of our intellectual property. We expect that any potential future revenue we generate will fluctuate from year to year
as a result of the timing and amount of license fees, research and development reimbursement, milestone, royalty and other payments earned under our collaborative or
strategic relationships and the amount and timing of payments that we earn upon the sale of our products, to the extent any are successfully commercialized.
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Research and Development Expense
We are a drug development company. Our research and development expense has historically consisted primarily of the following:
•
compensation of personnel associated with research and development activities;
•
clinical testing costs, including payments made to contract research organizations;
•
costs of combination and comparator drugs used in clinical studies;
•
costs of manufacturing product candidates for preclinical testing and clinical studies;
•
costs associated with the licensing of research and development programs;
•
preclinical testing costs, including costs of toxicology studies;
•
fees paid to external consultants;
•
fees paid to professional service providers for independent monitoring and analysis of our clinical trials;
•
costs for collaboration partners to perform research and development activities, including development milestones for which a payment is due when
achieved;
•
depreciation of property and equipment used for research and development activities; and
•
allocated costs of facilities.
General and Administrative Expense
General and administrative expense primarily consists of compensation of personnel in executive, finance, accounting, legal and intellectual property,
information technology infrastructure, corporate communications, and human resources functions. Other costs include facilities costs not otherwise included in research
and development expense and professional fees for legal and accounting services.
Royalty Expense
Royalty expense represents the expense associated with amounts owed to third parties as a result of royalty revenue recognized and the amounts owed by us to
Takeda in relation to the sale of future royalties.
Other Income and Expense
Other income and expense typically consist of interest earned on cash, cash equivalents and available-for-sale securities, non-cash interest expense, and changes
in fair value of the warrant liability.
Critical Accounting Policies and Significant Judgments and Estimates
The following discussion and analysis of our financial condition and results of operations is based on our consolidated financial statements, which have been
prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires us to make judgments,
estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. On an ongoing basis, we evaluate our estimates, including
those related to cumulative revenue related to variable consideration, accrued expenses, estimates of future net royalty payments used in the calculation of our liability
related to the sale of future royalties, and assumptions in the valuation of stock-based compensation. We base our estimates on historical experience and on various other
assumptions that we believe to be reasonable under the circumstances. Actual results could differ from those estimates. Differences between actual and estimated results
have not been material and have been adjusted in the period they become known. We believe that the following accounting policies and estimates are most critical to
understanding and evaluating our reported financial results. Please refer to Note 2 to our consolidated financial statements included in this report for a description of our
significant accounting policies.
Revenue Recognition
To date, all our revenue has been generated under collaboration agreements, including payments to us of upfront license fees, funding or reimbursement of
research and development efforts, milestone payments if specified objectives are achieved, and/or royalties on product sales.
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We recognize revenue when we transfer goods or services to customers in an amount that reflects the consideration that we expect to receive for those goods or
services. These principles are applied using a five-step model: 1) identify the customer contract; 2) identify the contract’s performance obligations; 3) determine the
transaction price; 4) allocate the transaction price to the performance obligations; and 5) recognize revenue when or as a performance obligation is satisfied. We evaluate
all promised goods and services within a customer contract and determine which of those are separate performance obligations. This evaluation includes an assessment of
whether the good or service is capable of being distinct and whether the good or service is separable from other promises in the contract. When a performance obligation
is satisfied, we recognize as revenue the amount of the transaction price, excluding estimates of variable consideration that are constrained, that is allocated to that
performance obligation. For contracts that contain variable consideration, such as milestone payments, we estimate the amount of variable consideration by using either
the expected value method or the most likely amount method. In making this assessment, we evaluate factors such as the clinical, regulatory, commercial and other risks
that must be overcome to achieve the milestone. Each reporting period we re-evaluate the probability of achievement of such milestones and any related constraints. We
will include variable consideration, without constraint, in the transaction price to the extent it is probable that a significant reversal in the amount of cumulative revenue
recognized will not occur when the uncertainty associated with the variable consideration is subsequently resolved.
We recognize sales-based milestones and royalty revenue based upon net sales by the licensee of licensed products in licensed territories, and in the period the
sales occur under the sales- and usage-based royalty exception when the sole or predominate item to which the royalty relates is a license to intellectual property.
In the event of an early termination of a collaboration agreement, any contract liabilities would be recognized in the period in which all our obligations under the
agreement have been fulfilled.
Accrued Expenses
As part of the process of preparing financial statements, we are required to estimate accrued expenses. This process involves identifying services that have been
performed on our behalf and estimating the level of service performed and the associated cost incurred for such service as of each balance sheet date. Examples of
services for which we must estimate accrued expenses include contract service fees paid to contract manufacturers in conjunction with pharmaceutical development work
and to contract research organizations in connection with clinical trials and preclinical studies. In connection with these service fees, our estimates are most affected by
our understanding of the status and timing of services provided. The majority of our service providers invoice us in arrears for services performed. In the event that we do
not identify certain costs that have been incurred by our service providers, or if we under- or over-estimate the level of services performed or the costs of such services in
any given period, our reported expenses for such period would be too low or too high, respectively. We often rely on subjective judgments to determine the date on which
certain services commence, the level of services performed on or before a given date and the cost of such services. We make these judgments based upon the facts and
circumstances known to us. Our estimates of expenses in future periods may be under- or over-accrued.
Liabilities Related to Sale of Future Royalties
We treat the liabilities related to sale of future royalties as debt financings, amortized under the effective interest rate method over the estimated life of the related
royalty streams. The liabilities related to sale of future royalties and the debt amortization are based on our current estimates of future royalties expected to be paid over
the life of the arrangements. We will periodically assess the expected royalty payments using projections from external sources. To the extent our estimates of future
royalty payments are greater or less than previous estimates or the estimated timing of such payments is materially different than previous estimates, we will adjust the
effective interest rate and recognize related non-cash interest expense on a prospective basis. Non-cash royalty revenue is reflected as royalty revenue, and non-cash
amortization of debt is reflected as interest expense in the Consolidated Statements of Operations and Comprehensive Loss included in Part II, Item 8, “Financial
Statements and Supplementary Data,” of this Annual Report on Form 10-K.
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Results of Operations
The following table summarizes our results of operations for the years ended December 31, 2022 and 2021, in thousands, together with the change in each item
as a percentage.
2022
2021
% Change
Royalty revenue
$
2,593
$
1,858
40 %
Research and development expense
(32,411)
(31,647)
2 %
General and administrative expense
(13,463)
(14,174)
(5)%
Royalty expense
(1,563)
(1,120)
40 %
Investment and other income
655
1
65,400 %
Non-cash interest expense
(180)
(180)
— %
Net loss
(44,369)
(45,262)
(2)%
Revenue
For the year ended December 31, 2022, we recognized $2.6 million in royalty revenue, an increase of 40% as compared to $1.9 million in royalty revenue for the
year ended December 31, 2021. Royalty revenue for both periods is related to royalties on net sales of duvelisib from Secura Bio. A portion of the royalties received is
owed to Mundipharma and Purdue. We refer to such portion as the Trailing Mundipharma Royalties (see Note 11 of the notes to our consolidated financial statements
included in Part II, Item 8, “Financial Statements and Supplementary Data,” of this Annual Report on Form 10-K). We and HCR entered into a purchase and sale
agreement in March 2019, or the HCR Agreement, pursuant to which HCR acquired our interest in royalties received from Verastem and Secura Bio on net sales of
duvelisib, less the Trailing Mundipharma Royalties (see Note 9 of the notes to our consolidated financial statements included in Part II, Item 8, “Financial Statements and
Supplementary Data,” of this Annual Report on Form 10-K).
Research and Development Expense
Research and development expenses represented approximately 68% and 67% of our total operating expenses for the years ended December 31, 2022 and 2021,
respectively. For the year ended December 31, 2022, we recognized $32.4 million in research and development expense, an increase of approximately 2% as compared to
$31.6 million in research and development expense for the year ended December 31, 2021. The increase is primarily attributable to an increase in compensation expense
of $1.9 million due primarily to additional staff to support the development of eganelisib, an increase in consulting expenses of $0.8 million, an increase in information
technology support expenses of $0.3 million, and an increase in insurance and facilities expenses of $0.3 million, partially offset by a decrease in clinical development
expenses of $2.6 million.
We track and accumulate expenses by major program. These expenses primarily relate to payroll and related expenses for personnel working on the programs,
process development and manufacturing, preclinical toxicology studies, clinical trial costs and allocated costs of facilities. During the years ended December 31, 2022 and
2021 and in aggregate from January 1, 2006 through December 31, 2022, we estimate that we incurred $32.4 million, $31.6 million and $747.4 million of costs,
respectively, on our PI3K inhibitor program, including eganelisib and duvelisib.
We do not believe that the historical costs associated with our drug development programs are indicative of the future costs associated with these programs. Due
to the variability in the length of time and scope of activities necessary to develop a product candidate and uncertainties related to our cost estimates and our ability to
obtain marketing approval for our product candidates, accurate and meaningful estimates of the total costs required to bring our product candidates to market are not
available.
Because of the risks inherent in drug development, we cannot reasonably estimate or know:
•
the nature, timing and estimated costs of the efforts necessary to complete the development of our programs;
•
the completion dates of these programs; or
•
the period in which material net cash inflows are expected to commence, if at all, from the programs described above and any potential future product
candidates.
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There is significant uncertainty regarding our ability to successfully develop any product candidates. These risks include the uncertainty of:
•
the scope, rate of progress and cost of our clinical trials that we are currently conducting or may commence in the future;
•
clinical trial results;
•
the cost of establishing clinical supplies of any product candidates;
•
the cost and availability of combination and comparator drugs, such as the current global shortage of the MARIO-3 combination drug nab-paclitaxel.
Although we expect our current supply of nab-paclitaxel to be adequate to meet MARIO-3 demand through the study completion, the global shortage could
impact MARIO-3 if the shortage persists beyond our current supply;
•
the cost of filing, prosecuting, defending and enforcing any patent claims and other intellectual property rights relating to our programs under development;
•
the terms and timing of any collaborations, licensing and other arrangements that we have or may establish in the future relating to our programs under
development;
•
the cost and timing of regulatory approvals;
•
the effect of competing technological and market developments; and
•
the impact of the COVID-19 pandemic.
General and Administrative Expense
For the year ended December 31, 2022, we recognized $13.5 million in general and administrative expense, a decrease of 5% as compared to approximately
$14.2 million in general and administrative expense for the year ended December 31, 2021. The decrease was primarily attributable to a decrease of $0.6 million in
consulting expense and a decrease in compensation expense of $0.4 million due primarily to a reduction in discretionary bonus compensation, partially offset by an
increase of $0.3 million in information technology support expenses.
Royalty Expense
For the year ended December 31, 2022, we recognized $1.6 million in royalty expense, an increase of 40% as compared to approximately $1.1 million in royalty
expense for the year ended December 31, 2021. Royalty expense for both periods is related to royalties paid to Mundipharma, Purdue and Takeda on net sales of duvelisib
by Secura Bio (see Note 11 of the notes to our consolidated financial statements included in Part II, Item 8, “Financial Statements and Supplementary Data,” of this
Annual Report on Form 10-K).
Investment and Other Income
Investment and other income increased by $0.7 million for the year ended December 31, 2022 as compared to the year ended December 31, 2021 primarily as a
result of higher yields on our cash equivalents and available-for-sale securities.
Non-cash Interest Expense
Non-cash interest expense for the years ended December 31, 2022 and 2021 was the result of the sale of future royalties in relation to the HCR Agreement and
BVF Funding Agreement, which we recognized as liabilities that are being amortized using the effective interest method over the life of the arrangements (see Note 9 of
the notes to our consolidated financial statements included in Part II, Item 8, “Financial Statements and Supplementary Data,” of this Annual Report on Form 10-K). Over
the course of the arrangements, the non-cash interest expense will be affected by the amount and timing of estimated royalty revenue, if any. We reassess the effective
interest rate on a quarterly basis and adjust the rate prospectively as needed.
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Liquidity and Capital Resources
We have primarily incurred operating losses since inception. Our net loss was $44.4 million and $45.3 million for the years ended December 31, 2022 and 2021,
respectively. As of December 31, 2022, we had an accumulated deficit of $856.0 million. As we have no approved products, we have not generated any revenue from
product sales to date, and we do not expect to generate any such revenue for the foreseeable future, if at all. We have instead relied on the proceeds from sales of equity
securities, sales of future royalties, issuances of debt, interest on investments, upfront license fees, expense reimbursements, milestones, royalties and cost sharing under
our collaborations to fund our operations. Because eganelisib is in clinical development and the outcome of our effort is uncertain, we cannot estimate the actual amounts
necessary to successfully complete the development and commercialization of our product candidate or whether, or when, we may achieve profitability.
We expect to continue to spend significant resources to fund the development and potential commercialization of eganelisib. We expect to incur substantial
operating losses over the next several years as our clinical trial and drug manufacturing activities increase. In addition, in connection with seeking and possibly obtaining
regulatory approval of eganelisib or any future product candidates we may develop, we expect to incur significant commercialization expenses for product sales,
marketing, manufacturing and distribution. As a result, we expect that our accumulated deficit will also increase significantly. These conditions raise substantial doubt
about our ability to continue as a going concern.
The following table summarizes the components of our financial condition:
December 31, 2022
December 31, 2021
(in thousands)
Cash, cash equivalents and available-for-sale securities
$
38,313
$
80,726
Working capital
26,674
68,968
Year Ended December 31,
2022
2021
(in thousands)
Cash (used in) provided by:
Operating activities
$
(42,431)
$
(40,618)
Investing activities
(55)
5,489
Financing activities
73
87,105
Cash Flows
The principal use of cash in operating activities in all periods presented was related to our research and development programs. Our cash used in operating
activities for the year ended December 31, 2022 increased compared to the year ended December 31, 2021 primarily due to increased operating expenses as we continue
clinical development of eganelisib.
Our cash used in operating activities in future periods may vary significantly due to various factors, including potential cash inflows from future collaboration
agreements and potential cash outflows for licensing new programs from third parties. We cannot be certain whether and when we may enter into any such collaboration
agreements or license agreements.
Our cash (used in) provided by investing activities for the years ended December 31, 2022 and 2021 included purchases and proceeds from maturities of
available-for-sale securities and purchases of property and equipment. Net cash used in investing activities for the year ended December 31, 2022 was primarily the result
of a nominal amount of net purchases of available-for-sale securities during the year. Comparatively, net cash provided by investing activities for the year ended
December 31, 2021 was primarily due to net proceeds from maturities of available-for-sale securities of $5.5 million.
Net cash provided by financing activities for the year ended December 31, 2022 included $0.1 million in net proceeds from the issuance of common stock to
employees. Net cash provided by financing activities for the year ended December 31, 2021 included $85.8 million in net proceeds from our public offering in February
2021.
Funding Requirements
We believe that there is substantial doubt about our ability to continue as a going concern for at least twelve months from the date these consolidated financial
statements are issued on March 28, 2023. Our future capital requirements will depend on whether we complete the Merger. If the Merger is not completed, or if we decide
to pursue any future product development efforts, our future funding requirements would depend on, and could increase significantly as a result of many factors,
including:
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•
our ability to consummate an alternative strategic transaction and the nature and type of such transaction;
•
the scope, progress, results and costs of developing eganelisib, currently in clinical development;
•
the impact of delays in patient enrollment and site activation related to the COVID-19 pandemic;
•
the timing of, and the costs involved in, obtaining regulatory approvals for eganelisib;
•
subject to receipt of marketing approval, revenue, if any, received from commercial sales of eganelisib;
•
the timing and amount of additional revenues, if any, received from strategic agreements and funding arrangements
•
the timing and amount of additional royalty and milestone payments owed to Takeda;
•
the costs involved in preparing, filing, prosecuting, maintaining, defending and enforcing patent claims, including litigation costs and the outcome of such
litigation;
•
any breach, acceleration event or event of default under any agreements with third parties;
•
the outcome of any lawsuits that could be brought against us;
•
the cost of acquiring raw materials for, and of manufacturing, eganelisib is higher than anticipated;
•
the cost or quantity required of comparator or combination drugs used in clinical studies increases;
•
the effect of competing technological and market developments;
•
any federal government shutdown that prevents or delays the U.S. Securities and Exchange Commission, or SEC, from processing any future registration
statements we may file to register shares for capital raising purposes; and
•
a loss in our investments due to general market conditions or other reasons.
If the Merger is not completed, plans to mitigate the conditions which raise substantial doubt about our ability to continue as a going concern may include, but
are not limited to, the process of evaluating a potential strategic transaction, including the sale of the company or its assets. Based on our prior assessment, we do not
expect that we would have the necessary time or financial resources to pursue another strategic transaction like the proposed Merger. If we are unsuccessful in our efforts
to seek such strategic alternatives or raise additional financing in the near term, our board of directors may conclude that it is in the best interest of stockholders to cease
normal operations and wind down the company through bankruptcy or dissolution proceedings. In such case, there would be no assurances as to the amount or timing of
available cash remaining, if any, to distribute to stockholders after paying our obligations and setting aside funds for reserves.
Historically, we have relied on our collaborations for a significant portion of our research and development funding needs through upfront payments, milestones,
royalties, and cost reimbursements.
As of December 31, 2022, we have received $348.0 million of net proceeds from our public stock offerings, including our common stock sales facility. This
includes net proceeds of $85.8 million we received from our public stock offering in February 2021.
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Equity Offerings
On June 28, 2019, we entered into a Capital on Demand Sales Agreement with JonesTrading Institutional Services LLC, or JonesTrading, and on July 29, 2019
we amended and restated the sales agreement to add B. Riley Securities (f/k/a B. Riley FBR, Inc.), or B. Riley Securities, as a party to the agreement. On July 27, 2021,
we entered into an amendment to the agreement to increase the maximum aggregate offering price of the shares of common stock that we may issue and sell from time to
time under the agreement by $75.0 million to an aggregate of $95.0 million. We refer to the amended and restated sales agreement, as amended, as the ATM Sales
Agreement. During the year ended December 31, 2022, a portion of the aggregate offering price totaling $11.8 million expired without sale. As of December 31, 2022, we
had an aggregate of $75.0 million available for future sales. Pursuant to the ATM Sales Agreement we may offer and sell shares of our common stock from time to time
through JonesTrading or B. Riley Securities, each acting as our sales agent. We have agreed to pay commissions to the sales agents for their services in acting as agents in
the sale of our common stock in the amount of up to 3.0% of the gross proceeds from sales of our common stock pursuant to the ATM Sales Agreement. Sales of shares of
our common stock under the ATM Sales Agreement may be made by any method that is deemed to be an “at-the-market-offering” as defined in Rule 415(a)(4)
promulgated under the Securities Act of 1933, as amended. With our prior written approval, JonesTrading or B. Riley Securities may also sell the shares by any other
method permitted by law, including in negotiated transactions. We and JonesTrading or B. Riley Securities may suspend or terminate the offering of shares upon notice to
the other parties and subject to other conditions. During the year ended December 31, 2022, we did not sell any shares under the ATM Sales Agreement. During the year
ended December 31, 2021, we issued and sold 89,520 shares of common stock at a weighted average price per share of $3.83 at-the-market pursuant to the ATM Sales
Agreement for $0.3 million in net proceeds.
On February 11, 2021, we entered into a purchase agreement with Piper Sandler & Co., as representative of the underwriters named therein, pursuant to which
we issued and sold to the underwriters in an underwritten public offering an aggregate of 24,150,000 shares of our common stock, including 3,150,000 shares of common
stock sold in connection with the exercise in full of a 15% over-allotment option by the underwriters. The public offering price was $3.80 per share. The gross proceeds to
us from this offering were approximately $91.8 million. After underwriting discounts and commissions and offering expenses, we received net proceeds from the offering
of approximately $85.8 million.
Inflation
We do not believe that inflation has had a significant impact on our revenues or results of operations since inception.
Item 7A. Quantitative and Qualitative Disclosures about Market Risk
We are a smaller reporting company as defined by Rule 12b-2 of the Securities Exchange Act of 1934, or the Exchange Act, and are not required to provide the
information under this item.
Item 8. Financial Statements and Supplementary Data
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Report of Independent Registered Public Accounting Firm
To the Stockholders and the Board of Directors of Infinity Pharmaceuticals, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Infinity Pharmaceuticals, Inc. (the Company) as of December 31, 2022 and 2021, the related
consolidated statements of operations and comprehensive loss, stockholders’ equity and cash flows for each of the two years in the period ended December 31, 2022, and
the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material
respects, the financial position of the Company at December 31, 2022 and 2021, and the results of its operations and its cash flows for each of the two years in the period
ended December 31, 2022, in conformity with U.S. generally accepted accounting principles.
The Company's Ability to Continue as a Going Concern
The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 2 to
the financial statements, the Company has suffered recurring losses from operations, has limited financial resources, and has stated that substantial doubt exists about the
Company’s ability to continue as a going concern. Management's evaluation of the events and conditions and management’s plans regarding these matters are also
described in Note 2. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
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.
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current period audit of the financial statements that was communicated or required to
be communicated to the audit committee and that: (1) relates to accounts or disclosures that are material to the financial statements and (2) involved our especially
challenging, subjective or complex judgments. The communication of the critical audit matter does not alter in any way our opinion on the consolidated financial
statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the account
or disclosure to which it relates.
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Accrued Clinical Expenses
Description of the Matter
The Company’s accrual for clinical expenses totaled $4.3 million as of December 31, 2022. As discussed in Note 2 to
the consolidated financial statements, the Company is required to estimate accruals for clinical expenses using
judgment based on certain information, including actual costs incurred or level of effort expended, as provided by its
vendors. Payments for such activities are based on the terms of the individual arrangements, which may differ from the
pattern of costs incurred.
Auditing the Company's accrual for clinical expenses was complex and judgmental, as the amounts are based on
various estimates from third-party vendors, including patient enrollment. Furthermore, due to the duration of the
Company’s ongoing clinical activities and the timing of invoicing received from third parties, the actual amounts
incurred are not typically known by the date the financial statements are issued.
How We Addressed the Matter in
Our Audit
To evaluate the accruals for clinical expenses, our audit procedures included, among others, testing the accuracy and
completeness of the underlying data used in the estimates and evaluating the significant judgments and estimates noted
above that are used by management to estimate the amounts recorded. We corroborated the progress of clinical
activities through discussion with the Company’s research and development personnel that oversee the clinical
projects. We also inspected the Company’s contracts with third parties and any pending change orders to assess the
impact on amounts recorded. Additionally, we reviewed information received by the Company directly from certain
sites and other third parties, which included third parties’ estimates of costs incurred to date. We also performed
analytical procedures over fluctuations in accruals by vendor, study, or other significant work orders throughout the
period subject to audit and inspected subsequent invoices received from third parties to assess the impact to the
accrual.
/s/ Ernst & Young LLP
We have served as the Company’s auditor since 2001.
Boston, Massachusetts
March 28, 2023
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INFINITY PHARMACEUTICALS, INC.
Consolidated Balance Sheets
(in thousands, except share and per share amounts)
December 31,
2022
2021
Assets
Current assets:
Cash and cash equivalents
$
38,313
$
80,726
Prepaid expenses and other current assets
1,989
1,542
Total current assets
40,302
82,268
Property and equipment, net
800
1,241
Restricted cash, less current portion
158
158
Operating lease right-of-use assets
697
1,064
Other assets
194
54
Total assets
$
42,151
$
84,785
Liabilities and stockholders’ (deficit) equity
Current liabilities:
Accounts payable
$
4,405
$
2,320
Accrued expenses and other current liabilities
9,223
10,980
Total current liabilities
13,628
13,300
Liabilities related to sale of future royalties, net, less current portion (Note 9)
47,213
48,727
Operating lease liability, less current portion
324
917
Other liabilities
37
270
Total liabilities
61,202
63,214
Commitments and contingencies
Stockholders’ (deficit) equity:
Preferred Stock, $0.001 par value; 1,000,000 shares authorized, no shares issued and outstanding at
December 31, 2022 and 2021
—
—
Common Stock, $0.001 par value; 200,000,000 shares authorized; 89,411,471 and 89,155,311 shares issued
and outstanding at December 31, 2022 and 2021, respectively
89
89
Additional paid-in capital
836,812
833,065
Accumulated deficit
(855,952)
(811,583)
Total stockholders’ (deficit) equity
(19,051)
21,571
Total liabilities and stockholders’ (deficit) equity
$
42,151
$
84,785
The accompanying notes are an integral part of these consolidated financial statements.
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INFINITY PHARMACEUTICALS, INC.
Consolidated Statements of Operations and Comprehensive Loss
(in thousands, except share and per share amounts)
Years Ended December 31,
2022
2021
Royalty revenue
$
2,593
$
1,858
Operating expenses:
Research and development
32,411
31,647
General and administrative
13,463
14,174
Royalty expense (Note 11)
1,563
1,120
Total operating expenses
47,437
46,941
Loss from operations
(44,844)
(45,083)
Other income (expense):
Investment and other income
655
1
Non-cash interest expense (Note 9)
(180)
(180)
Total other income (expense)
475
(179)
Net loss
$
(44,369)
$
(45,262)
Basic and diluted loss per common share
$
(0.50)
$
(0.53)
Basic and diluted weighted average number of common shares outstanding
89,247,785
85,597,264
Other comprehensive loss:
Net unrealized holding gains on available-for-sale securities arising during the period
$
—
$
1
Comprehensive loss
$
(44,369)
$
(45,261)
The accompanying notes are an integral part of these consolidated financial statements.
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INFINITY PHARMACEUTICALS, INC.
Consolidated Statements of Cash Flows
(in thousands)
Years Ended December 31,
2022
2021
Operating activities
Net loss
$
(44,369)
$
(45,262)
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation
458
480
Stock-based compensation
3,621
2,695
Non-cash royalty revenue
(1,373)
(984)
Non-cash interest expense
180
180
Other, net
91
59
Changes in operating assets and liabilities:
Prepaid expenses and other assets
(587)
171
Operating lease right-of-use asset
367
355
Accounts payable, accrued expenses and other liabilities
(300)
2,177
Operating lease liability
(519)
(489)
Net cash used in operating activities
(42,431)
(40,618)
Investing activities
Purchases of property and equipment
(17)
(11)
Purchases of available-for-sale securities
(16,038)
—
Proceeds from maturities of available-for-sale securities
16,000
5,500
Net cash (used in) provided by investing activities
(55)
5,489
Financing activities
Proceeds from public offering, net
—
85,838
Proceeds from common stock sales facility, net of issuance costs
—
336
Proceeds from issuances of common stock, net
73
931
Net cash provided by financing activities
73
87,105
Net (decrease) increase in cash, cash equivalents and restricted cash
(42,413)
51,976
Cash, cash equivalents and restricted cash at beginning of period
80,884
28,908
Cash, cash equivalents and restricted cash at end of period
$
38,471
$
80,884
Reconciliation of cash, cash equivalents, and restricted cash to the consolidated balance sheets
Cash and cash equivalents
$
38,313
$
80,726
Restricted cash, less current portion
158
158
Total cash, cash equivalents and restricted cash
$
38,471
$
80,884
The accompanying notes are an integral part of these consolidated financial statements.
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INFINITY PHARMACEUTICALS, INC.
Consolidated Statements of Stockholders’ (Deficit) Equity
(in thousands, except share amounts)
Common Stock
Additional
Paid-in
Capital
Accumulated
Deficit
Accumulated
Other
Comprehensive
(Loss) Income
Total
Stockholders’
(Deficit) Equity
Shares
Amount
Balance at December 31, 2020
64,320,244
$
64
$
743,269
$
(766,321)
$
(1)
$
(22,989)
Exercise of stock options
531,864
1
859
860
Stock-based compensation expense
2,695
2,695
Issuance of common stock related to
public offering, net of issuance costs
24,150,000
24
85,814
85,838
Issuance of common stock related to
sales facility, net of issuance costs
89,520
—
336
336
Issuance of common stock, net
63,683
—
92
92
Unrealized gain on marketable securities
1
1
Net loss
(45,262)
(45,262)
Balance at December 31, 2021
89,155,311
$
89
$
833,065
$
(811,583)
$
—
$
21,571
Exercise of stock options
17,708
—
15
15
Stock-based compensation expense
3,621
3,621
Issuance of common stock, net
238,452
—
111
111
Net loss
(44,369)
(44,369)
Balance at December 31, 2022
89,411,471
$
89
$
836,812
$
(855,952)
$
—
$
(19,051)
The accompanying notes are an integral part of these consolidated financial statements.
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INFINITY PHARMACEUTICALS, INC.
Notes to Consolidated Financial Statements
1. Organization
Infinity Pharmaceuticals, Inc., is a clinical-stage innovative biopharmaceutical company dedicated to developing novel medicines for people with cancer. As
used throughout these audited, consolidated financial statements, the terms “Infinity,” “we,” “us,” and “our” refer to the business of Infinity Pharmaceuticals, Inc., and its
wholly owned subsidiaries.
On February 22, 2023, we, MEI Pharma, Inc., a Delaware corporation, or MEI, and Meadow Merger Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of MEI, or the Merger Sub, entered into an Agreement and Plan of Merger, or the Merger Agreement, pursuant to which, among other matters, and subject to
the satisfaction or waiver of the conditions set forth in the Merger Agreement, Merger Sub will merge with and into Infinity, with Infinity continuing as a wholly owned
subsidiary of MEI and the surviving corporation of the merger, which transaction is referred to herein as the Merger. If the Merger is completed, the combined company
will combine the expertise and resources of MEI and Infinity to advance a pipeline of three clinical-stage oncology drug candidates.
2. Summary of Significant Accounting Policies
Basis of Presentation
These consolidated financial statements include the accounts of Infinity and its wholly-owned subsidiaries. We have eliminated all significant intercompany
accounts and transactions in consolidation.
The preparation of consolidated financial statements in accordance with generally accepted accounting principles requires our management to make estimates
and judgments that may affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities. On an ongoing
basis, we evaluate our estimates and judgments. We base our estimates on historical experience and on various other assumptions that are believed to be reasonable, the
results of which form the basis for making judgments about the carrying values of assets and liabilities. Actual results may differ from these estimates under different
assumptions or conditions.
Segment Information
We operate in one business segment, which focuses on drug development. We make operating decisions based upon the performance of the enterprise as a whole
and utilize our consolidated financial statements for decision making.
Cash Equivalents and Available-For-Sale Securities
Cash equivalents consist of money market funds. We consider all highly liquid investments with maturities of three months or less at the time of purchase to be
cash equivalents. Cash equivalents are stated at fair value. They are also readily convertible to known amounts of cash and have such short-term maturities that each
presents insignificant risk of change in value due to changes in interest rates. Our classification of cash equivalents is consistent with prior periods.
From time to time we invest our cash in short-term marketable securities. We determine the appropriate classification of marketable securities at the time of
purchase and re-evaluate such designation at each balance sheet date, if applicable. Typically, the marketable securities in which we invest have been classified as
“available-for-sale.” We carry available-for-sale securities at fair value. Unrealized gains and losses on available-for-sale debt securities are reported in accumulated other
comprehensive (loss) income, which is a separate component of stockholders’ equity. At various points during the years ended December 31, 2022 and 2021, we owned
marketable securities that were classified as available-for-sale. We did not own any such securities as of December 31, 2022 or 2021.
We adjust the cost of available-for-sale debt securities for amortization of premiums and accretion of discounts to maturity. We include such amortization and
accretion in investment and other income. The cost of securities sold is based on the specific identification method. We include in investment income interest and
dividends on securities classified as available-for-sale.
We conduct periodic reviews to identify and evaluate each available-for-sale debt security that is in an unrealized loss position in order to determine whether an
other-than-temporary impairment exists. An unrealized loss exists when the current fair value of an individual security is less than its amortized cost basis. For available-
for-sale debt securities in an unrealized loss position, we perform an analysis to assess whether we intend to sell or whether we would more likely than not be required
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to sell the security before the expected recovery of the amortized cost basis. Where we intend to sell a security, or may be required to do so, the security’s decline in fair
value is deemed to be other-than-temporary, and the full amount of the unrealized loss is recorded within earnings as an impairment loss. Unrealized losses on available-
for-sale debt securities that are determined to be temporary, and not related to credit loss, are recorded, net of tax, in accumulated other comprehensive loss.
Regardless of our intent to sell a security, we perform additional analysis on all securities in an unrealized loss position to evaluate losses associated with the
creditworthiness of the security. Credit losses are identified where we do not expect to receive cash flows sufficient to recover the amortized cost basis of a security and
are recorded within earnings as an impairment loss.
Liquidity and Going Concern
As of December 31, 2022, we had cash and cash equivalents of $38.3 million. We have primarily incurred operating losses since inception and have relied on our
ability to fund our operations through collaboration and license arrangements, or other strategic arrangements, and through the sale of our common stock.
We expect to continue to spend significant resources to fund the development and potential commercialization of eganelisib, also known as IPI-549, an orally
administered immuno-oncology product candidate that selectively inhibits the enzyme phosphoinositide-3-kinase gamma, or PI3K-gamma, and to incur significant
operating losses for the foreseeable future.
As of December 31, 2022, we had an accumulated deficit of $856.0 million and during the year ended December 31, 2022 used $42.4 million in cash and cash
equivalents to fund operating activities. We expect to continue to incur substantial operating losses and negative cash flows from operations for the foreseeable future.
These conditions raise substantial doubt about our ability to continue as a going concern for at least twelve months from the date these consolidated financial statements
are issued on March 28, 2023.
If the Merger is not completed, we will need to raise additional capital in order to successfully execute on our current operating plans to further the development
of eganelisib. If the Merger is not completed, we will explore other plans to mitigate the conditions which raise substantial doubt about our ability to continue as a going
concern. We consider one of the following courses of action to be the most likely alternatives if the Merger is not completed:
•
Pursue another strategic transaction. We may resume the process of evaluating a potential strategic transaction, including the sale of the company or its assets.
Based on our prior assessment, we do not expect that we would have the necessary time or financial resources to pursue another strategic transaction like the
proposed Merger.
•
Wind down the company. If the Merger does not close and we are unable to enter into another strategic transaction, our board of directors may conclude that it is
in the best interest of stockholders to cease normal operations and wind down the company through bankruptcy or dissolution proceedings. In such case, there
would be no assurances as to the amount or timing of available cash remaining, if any, to distribute to stockholders after paying our obligations and setting aside
funds for reserves.
Our consolidated financial statements have been prepared on a going concern basis, which contemplates the realization of assets and settlement of liabilities and
commitments in the ordinary course of business. The consolidated financial statements do not include any adjustments that might result from the outcome of the
conditions described above.
Concentration of Credit Risk
Cash and cash equivalents are primarily maintained with two major financial institutions in the United States. Deposits at banks may exceed the insurance
provided on such deposits. Generally, these deposits may be redeemed upon demand and, therefore, bear minimal risk. From time to time the Company invests its cash in
other financial instruments that potentially subject us to concentration of credit risk, primarily consisting of available-for-sale securities. Our investment policy, which has
been approved by our Board of Directors, limits the amount that we may invest in any one issuer of investments, thereby reducing credit risk concentrations. As of
December 31, 2022 and 2021, the Company did not have any cash or cash equivalents invested in available-for-sale securities.
Property and Equipment
Property and equipment are stated at cost. Depreciation is recorded using the straight-line method over the estimated useful lives of the applicable assets.
Application development costs incurred for computer software developed or obtained for internal use are capitalized. Upon sale or retirement, the cost and related
accumulated depreciation are eliminated from the respective account, and the resulting gain or loss, if any, is included in current operations. Amortization of leasehold
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improvements, building improvements and finance leases is recorded as depreciation expense and included in research and development and general and administrative
expense, as applicable. Repairs and maintenance charges that do not increase the useful life of the assets are charged to operations as incurred. Property and equipment are
depreciated over the following periods:
Computer equipment and software
3 to 5 years
Leasehold improvements
Shorter of lease term or useful life of asset
Furniture and fixtures
7 to 10 years
Impairment of Long-Lived Assets
We evaluate our long-lived assets for potential impairment. Potential impairment is assessed when there is evidence that events or changes in circumstances have
occurred that indicate that the carrying amount of a long-lived asset may not be recovered. Recoverability of these assets is assessed based on undiscounted expected
future cash flows from the assets, considering a number of factors, including past operating results, budgets and economic projections, market trends and product
development cycles. An impairment in the carrying value of each asset is assessed when the undiscounted expected future cash flows, including its eventual residual
value, derived from the asset are less than its carrying value. Impairments, if any, are recognized in earnings. An impairment loss would be recognized in an amount equal
to the excess of the carrying amount over the undiscounted expected future cash flows.
Fair Value Measurements
We define fair value as the price that we would receive to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the
measurement date. We determine fair value based on the assumptions market participants use when pricing the asset or liability. We use a valuation hierarchy for
disclosure of the inputs used to measure fair value. This hierarchy prioritizes the inputs into three broad levels. Level 1 inputs, which we consider the highest level inputs,
are quoted prices (unadjusted) in active markets for identical assets or liabilities. Level 2 inputs are quoted prices for similar assets and liabilities in active markets or
inputs that are observable for the asset or liability, either directly or indirectly through market corroboration, for substantially the full term of the financial instrument.
Level 3 inputs are unobservable inputs based on our own assumptions used to measure assets and liabilities at fair value. The classification of a financial asset or liability
within the hierarchy is determined based on the lowest level input that is significant to the fair value measurement.
Liabilities Related to Sale of Future Royalties
We treat the liabilities related to sale of future royalties (see Note 9) as debt financings, amortized under the effective interest rate method over the estimated life
of the related expected royalty stream. The liabilities related to sale of future royalties and the debt amortization are based on our current estimates of future royalties
expected to be paid over the life of the arrangement. We will periodically assess the expected royalty payments using projections from external sources. To the extent our
estimates of future royalty payments are greater or less than previous estimates or the estimated timing of such payments is materially different than previous estimates,
we will adjust the effective interest rate and recognize related non-cash interest expense on a prospective basis. Non-cash royalty revenue is reflected as royalty revenue,
and non-cash amortization of debt is reflected as non-cash interest expense in the Consolidated Statements of Operations and Comprehensive Loss.
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Leases
We have entered into leases for office space and a data center. As of January 1, 2019, we adopted the provisions of Accounting Standards Codification, or ASC,
Topic 842, Leases, or ASC 842. Accordingly, we recorded a right-of-use asset and a corresponding lease liability related to our leases. Rights and obligations related to
our leases are included within operating lease right-of-use assets, accrued expenses and other current liabilities, and operating lease liability, less current portion in the
Consolidated Balance Sheets.
We recognize a right-of-use asset and a lease liability upon the commencement of a lease that has a term of more than twelve months. We combine lease and
nonlease components for our leases. Lease payments included in determining the right-of-use asset and lease liability recognized include fixed payments to be paid over
the term of the lease, less any lease incentives to be paid or payable to us by the lessor. Variable lease payments are included if they are based on an index or rate. Variable
lease payments that are not based on an index or rate are recognized as expense in the period incurred. The lease term is determined at lease commencement, and includes
the noncancellable period during which we have the right to use the underlying asset. Any period covered by an option to extend or terminate a lease is also included in
the lease term if we are reasonably certain that the option to extend will be exercised or the option to terminate will not be exercised.
Our leases do not provide an implicit rate; therefore, we use an estimate of our incremental borrowing rate based on the information available at the adoption
date or lease commencement date in determining the present value of lease payments.
Revenue Recognition
To date, all our revenue has been generated under collaboration agreements, including payments to us of upfront license fees, funding or reimbursement of
research and development efforts, milestone payments, if specified objectives are achieved, and royalties on product sales.
We recognize revenue when we transfer goods or services to customers in an amount that reflects the consideration that we expect to receive for those goods or
services. These principles are applied using a five-step model: 1) identify the customer contract; 2) identify the contract’s performance obligations; 3) determine the
transaction price; 4) allocate the transaction price to the performance obligations; and 5) recognize revenue when or as a performance obligation is satisfied. We evaluate
all promised goods and services within a customer contract and determine which of those are separate performance obligations. This evaluation includes an assessment of
whether the good or service is capable of being distinct and whether the good or service is separable from other promises in the contract. When a performance obligation
is satisfied, we recognize as revenue the amount of the transaction price, excluding estimates of variable consideration that are constrained, that is allocated to that
performance obligation. For contracts that contain variable consideration, such as milestone payments, we estimate the amount of variable consideration by using either
the expected value method or the most likely amount method. In making this assessment, we evaluate factors such as the clinical, regulatory, commercial and other risks
that must be overcome to achieve the milestone. Each reporting period we re-evaluate the probability of achievement of such milestones and any related constraints. We
will include variable consideration, without constraint, in the transaction price to the extent it is probable that a significant reversal in the amount of cumulative revenue
recognized will not occur when the uncertainty associated with the variable consideration is subsequently resolved.
We recognize sales-based milestones and royalty revenue based upon net sales by the licensee of licensed products in licensed territories, and in the period the
sales occur under the sales- and usage-based royalty exception when the sole or predominate item to which the royalty relates is a license to intellectual property.
In the event of an early termination of a collaboration agreement, any contract liabilities would be recognized in the period in which all our obligations under the
agreement have been fulfilled.
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Research and Development Expense
Research and development expense consists of expenses incurred in performing research and development activities, including salaries and benefits, overhead
expenses including facilities expenses, materials and supplies, preclinical expenses, clinical trial and related clinical manufacturing expenses, comparator and combination
drug expenses, stock-based compensation expense, depreciation of property and equipment, contract services, and other outside expenses. We also include as research and
development expense upfront license payments related to acquired technologies which have not yet reached technological feasibility and have no alternative use. We
expense research and development costs as they are incurred. Prepaid comparator and combination drug expenses are capitalized and then recognized as expense when
title transfers to us. We have been a party to collaboration agreements in which we were reimbursed for work performed on behalf of the collaborator, as well as one in
which we reimbursed the collaborator for work it had performed. We record all appropriate expenses under our collaborations as research and development expense. If the
arrangement provides for reimbursement of research and development expenses incurred by us, we evaluate the terms of the arrangement to determine whether the
reimbursement should be recorded as revenue or as an offset to research and development expense. If the arrangement provides for us to reimburse the collaborator for
research and development expenses or for the achievement of a development milestone for which a payment is due, we record the reimbursement or the achievement of
the development milestone as research and development expense.
Stock-based Compensation Expense
We issue stock-based awards to employees, directors, and non-employees, generally in the form of stock options, restricted stock units, or RSUs, or as awards
under our 2013 Employee Stock Purchase Plan, or ESPP. We measure stock-based compensation cost at the grant date based on the estimated fair value of the award and
recognize it as expense over the requisite service period on a straight-line basis. Stock-based compensation costs for non-employees are recognized as expense over the
vesting period on a ratable basis. The grant date fair value of stock options and awards under our ESPP is measured using the Black-Scholes valuation model, which
requires us to make assumptions about the fair value of our common stock on the date of grant. The grant date fair value of RSUs is estimated to be equal to the closing
price of our common stock on the date of grant. For awards with performance conditions, we estimate the likelihood of satisfaction of the performance conditions, which
affects the period over which the expense is recognized. When the likelihood of satisfying the performance conditions related to these awards is determined to be
probable, we recognize the expense over the requisite service period. We have no awards with market conditions. We recognize forfeitures related to share-based
payments as they occur.
Royalty Expense
Royalty expense is recorded when incurred and represents the expense associated with amounts owed to third parties as a result of royalty revenue recognized
and the amounts owed by us to Takeda Pharmaceutical Company Limited, or Takeda, in relation to the sale of future royalties (see Note 11).
Income Taxes
We use the liability method to account for income taxes. Deferred tax assets and liabilities are determined based on differences between financial reporting and
income tax basis of assets and liabilities, as well as net operating loss and tax credit carryforwards, and are measured using the enacted tax rates and laws that will be in
effect when the differences reverse. Deferred tax assets are reduced by a valuation allowance to reflect the uncertainty associated with their ultimate realization. The effect
of a change in tax rate on deferred taxes is recognized in income or loss in the period that includes the enactment date.
We use our judgment for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. We recognize any
material interest and penalties related to unrecognized tax benefits in income tax expense.
Due to the uncertainty surrounding the realization of the net deferred tax assets in future periods, we have recorded a full valuation allowance against our
otherwise recognizable net deferred tax assets as of December 31, 2022 and 2021.
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Basic and Diluted Net Loss per Common Share
Basic net loss per share is based upon the weighted average number of common shares outstanding during the period, excluding restricted stock units that have
been issued but have not yet vested. Diluted net loss per share is based upon the weighted average number of common shares outstanding during the period plus the effect
of additional weighted average common equivalent shares outstanding during the period when the effect of adding such shares is dilutive. Common equivalent shares
result from the assumed exercise of outstanding stock options and the exercise of outstanding warrants (the proceeds of which are then assumed to have been used to
repurchase outstanding stock using the treasury stock method) and the vesting of restricted shares of common stock. In addition, the assumed proceeds under the treasury
stock method include the average unrecognized compensation expense of stock options that are in-the-money. This results in the “assumed” buyback of additional shares,
thereby reducing the dilutive impact of stock options. The two-class method is used for outstanding warrants as such warrants are considered to be participating securities,
and this method is more dilutive than the treasury stock method. The following outstanding shares of common stock equivalents were excluded from the computation of
net loss per share attributable to common stockholders for the periods presented because including them would have been antidilutive:
At December 31,
2022
2021
Stock options
14,663,697
12,689,439
Non-vested restricted stock
2,939,816
50,000
Comprehensive Loss
Comprehensive loss is comprised of net loss and other comprehensive loss. Other comprehensive loss is comprised of unrealized holding gains arising during the
period on available-for-sale securities that are not other-than-temporarily impaired. During the year ended December 31, 2022, there were no material reclassifications out
of accumulated other comprehensive (loss) income.
New Accounting Pronouncements
In June 2016, the Financial Accounting Standards Board, or FASB, issued Accounting Standard Update, or ASU, No. 2016-13, Financial Instruments—Credit
Losses (Topic 326): Measurement of Credit Losses on Financial Statements, or ASU No. 2016-13, which requires that credit losses be reported using an expected losses
model rather than the incurred losses model that is currently used, and it establishes additional disclosure requirements related to credit risks. For available-for-sale debt
securities with expected credit losses, this standard now requires allowances to be recorded instead of reducing the amortized cost of the investment. In November 2019,
the FASB subsequently issued ASU 2019-10, Financial Instruments—Credit Losses (Topic 326), Derivatives and Hedging (Topic 815), and Leases (Topic 842): Effective
Dates, whereby the effective date of this standard for smaller reporting companies was deferred to annual reporting periods beginning after December 15, 2022, including
interim periods within those annual reporting periods, and early adoption is still permitted. We adopted this standard effective January 1, 2023 on a prospective basis. The
adoption of this standard has not had a material impact on our consolidated financial statements and related disclosures.
In August 2020, the FASB issued ASU No. 2020-06, Debt—Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging—
Contracts in Entity’s Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity, or ASU No. 2020-06, which
simplifies the guidance on an issuer’s accounting for convertible instruments and contracts in its own equity. The provisions of ASU No. 2020-06 are applicable for fiscal
years beginning after December 15, 2023, with early adoption permitted no earlier than fiscal years beginning after December 15, 2020. We are currently evaluating the
impact of ASU No. 2020-06 on our consolidated financial statements and related disclosures.
In November 2021, the FASB issued ASU No. 2021-10, Government Assistance (Topic 832): Disclosures by Business Entities about Government Assistance, or
ASU No. 2021-10, which requires additional annual disclosures about transactions with a government that are accounted for by applying a grant or contribution
accounting model by analogy. The additional disclosures required by this standard include 1) information about the nature of the transactions and the related accounting
policy used to account for the transactions, 2) the financial statement line items that are impacted by the transactions and the amounts applicable to each financial
statement line item and 3) significant terms and conditions of the transactions, including commitments and contingencies. We adopted this standard effective January 1,
2022 on a prospective basis. The adoption of the standard has not had a material impact on our consolidated financial statements.
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3. Stock-Based Compensation
Under each of the stock incentive plans described below, stock option awards made to new employees upon commencement of employment typically provide for
vesting of 25% of the shares underlying the award at the end of the first year of service with the remaining 75% of the shares underlying the award vesting ratably on a
monthly basis over the following three-year period subject to continued service. Annual grants to existing employees typically provide for ratable vesting over specified
periods determined by the Board of Directors. In addition, under each plan, all options granted expire no later than ten years after the date of grant.
2019 Equity Incentive Plan
Our 2019 Equity Incentive Plan, or the 2019 Plan, was approved by our stockholders in June 2019. The 2019 Plan provides for the grant of incentive stock
options intended to qualify under Section 422 of the Internal Revenue Code of 1986, as amended, or IRC, as well as nonstatutory stock options, stock appreciation rights,
restricted stock, restricted stock units and other stock-based and cash-based awards. Up to 12,531,009 shares of our common stock may be issued pursuant to awards
granted under the 2019 Plan, plus an additional amount of our common stock underlying awards issued under the 2010 Stock Incentive Plan, or the 2010 Plan, that expire
or are canceled without the holders receiving any shares under those awards. As of December 31, 2022, an aggregate of 7,744,676 shares of our common stock were
reserved for issuance upon the vesting or exercise of outstanding awards, and up to 2,564,077 shares of common stock may be issued pursuant to awards granted under
the 2019 Plan.
2010 Stock Incentive Plan
The 2010 Plan provided for the grant of incentive stock options under the IRC, as well as nonstatutory stock options, stock appreciation rights, restricted stock,
restricted stock units and other stock-based and cash-based awards. As of December 31, 2022, an aggregate of 6,309,021 shares of our common stock were reserved for
issuance upon the exercise of outstanding awards granted under the 2010 Plan. The 2010 Plan was terminated upon approval of the 2019 Plan; therefore, no further grants
may be made under the 2010 Plan.
2013 Employee Stock Purchase Plan
Our ESPP permits eligible employees to purchase shares of our common stock at a discount and consists of consecutive, overlapping 24-month offering periods,
each consisting of four six-month purchase periods. On the first day of each offering period, each employee who is enrolled in the ESPP will automatically receive an
option to purchase up to a whole number of shares of our common stock. The purchase price of each of the shares purchased, in a given purchase period, will be equal to
85% of the closing price of a share of our common stock, on the first day of the offering period or the last day of the purchase period, whichever is lower. During the year
ended December 31, 2022, 111,155 shares of common stock were purchased for total proceeds of approximately $0.1 million. During the year ended December 31, 2021,
57,561 shares of common stock were purchased for total proceeds of approximately $0.1 million.
Compensation Expense
Total stock-based compensation expense related to all equity awards was comprised of the following:
Year Ended December 31,
2022
2021
(in thousands)
Research and development
$
1,291
$
830
General and administrative
2,330
1,865
Total stock-based compensation expense
$
3,621
$
2,695
As of December 31, 2022, we had approximately $8.1 million of total unrecognized compensation cost related to unvested common stock options, restricted
stock units and awards under our ESPP, which are expected to be recognized over a weighted-average period of two years.
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Stock Options
We estimate the fair value of stock options at the date of grant using the Black-Scholes valuation model with the following weighted-average assumptions:
December 31,
2022
2021
Risk-free interest rate
2.1 %
0.9 %
Expected annual dividend yield
—
—
Expected stock price volatility
105.0 %
106.3 %
Expected term of options
5.9 years
5.9 years
The valuation assumptions were determined as follows:
•
Risk-free interest rate: The yield on zero-coupon U.S. Treasury securities for a period that was commensurate with the expected term of the awards.
•
Expected annual dividend yield: The estimate for annual dividends was zero because we have not historically paid a dividend and do not intend to do so in
the foreseeable future.
•
Expected stock price volatility: We determined the expected volatility by using our available implied and historical price information.
•
Expected term of options: The expected term of the awards represents the period of time that the awards were expected to be outstanding. We use the
simplified method to estimate expected term as we do not have sufficient historical exercise data to provide a reasonable basis on which to estimate the
expected term. Under this method, the expected life equals the average of the vesting term and the original contractual term of the option.
A summary of our stock option activity for the year ended December 31, 2022 is as follows:
Stock Options
Weighted-Average
Exercise Price
per Share
Weighted-Average
Remaining
Contractual Life
(years)
Aggregate
Intrinsic Value
(in millions)
Outstanding at January 1, 2022
12,689,439
$
3.53
Granted
2,886,324
1.36
Exercised
(17,708)
0.83
Forfeited
(238,129)
1.46
Expired
(656,229)
8.30
Outstanding at December 31, 2022
14,663,697
$
2.93
6.3 $
—
Exercisable at December 31, 2022
10,903,188
$
3.33
5.6 $
—
The weighted-average fair value per share of options granted during the years ended December 31, 2022 and 2021 was $1.10 and $2.69, respectively.
The aggregate intrinsic value of options outstanding at December 31, 2022 was calculated based on the positive difference, if any, between the closing fair
market value of our common stock on December 31, 2022 and the exercise price of the underlying options.
The aggregate intrinsic value of options exercised during the year ended December 31, 2022 was nominal. The aggregate intrinsic value of options exercised
during the year ended December 31, 2021 was $0.8 million.
No related income tax benefits were recorded during the years ended December 31, 2022 or 2021.
We settle employee stock option exercises with newly issued shares of our common stock.
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Restricted Stock Units
A summary of our RSU activity for the year ended December 31, 2022 is as follows:
Restricted Stock Units
Weighted-Average
Grant Date
Fair Value per Unit
Outstanding, non-vested at January 1, 2022
50,000
$
2.93
Granted
2,950,483
1.08
Vested
(50,000)
2.93
Forfeited
(10,667)
1.08
Outstanding, non-vested at December 31, 2022
2,939,816
$
1.08
The total fair value of RSUs vested during the year ended December 31, 2022 was nominal. No RSUs vested during the year ended December 31, 2021.
4. Cash, Cash Equivalents and Available-for-Sale Securities
As of December 31, 2022 and 2021, we had cash and cash equivalents of $38.3 million and $80.7 million, respectively. We have not incurred any unrealized
gains or losses on our cash and cash equivalents balances as of December 31, 2022 and 2021.
During the years ended December 31, 2022 and 2021, we held debt securities classified as available-for-sale securities. We had no material realized gains or
losses on our available-for-sale securities for the years ended December 31, 2022 and 2021.
5. Fair Value
We measure certain financial instruments at fair value on a recurring basis. The Company’s assets which are required to be measured on a recurring basis consist
of cash and cash equivalents totaling $38.3 million and $80.7 million as of December 31, 2022 and 2021, respectively. The Company’s liabilities which are required to be
measured on a recurring basis consist of a warrant liability in the amount of $0.2 million as of December 31, 2022 and 2021.
Cash and cash equivalents, which are measured using Level 1 inputs, consist of highly liquid deposit accounts and money market funds that are intended to
consistently transact at a target net asset value of $1.00. Accordingly, the carrying amounts reflected in the condensed consolidated balance sheets for cash and cash
equivalents approximate their fair value.
Warrant liability relates to potential future warrants that may be issued. The fair value of the warrant liability on the date of the commitment and on each re-
measurement date for those warrants classified as liabilities was estimated using the Monte Carlo simulation model, which involves a series of simulated future stock
price paths over the remaining life of the commitment. The fair value is estimated by taking the average of the fair values under each of many Monte Carlo simulations.
The fair value estimate is affected by our stock price, as well as estimated future financing needs, including timing and sources of the financing and subjective variables
including expected stock price volatility over the remaining life of the commitment and risk-free interest rate. Due to the nature of these inputs, the valuation of the
warrants is considered a Level 3 measurement. The fair value of the warrant liability as of December 31, 2022 has been included in accrued expenses and other current
liabilities on our consolidated balance sheet. The fair value of the warrant liability as of December 31, 2021 has been included in other liabilities on our consolidated
balance sheet. See Note 9 for further discussions of the accounting for the warrants.
There have been no changes to our valuation methods during the year ended December 31, 2022. We had no available-for-sale securities that were classified as
Level 3 at any point during the year ended December 31, 2022.
The carrying amounts reflected in the consolidated balance sheets for prepaid expenses and other current assets, other assets, accounts payable and accrued
expenses and other current liabilities approximate their fair value due to their short-term maturities.
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6. Prepaid Expenses and Other Current Assets
Prepaid expenses and other current assets consist of the following:
December 31,
2022
2021
(in thousands)
Prepaid expenses
$
1,429
$
1,143
Other current assets
560
399
Total prepaid expenses and other current assets
$
1,989
$
1,542
7. Property and Equipment
Property and equipment consist of the following:
December 31,
2022
2021
(in thousands)
Computer equipment and software
$
1,921
$
1,904
Furniture and fixtures
446
446
Leasehold improvements
1,743
1,743
4,110
4,093
Less accumulated depreciation
(3,310)
(2,852)
$
800
$
1,241
8. Accrued Expenses and Other Current Liabilities
Accrued expenses and other current liabilities consisted of the following:
December 31,
2022
2021
(in thousands)
Accrued clinical
$
4,290
$
4,998
Accrued professional services
785
88
Accrued consulting
742
475
Accrued compensation and benefits
605
2,835
Accrued development
335
755
Liability related to sale of future royalties, net, current portion
1,218
897
Operating lease liability, current portion
593
519
Other
655
413
Total accrued expenses
$
9,223
$
10,980
9. Liabilities Related to Sale of Future Royalties
HCR Agreement
In 2016, we and Verastem Inc., or Verastem, entered into an amended and restated license agreement, or the Verastem Agreement, under which we granted to
Verastem an exclusive worldwide license in oncology indications for the research, development, commercialization, and manufacture of duvelisib, or Copiktra , an oral,
dual inhibitor of PI3K delta and gamma, and products containing duvelisib, which we refer to as Licensed Products. In September 2020, Verastem completed a disposition
of its rights, title, and interest in and to duvelisib to Secura Bio, Inc., or Secura Bio, whereby Secura Bio assumed all liabilities and obligations under the Verastem
Agreement. We now refer to the Verastem Agreement as the Secura Bio Agreement.
®
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Secura Bio is obligated to pay us royalties on worldwide net sales of Licensed Products ranging from the mid-single digits to the high-single digits, a portion of
which we are obligated to share with Takeda Pharmaceuticals Company Limited, or Takeda, as described in Note 11.
In March 2019, we entered into a royalty purchase agreement, or the HCR Agreement, with HealthCare Royalty Partners III, L.P., or HCR, providing for the
acquisition by HCR of our interest in certain royalty payments based on worldwide annual net sales of Licensed Products under the Secura Bio Agreement for gross
proceeds of $30.0 million, which is non-refundable. After sharing with Takeda in accordance with the Takeda Amendment, as defined in Note 11, we retained $22.5
million in gross proceeds, or approximately $20.9 million in net proceeds. Under the HCR Agreement, HCR obtained the right to receive the royalty payments up to
agreed upon thresholds of royalties, the amount of which depends on when the aggregate royalties received by HCR reach specified thresholds. If the specified threshold
has been met through royalty payments from Secura Bio or if we elect to make a payment to meet the threshold amount, the HCR Agreement will automatically terminate
and all rights to the royalty stream under the HCR Agreement will revert back to us. If the specified threshold has not been achieved by June 30, 2025, the HCR
Agreement will continue through the term of the Secura Bio Agreement.
We recognized the receipt of the $30.0 million payment from HCR as a liability, net of debt discount and issuance costs of approximately $2.4 million. As the
basis for our determination, we considered, in accordance with the relevant accounting guidance, the potential for the royalty stream to revert back to us if specified
royalty thresholds have been met and our right to terminate the HCR Agreement by making a payment to achieve the threshold. We are not obligated to repay any of the
proceeds received under the HCR Agreement. In order to determine the amortization of the liability, we are required to estimate the total amount of future net royalty
payments to be made to HCR over the term of the HCR Agreement. The total threshold of net royalties to be paid, less the net proceeds received, will be recorded as
interest expense over the life of the liability. We impute interest on the unamortized portion of the liability using the effective interest method. Interest and debt discount
amortization expense is reflected as non-cash interest expense in the Consolidated Statements of Operations and Comprehensive Loss. Over the course of the HCR
Agreement, the actual interest rate will be affected by the amount and timing of royalty revenue recognized and changes in forecasted royalty revenue. On a quarterly
basis, we reassess the effective interest rate and adjust the rate prospectively as needed.
The following table shows the activity within the liability account for the years ended December 31, 2022 and 2021:
December 31,
2022
2021
(in thousands)
Liability related to sale of future royalties - beginning balance
$
28,038
$
28,869
Non-cash royalty revenue
(1,373)
(984)
Non-cash interest expense recognized
153
153
Liability related to sale of future royalties, net - ending balance
$
26,818
$
28,038
Less: current portion
(1,218)
(897)
Liability related to sale of future royalties, net, less current portion
$
25,600
$
27,141
As royalties are due to HCR by Secura Bio, the balance of the recognized liability will be effectively repaid over the life of the HCR Agreement. There are a
number of factors that could materially affect the amount and timing of royalty payments from Secura Bio, none of which are within our control.
BVF Agreement
On January 8, 2020, or the BVF Closing Date, we entered into a funding agreement, or the BVF Funding Agreement, with BVF Partners, L.P., or BVF, and
Royalty Security, LLC, a wholly-owned subsidiary of BVF, or the Buyer. BVF was subsequently replaced as a party to the BVF Funding Agreement with Royalty
Security Holdings, LLC. The BVF Funding Agreement provides for the acquisition by the Buyer of our interest in all royalty payments based on worldwide annual net
sales of a clinical-stage product candidate IPI-926, or patidegib, part of the hedgehog inhibitor program we licensed to PellePharm Inc., or PellePharm, in 2013, or the
BVF Licensed Product, excluding relevant Trailing Mundipharma Royalties, as defined in Note 11, which is related to patidegib. We refer to all BVF Licensed Product
royalties owed to us less Trailing Mundipharma Royalties as the Royalty or Royalties. In January 2023, PellePharm announced that Sol-Gel Technologies, Ltd., or Sol-
Gel, acquired all rights and obligations under the license agreement. We now refer to the license agreement with PellePharm as the Sol-Gel Agreement. Such Royalties
are owed to us pursuant to the Sol-Gel Agreement, as further described in Note 11.
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Pursuant to the BVF Funding Agreement, we received a non-refundable payment of $20.0 million, or the Upfront Purchase Price, less certain transaction
expenses. We transferred to the Buyer (i) the Royalty, (ii) the Sol-Gel Agreement (subject to our rights to milestone payments and rights to equity in Sol-Gel under the
Sol-Gel Agreement), and (iii) certain patent rights established in the BVF Funding Agreement, with (i), (ii), and (iii) together referred to as Transferred Assets. We
preserved our rights under the Sol-Gel Agreement to receive potential regulatory, commercial, and success-based milestone payments. We have the option to terminate the
BVF Funding Agreement by purchasing 100% of the outstanding equity interests of the Buyer under specified terms for a specified amount under the BVF Funding
Agreement through January 8, 2023. In addition, the BVF Funding Agreement may be terminated by mutual written agreement between us and the Buyer.
We recognized the proceeds received under the BVF Funding Agreement as a liability that will be amortized using the effective interest method over the life of
the arrangement. We recorded the receipt of the $20.0 million Upfront Purchase Price as a liability, net of debt issuance costs of approximately $0.4 million and warrant
liability of $0.3 million. We are not obligated to repay any of the proceeds received under the BVF Funding Agreement. In order to determine the amortization of the
liability, we are required to estimate the total amount of potential future net royalty payments to be made by Sol-Gel to the Buyer over the term of the BVF Funding
Agreement. The total estimated net royalties to be paid, less the net proceeds received, will be recorded as interest expense over the life of the liability. Interest and debt
discount amortization expense is reflected as non-cash interest expense for the years ended December 31, 2022 and 2021 in our consolidated statements of operations and
comprehensive loss. Over the course of the BVF Funding Agreement, the actual interest rate will be affected by the amount and timing of royalty revenue recognized, if
any, and changes in forecasted royalty revenue. There are a number of factors that could materially affect the amount and timing of royalty payments from Sol-Gel, none
of which are within our control. On a quarterly basis, we will reassess the effective interest rate and adjust the rate prospectively as needed.
The following table shows the activity within the liability account for the years ended December 31, 2022 and 2021:
December 31,
2022
2021
(in thousands)
Liability related to sale of future royalties - beginning balance
$
21,586
$
21,559
Non-cash interest expense recognized
27
27
Liability related to sale of future royalties, net - ending balance
$
21,613
$
21,586
For so long as we have not exercised an option to repurchase the Buyer’s equity interest under the BVF Funding Agreement, (a) if, during the 36-month period
following the BVF Closing Date, we issue a specified number of shares of our common stock, which we refer to as the Warrant Threshold, and (b) any shares in excess of
the Warrant Threshold are issued for consideration to us of less than $3.75 per share (as adjusted for any stock splits, reverse stock splits or other similar recapitalization
events), or the Threshold Price, then we are obligated to issue to BVF warrants to purchase a number of shares of our common stock. Such warrants would equal 50% of
the number of qualifying shares at an exercise price equal to 1.5 times the price per share of such qualifying shares issued. The requirement to issue warrants to BVF does
not apply to certain issuances of our common stock. As of December 31, 2022, the Warrant Threshold has been met and any future qualifying shares of our common stock
issued below the Price Threshold will result in warrants to purchase our common stock to be issued to BVF. No warrants have been issued to BVF as of December 31,
2022. Our obligation to issue warrants to BVF under these terms expired on January 8, 2023 without any warrants being issued to BVF.
We determined that the commitment to issue warrants represents a freestanding financial instrument and accounted for it as a liability as of the BVF Closing
Date. The fair value of the warrant liability was estimated using the Monte Carlo simulation model. The fair value of the warrant liability as of December 31, 2022 has
been included in accrued expenses and other current liabilities on our consolidated balance sheet. The fair value of the warrant liability as of December 31, 2021 has been
included in other liabilities on our consolidated balance sheet. Changes in fair value of the warrant liability are included in investment and other income (expense) in our
consolidated statements of operations and comprehensive loss. See Note 5 for further discussions of the fair value of the warrants.
10. Commitments and Contingencies
On April 5, 2019, we entered into a lease agreement, or the Lease, with Sun Life Assurance Company of Canada, or the Landlord, effective April 3, 2019, or the
Commencement Date, for the lease of approximately 10,097 square feet of office space at 1100 Massachusetts Avenue, Cambridge, Massachusetts, or the Leased
Premises. The term of the Lease commenced on the Commencement Date and expires on August 1, 2024, or the Expiration Date, approximately five years after the Rent
Commencement Date as defined below.
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Beginning August 1, 2019, or the Rent Commencement Date, the total base rent of the Lease was $47,961 per month and increases by approximately 3% on each
anniversary of the Rent Commencement Date until the Expiration Date. In addition to the base rent, we are also responsible for our share of the operating expenses,
insurance, real estate taxes and certain capital costs, and we are responsible for utility expenses in the Leased Premises, all in accordance with the terms of the Lease.
Pursuant to the terms of the Lease, we provided a security deposit in the form of a letter of credit in the initial amount of $300,000, which was reduced to $150,000 during
the year ended December 31, 2021 in accordance with the terms of the Lease. The remaining portion of the security deposit plus the associated bank fee of $7,500 is
included in our consolidated balance sheet as restricted cash as of December 31, 2022 and 2021. The Landlord provided a lease incentive allowance of $0.6 million to
fund certain improvements to be made by us to the Leased Premises.
Subject to certain conditions specified in the Lease, we have the right to extend the term of the Lease for two years, if we provide notice to the Landlord not
earlier than twelve months, nor later than nine months, prior to expiration of the Lease. The base rent for the extension term shall be equal to the greater of the base rent in
effect for the last year of the initial lease term or a fair market base rent determined according to the terms of the Lease.
The Lease contains customary provisions allowing the Landlord to, among other things, accelerate payments under the Lease or terminate the Lease in its
entirety if we fail to remedy a default of any of our obligations under the Lease within specified time periods or upon our bankruptcy or insolvency.
We have recorded a right-of-use asset and lease liability related to our data center lease and the Lease. The lease of our data center expired during the year ended
December 31, 2021. The following is a summary of our current lease included in the respective balance sheet classifications:
December 31,
2022
2021
Assets
(in thousands)
Operating lease right-of-use assets
$
697
$
1,064
Liabilities
Accrued expenses and other current liabilities
$
593
$
519
Operating lease liability
324
917
Total lease liabilities
$
917
$
1,436
As of December 31, 2022, the weighted average term remaining on our lease is 1.6 years, and the weighted average discount rate is 10%. As of December 31,
2021, the weighted average term remaining on our lease was 2.6 years, and the weighted average discount rate was 10%.
Operating lease costs, including variable costs, of $0.7 million were incurred during both the years ended December 31, 2022 and 2021. Cash paid for amounts
included in the measurement of lease liabilities were $0.6 million and $0.7 million during the years ended December 31, 2022 and 2021, respectively.
As of December 31, 2022, future minimum lease payments of our operating lease liabilities are as follows:
Operating Leases
(in thousands)
2023
$
658
2024
334
Total future minimum lease payments
992
Less: imputed interest
(75)
Total lease liability
$
917
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11. Strategic Agreements
We have worldwide development and commercialization rights to eganelisib, subject to certain obligations to our licensor, Takeda Pharmaceutical Company
Limited, or Takeda, as described in more detail below. Additionally, we are obligated to pay Mundipharma International Corporation Limited, or Mundipharma, and
Purdue Pharmaceutical Products L.P., or Purdue, a 4% royalty in the aggregate on worldwide net sales of products that were previously subject to our strategic alliance
with Mundipharma and Purdue that was terminated in 2012. Such products include eganelisib; duvelisib, the PI3K delta and gamma inhibitor that we licensed to Verastem
in 2016, the rights to which Verastem sold to Secura Bio in 2020; and IPI-926, or patidegib, part of the hedgehog inhibitor program we licensed to PellePharm in 2013,
and which license is now held by Sol-Gel. We refer to such royalties as Trailing Mundipharma Royalties. After Mundipharma and Purdue have recovered approximately
$260.0 million in royalty payments from all products that were previously subject to the strategic alliance, which represents the funding paid to us for research and
development services performed by us under this strategic alliance, the Trailing Mundipharma Royalties will be reduced to a 1% royalty on net sales in the United States
of such products. As of December 31, 2022, Mundipharma and Purdue have recovered $3.5 million.
PellePharm / Sol-Gel Technologies
In June 2013, we entered into a license agreement with PellePharm, under which we granted PellePharm exclusive global development and commercialization
rights to our hedgehog inhibitor program, including patidegib. In January 2023, PellePharm announced that Sol-Gel acquired all rights and obligations under the license
agreement. We refer to our license agreement with PellePharm as the Sol-Gel Agreement and products covered by the Sol-Gel Agreement as Hedgehog Products. We
assessed this arrangement in accordance with ASC 606 and concluded that at the date of contract inception there was only one performance obligation, consisting of the
license, which was satisfied at contract inception.
Under the Sol-Gel Agreement, Sol-Gel is obligated to pay us up to $9.0 million in remaining regulatory and commercial-based milestone payments through the
first commercial sale of a Hedgehog Product. Sol-Gel is also obligated to pay us up to $37.5 million in success-based milestone payments upon the achievement of certain
annual net sales thresholds, as well as a share of certain revenue received by Sol-Gel in the event that Sol-Gel sublicenses its rights under the Sol-Gel Agreement and
tiered royalties on annual net sales of Hedgehog Products subject to specified conditions. The remaining milestones have not been recognized as they represent variable
consideration that is constrained. In making this assessment, we considered numerous factors, including the fact that achievement of the milestones is outside of our
control and contingent upon the future success of clinical trials, Sol-Gel’s actions, and the receipt of regulatory approval. As the single performance obligation was
previously satisfied, all regulatory and commercial-based milestones will be recognized as revenue in full in the period in which the constraint is removed. Any
consideration related to sales-based milestone payments, including royalties, will be recognized when the related sales occur as these amounts have been determined to
relate predominantly to the license granted to Sol-Gel and therefore are recognized at the later of when the performance obligation is satisfied, or the related sales occur.
Sol-Gel is also obligated to pay us tiered royalties on annual net sales of Hedgehog Products, which are subject to reduction after a certain aggregate funding
threshold has been achieved. On January 8, 2020, we entered into the BVF Funding Agreement, as further described in Note 9, pursuant to which we sold our interest in
all royalty payments based on worldwide annual net sales of the BVF Licensed Product, excluding Trailing Mundipharma Royalties related to patidegib.
Takeda
In July 2010, we entered into a development and license agreement with Intellikine, Inc., or Intellikine, under which we obtained rights to discover, develop and
commercialize pharmaceutical products targeting the gamma and/or delta isoforms of PI3K, including eganelisib and duvelisib. In January 2012, Intellikine was acquired
by Takeda. In December 2012, we amended and restated our development and license agreement with Takeda and further amended the agreement in July 2014,
September 2016, July 2017, and March 2019. We refer to the amended and restated development and license agreement, as amended, as the Takeda Agreement.
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Duvelisib
Pursuant to the Takeda Agreement, prior to March 4, 2019, we were obligated to share equally with Takeda all revenue arising from certain qualifying
transactions for duvelisib, including the Secura Bio Agreement, subject to certain exceptions including revenue we receive as reimbursement for duvelisib research and
development expenses. On March 4, 2019, we entered into the fourth amendment to the Takeda Agreement, or the Takeda Amendment. Pursuant to the Takeda
Amendment, Takeda agreed (i) to the sale of certain royalty payments based on worldwide annual net sales of Licensed Products under the Secura Bio Agreement to
HCR, (ii) to forego its rights to an equal share of the royalties due from Secura Bio during the term of the HCR Agreement, and (iii) not to seek any payment from HCR
with respect to the royalties owed to Takeda. As consideration for the Takeda Amendment, we paid Takeda $6.7 million representing 25% of the $30.0 million in gross
proceeds we received from the closing of the HCR Agreement, net of 25% of the expenses incurred by us in connection with the HCR Agreement. In addition, we agreed
to pay Takeda 25% of the royalties that would have been payable to us by Secura Bio but for the consummation of the HCR Agreement, which we refer to as the Interim
Obligation. During the years ended December 31, 2022 and 2021, we recognized $0.3 million and $0.2 million, respectively, of Interim Obligation amounts owed to
Takeda as royalty expense.
We have the right to extinguish the Interim Obligation by payment to Takeda of an amount equal to (i) the $6.7 million payment multiplied by the multiple set
forth in the table below corresponding to the time period in which such extinguishing payment is made, minus (ii) any payments made to Takeda pursuant to the Interim
Obligation:
Time Period
Multiple
From the Takeda Amendment Effective Date until June 30, 2022
145 %
From July 1, 2022 through June 30, 2023
155 %
From July 1, 2023 through June 30, 2024
165 %
From July 1, 2024 through June 30, 2025
175 %
The Interim Obligation shall expire upon the termination of the HCR Agreement and the reversion of related royalties to us, at which time our obligations to
share the royalties payable under the Secura Bio Agreement equally with Takeda shall be reinstated.
Eganelisib
Pursuant to the Takeda Agreement, we are obligated to pay Takeda $3.0 million in a remaining success-based development milestone payment and up to $165.0
million in remaining regulatory and commercial-based milestone payments for one product candidate other than duvelisib, which could be eganelisib.
12. Income Taxes
We did not have any income tax expense for the years ended December 31, 2022 or 2021.
Our income tax expense for the years ended December 31, 2022 and 2021 differed from the expected U.S. federal statutory income tax expense as set forth
below:
Years Ended December 31,
2022
2021
(in thousands)
Expected federal tax benefit
$
(9,317)
$
(9,505)
Permanent differences
215
191
State taxes, net of the deferred federal benefit
(1,986)
(3,024)
Tax credit carryforwards
(1,533)
(1,416)
Adjustments to deferred tax assets and deferred tax liabilities
560
226
Other
15
(93)
Change in valuation allowance
12,046
13,621
Income tax expense (benefit)
$
—
$
—
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The significant components of our deferred tax assets and liabilities are as follows:
Years Ended December 31,
2022
2021
(in thousands)
Deferred tax assets (liabilities):
Net operating loss carryforwards
$
170,880
$
164,969
Tax credit carryforwards
45,270
44,302
Intangible assets
13,212
15,151
Capitalized research and development costs
8,104
—
Accrued expenses
655
1,255
Stock-based compensation
5,183
5,109
Sale of future royalties
13,212
13,557
Other
(105)
22
Valuation allowance
(256,411)
(244,365)
Net deferred tax assets (liabilities)
$
—
$
—
We have recorded a valuation allowance against our deferred tax assets in each of the years ended December 31, 2022, and 2021 because we believe that it is
more likely than not that these assets will not be realized. The valuation allowance increased by approximately $12.0 million during the year ended December 31, 2022
primarily due to new federal tax regulations effective for the year ended December 31, 2022 requiring that research and development costs be capitalized and amortized
over future periods compared to previous tax regulations which allowed for such expenses to be fully deductible in the year incurred. The increase in the valuation
allowance is also largely attributable to the increase in our unbenefited net operating loss for the current period. The valuation allowance increased by approximately
$13.6 million during the year ended December 31, 2021 primarily as a result of the increase in our unbenefited net operating loss for the period.
Subject to the limitations described below, at December 31, 2022, we have cumulative net operating loss carryforwards of approximately $653.2 million and
$533.3 million available to reduce federal and state taxable income, respectively. For federal purposes, the net operating loss carryforwards have begun to expire and will
continue to expire through 2037 for losses incurred before January 1, 2018. Federal losses generated after December 31, 2017 do not expire. As of December 31, 2022,
we have approximately $128.5 million of federal losses that do not expire. The state net operating loss carryforwards begin to expire in 2031 and continue to expire
through 2041. In addition, we have cumulative federal and state tax credit carryforwards of $37.7 million and $9.6 million, respectively, available to reduce federal and
state income taxes which expire through 2041 and 2036, respectively. Our net operating loss carryforwards and tax credit carryforwards are limited as a result of certain
ownership changes, as defined under Sections 382 and 383 of the Internal Revenue Code. This limits the annual amount of these tax attributes that can be utilized to offset
future taxable income or tax liabilities. The amount of the annual limitation is determined based on our value immediately prior to an ownership change. Subsequent
ownership changes may affect the limitation in future years. The net operating losses and tax credit carryforwards that have and will expire unused in the future as a result
of Section 382 and 383 limitations have been excluded from the amounts disclosed above. The latest Section 382 study was performed through December 31, 2021.
Ownership changes after that date could further reduce the Company’s ability to utilize the net operating loss and other attribute carryforwards.
At December 31, 2022 and 2021, we had no unrecognized tax benefits. As of December 31, 2022 and 2021, we had no accrued interest or penalties related to
uncertain tax positions and no amounts have been recognized in our consolidated statements of operations and comprehensive loss. We will recognize interest and
penalties related to uncertain tax positions in income tax expense. For all years through December 31, 2022, we generated research credits but have not conducted a study
to document the qualified activities. This study may result in an adjustment to our research and development credit carryforwards; however, until a study is completed and
any adjustment is known, no amounts are being presented as an uncertain tax position. A full valuation allowance has been provided against our research and
development credits and, if an adjustment is required, this adjustment would be offset by an adjustment to the deferred tax asset established for the research and
development credit carryforwards and the valuation allowance.
We file U.S. federal and Massachusetts state income tax returns. The statute of limitations for assessment by the Internal Revenue Service, or IRS, and state tax
authorities is closed for tax years prior to 2019, although carryforward attributes that were generated prior to tax year 2019 may still be adjusted upon examination by the
IRS or state tax authorities if they either have been or will be used in a future period.
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13. Stockholders’ (Deficit) Equity
Common Stock Sales Facility
On June 28, 2019, we entered into a Capital on Demand Sales Agreement with JonesTrading Institutional Services LLC, or JonesTrading, and on July 29, 2019
we amended and restated the sales agreement to add B. Riley Securities (f/k/a B. Riley FBR, Inc.), or B. Riley Securities, as a party to the agreement. On July 27, 2021,
we entered into an amendment to the agreement to increase the maximum aggregate offering price of the shares of common stock that we may issue and sell from time to
time under the agreement by $75.0 million to an aggregate of $95.0 million. We refer to the amended and restated sales agreement, as amended, as the ATM Sales
Agreement. During the year ended December 31, 2022, a portion of the aggregate offering price totaling $11.8 million expired without sale. As of December 31, 2022, we
had an aggregate of $75.0 million available for future sales. Pursuant to the ATM Sales Agreement we may offer and sell shares of our common stock from time to time
through JonesTrading or B. Riley Securities, each acting as our sales agent. We have agreed to pay commissions to the sales agents for their services in acting as agents in
the sale of our common stock in the amount of up to 3.0% of the gross proceeds from sales of our common stock pursuant to the ATM Sales Agreement. Sales of shares of
our common stock under the ATM Sales Agreement may be made by any method that is deemed to be an “at-the-market-offering” as defined in Rule 415(a)(4)
promulgated under the Securities Act of 1933, as amended. With our prior written approval, JonesTrading or B. Riley Securities may also sell the shares by any other
method permitted by law, including in negotiated transactions. We and JonesTrading or B. Riley Securities may suspend or terminate the offering of shares upon notice to
the other parties and subject to other conditions. During the year ended December 31, 2022, we did not sell any shares under the ATM Sales Agreement. During the year
ended December 31, 2021, we issued and sold 89,520 shares of common stock at a weighted average price per share of $3.83 at-the-market pursuant to the ATM Sales
Agreement for $0.3 million in net proceeds.
Public Offering
On February 11, 2021, we entered into a purchase agreement with Piper Sandler & Co., as representative of the underwriters named therein, pursuant to which
we issued and sold to the underwriters in an underwritten public offering an aggregate of 24,150,000 shares of our common stock, including 3,150,000 shares of common
stock sold in connection with the exercise in full of a 15% over-allotment option by the underwriters. The public offering price was $3.80 per share. The gross proceeds to
us from this offering were approximately $91.8 million. After underwriting discounts and commissions and offering expenses, we received net proceeds from the offering
of approximately $85.8 million.
Warrants
On February 24, 2014, we entered into a facility agreement with affiliates of Deerfield Management Company, L.P., or Deerfield. In connection with the
execution of the original facility agreement, we issued to Deerfield warrants to purchase an aggregate of 1,000,000 shares of common stock at an exercise price of $13.83
per share. The warrants have dividend rights to the same extent as if the warrants were exercised into shares of common stock. The warrants expire on the seventh
anniversary of their issuance and contain certain limitations that prevent the holder from acquiring shares upon exercise of a warrant that would result in the number of
shares beneficially owned by the holder exceeding 9.985% of the total number of shares of common stock then issued and outstanding. During the year ended
December 31, 2021, the warrants expired without being exercised.
14. Defined Contribution Benefit Plan
We sponsor a 401(k) retirement plan in which substantially all of our full-time employees are eligible to participate. Participants may contribute a percentage of
their annual compensation to this plan, subject to statutory limitations. During the years ended December 31, 2022 and 2021, we matched participants’ contributions up to
6% of the participant’s pre-tax salary. Our matching contributions for the years ended December 31, 2022 and 2021 was $0.3 million and $0.2 million, respectively.
15. Subsequent Events
On February 22, 2023, we, MEI Pharma, Inc., a Delaware corporation, or MEI, and Meadow Merger Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of MEI, or the Merger Sub, entered into an Agreement and Plan of Merger, or the Merger Agreement, pursuant to which, among other matters, and subject to
the satisfaction or waiver of the conditions set forth in the Merger Agreement, Merger Sub will merge with and into Infinity, with Infinity continuing as a wholly owned
subsidiary of MEI and the surviving corporation of the merger, which transaction is referred to herein as the Merger. If the Merger is completed, the combined company
will combine the expertise and resources of MEI and Infinity to advance a pipeline of three clinical-stage oncology drug candidates.
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We expect to devote significant time and resources to the completion of the Merger. However, there can be no assurances that such activities will result in the
completion of the Merger. Further, the completion of the Merger may ultimately not deliver the anticipated benefits or enhance shareholder value. If the Merger is not
completed, we will consider alternative courses of action. We consider one of the following courses of action to be the most likely alternatives if the Merger is not
completed:
•
Pursue another strategic transaction. We may resume the process of evaluating a potential strategic transaction, including the sale of the company or its assets.
Based on our prior assessment, we do not expect that we would have the necessary time or financial resources to pursue another strategic transaction like the
proposed Merger.
•
Wind down the company. If the Merger does not close and we are unable to enter into another strategic transaction, our board of directors may conclude that it is
in the best interest of stockholders to cease normal operations and wind down the company through bankruptcy or dissolution proceedings. In such case, there
would be no assurances as to the amount or timing of available cash remaining, if any, to distribute to stockholders after paying our obligations and setting aside
funds for reserves.
In conjunction with their approval of the Merger Agreement, our Board of Directors approved a strategic restructuring to preserve our resources. As a result, we
have reduced our overall headcount by four positions, representing approximately 13% of our workforce at the time we entered into the Merger Agreement. We expect to
incur approximately $1.6 million and $0.1 million in total restructuring charges in general and administrative expenses and research and development expenses,
respectively in the first quarter of 2023. These charges primarily consist of severance payments, employee benefits and related taxes, and stock-based compensation. Of
the aggregate restructuring costs, we expect approximately $0.9 million to be settled through future cash expenditures. We expect the workforce reduction will be
substantially completed by March 31, 2023.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
There have been no disagreements with our independent accountants on accounting and financial disclosure matters.
Item 9A. Controls and Procedures
Disclosure Controls and Procedures
Our management, with the participation of our principal executive officer and principal financial officer, evaluated the effectiveness of our disclosure controls
and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended, or the Exchange Act) as of December 31, 2022. In
designing and evaluating our disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated,
can provide only reasonable assurance of achieving their objectives, and our management necessarily applied its judgment in evaluating the cost-benefit relationship of
possible controls and procedures. Based on this evaluation, our principal executive officer and principal financial officer concluded that as of December 31, 2022, our
disclosure controls and procedures were (1) designed to ensure that material information relating to us is made known to our management including our principal
executive officer and principal financial officer by others, particularly during the period in which this report was prepared and (2) effective, in that they provide
reasonable assurance that information required to be disclosed by us in the reports we file or submit under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the U.S. Securities and Exchange Commission’s rules and forms.
Management’s report on our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) appears below.
Internal Control Over Financial Reporting
Management’s Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Internal control over financial reporting is
defined in Rules 13a-15(f) and 15d-15(f) promulgated under the Exchange Act as a process designed by, or under the supervision of, our principal executive and principal
financial officer and effected by our Board of Directors, management and other personnel, 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 and includes those policies and procedures
that:
•
Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the company;
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•
Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted
accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and
directors of the company; and
•
Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the company’s assets that could
have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Therefore, even those systems determined
to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Projections of any evaluation of effectiveness to
future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or
procedures may deteriorate.
Our management assessed the effectiveness of our internal control over financial reporting as of December 31, 2022. In making this assessment, management
used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission, or COSO, in Internal Control—Integrated Framework (2013).
Based on its assessment, management believes that, as of December 31, 2022, our internal control over financial reporting is effective based on those criteria.
Changes in Internal Control Over Financial Reporting
No change in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) occurred during the fiscal
quarter ended December 31, 2022 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information
None.
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
Not applicable.
PART III
Item 10. Directors, Executive Officers and Corporate Governance
The information required by this item relating to executive officers, including the Chair of our board Adelene Perkins, may be found in Part I, Item 1 of this
report under the heading “Business – Information about our Executive Officers.”
Directors
Director Qualifications
The following paragraphs provide information about each of our directors as of March 15, 2023. The information presented below includes information each
director has given us about his or her age, all positions he or she holds, his or her principal occupation and business experience for the past five years, and the names of
other publicly-held companies of which he or she currently serves as a director or has served as a director during the past five years. In addition to the information
presented below regarding each director’s specific experience, qualifications, attributes and skills that led our board to the conclusion that he or she should serve as a
director, we also believe that each of our director has a reputation for integrity, honesty and adherence to high ethical standards. Each has demonstrated business acumen
and an ability to exercise sound judgment, as well as a commitment of service to the Company and our board. Finally, we value their significant experience on other
public company boards of directors and board committees.
Samuel Agresta, M.D., M.P.H., age 50, has served as a member of our Board of Directors since October 16, 2019, and previously served as our Senior Vice
President, Chief Medical Officer from August 2018 to September 2019. Dr. Agresta has served as Chief Medical Officer at Foghorn Therapeutics, a private
pharmaceutical company, since October 2019. Prior to joining Infinity, Dr. Agresta held several positions at Agios Pharmaceuticals, Inc., or Agios, a publicly traded
biopharmaceuticals company, from 2011 to July 2018, most recently serving as Vice President and Head of Clinical Development since 2013. In this capacity he oversaw
the development and approval of enasidenib and ivosidenib for the treatment of patients with acute myeloid leukemia that harbor isocitrate dehydrogenase mutations.
Before joining Agios,
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Dr. Agresta held positions of responsibility in oncology clinical development at Merrimack Pharmaceuticals and Genentech, Inc., both publicly traded pharmaceuticals
companies. Prior to his industry experience, Dr. Agresta served on the oncology faculty at the H. Lee Moffitt Cancer Center and Research Institute where he specialized in
adolescent sarcoma care and participated in numerous industry trials. Dr. Agresta received his medical degree, internal medicine training, and served as chief resident at
Tulane University School of Medicine in New Orleans. While in medical school, he also received a master’s degree in public health and tropical medicine from Tulane
University School of Public Health. He completed his medical oncology fellowship at the University of South Florida and Moffitt Cancer Center and received a master’s
degree in clinical investigation from the University of South Florida. We believe Dr. Agresta’s qualifications to serve on our Board of Directors include his extensive
experience in the biopharmaceutical industry and his expertise in the development of biopharmaceutical products.
David Beier, J.D., age 74, has served as a member of our Board of Directors since April 1, 2018. Mr. Beier served as a Managing Director of Bay City Capital, a
life sciences investment firm, from February 2013 to December 2021. He previously served on the senior management teams of Amgen Inc. from December 2003 to
January 2013, where he most recently held the position of senior vice president, global policy, and Genentech, Inc., a member of the Roche Group, from April 1989 to
April 1998, where he most recently held the position of vice president, government affairs. Mr. Beier served in the White House from April 1998 to January 2001 as the
Chief Domestic Policy Advisor to Vice President Al Gore during the Clinton Administration. President Clinton appointed him to an Institute of Medicine panel on the
Future of Health and Human Services and as an advisor to the President’s Council of Advisors on Science and Technology. Mr. Beier was also formerly a partner in the
international law firm Hogan and Hartson, now Hogan Lovells, from April 2001 to December 2003 and was counsel to the U.S. House of Representatives Committee on
the Judiciary from April 1979 to April 1989. Mr. Beier has served on the board of directors at University of California, San Francisco, Benioff Children’s Hospitals since
2014, and the board of the Steinberg Institute, a California-based, non-profit research, policy and advocacy entity focused on issues of mental health and homelessness,
since March 2022. He formerly served on the board of directors at Arcus Biosciences, a publicly traded biotechnology company, from January 2018 to May 2020, and on
the board of directors of California Life Sciences Association, a life sciences advocacy and business leadership organization, from August 2017 to December 2021. He
received his J.D. from Albany Law School at Union University and his B.A. in history from Colgate University. As a globally recognized leader in health care policy,
pricing, intellectual property, government affairs, regulatory affairs, health care economics, and product commercialization, we believe that Mr. Beier is qualified to serve
on our Board of Directors.
Anthony B. Evnin, Ph.D., age 82, has served as a member of our Board of Directors since September 2006 and as a member of the Board of Directors of Infinity
Discovery, Inc., from June 2001 until the time of its merger with our predecessor company in September 2006. From 1975 to March 2021, Dr. Evnin served as a Partner
of Venrock, a venture capital firm. Dr. Evnin serves as a member of the board of directors of Bridge Medicines LLC, a privately held biopharmaceutical company, and is
also a Trustee Emeritus of The Rockefeller University, a Trustee Emeritus of The Jackson Laboratory, a Trustee Emeritus of Princeton University, a member of the boards
of Overseers and Managers of Memorial Sloan Kettering Cancer Center, a member of the board of directors of the New York Genome Center, and a member of the board
of directors of the Albert and Mary Lasker Foundation. Dr. Evnin previously served as a member of the board of directors of AVEO Pharmaceuticals, Inc., until January
2023, Cantel Medical Corporation until July 2021, and Constellation Pharmaceuticals, Inc., until January 2020, each a publicly traded biotech or medical equipment
company, and Redpin Therapeutics, a privately held biopharmaceutical company, until November 2022. Dr. Evnin received an A.B. in chemistry from Princeton
University and a Ph.D. in Chemistry from the Massachusetts Institute of Technology, or MIT. We believe Dr. Evnin’s qualifications to serve on our Board of Directors
include his substantial experience as an investor in, and director of, numerous biopharmaceutical companies as well as his expertise in corporate strategy.
Richard Gaynor, M.D., age 73, has served as a member of our Board of Directors since March 16, 2020. Dr. Gaynor has served as the President, Chief of
Research and Development, BioNTech US, formerly Neon Therapeutics, a public biotechnology company developing novel neoantigen-targeted T cell therapies, since
November 2016. Prior to his tenure at Neon Therapeutics, Dr. Gaynor spent 15 years in a series of senior roles at Lilly Oncology, most recently as Senior Vice President
Clinical Development and Medical Affairs, where he chaired the Lilly Oncology Research and Development Committee and helped oversee a variety of collaborations,
including with Bristol-Myers Squibb, Merck, AstraZeneca and GE. Prior to that role, Dr. Gaynor also led preclinical and early clinical oncology research at Eli Lilly.
Dr. Gaynor began his career in academia, spending nine years on the faculty at University of California, Los Angeles School of Medicine, followed by eleven years on the
faculty at the University of Texas Southwestern Medical School, including time serving as the chief of hematology-oncology and director of the Simmons Cancer Center.
He holds an M.D. from the University of Texas Southwestern Medical School and, following his residency in internal medicine there, he completed fellowship training in
hematology-oncology at the University of California, Los Angeles, School of Medicine. He is the author of nearly 150 publications and participates on numerous advisory
boards and committees, including the American Association of Cancer Research, the Stand Up To Cancer scientific advisory committee, and the Damon Runyon Cancer
Research Foundation. Dr. Gaynor has served on the board of directors of Alkermes plc., a publicly traded pharmaceutical company specializing in
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neuroscience and oncology, since September 2019, and Zai Lab Ltd., a publicly traded biopharmaceutical company, since November 2021. We believe Dr. Gaynor's
qualifications to serve on our Board of Directors include his extensive experience as a senior business executive in the biopharmaceutical industry and as a thought leader
in academia.
Sujay R. Kango, age 59, has served as a member of our Board of Directors since March 30, 2022. Mr. Kango joined Tmunity Therapeutics as President and
Chief Executive Officer in September 2022 until it was acquired in February 2023 by Kite, a Gilead Sciences, Inc., company. Mr. Kango previously served as Chief
Commercial Officer at Acceleron Pharma Inc., which was acquired by Merck Sharp & Dohme in November 2021, until December 2021, and was responsible for
establishing the company’s North America commercial presence for luspatercept. Previously, Mr. Kango served as the vice president of global commercial development
at AbbVie Inc. until February 2018, prior to which he also served as the executive vice president and chief commercial officer at Infinity until 2016. Mr. Kango also
served as vice president, global marketing, and sales operations at Onyx Pharmaceuticals, an Amgen subsidiary. Prior to Onyx, he held several leadership positions
including vice president sales and marketing-oncology at Merck & Co., global commercial leader-Procrit®/Eprex® at Ortho-Biotech, and various sales and marketing
positions at Schering-Plough. Mr. Kango has served on the board of MEI Pharma, Inc., since December 2021 and Tceleron Therapeutics, a privately held
biopharmaceutical company created during the Kite acquisition of Tmunity, since February 2023. Mr. Kango earned a B.S. in Microbiology and an M.B.A. from
McNeese State University. With more than 25 years of experience as an executive in the pharmaceutical and biotechnology industries, and with extensive experience
building commercial infrastructures and teams and leading multiple global product launches, we believe Mr. Kango is qualified to serve on our Board of Directors.
Adelene Q. Perkins, age 63, has served as a member of our Board of Directors since January 2010, including as Chair of our Board of Directors since November
2012, and as our Chief Executive Officer since January 2010. She has also served as our President from January 2010 to January 2017, as our President and Chief
Business Officer from October 2008 through December 2009 and as our Executive Vice President and Chief Business Officer between September 2006 and October
2008. Ms. Perkins served as Executive Vice President of Infinity Discovery, Inc., from February 2006 until the merger with our predecessor company in September 2006
and Chief Business Officer of Infinity Discovery, Inc., from June 2002 until September 2006. Ms. Perkins served as Vice President of Business and Corporate
Development of TransForm Pharmaceuticals, Inc., a privately held specialty pharmaceutical company, from 2000 to 2002. From 1992 to 1999, Ms. Perkins held various
positions at Genetics Institute, most recently serving as Vice President of Emerging Business and General Manager of the DiscoverEase® business unit, and from 1985 to
1992 advised clients in the healthcare industry while at Bain & Company, a strategy consulting firm. Ms. Perkins has served on the board of directors for the
Biotechnology Industry Organization since 2012; the Bruker Corporation, a publicly traded manufacturer of analytic instruments, since 2017; Massachusetts General
Hospital since 2017; the Massachusetts Biotechnology Council, a not-for-profit organization, since 2014; and Project Hope, a not-for-profit social services company, since
2013. Ms. Perkins received a B.S. in chemical engineering from Villanova University and an M.B.A. from Harvard Business School, or HBS. We believe Ms. Perkins’
qualifications to serve on our Board of Directors include her extensive experience as a senior business executive in the biopharmaceutical industry, including as our
President and Chief Executive Officer, and her expertise in corporate strategy and business operations.
Brian Schwartz, M.D., age 61, has served as a member of our board of directors since September 7, 2021 and previously served as our consulting chief
physician since April 2020. He previously served as chief medical officer at ArQule Inc., a publicly traded pharmaceutical company, from 2008 until it was acquired by
Merck & Co. in late 2019. With over 25 years of drug development experience, including senior leadership roles at ArQule, Ziopharm Oncology, Inc., Bayer AG, and
LeoLabs, Inc., Dr. Schwartz has contributed to several successful new drug applications (NDAs) and investigational new drug (IND) applications. Dr. Schwartz is a board
member of Enlivex Therapeutics Ltd. and Cyclacel Pharmaceuticals, Inc., each a publicly traded biotechnology company, and an advisor in different capacities to
numerous biotechnology companies. Dr. Schwartz also served on the board of directors for the publicly traded biotechnology company Mereo BioPharma Group plc from
July 2020 to December 2022, as well as LifeSci Acquisition Corp., formerly a special purpose acquisition company, in 2020. He received his medical degree from the
University of Pretoria, South Africa, completed a fellowship at the University of Toronto, Canada and practiced medicine prior to his career in the biopharmaceutical
industry. We believe Dr. Schwartz’s qualifications to serve on our Board of Directors include his extensive experience in leadership positions in the biopharmaceutical
industry and his experience developing and commercializing immuno-oncology biopharmaceutical products.
Norman C. Selby, age 70, has served as a member of our Board of Directors since March 2012. Mr. Selby has spent over 40 years in the healthcare industry in
various consulting, managerial, investor, and board roles. Currently his primary focus is on Real Endpoints, LLC, a private healthcare information and analytics company
he helped to found and where has been a board member since October 2010. He previously co-founded Paige.AI, an artificial intelligence company focused on
computational pathology, where he was a board member from May 2017 to January 2020. Among earlier healthcare roles, Mr. Selby served as the Chief Executive
Officer of TransForm Pharmaceuticals from 2001 until 2005 and served as Executive Chairman of Physicians Interactive Holdings from 2008 to 2013. Prior to TransForm
Pharmaceuticals, Mr. Selby was an Executive Vice President at Citigroup/Citicorp from 1997 to 2000. Mr. Selby spent the bulk of his career, from 1978 to 1997, at
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McKinsey & Company where he was Director (Senior Partner) in the firm’s New York office. He held several leadership roles at McKinsey, including head of the firm’s
Global Pharmaceuticals and Medical Products Practice. From 1987 to 1989, Mr. Selby took a leave of absence from McKinsey to serve as Chief Operating Officer of the
New York Blood Center, the largest community blood organization in the country, where he led its financial and operational turnaround. Mr. Selby previously served as a
member of the board of directors of Escalier Biosciences and Oppilan Pharma, Ltd., each private biotechnology companies, each until January 2021, respectively. Mr.
Selby also previously served as a director of Millenium Pharmaceuticals (MLNM) from 2000 to 2008, as well as several privately held healthcare companies. Mr. Selby
serves on the Board of Trustees of the Central Park Conservancy and the Memorial Sloan Kettering Cancer Center, and is a member of the Council on Foreign Relations
and the advisory board of HBS’s Healthcare Initiative. Mr. Selby holds a B.A. in architecture from Yale College and an M.B.A. with Distinction from HBS. We believe
Mr. Selby’s qualifications to serve on our Board of Directors include his extensive experience as a senior business executive in the biopharmaceutical industry, and his
expertise in corporate strategy, finance, and commercialization of biopharmaceutical products.
Audit Committee
Our board has empaneled an audit committee, the current members of which are Dr. Evnin (Chair) and Messrs. Beier and Selby. Our Board of Directors has
determined that Dr. Evnin is an “Audit Committee financial expert” as defined in Item 407(d)(5)(ii) of Regulation S-K, and that each of these members is independent as
such term is defined under the applicable rules of the Nasdaq Stock Market and as is contemplated by Rule 10A-3 under the Exchange Act.
Director Candidates: Criteria and Diversity
Our Board currently is comprised of eight directors and embodies the principles of diversified background and thought. As presently constituted, our board
includes one woman and one person of color. While we do not have a formal policy with respect to diversity, the value of diversity on the Board of Directors is considered
by the Nominating and Corporate Governance Committee, and director are not discriminated against on the basis of race, gender, religion, national origin, sexual
orientation, disability or any other basis proscribed by law. Furthermore, the Nominating and Corporate Governance Committee intends to be mindful of diversity, with
respect to gender, race and national origin, in connection with future nominations of directors not presently serving on the Board.
Board Diversity Matrix
(as of March 15, 2023)
Total Number of Directors: 8
Female
Male
Part I: Gender Identity
Directors
1
7
Part II: Demographic Background
Asian
0
1
White
1
6
Code of Conduct and Ethics
We have also adopted a written Code of Conduct and Ethics that applies to our directors, officers and employees, who we refer to as citizen-owners, including
our principal executive officer, principal financial officer, principal accounting officer, and persons performing similar functions. In addition to our having posted a copy
of our code on our website, we intend to post on our website all disclosures that are required by law or the Nasdaq Stock Market listing standards concerning any
amendments to, or waivers of, our code.
Item 11. Executive Compensation
The following discussion provides details of the compensation and other benefits paid by us to certain executive officers for services provided for the years
ended December 31, 2022 and 2021 and to the members of our board of directors for services provided for the year ended December 31, 2022.
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Summary Compensation Table for Named Executive Officers
Name and Principal Position
Year
Salary
($)
Bonus
($)
Stock
Awards
($)
Option
Awards
($)
Non-Equity
Incentive Plan
Compensation
($)
All Other
Compensation
($)
Total ($)
Current Named Executive Officers
Adelene Q. Perkins,
Chief Executive Officer
2022
689,585
—
—
721,047
—
11,922
1,422,554
2021
689,585
—
—
—
448,230
11,472
1,149,287
Lawrence Bloch, M.D., J.D.
President
2022
502,654
—
—
419,286
—
10,956
932,896
Robert Ilaria, Jr., M.D.
Chief Medical Officer
2022
456,875
185,000
—
109,480
—
11,922
763,277
2021
143,846
150,000
—
878,520
55,577
9,590
1,237,533
1.
The amount in this column represents the value of a one-time grant of restricted stock units, or RSUs, granted in 2022 where each RSU represents a contingent right to receive one share of our common
stock. As of each grant date, it was deemed to be not probable that the pre-specified performance-based vesting conditions related to each award would be achieved. See the information in Note 3,
"Stock-Based Compensation," to our consolidated financial statements, included in this Annual Report on Form 10-K for the year ended December 31, 2022, for assumptions made in determining these
values. Assuming all performance conditions are achieved, the aggregate grant date value of the restricted stock units based on the closing price of our common stock on grant date as reported by
NASDAQ for Ms. Perkins, Dr. Bloch and Dr. Ilaria are $829,584, $482,400 and $385,287, respectively, as computed in accordance with FASB ASC Topic 718. Each RSU award will vest in full upon
the achievement of certain performance metrics prior to June 30, 2024, or earlier upon our termination without cause of the employment of the award recipient.
2.
The amounts in this column reflect the aggregate grant date fair value of option awards as computed in accordance with FASB ASC Topic 718 and granted during the applicable fiscal year. See the
information in Note 3, "Stock-Based Compensation," to our consolidated financial statements, included as part of this Annual Report on Form 10-K for the year ended December 31, 2022, for
assumptions made in determining these values.
3.
For 2022, the amounts in this column reflect amounts paid to Ms. Perkins under the contingent cash compensation program described under the section entitled “Narrative Disclosure to Summary
Compensation Table” in this Annual Report on Form 10-K for the year ended December 31, 2022. For 2021, the amounts in this column reflect amounts paid to each of our named executive officers
under the contingent cash compensation program in “Compensation Discussion and Analysis” in the DEF-14A annual proxy filed April 25, 2022.
4.
Amounts in this column represent the sum of (i) any life insurance premiums paid on behalf of the officer and (ii) the amount contributed to the officer’s 401(k) account as a matching contribution.
5.
Ms. Perkins received the amounts listed above for service as our Chief Executive Officer for 2022 and 2021 and received no compensation for service as a director for all years reported.
(1)
(2)
(3)
(4)
(5)
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Outstanding Equity Awards at Fiscal Year-End Table
Option Awards
Stock Awar
Name
Number of Securities
Underlying
Unexercised Options
(#)
Exercisable
Number of Securities
Underlying Unexercised
Options (#)
Unexercisable
Option
Exercise
Price
($)
Option
Expiration
Date
Equity
incentive
plan awards:
Number of
unearned
shares, units or
other rights that
have not vested
(#)
plan
or p
share
righ
Stock Options
Restricted Stock
Adelene Q. Perkins
153,835
—
36.85
1/4/2023
768,133
85,500
—
12.91
1/10/2024
—
250,000
—
15.74
1/14/2025
—
185,000
—
6.71
1/6/2026
—
1,000,000
—
1.46
1/6/2027
—
180,000
—
2.23
1/2/2028
—
500,000
—
1.99
1/8/2028
—
243,000
—
1.24
1/4/2029
—
242,000
—
1.24
1/4/2029
—
454,688
151,562
1.25
1/10/2030
—
252,604
232,396
2.14
12/22/2030
—
144,025
432,075
1.53
1/11/2032
—
Stock Options
Restricted Stock
Lawrence Bloch, M.D., J.D.
32,800
—
36.85
1/4/2023
446,667
32,200
—
12.91
1/10/2024
—
125,000
—
15.74
1/14/2025
—
70,000
—
6.71
1/6/2026
—
500,000
—
1.46
1/6/2027
—
250,000
—
1.74
5/27/2027
—
100,000
—
2.23
1/2/2028
—
335,000
—
1.24
1/4/2029
—
100,000
—
1.24
6/13/2029
—
314,063
104,687
1.25
1/10/2030
—
174,479
160,521
2.14
12/22/2030
—
83,750
251,250
1.53
1/11/2032
—
Stock Options
Restricted Stock
Robert Ilaria, Jr., M.D.
93,750
206,250
3.59
9/1/2031
356,747
21,868
65,604
1.53
1/11/2032
—
1.
Vests in equal monthly installments on the last day of each month through January 31, 2024.
2.
Vests in equal monthly installments on the last day of each month through December 31, 2024.
3.
Vests in equal monthly installments on the last day of each month through January 31, 2026.
4.
Vested as to one quarter of the shares on September 1, 2022 and thereafter vests as to the remaining shares in equal monthly installments through September 1, 2025.
5.
Totals in this column represent the unvested portion of a performance-based restricted stock award granted on August 11, 2022, which vests upon the achievement of certain performance metrics, as
determined by our Compensation Committee, prior to June 30, 2024, or earlier upon our termination without cause of the employment of the award recipient.
6.
Market value is based on the closing price of $0.555 per share of our common stock on December 30, 2022 (the last day of trading in 2022) as reported on the NASDAQ Global Select Market.
(5)
(1)
(2)
(3)
(1)
(2)
(3)
(4)
(3)
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Narrative Disclosures to Executive Summary Compensation Table and Outstanding Equity At Fiscal Year-End Table
We review compensation for our executive officers annually. The material terms of the elements of our executive compensation program for 2022 are described
below.
The objectives of our compensation program are to attract, retain and motivate high caliber clinical, scientific and business professionals to develop and execute
our business plan and achieve our mission; ensure that compensation aligns our citizen-owners with our corporate strategy and business objectives; promote the
achievement of important and measurable scientific, business, organizational and operational goals by linking annual cash bonus and long-term equity incentives to the
achievement of these goals; and, to align incentives with the creation of stockholder value.
The key elements of our compensation program discussed in further detail below include an annual base salary, annual performance-based cash bonus awards,
and equity awards, typically in the form of stock options or restricted stock units. Additionally, we offer an employee stock purchase plan, a severance benefits plan and
employee benefits, such as health and life insurance, and a 401(k) retirement savings plan with partial matching of employee contributions in the form of cash.
Our Compensation Committee is responsible for reviewing and approving the compensation of our executive officers. In determining the compensation of our
executive officers, our Compensation Committee considers the Company’s performance against annual goals approved by the Board of Directors, the individual
performance of our executive officers, the alignment of executive compensation with our compensation objectives described above, compensation for comparable
positions at other companies in our industry that compete with us for talent. Additionally, the allocation of compensation between long-term and short-term compensation,
between cash and non-cash compensation, or among the different forms of non-cash compensation is determined by the Compensation Committee after reviewing
relevant information of other companies with whom we compete for talent and other relevant data, including industry compensation survey data, as well as what it
believes to be the appropriately competitive level and mix of the various compensation components.
Near the end of each year, our executive leadership team conducts a qualitative and quantitative assessment of our overall Company performance against goals
and recommends a Company performance rating to our Compensation Committee for consideration within a range between 0.7x of target bonus opportunity where the
overall Company performance rating was “Met Some Goals” and 1.5x of target bonus opportunity where the overall Company performance rating was “Exceeded All
Goals”. There is no guaranteed minimum bonus for named executive officers where the weighted-average assessment of overall Company performance is determined to
be less than a rating of “Met Some Goals.” The Compensation Committee makes the final determination to what level of performance was achieved as measured against
the Company goals. The Compensation Committee may review, and historically has reviewed, its assessment with our Board of Directors, although the Compensation
Committee is not required to do so.
As part of our annual individual performance evaluation process for Ms. Perkins, the Chair of the Compensation Committee solicits and organizes feedback from
our Board of Directors and our human resources function solicits and organizes feedback from Company management. The Chair of the Compensation Committee meets
with her to summarize her annual performance assessment and to provide development feedback. Additionally, Ms. Perkins prepares written performance reviews of her
direct reports, including Drs. Ilaria and Bloch, and discusses these reviews with the Compensation Committee.
Base Salary
Each of our named executive officers receives a base salary that is intended to provide a fair and competitive base level of compensation for day-to-day
performance. Base salaries are originally established at the time such executive is hired in consideration of the intended responsibilities of the executive officer, their
individual experience and skills, internal equity, external peer company data, and negotiations during the recruiting process. The base salaries of our executive officers are
reviewed annually and may be adjusted to reflect market conditions and their performance during the prior year as well as our financial position, or if there is a change in
the scope of the officer’s responsibilities or a promotion to a more senior level. We do not provide for any formulaic or guaranteed increases for any of our executive
officers.
For the fiscal year ended December 31, 2022, the annual base salary for Ms. Perkins was $698,585, the annual base salary for Dr. Bloch was $502,654, and the
annual base salary for Dr. Ilaria was $456,875.
Annual Contingent Cash Bonus
Under our contingent cash compensation program, the Compensation Committee establishes a pool of cash available for potential award, as a percentage of
aggregate base salary for all citizen-owners at specified levels of seniority, based on the Compensation Committee’s assessment of overall Company performance. Our
Compensation Committee establishes annual contingent cash bonus targets for each of our named executive officers. For the fiscal year ended December 31, 2022, annual
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target contingent cash bonus opportunities as a percent of base salary for Ms. Perkins, Dr. Bloch and Dr. Ilaria were 65%, 50%, and 40%, respectively.
Decisions by the Compensation Committee regarding individual annual cash bonuses are driven by an assessment of Company and individual performance
against predetermined goals related to the development of eganelisib and corporate development. Ms. Perkins’ annual cash bonus is entirely based on Company
performance relative to goals. In the case of Drs. Bloch and Ilaria, contingent cash bonus is a factor of both Company and individual performance. Dr. Bloch’s
performance assessment is based 90% on Company performance and 10% on individual performance. Dr. Ilaria’s performance assessment is based 80% on Company
performance and 20% on individual performance.
Following a review of 2022 Company performance, our Compensation Committee determined that the overall Company performance rating was less than “Met
Some Goals” and determined not to make annual cash bonus payments to any of our named executive officers. Payments under the contingent cash compensation
program for 2021 are shown in the Summary Compensation Table under the caption “Non-Equity Incentive Plan Compensation.”
Equity Incentive Awards
Our equity award program is the primary vehicle for offering long-term incentives to our named executive officers. We believe that equity grants are
fundamental to providing our named executive officers with a strong link to our long-term performance and aligning the interests of our named executive officers with
that of our non-employee stockholders by allowing named executive officers to participate in our long-term success as reflected in stock price appreciation. In addition,
the vesting feature of our equity grants is intended to further our goal of retention because it provides an incentive for our named executive officers, to remain in our
employ during the vesting period. All equity-based awards made to our named executive officers are approved by the Compensation Committee.
Our equity awards have generally taken the form of stock options or, less frequently, performance-based or time-based restricted stock units. Stock options are
typically granted to new executive officers upon their hire and typically vest as to one-quarter of the shares on the first anniversary of the date of hire, and in equal
monthly installments over the following three years. All stock options granted under our equity incentive plans have a maximum term of ten years and substantially all
awards have vesting rights that terminate upon termination of service to us and exercise rights that cease shortly after termination of service to us. Prior to the exercise of
an option, the holder has no rights as a stockholder with respect to the shares underlying such option, including no voting rights and no right to receive dividends or
dividend equivalents. The exercise price per share for each stock option granted by us is equal to the closing price of a share of our common stock on the date of grant. In
the event of a change of control of the Company, under the terms of the equity awards made under our 2010 Stock Inventive Plan and 2019 Equity Incentive Plan (the
“2019 Plan”), vesting fully accelerates in the case of restricted stock units.
We do not seek to coordinate the timing of equity grants to our named executive officers with our release of material non-public information, and our named
executive officers are prohibited from pledging or engaging in short sales or derivative transactions of our securities. We have not adopted stock ownership guidelines for
our named executive officers; however, we encourage our named executive officers to maintain an equity position in the Company.
Our named executive officers are eligible to receive stock option grants in connection with the annual performance review process. For stock option grants made
in January 2022, the Compensation Committee determined target award sizes and vesting schedules that were informed by an assessment of executive compensation by
the Compensation Committee’s consultant Radford, an Aon Hewitt company, which we refer to as Radford. The Compensation Committee additionally considered 2021
overall Company performance assessment and 2021 individual performance assessment for each named executive officer to determine actual sizes of grants made in
January 2022.
On January 11, 2022, we granted Ms. Perkins, Dr. Bloch and Dr. Ilaria options to purchase 576,100, 335,000, and 87,472 shares, respectively, under our 2019
Plan. Each of these options is exercisable at a price per share of $1.53 and vests as to 1/48th of the shares on January 31, 2022 and as to 1/48th of the shares at the end of
each calendar month thereafter, in each case subject to continued services provided by the award recipient through the vesting date.
On August 11, 2022, we granted Ms. Perkins, Dr. Bloch and Dr. Ilaria restricted stock units of 768,133, 446,667, and 356,747, respectively, under our 2019 Plan.
Each of these restricted stock unit awards vests in full upon the achievement of certain performance metrics prior to June 30, 2024, or earlier upon our termination
without cause of the employment of the award recipient. If the Merger is successfully consummated, the performance condition will be satisfied and Ms. Perkins’ and Dr.
Ilaria’s RSUs will vest in full. Dr. Bloch’s RSUs will vest in full in connection with his termination from the Company on March 31, 2023, subject to the terms and
conditions of the Executive Severance Plan applicable to receiving severance and benefits under the Executive Severance Plan.
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Executive Retention Agreements
On February 22, 2023, the Company entered into a Retention and Severance Protection Agreement with each of Ms. Perkins, which we refer to as the Perkins
Agreement, and Dr. Ilaria, which we refer to as the Ilaria Agreement (the Perkins Agreement and Ilaria Agreement together referred to as the Executive Retention
Agreements). The Executive Retention Agreement will be subject to, and contingent and effective upon, the closing of the Merger. Pursuant to their respective Executive
Retention Agreement, they each agree to remain in the employ of the Company through the closing date of the Merger. In addition, they each remain subject to our
Executive Severance Benefits Plan, or the Severance Plan (as described further below); provided that the Executive Retention Agreements replace clause (i) of the
Severance Plan’s definition of “Cause” as applied to each by “a good faith finding by the Board of Directors of the Company or its public parent corporation of a knowing
and willful failure by the employee to perform the employee’s material duties for the Company in a manner reasonably acceptable to the Company, which failure
continues for a period of more than 30 days after notice thereof has been provided to the employee in writing by the Company, setting forth in reasonable detail the nature
of such failure” and provides that any severance payment under the Severance Plan will be made as a lump sum rather than in installments.
Pursuant to the Perkins Agreement, upon, and in connection with, the closing of the Merger, Ms. Perkins’ employment with the Company will terminate without
Cause and she will join the MEI Board of Directors. Additionally, as an incentive for Ms. Perkins to remain employed, Ms. Perkins will be eligible to receive a retention
bonus, or the Perkins Retention Bonus, in the amount of $250,000, payable in the payroll that follows the closing date of the Merger. If Ms. Perkins’ employment with the
Company terminates for any reason prior to the closing date of the Merger, no portion of the Perkins Retention Bonus will be paid to Ms. Perkins.
Pursuant to the Ilaria Agreement, as an incentive for Dr. Ilaria to remain employed through the closing and through December 31, 2023, Dr. Ilaria will be eligible
to receive a retention bonus, or the Ilaria Retention Bonus, in the amount of $250,000, payable 50% in the payroll following June 30, 2023, with the remainder payable on
or shortly after December 31, 2023. If Dr. Ilaria’s employment ends because he is terminated other than for either Cause or disability before June 30, 2023, he will receive
the first 50% in the same payroll in which he receives his severance benefits under the Severance Plan, and the remaining portion of the Ilaria Retention Bonus will be
forfeited. If his employment ends because he is terminated other than for either Cause or disability on or after June 30, 2023 and provided that the closing of the Merger
has occurred prior to such termination, he will receive the remaining 50% of the Ilaria Retention Bonus (and the initial 50% if not yet paid) in the same payroll in which
he receives his severance benefits.
If Mr. Ilaria resigns from employment with the Company or MEI (including for Good Reason as defined in the Severance Plan) or if we or MEI terminates his
employment for Cause (as defined in the Ilaria Agreement) or due to disability, no portion of the Ilaria Retention Bonus will be paid to Dr. Ilaria.
Severance Benefits
Our amended Severance Plan provides eligible full-time executives who are duly elected by our Board of Directors as “executive officers” of the Company
within the meaning of Rule 3b-7 under the Securities Exchange Act of 1934, as amended, with certain severance benefits upon a termination without cause or a
resignation for good reason including in each case within one year following a change in control, which we refer to as a covered termination. The Severance Plan
supersedes the provisions of any separation plans, separation policies or agreements between any Severance Plan participant and the Company that provide for severance
benefits, including the offer letter of Ms. Perkins, except to the extent expressly stated in such plans, policies or agreements. Pursuant to the Severance Plan, each
executive who is subject to a covered termination is entitled to:
•
continuation of such executive’s monthly base salary for the twelve-month period following termination;
•
payment by us of a portion of the cost of COBRA continuation of benefits coverage for the executive and his or her applicable dependents for the twelve-month
period following such termination or until the executive commences new employment and is eligible for new plan coverage, if sooner, subject to certain
conditions set forth in the Severance Plan;
•
reasonable outplacement benefits for up to six months at the discretion of the Severance Plan’s administrator or until the executive commences new employment,
if sooner;
•
any unpaid annual bonus in respect to any completed bonus period which has ended prior to the date of the executive’s termination and which our Board of
Directors deems granted to the executive in its discretion pursuant to our contingent cash compensation program;
•
at the sole discretion of the Severance Plan’s administrator, the prorated amount of any minimum bonus award approved by the Compensation Committee for the
year in which the covered termination occurs; and
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•
immediate vesting of the portion of any outstanding equity awards of the executive which would have vested within the one year-period following such covered
termination.
To receive any such benefits under the Severance Plan, or Severance Benefits, the executive officer must comply with provisions of any applicable non-
competition or non-solicitation agreement to which he or she is a party and must observe any other obligations he or she has to us. The executive officer must also execute
and deliver a suitable waiver and release under which the executive releases and discharges us of any and all claims arising out of his or her employment relationship with
us. Severance benefits are to be paid in accordance with the terms of the Severance Plan and our regular pay practices in effect from time to time.
We believe that providing these benefits enhances our ability to attract and retain executive talent and aligns with stockholder interests. We believe that our
severance benefits are generally in line with severance packages offered to executives by comparable companies.
We have structured severance benefits to apply following a change in control such that benefits are paid upon the occurrence of both a change in control and the
termination of the executive during the 12-month period following the change in control. We believe this structure provides the executive with appropriate incentives to
cooperate in negotiating any change in control in which they believe they may lose their job.
Our Severance Plan does not provide any “gross-up” for the amount of excise tax liability, if any, under Section 4999 of the Internal Revenue Code of 1986, as
amended, or the Code, related to the “golden parachute payment” provisions under Section 280G of the Code.
In addition to the Perkins Retention Bonus, Ms. Perkins will be eligible to receive Severance Benefits when the Company terminates Ms. Perkins’s employment
without Cause in connection with the closing of the Merger or if the Company terminates her employment before the closing date of the Merger for any reason other than
for either Cause or disability. The Severance Benefits are subject to the release requirements in the Severance Plan, provided that the Severance Benefits shall be made in
a single lump sum rather than in the installments specified in the Severance Plan. Ms. Perkins will also receive any other benefits under the Severance Plan (including
outplacement and benefits continuation) in accordance with the terms of the Severance Plan, with the definition of Cause as modified in the Perkins Agreement.
In addition to the Ilaria Retention Bonus, Dr. Ilaria will remain eligible to receive Severance Benefits if we terminate his employment for any reason other than
for either Cause or disability or he resigns for Good Reason, in each case no later than one (1) year following the closing date of the Merger or such longer period as the
Severance Plan applies to Dr. Ilaria. If, after the closing date of the Merger, we or MEI adopts a plan providing Severance Benefits that are more generous than those now
in effect, Dr. Ilaria will be eligible for the additional benefits in accordance with their terms. The Severance Benefits and any payments of the Ilaria Retention Bonus that
are paid in connection with Dr. Ilaria’s termination of employment are subject to the release requirements in the Severance Plan, provided that the total payments shall be
made in a single lump sum rather than in the installments specified in the Severance Plan. Dr. Ilaria will also receive any other benefits under the Severance Plan
(including outplacement and benefits continuation) in accordance with the terms of the Severance Plan, with the definition of Cause as modified in the Ilaria Agreement.
Employee Stock Purchase Plan
Our employee stock purchase plan permits citizen-owners, including our named executive officers, to purchase shares of our common stock at a discount and
consists of consecutive, overlapping 24-month offering periods, each consisting of four six-month purchase periods. On the first day of each offering period, each citizen-
owner who is enrolled in the employee stock purchase plan will automatically receive an option to purchase shares of our common stock in accordance with the terms of
the plan. The purchase price of each of the shares purchased in a given purchase period will be 85% of the closing price of a share of our common stock on the first day of
the offering period or the last day of the purchase period, whichever is lower.
Benefits and Other Compensation
We provide a broad-based benefits program for all of our citizen-owners, including health, dental and vision insurance, life and disability insurance, group
insurance discounts, first-time homebuyer’s assistance, educational assistance, paid vacation time, paid sabbatical leave following each five-year period of service,
subsidized parking, and a 401(k) savings plan. Our named executive officers are eligible to participate in all of our benefit plans, in each case on the same basis as other
citizen-owners. Under the Company-matching feature under our 401(k) savings plan, we match in cash 100% of each citizen-owner’s contributions, up to a maximum of
6% of such citizen-owner’s base salary and subject to applicable IRS limitations.
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In particular circumstances, we sometimes award cash signing bonuses when executive officers first join us. Such cash signing bonuses typically are subject to
repayment in full or on a pro-rated basis if the executive officer voluntarily terminates employment with us during a prescribed period of time following their date of hire.
Whether a signing bonus is paid and the amount of the bonus is determined on a case-by-case basis under the hiring circumstances specific to each candidate. For
instance, we may consider paying signing bonuses to compensate for amounts forfeited by an executive candidate upon terminating prior employment or to create
additional incentive for an executive to join us in a position where there is high market demand.
Given our objective of attracting the highest caliber talent, we may recruit talented individuals from outside of the Boston area to fill open positions. We
generally provide reasonable relocation assistance to those individuals.
Director Compensation
None of our employee directors receive compensation for his or her service as a director. The following table details the total compensation earned by our non-
employee directors during our 2022 fiscal year.
Director Summary Compensation Table
Name
Fees
Earned
or Paid
in Cash
($)
Option
Awards
($)
Total
($)
Samuel Agresta, M.D., M.P.H.
49,500
23,576
73,076
David Beier, J.D.
62,000
23,576
85,576
Anthony B. Evnin, Ph.D.
69,500
23,576
93,076
Richard Gaynor, M.D.
59,500
23,576
83,076
Sujay R. Kango
60,012
78,192
138,204
Brian Schwartz, M.D.
49,500
23,576
73,076
Norman C. Selby
97,000
28,815
125,815
1.
Pursuant to a board compensation program in which directors have the option to settle all or a portion of their cash retainer for annual board service in shares of the Company’s common stock, Drs.
Evnin and Schwartz elected to receive shares of common stock in lieu of cash, which shares had a grant-date fair value of $31,500 and $21,000, respectively, as computed in accordance with FASB ASC
Topic 718 and were issued on June 16, 2022. In addition to his 2022 cash retainer for annual board service, Mr. Kango also received a prorated portion of the 2021 cash retainer for board services
rendered in 2021 and 2022 totaling $10,512.10 and paid in 2022.
2.
The amounts in this column reflect the aggregate grant date fair value of option awards made to such individual, as computed in accordance with FASB ASB Topic 718.
3.
On June 16, 2022, Dr. Agresta was granted an option award that had a grant-date fair value of $23,576. As of December 31, 2022, Dr. Agresta held options to purchase 165,000 shares of our common
stock.
4.
On June 16, 2022, Mr. Beier was granted an option award that had a grant-date fair value of $23,576. As of December 31, 2022, Mr. Beier held options to purchase 175,000 shares of our common stock.
5.
On June 16, 2022, Dr. Evnin was granted an option award that had a grant-date fair value of $23,576. As of December 31, 2022, Dr. Evnin held options to purchase 283,500 shares of our common stock.
6.
On June 16, 2022, Dr. Gaynor was granted an option award that had a grant-date fair value of $23,576. As of December 31, 2022, Dr. Gaynor held options to purchase 135,000 shares of our common
stock.
7.
Upon joining our board, Mr. Kango was granted an option award on March 30, 2022 that had a grant-date fair value of $78,192. As of December 31, 2022, Mr. Kango held options to purchase 90,000
shares of our common stock.
8.
On June 16, 2022 Dr. Schwartz was granted an option award that had a grant-date fair value of $23,576. As of December 31, 2022, Dr. Schwartz held options to purchase 221,250 shares of our common
stock.
9.
On June 10, 2021, Mr. Selby was granted an option award that had a grant-date fair value of $28,815. As of December 31, 2022, Mr. Selby held options to purchase 387,000 shares of our common stock.
The following is a description of the cash compensation of our non-employee directors as of December 31, 2022:
•
a $42,000 annual retainer for service as a non-executive chair of our Board of Directors;
•
a $42,000 annual retainer for service as a director;
•
a $30,000 annual retainer for service as lead independent director;
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
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•
a $20,000 annual retainer for service as chair of the Audit Committee;
•
a $15,000 annual retainer for service as chair of the Compensation Committee;
•
a $10,000 annual retainer for service as chair of the Nominating and Corporate Governance Committee;
•
a $10,000 annual retainer for service as chair of the Research and Development Committee;
•
a $10,000 annual retainer for service as a non-chairing member of the Audit Committee;
•
a $7,500 annual retainer for service as a non-chairing member of a committee of the board other than the Audit Committee.
Directors may elect to receive some or all of their annual cash retainer for service on our board, but not for committee service, in shares of common stock of our
Company.
Each non-employee director is also reimbursed for reasonable out-of-pocket expenses incurred in attending meetings of the Board of Directors or any committee
of the Board of Directors.
In addition to the cash compensation discussed above, each non-employee director automatically receives nonstatutory stock options under our 2019 Equity
Incentive Plan. In the first quarter of 2022, the Compensation Committee engaged Radford to conduct an assessment of overall Board compensation, including a review
of the appropriate mix of cash and equity compensation to determine market alignment. In March 2022, after taking into consideration the recommendations of Radford,
the Compensation Committee approved the changes to equity compensation for our Board of Directors, as follows:
•
upon commencement of service on the board, each new non-employee director receives a nonstatutory stock option to purchase 90,000 shares of our common
stock; and
•
on the date of each annual meeting of stockholders, each then-continuing non-employee director receives a nonstatutory stock option to purchase 45,000 shares
of our common stock, provided that such director was serving as a director of the Company on the last day of the immediately preceding calendar year.
In addition to the awards listed above, each non-employee director who serves in the following positions receives a nonstatutory stock option to purchase shares
of our common stock in the amount indicated below upon the date of commencement of service in such position and upon the date of each annual stockholder meeting
thereafter:
Position
Stock Option Grant
Non-Executive Chair of the Board of Directors
12,000 shares
Lead Independent Director
10,000 shares
Each of these stock options has an exercise price per share equal to the closing price on the date of grant, which the Board of Directors determined to be the fair
market value per share of our common stock on the grant date and has a ten-year term, subject to earlier termination following cessation of board service by the holder of
the option. Grants made to board members vest in equal quarterly installments beginning at the end of the first calendar quarter after the grant date, provided that the
board member continues to serve as director and in the position for which the grant was made. Grants made in connection with the commencement of services vest over a
period of two years (one-eighth each quarter), while grants made in connection with the annual meeting of stockholders vest over a period of one year (one-fourth each
quarter). These options immediately vest in full upon certain changes in control or ownership or upon death or disability of the option holder while serving as a director.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Stock Ownership of Certain Beneficial Owners and Management
The following table contains information regarding the beneficial ownership of our common stock as of March 15, 2023 by:
•
stockholders we know to beneficially own more than 5% of our outstanding common stock;
•
each of our current directors named in this Form 10-K;
•
each of our executive officers named in the Summary Compensation Table included in this Form 10-K; and
•
all of our current directors and executive officers as a group.
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Name and Address of Beneficial Owner
Number of
Shares of
Common Stock
Owned
+
Common Stock
Underlying
Options, Warrants
and Other
Rights
Acquirable
Within 60 Days
=
Total
Beneficial
Ownership
(#)
Percentage of
Common Stock
Beneficially Owned
(%)
5% Stockholders
Biotechnology Value Fund, L.P.
6,353,645
—
6,353,645
7.11 %
The Vanguard Group
5,313,679
—
5,313,679
5.94 %
Directors
Adelene Q. Perkins
833,801
3,675,762
4,509,563
4.84 %
Samuel Agresta, M.D., M.P.H.
10,593
165,000
175,593
*
David Beier, J.D.
8,775
175,000
183,775
*
Anthony B. Evnin, Ph.D.
215,403
283,500
498,903
*
Richard Gaynor, M.D.
—
135,000
135,000
*
Sujay R. Kango
—
56,250
56,250
*
Brian Schwartz, M.D.
30,919
213,750
244,669
*
Norman C. Selby
15,000
387,000
402,000
*
Other Named Executive Officers
Lawrence Bloch, M.D., J.D.
772,223
2,175,221
2,947,444
3.22 %
Robert Ilaria, Jr., M.D.
—
154,157
154,157
*
All directors and executive officers as a group
(12 persons)
2,048,291
8,775,979
10,824,270
11.02 %
* Represents holdings of less than 1%.
1.
Unless otherwise indicated, the address for each person is to the care of Infinity Pharmaceuticals, Inc., 1100 Massachusetts Avenue, Floor 4, Cambridge, Massachusetts 02138.
2.
The number of shares of our common stock owned by each person is determined under the rules of the SEC, and the information is not necessarily indicative of beneficial ownership for any other
purpose. Under these rules, beneficial ownership includes any shares as to which the individual has sole or shared voting power or investment power and also any shares which the individual has the
right to acquire on or before May 14, 2023, through the exercise of any stock option, warrant or other right. In connection with the Merger, and as previously announced, the Company intends to
terminate Dr. Bloch effective as of March 31, 2023. Upon consummation of Dr. Bloch’s termination, and contingent upon Dr. Bloch’s entry into a binding severance and release agreement with the
Company: (a) the 446,667 RSUs granted to Dr. Bloch on August 11, 2022 will vest in their entirety; (b) 223,334 additional stock options will vest under the accelerated vesting provisions of the
Executive Severance Benefits Plan; and therefore (c) Dr. Bloch’s beneficial ownership will increase from 3.22% to 3.92%.
3.
Percentage of beneficial ownership is based on 89,422,138 shares of our common stock outstanding as of March 15, 2023. In addition, shares of common stock subject to options or other rights currently
exercisable, or exercisable on or before May 14, 2023, are deemed outstanding and beneficially owned for the purpose of computing the percentage beneficially owned by (i) the individual holding such
options, warrants or other rights (but not any other individual) and (ii) the directors and executive officers as a group.
4.
BVF Partners L.P. ("Partners"), BVF Inc., and Mark N. Lampert, as director and officer of BVF Inc., claim beneficial ownership, shared voting and shared dispositive power of 6,353,645 shares, of
which: Biotechnology Value Fund, L.P. ("BVF"), claims beneficial ownership, shared voting and shared dispositive power of 3,430,822 shares, and BVF I GP LLC (“BVF GP”), as the general partner of
BVF, may be deemed to beneficially own the 3,430,822 shares beneficially owned by BVF; Biotechnology Value Fund II, L.P. ("BVF2"), claims beneficial ownership, shared voting and shared
dispositive power of 2,436,635 shares, and BVF II GP LLC (“BVF2 GP”), as the general partner of BVF2, may be deemed to beneficially own the 2,436,635 shares beneficially owned by BVF2;
Biotechnology Value Trading Fund OS LP ("Trading Fund OS") and BVF Partners OS Ltd.("Partners OS") each claim beneficial ownership, shared voting and shared dispositive power of 373,298
shares; BVF GP Holdings LLC (“BVF GPH”), as the sole member of each of BVF GP and BVF2 GP, may be deemed to beneficially own the 5,867,457 shares beneficially owned in the aggregate by
BVF and BVF2. Partners, as the investment manager of BVF, BVF2 and Trading Fund OS, and the sole member of Partners OS, may be deemed to beneficially own the 6,353,645 shares beneficially
owned in the aggregate by BVF, BVF2, Trading Fund OS, and a certain Partners managed account (the “Partners Managed Account”), including 112,890 shares held in the Partners Managed Account.
The address of the principal business office of Partners, BVF Inc., Mr. Lampert, BVF, BVF GP, BVF2, BVF2 GP, and BVF GPH is 44 Montgomery St., 40th Floor, San Francisco, California 94104. The
address of the principal business office of Trading Fund OS and Partners OS is PO Box 309 Ugland House, Grand Cayman, KY1-1104, Cayman Islands. For information regarding Partners, BVF Inc.,
Mr. Lampert, BVF, BVF2, Trading Fund OS, and Partners OS, and Partners Managed Account, we have relied on the Schedule 13G filed jointly by Partners, BVF Inc., Mr. Lampert, BVF, BVF2,
Trading Fund OS, and Partners OS on February 14, 2022.
5.
The Vanguard Group (“Vanguard”) claims beneficial ownership of 5,313,679 shares, of which it claims shared voting power of 0 shares, sole dispositive power of 5,281,550 shares, and shared
dispositive power of 32,129 shares. The address of the principal business of Vanguard is 100 Vanguard Blvd., Malvern, PA 19355. For information regarding Vanguard, we have relied on the Schedule
13G/A filed by Vanguard on February 9, 2023.
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(2)
(3)
(4)
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(6)
(7)
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6.
Includes approximately 16,447 shares of common stock held in Ms. Perkins’ 401(k) Plan account.
7.
Includes approximately 13,833 shares of common stock held in Dr. Bloch’s 401(k) Plan account.
Item 13. Certain Relationships and Related Transactions, and Director Independence
Determination of Independence
Rule 5605 of the Nasdaq Marketplace Rules requires a majority of a listed company’s Board of Directors to be independent directors within one year of listing.
In addition, the Nasdaq Marketplace Rules require that, subject to specified exceptions, each member of a listed company’s audit, compensation and corporate governance
and nominating committees be independent and that audit committee members also satisfy independence criteria set forth in Rule 10A-3 under the Securities Exchange
Act of 1934, or the Exchange Act. Under Rule 5605(a)(2), a director will only qualify as an “independent director” if, in the opinion of our Board of Directors, that person
does not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. In order to be considered
independent for purposes of Rule 10A-3, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the audit
committee, the Board of Directors, or any other board committee: (1) accept, directly or indirectly, any consulting, advisory or other compensatory fee from the listed
company or any of its subsidiaries; or (2) be an affiliated person of the listed company or any of its subsidiaries. In addition, in affirmatively determining the
independence of any director who will serve on a company’s compensation committee, Rule 10C-1 under the Exchange Act requires that a company’s Board of Directors
consider all factors specifically relevant to determining whether a director has a relationship to such company which is material to that director’s ability to be independent
from management in connection with the duties of a compensation committee member, including, but not limited to: (i) the source of compensation of the director,
including any consulting, advisory or other compensatory fee paid by such company to the director; and (ii) whether the director is affiliated with the company or any of
its subsidiaries or affiliates.
Based on information requested from and provided by each director concerning his or her background, employment and affiliations, including family
relationships, our Board of Directors determined that none of Messrs. Beier, Kango, or Selby or Drs. Evnin or Gaynor has a relationship that would interfere with the
exercise of independent judgment in carrying out the responsibilities of a director and that each of these directors is or would be an “independent director” as defined
under Rule 5605(a)(2) of the Nasdaq Marketplace Rules. Our board similarly determined that (i) Messrs. Beier and Selby and Dr. Evnin, who comprise our Audit
Committee each satisfy the independence standards for the Audit Committee established by the SEC, including Rule 10C-1, and the Nasdaq Marketplace Rules;
(ii) Messrs. Gaynor, Kango, and Selby, who comprise the Compensation Committee, each satisfy the independence standards for the Compensation Committee
established by the SEC, including Rule 10A-3, and the Nasdaq Marketplace Rules; and (iii) Mr. Beier and Dr. Evnin, who comprise our Nominating and Corporate
Governance Committee, each satisfy the independence standards for the Nominating and Corporate Governance Committee established by the SEC and the Nasdaq
Marketplace Rules. In making such determinations, our Board of Directors considered the relationships that each such non-employee director has with Infinity and all
other facts and circumstances our Board of Directors deemed relevant in determining independence.
Transactions with Related Persons
There are no transactions with related persons, as defined in item 404 of Regulation S-K, to report for the fiscal year ended December 31, 2022.
Item 14. Principal Accounting Fees and Services
The following table summarizes the fees of Ernst & Young LLP billed to us for each of the last two fiscal years:
Fiscal Year ended December 31,
Fee Category
2022
2021
Audit Fees
$
533,981
$
600,8
Audit-Related Fees
—
—
All Other Fees
1,875
2,9
Tax Fees
169,106
35,0
Total Fees
$
704,962
$
638,8
1.
Consists of fees for professional services provided in connection with the audit of our financial statements and the effectiveness of our internal control over financial reporting, the review of the interim
financial statements included in our quarterly reports on Form 10-Q, preparation of comfort letters and registration statements, accounting and consultation on matters addressed during the audit or
interim reviews, and other professional services provided.
(1)
(2)
(3)
(4)
125
Table of Contents
2.
Audit-related fees consist of fees for assurance and related services that are reasonably related to the performance of the audit and the review of our financial statements and which are not reported under
“Audit Fees.”
3.
Other fees consist of fees for a subscription to an online database managed by Ernst & Young LLP.
4.
Tax fees consist of fees for tax compliance, tax advice and tax planning services. These services primarily relate to preparation of state and federal tax returns and analysis related to section 382 of the
Internal Revenue Code of 1986, as amended.
PART IV
Item 15. Exhibits, Financial Statement Schedules
(a)(1) Financial Statements
The financial statements listed below are filed as a part of this Annual Report on Form 10-K.
Page number
Report of Independent Registered Public Accounting Firm (PCAOB ID: 42)
88
Consolidated Balance Sheets at December 31, 2022 and 2021
90
Consolidated Statements of Operations and Comprehensive Loss for the years ended December 31, 2022 and 2021
91
Consolidated Statements of Cash Flows for the years ended December 31, 2022 and 2021
92
Consolidated Statements of Stockholders’ (Deficit) Equity for the years ended December 31, 2022 and 2021
93
Notes to Consolidated Financial Statements
94
(a)(2) Financial Statement Schedules
Financial statement schedules have been omitted because of the absence of conditions under which they are required or because the required information, where
material, is shown in the financial statements or notes thereto.
126
Table of Contents
(a)(3) Exhibits
Incorporated by Reference
Exhibit No.
Description
Form
SEC
Filing
Date
Exhibit
Number
Filed
with
this
10-K
2.1†
Agreement and Plan of Merger, dated February 22, 2023, by and among the Registrant, MEI
Pharma, Inc., and Meadow Merger Sub, Inc.
8-K
2/23/2023
2.1
3.1
Restated Certificate of Incorporation of the Registrant, as amended.
10-Q
7/30/2020
3.1
3.2
Amended and Restated Bylaws of the Registrant, as amended.
X
4.1
Form of Common Stock Certificate.
10-K
3/14/2008
4.1
4.2
Description of Securities Registered Under Section 12 of the Exchange Act
10-K
3/16/2021
4.2
Collaboration Agreements
10.1†
Amended and Restated Development and License Agreement, dated as of December 24, 2012, by
and between the Registrant and Intellikine, LLC.
X
10.2
Amendment to Amended and Restated Development and License Agreement, dated as of July 29,
2014, by and between Registrant and Intellikine LLC.
10-Q
11/10/2014
10.1
10.3
Amendment No. 2 to Amended and Restated Development and License Agreement, dated as of
September 27, 2016, by and between Registrant and Intellikine LLC.
10-Q
11/9/2016
10.1
10.4
Amendment No. 3 to Amended and Restated Development and License Agreement, dated as of
July 26, 2017, by and between the Registrant and Intellikine LLC.
10-Q
11/7/2017
10.1
10.5
Amendment No. 4 to Amended and Restated Development and License Agreement, dated as of
March 4, 2019, by and between the Registrant and Intellikine LLC.
10-Q
5/7/2019
10.1
10.6
Convertible Promissory Note, dated as of July 26, 2017, by and between Registrant and Intellikine
LLC.
10-Q
11/7/2017
10.2
10.7†
Amended and Restated License Agreement, dated as of November 1, 2016, by and between the
Registrant and Verastem, Inc.
10-K
3/14/2017
10.4
10.8
Termination and Revised Relationship Agreement, dated as of July 17, 2012, between the
Registrant and Mundipharma International Corporation Limited.
8-K
7/19/2012
10.2
10.9
Termination and Revised Relationship Agreement, dated as of July 17, 2012, between the
Registrant and Purdue Pharmaceutical Products L.P.
8-K
7/19/2012
10.3
Financing Agreements
10.11
Purchase and Sale Agreement, dated as of March 5, 2019, between the Registrant and HealthCare
Royalty Partners III, L.P.
10-Q
5/7/2019
10.2
10.12
Protective Rights Agreement, dated as of March 11, 2019, between the Registrant and HCR
Collateral Managements, LLC.
10-Q
5/7/2019
10.3
10.13
Capital on Demand™ Sales Agreement, dated June 28, 2019, by and between Infinity
Pharmaceuticals, Inc. and JonesTrading Institutional Services LLC.
8-K
6/28/2019
1.1
10.14
Amended and Restated Capital on Demand™ Sales Agreement, dated July 29, 2019, by and
among Infinity Pharmaceuticals, Inc. and JonesTrading Institutional Services LLC and B. Riley
FBR, Inc.
8-K
7/30/2019
1.1
10.15
Amendment 1 to Amended and Restated Capital on Demand™ Sales Agreement, dated July 29,
2019, by and among Infinity Pharmaceuticals, Inc. and JonesTrading Institutional Services LLC
and B. Riley Securities, Inc. (f/k/a B. Riley FBR, Inc.), dated July 27, 2021
10-Q
7/27/2021
10.2
10.15
Purchase Agreement, dated as of February 11, 2021, between the Registrant and Piper Sandler &
Co., as representative of the underwriters named therein.
8-K
2/12/2021
1.1
10.16
Funding Agreement, dated January 8, 2020, by and among Infinity Pharmaceuticals, Inc., BVF
Partners, L.P., and Royalty Security, LLC.
10-K
3/3/2020
10.15
10.17
Novation and Amendment Agreement, dated January 27, 2020, by and among Infinity
Pharmaceuticals, Inc., BVF Partners, L.P., Royalty Security, LLC, and Royalty Security Holdings,
LLC
10-K
3/3/2020
10.16
Incorporated by Reference
Exhibit No.
Description
Form
SEC
Filing
date
Exhibit
Number
Filed
with
this
10-K
Leases
10.18
Lease Agreement, dated April 3, 2019, between Registrant and Sun Life Assurance
Company of Canada.
10-Q
5/7/2019
10.4
Equity Plans
10.19*
2010 Stock Incentive Plan.
8-K
5/28/2010
10.1
10.20*
Form of Incentive Stock Option Agreement under 2010 Stock Incentive Plan.
8-K
5/28/2010
10.2
10.21*
Form of Nonstatutory Stock Option Agreement under 2010 Stock Incentive Plan.
8-K
5/28/2010
10.3
10.22*
Form of Restricted Stock Agreement under 2010 Stock Incentive Plan
10-K
3/14/2017
10.23
10.23*
Form of Nonstatutory Stock Option Agreement for Inducement Grant Pursuant to
Nasdaq Stock Market Rule 5635(c)(4)
10-K
3/14/2017
10.24
10.24*
Form of Nonstatutory Stock Option Award Agreement for Inducement Grant Pursuant to
Nasdaq Stock Market Rule 5635(c)(4)
S-8
8/2/2021
99.1
10.25*
Form of Restricted Stock Unit Agreement for Inducement Grant Pursuant to Nasdaq
Stock Market Rule 5635(c)(4)
S-8
8/2/2021
99.2
10.26*
Amendment No. 1 to 2010 Stock Incentive Plan.
8-K
12/14/2010
99.2
10.27*
Amendment No. 2 to 2010 Stock Incentive Plan.
8-K
5/18/2012
99.1
10.28*
Amendment No. 3 to 2010 Stock Incentive Plan.
8-K
6/13/2013
10.1
10.29*
Amendment No. 4 to 2010 Stock Incentive Plan.
8-K
6/13/2013
10.1
10.31*
Amendment No. 5 to 2010 Stock Incentive Plan.
8-K
6/16/2015
10.1
10.32*
Amendment No. 6 to 2010 Stock Incentive Plan.
10-Q
5/4/2016
10.1
10.33*‡
2013 Employee Stock Purchase Plan, as amended.
DEF14A
4/26/2021
A
10.34*
2019 Equity Incentive Plan.
DEF14A
4/24/2019
A
10.35*
Form of Stock Option Agreement under 2019 Equity Incentive Plan.
10-Q
7/30/2019
10.3
10.36*
2019 Equity Incentive Plan of Infinity Pharmaceuticals, Inc., as amended by Amendment
No. 1 and No. 2
S-8
6/16/2022
99.1
Agreements With Executive Officers
10.37*
Offer Letter between the Registrant and Lawrence E. Bloch, M.D., J.D. dated May 15,
2012.
8-K
7/25/2012
10.1
10.38*
Offer Letter between IDI and Adelene Perkins dated as of February 6, 2002.
8-K
9/18/2006
10.11
10.39*
Amendment to Offer Letter between IDI and Adelene Perkins dated as of October 25,
2007.
8-K
10/30/2007
99.5
10.40*
Offer Letter between the Registrant and Seth A. Tasker, J.D. dated February 22, 2008
10-K
3/14/2017
10.34
10.41*
Employment Retention Incentive Package Letter Agreement between the Registrant and
Seth Tasker, J.D. dated July 1, 2016
10-K
3/14/2017
10.35
10.42*
Offer Letter between the Registrant and Stephane Peluso, Ph.D., dated July 12, 2021.
10-Q
11/2/2021
10.1
10.43*
Offer Letter between the Registrant and Robert Ilaria, Jr., M.D., dated August 11, 2021.
10-Q
11/2/2021
10.2
10.44*
Infinity Pharmaceuticals, Inc. Executive Severance Benefits Plan effective February 6,
2013.
8-K
2/12/2013
10.1
10.45*
Amendment No. 1, dated August 3, 2018, to Infinity Pharmaceuticals, Inc. Executive
Severance Benefits Plan.
10-Q
11/5/2018
10.2
10.46*
Retention and Severance Protection Agreement between the Registrant and Adelene
Perkins dated as of February 22, 2023
X
10.47*
Retention and Severance Protection Agreement between the Registrant and Robert Ilaria
dated as of February 22, 2023
X
10.48*
Retention and Severance Protection Agreement between the Registrant and Stephane
Peluso dated as of February 22, 2023
X
10.49*
Retention and Severance Protection Agreement between the Registrant and Seth Tasker
dated as of February 22, 2023
X
Subsidiaries
21.1
Subsidiaries of the Registrant.
10-K
3/3/2020
21.1
Incorporated by Reference
Exhibit No.
Description
Form
SEC
Filing
date
Exhibit
Number
Filed
with
this
10-K
Consent
23.1
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm. Filed
herewith.
X
Certifications
31.1
Certification of principal executive officer pursuant to Rule 13a-14(a)/15d-14(a) of the
Securities Exchange Act of 1934, as amended. Filed herewith.
X
31.2
Certification of principal financial officer pursuant to Rule 13a-14(a)/15d-14(a) of the
Securities Exchange Act of 1934, as amended. Filed herewith.
X
32.1
Statement of principal executive officer pursuant to 18 U.S.C. §1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002. Filed herewith.
X
32.2
Statement of principal financial officer pursuant to 18 U.S.C. §1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002. Filed herewith.
X
101.INS Inline XBRL Instance Document (the instance document does not appear in the Interactive
Data File because its XBRL tags are embedded within the Inline XBRL document)
X
101.SCH Inline XBRL Taxonomy Extension Schema Document.
X
101.CAL Inline XBRL Taxonomy Extension Calculation Linkbase Document.
X
101.DEF Inline XBRL Taxonomy Extension Definition Linkbase Document.
X
101.LAB Inline XBRL Taxonomy Extension Label Linkbase Document.
X
101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase Document.
X
104
Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101).
X
†
Portions of this exhibit have been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K.
‡
Complete exhibit filed on March 3, 2020 on our Form 10-K for the fiscal year ended December 31, 2019 replaces the incomplete exhibit previously filed on
July 30, 2019 in our Form 10-Q for the quarter ended June 30, 2019.
*
Indicates management contract or compensatory plan
127
Table of Contents
Item 16. Form 10-K Summary
None.
SIGNATURES
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.
INFINITY PHARMACEUTICALS, INC.
Date: March 28, 2023
By:
/s/ ADELENE Q. PERKINS
Adelene Q. Perkins
Chief Executive Officer
(Principal Executive Officer)
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/ ADELENE Q. PERKINS
Adelene Q. Perkins
Chief Executive Officer; Chair of the Board of
Directors
March 28, 2023
(Principal Executive Officer)
/s/ LAWRENCE E. BLOCH, M.D., J.D.
Lawrence E. Bloch, M.D., J.D.
President
March 28, 2023
(Principal Financial Officer, Principal Accounting
Officer)
/s/ SAMUEL AGRESTA, M.D., M.P.H.
Samuel Agresta, M.D., M.P.H
Director
March 28, 2023
/s/ DAVID BEIER, J.D.
David Beier, J.D.
Director
March 28, 2023
/s/ ANTHONY B. EVNIN, PH.D.
Anthony B. Evnin, Ph.D.
Director
March 28, 2023
/s/ RICHARD GAYNOR, M.D.
Richard Gaynor, M.D.
Director
March 28, 2023
/s/ SUJAY R. KANGO
Sujay R. Kango
Director
March 28, 2023
/s/ BRIAN SCHWARTZ, M.D.
Brian Schwartz, M.D.
Director
March 28, 2023
/s/ NORMAN C. SELBY
Norman C. Selby
Director
March 28, 2023
128
Exhibit 3.2
AMENDED AND RESTATED BYLAWS OF
INFINITY PHARMACEUTICALS, INC.
ARTICLE I OFFICES
Section 1. Registered Office. The registered office shall be in the City of Dover, County of Kent, State of Delaware.
Section 2. Other Offices. The corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may
from time to time determine or the business of the corporation may require.
ARTICLE II MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the stockholders for the election of Directors shall be held in the City of Cambridge, the Commonwealth of
Massachusetts, at such place as may be fixed from time to time by the Board of Directors, or at such other place either within or without the Commonwealth of
Massachusetts as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose
may be held at such time and place, within or without t he Commonwealth of Massachusetts, as shall be stated in the notice of the meeting or in a duly executed waiver
of notice thereof.
Section 2. Annual Meeting.
(a) The annual meeting of the stockholders of the corporation, for the purpose of election of Directors and for such other business as may lawfully come
before it, shall be held on such date and at such time as may be designated from time to time by the Board of Directors.
(b) At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be: (A) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (B) otherwise properly brought before the meeting by or at the direction of the Board of Directors, or (C) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the
Secretary of the corporation and mu st be a stockholder of record at such time and entitled to vote at the meeting. To be timely, a stockholder’s notice must be delivered
to or mailed and received at the principal executive offices of the corporation not later than the close of business on the ninetieth (90th) day, nor earlier than the close of
business on the one hundred twentieth (120th) day, prior to the first anniversary of the preceding year’s annual meeting (provided, however, that in the event that the date
of the annual meeting is more than thirty (30) days before or more than seventy (70) days after such anniversary date, notice by the stockholder must be so delivered not
earlier than the close of business on the one hundred twentieth (120 th) day prior to such annual meeting and not later than the tenth (10th) day following the day on
which public announcement of the date of such meeting is first made by the corporation). In no event shall the public announcement of an adjournment or postponement
of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. A stockholder’s notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting: (i) a brief description of the business desired to be brought before
the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal
to amend these Bylaws, the language of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of
such stockholder and the beneficial owner, if any, on whose behalf the proposal is made , (ii) the name and address, as they appear in the corporation’s books, of the
stockholder proposing such business and of such beneficial owner, (iii) the class or series and number of shares of the corporation which are owned beneficially and of
record by such stockholder and such beneficial owner, (iv) a description of any agreement, arrangement or understanding with respect to the proposal between or among
such stockholder and such beneficial owner, any of their respective affiliates or
associates, and any others acting in concert with any of the foregoing, (v) a description of any agreement, arrangement or understanding (including any derivative or
short positions, profit interests, options, warrants , stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that has been entered into as
of the date of the stockholder’s notice by, or on behalf of, such stockholder or such beneficial owner, whether or not such instrument or right shall be subject to
settlement in underlying shares of capital stock of the corporation, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or
increase or decrease the voting power of, such stockholder or such beneficial owner, with respect to shares of stock of the corporation, (vi) a representation whether the
stockholder or the beneficial owner, if any, intends or is part of a group which intends (a) to deliver a proxy statement and/or form of proxy to holders of at least the
percentage of the corporation’s outstanding capital stock required to approve or adopt the proposal and/or (b) otherwise to solicit proxies from stockholders in support of
such proposal, and (vii) any other information that is required to be provided by the stockholder pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (the “1934 Act”), in his capacity as a proponent to a stockholder proposal. In addition to the foregoing, in order to include information with respect to a
stockholder proposal in the proxy statement and form of proxy for a stockholder’s meeting, stockholders must provide notice as required by the regulations promulgated
under the 1934 Act to the extent such regulations require notice that is different from the notice required above. Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at any annual meeting except in accordance with the procedures set forth in this paragraph (b) of this Section 2. The person
presiding over the annual meeting shall, if the facts warrant, determine and declare at the meeting that business was not properly brought before the meeting and in
accordance with the provisions of this paragraph (b), and, if he should so determine, he shall so declare at the meeting that any such business not properly brought before
the meeting shall not be transacted. The foregoing notice requirements of this Section 2(b) shall be deemed satisfied by a stockholder with respect to business if the
stockholder has notified the corporation of his, her or its intention to present a proposal at an annual meeting in compliance with applicable rules and regulations
promulgated under the 1934 Act and such stockholder’s proposal has been included in a proxy statement that has been prepared by the corporation to solicit proxies for
such annual meeting.
(c) Only persons who are nominated in accordance with the procedures set forth in this paragraph (c) shall be eligible for election as Directors. Nominations
of persons for election to the Board of Directors of the corporation may be made at a meeting of stockholders by or at the direction of the Board of Directors or by any
stockholder of the corporation entitled to vote in the election of Director s at the meeting who complies with the notice procedures set forth in this paragraph (c). Such
nominations, other than those made by or at the direction of the Board of Directors, shall be made pursuant to timely notice in writing to the Secretary of the corporation
in accordance with the provisions of paragraph (b) of this Section 2. Such stockholder’s notice shall set forth (i) as to each person, if any, whom the stockholder
proposes to nominate for election or re-election as a Director: (A) the name, age, business address and residence of such person, (B) the principal occupation or
employment of such person, (C) the class and number of shares of the corporation that are owned beneficially and of record by such person, (D) a description of all
arrangements, agreements and understandings between the stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to
which the nominations are to be made by the stockholder, and (E ) any other information relating to such person that is required to be disclosed in solicitations of
proxies for election of Di rectors, or is otherwise required, in each case pursuant to Regulation 14A under the 1934 Act (including without limitation such person’s
written consent to being named in the proxy statement, if any, as a nominee and to serving as a Director if elected); and (ii) as to such stockholder giving notice and the
beneficial owner, if any, on whose behalf the nomination is made: (A) the information required pursuant to subitems (ii) and (iii) of paragraph (b) of this Section 2, (B)
a description of any agreement, arrangement or understanding with respect to the nomination between or among such stockholder and such beneficial owner, any of
their respective affiliates or associates, and any others acting in concert wit h any of the foregoing, (C) a description of any agreement, arrangement or understanding
(including any derivative or short positions, profit interests, options, warrants, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares)
that has been entered in to as of the date of the stockholder’s notice by, or on behalf of, such stockholder or such beneficial owner, whether or not such instrument or
right shall be subject to settlement in underlying shares of capital stock of the corporation, the effect or intent of which is to mitigate loss to, manage risk or benefit of
share price changes for, or increase or decrease the voting power of, such stockholder or such
beneficial owner, with respect to shares of stock of the corporation, (D) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a
group which intends (1) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the corporation ’s outstanding capital stock required to
elect the nominee and/or (2) otherwise to solicit proxies from stockholders in support of such nomination. At the request of the Board of Directors, any person
nominated by a stockholder for election as a Director shall furnish to the Secretary of the corporation that information required to be set forth in the stockholder’s notice
of nomination which pertains to the nominee. No person shall be eligible for election as a Director of the corporation unless nominated in accordance with the
procedures set forth in this paragraph (c). The person presiding over the meeting shall, if the facts warrant, determine and declare at the meeting that a nomination was
not made in accordance with t he procedures prescribed by these Bylaws, and if he should so determine, he shall so declare at the meeting, and the defective nomination
shall be
disregarded.
(d) Notwithstanding the foregoing provisions of this Section 2, unless otherwise required by law, if the stockholder (or a qualified representative of the
stockholder) does not appear at a meeting of stockholders of the corporation to present a nomination or proposed business, such nomination shall be disregarded and
such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the corporation. For purposes of this
Section 2, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be
authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting o f
stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of
stockholders.
Section 3. Notice of Annual Meeting. Notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to
notice of such meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting as may be required by applicable law.
Section 4. Voting List. The officer who has charge of the stock ledger of the corporation shall prepare and make, or have prepared and made, at least ten (10) days
before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stock holder as may be required by applicable law. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, as may be required by
applicable law. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder
who is present.
Section 5. Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, as amended from time to time, may only be called as provided in this Section 5 by the Chief Executive Officer, the Chairman of the Board, or a majority
of the Board of Directors. Such request shall state the purpose or purposes of the proposed meeting. The place, date and time of any special meeting shall be determined
by the Board of Directors. Such determination shall include the record date for determining the stockholders having the right of and to vote at such meeting.
Section 6. Notice of Special Meeting. Notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the
meeting is called shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting, to each stockholder entitled to notice of such meeting
as may be required by applicable law.
Section 7. Action at Special Meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.
Section 8. Quorum and Adjournments. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the Certificate of
Incorporation, as amended from time to time. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have the power to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.
Section 9. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting
shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct
of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the
person presiding over any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to adjourn the meeting, to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those
present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or
such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof;
and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other
determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not
properly brought before the meeting and if such presiding person should so deter mine, such presiding person shall so declare to the meeting and any such matter or
business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person
presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
Section 10. Voting Rights. Unless otherwise provided in the Certificate of Incorporation, as amended from time to time, each stockholder shall at every meeting of
the stockholders be entitled to one (1) vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be
voted on after three (3) years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of
stockholders need not be by written ballot. All elections, other than elections of directors, and questions presented to the stockholders at a meeting at which a quorum is
present shall, unless otherwise provided by the certificate of incorporation, these bylaws, the rules or regulation s of any stock exchange applicable to the corporation, or
applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting
power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.
Except as otherwise provided by these Bylaws, each Director shall be elected by the vote of the majority of the votes cast with respect to that Director’s election at
any meeting for the election of Directors at which a quorum is present, provided that if, as of the tenth (10th) day preceding the date the corporation first mails its notice
of meeting for such meeting to the stockholders of the corporation, the number of nominees exceeds the number of Directors to be elected (a “Contested Election”), the
Directors shall be elected by the vote of a plurality of the votes cast. For purposes of this Article II, Section 10 of these Bylaws, a majority of votes cast shall mean that
the number of votes cast “for” a Director’s election exceeds the number of votes cast “against” that Director’s election (with “abstentions” and “broker nonvotes “ not
counted as votes cast either “for” or “against” any Director’s election).
Section 11. Action Without Meeting. No action shall be taken by the stockholders of the corporation except at an annual or special meeting of stockholders called
in accordance with these Bylaws, and no action shall be taken by the stockholders by written consent.
ARTICLE III
DIRECTORS
Section 1. Number, Term of Office and Qualification. Each Director shall be elected to hold office for a term of one year, until the next annual meeting of
stockholders and until such person’s successor is duly elected and qualified, subject to his or her earlier death, resignation or removal from the board of directors.
Directors need not be stockholders. The number of Directors which shall constitute the whole Board shall be established by the Board of Directors.
Section 2. Vacancies. Vacancies including, newly created directorships, may be filled only by a majority of the Directors then in office, though less than a quorum,
or by a sole remaining Director. Each Director so chosen shall hold office until a successor is duly elected and shall qualify or until his earlier death, resignation or
removal. If there are no Directors in office, then an election of Directors may be held in the manner provided by statute. If, at the time of filling any vacancy, the
Directors then in office shall constitute less than a majority of the whole Board (as constituted immediately prior to any such increase), the Delaware Court of Chancery
may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote
for such Directors, summarily order an election to be held to fill any such vacancies, or to replace the Directors chosen by the Directors then i n office.
Section 3. Powers. The business of the corporation shall be managed by or under the direction of its Board of Directors which may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation, as amended from time to time, or by these Bylaws directed
or required to be exercised or done by the stockholders.
Section 4. Regular and Special Meetings. The Board of Directors of the corporation may hold meetings, both regular and special, either within or without the State
of California.
Section 5. Annual Meeting. The annual meeting of each newly elected Board of Directors shall be held without notice other than this Bylaw immediately after,
and at the same place as, the annual meeting of stockholders. In the event the annual meeting of any newly elected Board of Directors shall not be held immediately
after, and at the same place as, the annual meeting of stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the Board of Directors.
Section 6. Notice of Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to
time be determined by the Board.
Section 7. Notice of Special Meetings. Special meetings of the Board may be called by the Chief Executive Officer or President on no less than forty-eight (48)
hours notice to each Director either personally, or by telephone, mail, telegram, facsimile or other electronic transmission; special meetings shall be called by the Chief
Executive Officer, President or Secretary in like manner and on like notice on the written request of two Directors unless the Board consists of only one Director, in
which case special meetings shall be call ed by the Chief Executive Officer, President or Secretary in like manner and on like notice on the written request of the sole
Director.
Section 8. Quorum. At all meetings of the Board a majority of the Directors shall constitute a quorum for the transaction of business and the act of a majority of
the Directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute or
by the Certificate of Incorporation, as amended from time to time. If a quorum shall not be present at any meeting of the
Board of Directors, the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 9. Action Without Meeting. Unless otherwise restricted by the Certificate of Incorporation, as amended from time to time, or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or of any committee there of may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent thereto in accordance with the requirements of applicable law.
Section 10. Meetings by Telephone Conference Calls. Unless otherwise restricted by the Certificate of Incorporation, as amended from time to time, or these
Bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any
committee, by means of conference telephone or other communications equipment by me ans of which all persons participating in the meeting can hear each other, and
such participation in a meeting shall constitute presence in person at the meeting.
Section 11. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the Directors of the
corporation. The Board may designate one or more Directors as alternate members of any committee, who may rep lace any absent or disqualified member at any
meeting of the committee.
In the absence of disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
Any such committee, to the extent provided in the resolution of the Board of Directors and subject to the limitations of applicable law, shall have and may exercise
all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to
be affixed to all papers which may require it. Such committee o r committees shall have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors.
Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.
Section 12. Fees and Compensation. Unless otherwise restricted by the Certificate of Incorporation, as amended from time to time, or these Bylaws, the Board of
Directors shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as Director. No such payment shall preclude any
Director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 13. Removal. Subject to any limitations imposed by law or the Certificate of Incorporation, as amended from time to time, the Board of Directors, or any
individual Director, may be removed from office at any time with or without cause by the affirmative vote of the holders of at least a majority of the outstanding shares
entitled to vote at an election of Directors.
ARTICLE IV
NOTICES
Section 1. Notice. Whenever, under the provisions of the statutes or of the Certificate of Incorporation, as amended from time to time, or of these Bylaws, notice is
required to be given to any Director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to
such Director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the Unit ed
States mail. Notice to Directors and, subject to the requirements of applicable law, stockholders may also be given personally, by telephone, including a voice
messaging system or other system or technology designed to record and communicate messages, telegram, facsimile, electronic mail or other electronic means.
Section 2. Waiver of Notice. Whenever any notice is required to be given under the provisions of the statutes or of the Certificate of Incorporation, as amended
from time to time, or of these Bylaws, a waiver thereof in accordance with the requirements of applicable law by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. Enumeration. The officers of the corporation shall be chosen by the Board of Directors and shall be a Chief Executive Officer, a Chief Financial Officer
and a Secretary. The Board of Directors may elect from among its members a Chairman of the Board an d a Vice Chairman of the Board. The Board of Directors may
also choose a President, one or more Vice Presidents and one or more Assist ant Secretaries. Any number of offices may be held by the same person, unless the
Certificate of Incorporation, as amended fr om time to time, or these Bylaws otherwise provide.
The compensation of all officers and agents of the corporation shall be fixed by the Board of Directors, and no officer shall be prevented from receiving such
compensation by virtue of his also being a Director of the corporation.
Section 2. Election or Appointment. The Board of Directors at its first meeting after each annual meeting of stockholders shall choose a Chief Executive Officer,
Chief Financial Officer and a Secretary and may choose a President, one or more Vice Presidents, one or more Assistant Secretaries and one or more Assistant Chief
Financial Officers.
The Board of Directors may appoint such other officers, assistant officers and agents as it shall deem necessary who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined from time to time by the Board.
Section 3. Tenure, Removal and Vacancies. The officers of the corporation shall hold office until their successors are chosen and qualified. Any officer elected or
appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of
the corporation shall be filled by the Board of Directors.
Section 4. Chairman of the Board. The Chairman of the Board, if any, shall preside at all meetings of the Board of Directors and of the stockholders at which he
shall be present. The Chairman of the Board shall have and may exercise such powers as are, from time to time, assigned by the Board and as may be provided by law.
Section 5. Vice Chairman of the Board. In the absence of the Chairman of the Board, the Vice Chairman of the Board, if any, shall preside at all meetings of the
Board of Directors and of the stockholders at which he shall be present. The Vice Chairman of the Board shall have and may exercise such powers as are, from time to
time, assigned by the Board and as may be provided by law.
Section 6. Chief Executive Officer. The Chief Executive Officer of the corporation shall, subject to the control of the Board of Directors, have general supervision,
direction and control of the business and the officers of the corporation. In the absence or nonexistence of a Chairman or Vice Chairman of the Board, the Chief
Executive Officer shall preside at all meetings of the Board of Directors and of the stockholders at which he or she shall be present. The Chief Executive Officer shall
have the general powers and duties of management usually vested in the Chief Executive Officer of a corporation, including general supervision, direction and control
of the business and supervision of other officers of the corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or these
Bylaws.
The Chief Executive Officer shall, without limitation, have the authority to execute bonds, mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the corporation.
Section 7. President. Subject to such supervisory powers as may be given by these Bylaws or the Board of Directors to the Chairman of the Board or the Chief
Executive Officer, if there be such officers, the President shall have general supervision, direction and control of the business and supervision of other officers of the
corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or these Bylaws. In the event a Chief Executive Officer shall
not be appointed, the President shall have the duties of such office.
Section 8. Vice Presidents. The Vice President, or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors, shall, in
the absence or disability of the President, act with all of the powers and be subject to all the restrictions of the President. The Vice Presidents shall also perform such
other duties and have such other powers as the Board of Directors, the President or these Bylaws may, from time to time, prescribe.
Section 9. Secretary. The Secretary shall attend all meetings of the Board of Directors, all meetings of the committees thereof and all meetings of the stockholders
and record all the proceedings of the meetings in a book or books to be kept for that purpose. Under the Chief Executive Officer’s or President’s supervision, the
Secretary shall give, or cause to be given, all notices required to be given by these Bylaws or by law; shall have such powers and perform such duties as the Board of
Directors, the Chief Executive Officer, the President or these Bylaws may, from time to time, prescribe; and shall have custody of the seal of the corporation. The
Secretary, or any Assistant Secretary, shall have authority to affix the seal of the corporation to any instrument requiring it and when so affixed, it may be attested by his
or her signature. The Board of Directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his or her
signature.
Section 10. Assistant Secretary. The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board of
Directors, shall, in the absence, disability or refusal to act of the Secretary, perform the duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board of Directors, the Chief Executive Officer, the President, the Secretary or these Bylaws may, from time to time,
prescribe.
Section 11. Chief Financial Officer. The Chief Financial Officer shall act as Treasurer and shall have the custody of the corporate funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the corporation in such depositories as may be designated by the Board of Directors.
The Chief Financial Officer shall disburse the funds of the corporation as may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his or
her transactions as Treasurer and of the financial condition of the corporation.
If required by the Board of Directors, the Chief Financial Officer shall give the corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or
under his control belonging to the corporation.
Section 12. Assistant Chief Financial Officers. The Assistant Chief Financial Officer, if any, or if there be more than one, the Assistant Chief Financial Officers in
the order determined by the Board of Directors, shall, in the absence, disability or refusal to act of the Chief Financial Officer, perform the duties and exercise the
powers of the Chief Financial Officer and shall perform such other duties and have such other powers as the Board of Directors, the Chief Executive Officer, the
President, the Chief Financial Officer or these Bylaws may, from time to time, prescribe.
Section 13. Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these
Bylaws, shall have such authority and perform such duties as may from time to time be prescribed by the Board of Directors, the Chief Executive Officer or the
President.
Section 14. Absence or Disability of Officers. In the case of the absence or disability of any officer of the corporation and of any person hereby authorized to act
in such officer’s place during such officer’s absence or disability, the Board of Directors may delegate the powers and duties of such officer to any officer or to any
Director, or to any other person who it may select.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Certificates of Stock. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by, the
Chairman or Vice Chairman of the Board of Directors, or the President or a Vice President and the Chief Financial Officer or an Assistant Chief Financial Officer, or the
Secretary or an Assistant Secretary of the corporation, certifying the number of shares owned by him in the corporation; provided that the Board of Directors may
provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the corporation.
Certificates may be issued for partly paid shares and in such case upon the face or back of the certificates issued to represent any such partly paid shares, the total
amount of the consideration to be paid therefor, and the amount paid thereon shall be specified.
If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers , designations, preferences and relative,
participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights
shall be set forth in full or summarized on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, provided that,
except as otherwise provided in Section 202 of the General Corporation Law of the State of Delaware (the “General Corporation Law”), in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, a statement that the
corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or right s. Within a reasonable time after the
issuance or transfer of uncertificated shares of any class or series of stock, the corporation shall send to the registered owner thereof a written notice containing the
information required by law to be set forth or stated on certificates representing shares of such class or series or a statement that the corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of such class or series and
the qualifications, limitations or restrictions of such preferences and/or rights.
Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated shares and the rights and obligations of the holders of
certificates representing stock of the same class and series shall be identical.
Section 2. Execution of Certificates. Any or all of the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer , transfer agent or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore
issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be
lost,
stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall
require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the
certificate
alleged to have been lost, stolen or destroyed.
Section 4. Transfer of Stock. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books. With respect to uncertificated shares, upon delivery of duly executed instructions or in any other manner
permitted by law evidencing succession, assignation or authority to transfer, it shall be the duty of the corporation to record the transaction upon its books.
Section 5. Fixing Record Date. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholder or any
adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting, except as otherwise provided by applicable law.
Section 6. Registered Stockholders. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares and shall not be bound
to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws o f Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Indemnification of Directors and Executive Officers. The corporation shall indemnify its Directors and executive officers to the fullest extent not
prohibited by the General Corporation Law; provided, however, that the corporation may limit the extent of such indemnification by individual contracts with its
Directors and executive officers; and, provided, further, that, subject to Section 5 of this Article VII, the corporation shall not be required to indemnify any Director or
executive officer in connection with any proceeding (or part thereof) initiated by such person or any proceeding by such person against the corporation or its Directors,
officers, employees or other agents unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of
Directors, or (iii) such indemnification is provided by the corporation, in its sole discretion, pursuant to the powers vested in the corporation under the General
Corporation Law.
Section 2. Indemnification of Other Officers, Employees and Other Agents. The corporation shall have power to indemnify its other officers, employees and other
agents to the fullest extent permitted by the General Corporation Law.
Section 3. Good Faith.
(a) For purposes of any determination under this Bylaw, a Director or officer shall be deemed to have acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, to have had no reasonable cause to
believe that any conduct was unlawful, if such Director’s or officer’s action is based on information, opinions, reports and statements, including financial statements and
other financial data, in each case prepared or presented by:
(1) one or more officers or employees of the corporation whom the Director or executive officer believed to be reliable and competent in the matters
presented;
(2) counsel, independent accountants or other persons as to matters which the Director or executive officer believed to be within such person’s
professional competence; and
(3) with respect to a Director, a committee of the Board upon which such Director does not serve, as to matters within such Committee’s designated
authority, which committee the Director believes to merit confidence; so long as, in each case, the Director or executive officer acts without
knowledge that would cause such reliance to be unwarranted.
(b) The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself,
create a presumption that the person did not act in good faith and in a manner which was reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal proceeding, that the person had reasonable cause to believe that his or her consent was unlawful.
(c) The provisions of this Section 3 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have
met the applicable standard of conduct set forth by the General Corporation Law.
Section 4. Expenses. The corporation shall advance, prior to the final disposition of any proceeding, promptly following request therefor, all expenses incurred by
any Director or officer in connection with such proceeding upon receipt of an undertaking by or on behalf of such person to repay said amounts if it should be
determined ultimately that such person is not entitled to be indemnified under this Bylaw or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to Section 4 of this Bylaw, no advance shall be made by the corporation if a determination is
reasonably and promptly made (i) by a majority vote of the Directors who were not parties to the proceeding, even though less than a quorum, (ii) by a committee of
such Directors designated by a majority vote of such Directors, even though less than a quorum, or (iii) if there are no such Directors, or if such Directors so direct, by
independent legal counsel in a written opinion, that the facts known to the decision-making party at the time such determination is made demonstrate clearly and
convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the corporation.
Section 5. Enforcement. Without the necessity of entering into an express contract, all rights to indemnification and advances to Directors and officers under this
Bylaw shall be deemed to be contractual rights and be effective to the same extent and as i f provided for in a contract between the corporation and the Director or
officer. Any right to indemnification or advances granted by this Bylaw to a Director or officer shall be enforceable by or on behalf of the person holding such right in
any court of competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within
ninety (90) days of request therefor. The claimant in such enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of
prosecuting his or her claim. The corporation shall be entitled to raise as a defense to any such action that the claimant has not met the standards of conduct that make it
permissible under the General Corporation Law for the corporation to indemnify the claimant for the amount claimed. Neither the failure of the corporation (including
its Board of Directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law, nor an actual
determination by the corporation (including its Board of Directors, independent legal counsel or its stock-holders) that the claimant has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
Section 6. Non-Exclusivity of Rights. The rights conferred on any person by this Bylaw shall not be exclusive of any other right which such person may have or
hereafter acquire under any statute, provision of the Certificate of Incorporation, as amended from time to time, Bylaws, agreement, vote of stockholders or
disinterested Directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding office. The corporation is specifically
authorized to enter into individual contracts with any or all of its Directors, officers, employees or agents respecting indemnification and advances, to the fullest extent
not prohibited by the General Corporation Law.
Section 7. Survival of Rights. The rights conferred on any person by this Bylaw shall continue as to a person who has ceased to be a Director, officer, employee or
other agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
Section 8. Insurance. To the fullest extent permitted by the General Corporation Law, the corporation, upon approval by the Board of Directors, may purchase
insurance on behalf of any person required or permitted to be indemnified pursuant to this Bylaw.
Section 9. Amendments. Any repeal or modification of this Bylaw shall only be prospective and shall not affect the rights under this Bylaw in effect at the time of
the alleged occurrence of any action or omission to act that is the cause of any proceeding against any agent of the corporation.
Section 10. Saving Clause. If this Bylaw or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation
shall nevertheless indemnify each Director and officer to the full extent not prohibited b y any applicable portion of this Bylaw that shall not have been invalidated, or
by any other applicable law.
Section 11. Certain Definitions. For the purposes of this Bylaw, the following definitions shall apply:
(a) The term “proceeding” shall be broadly construed and shall include, without limitation, the investigation, preparation, prosecution, defense, settlement,
arbitration and appeal of, and the giving of the testimony in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative.
(b) The term “expenses” shall be broadly construed and shall include, without limitation, court costs, attorneys’ fees, witness fees, fines, amounts paid in
settlement or judgment and any other costs and expenses of any nature or kind incurred in connection with any proceeding.
(c) The term the “corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its Directors, officers, and
employees or agents, so that any person who is or was a Director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such
constituent corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Bylaw with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(d) References to a “Director,” “officer,” “employee,” or “agent” of the corporation shall include, without limitation, situations where such person is serving
at the request of the corporation as a Director, officer, employee, trustee or agent of another corporation, partnership, joint venture, trust or other enterprise.
(e) References to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a Director, officer, employee or agent of
the corporation which imposes duties on, or involves services by, such Director, officer, employee, or agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee
benefit plan shall b e deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this Bylaw.
ARTICLE VIII
LOANS TO OFFICERS
Section 1. Loans to Officers. The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the
corporation or of its subsidiaries, including any officer or employee who is a Director of the Corporation or its subsidiaries, whenever, in the judgment of the Board of
Directors, such loan, guarantee or assistance may reasonably be expected to benefit the corporation. The loan, guarantee or other assistance may be with or without
interest and may be unsecured, or secured in such manner as the Board of Directors shall approve, including, without limitation, a pledge of shares of stock of the
corporation. Nothing in this Bylaw shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.
ARTICLE IX
GENERAL PROVISIONS
Section 1. Declaration of Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the Certificate of Incorporation, as amended
from time to time, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the Certificate of Incorporation, as amended from time to time.
Section 2. Dividend Reserve. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or
sums as the Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other purposes as the Directors shall think conducive to the interest of the corporation, and the
Directors may modify or abolish any such reserve in the manner in which it was created.
Section 3. Execution of Corporate Instruments. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the Board of Directors.
Section 5. Corporate Seal. The Board of Directors may adopt a corporate seal having inscribed thereon the name of the corporation, the year of its organization
and the words “Corporate Seal, Delaware.” The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE X
AMENDMENTS
Section 1. Amendments.
(a) Except as otherwise set forth in Section 9 of Article VII of these Bylaws, the Bylaws may be altered or amended or new Bylaws adopted by the
affirmative vote of a majority of the voting power of all of the then-outstanding shares of capital stock of the corporation entitled to vote generally in the election of
Directors (the “Voting Stock”). The Board of Directors shall also have the power, if such power is conferred upon the Board of Directors by the Certificate of
Incorporation, as amended from time to time, to adopt, amend or repeal Bylaws by a vote of the majority of the Board of Directors unless a greater or different vote is
required pursuant to the provisions of the Bylaws, the Certificate of Incorporation or any applicable provision of law.
(b) Notwithstanding any other provisions of these Bylaws or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to
any affirmative vote of the holders of any particular class or series of the Voting Stock required b y law, the Certificate of Incorporation, as amended from time to
time, or any Preferred Stock Designation (as the term is defined in the Certificate of Incorporation, as amended), the affirmative vote of the holders of at least sixty-six
and two-thirds percent (66 /3 %) of the voting power of all of the then-outstanding shares of the Voting Stock, voting together as a single class, shall be required to alter,
amend or repeal this paragraph (b) or Section 2, Section 5 or Section 10 of Article II of these Bylaws.
(c) Notwithstanding any other provisions of these Bylaws or any provision of law which might otherwise permit a lesser vote o r no vote, but in addition to
any affirmative vote of the holders of any particular class or series of the Voting Stock required by law, the Certificate of Incorporation, as amended from time to time,
or any Preferred Stock Designation (as the term is defined in the Certificate of Incorporation, as amended from time to time), the affirmative vote of at least sixty-six
and two-thirds percent (66 /3 %) of the Directors, shall be required to alter, amend or repeal this paragraph (c) or Section 2, Section 5 or Section 10 of Article II of these
Bylaws.
Amendment to Amended and Restated Bylaws of Infinity Pharmaceuticals, Inc., effective February 22, 2023
The Amended and Restated Bylaws of Infinity Pharmaceuticals, Inc. be and hereby are amended by adding thereto a new Section 6 to Article IX thereof, as
follows:
“Section 6. Forum Selection By-law.
(a) Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of
Chancery of the State of Delaware does not have jurisdiction, the federal district court for the District of Delaware) shall, to the fullest extent permitted by law, be the
sole and exclusive forum for: (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary
duty owed by any current or former director, officer, other employee or stockholder of the corporation to the corporation or the corporation’s stockholders, (iii) any
action asserting a claim arising pursuant to any provision of the General Corporation Law of the State of Delaware or as to which the General Corporation Law of the
State of Delaware confers jurisdiction on the Court of Chancery of the State of Delaware, or (iv) any action asserting a claim arising pursuant to any provision of the
Certificate of Incorporation or these By-laws (in each case, as they may be amended from time to time) or governed by the internal affairs doctrine. This Section 6(a)
does not apply to claims arising under the Securities Act of 1933 or the Securities Exchange Act of 1934 or any other claim for which the federal courts have
exclusive jurisdiction.
(b) Unless the corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall, to
the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any claims arising under the Securities Act of 1933.
(c) Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the corporation shall be deemed to have
notice of and consented to the provisions of this Section 6.”
Adopted by the Board of Directors of Infinity Pharmaceuticals, Inc., on February 22, 2023
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Certain identified information has been excluded from the exhibit because it is both (i) not material and (ii) is the type of information that the registrant
treats as private or confidential. Double asterisks denote omissions.
EXECUTION VERSION
December 24, 2012
AMENDED AND RESTATED DEVELOPMENT AND LICENSE AGREEMENT
Between
INTELLIKINE LLC
and
INFINITY PHARMACEUTICALS, INC.
AMENDED AND RESTATED DEVELOPMENT AND LICENSE AGREEMENT
This Amended and Restated Development and License Agreement (“Agreement”) is made as of this 24th day of December, 2012 (the “Effective Date”) by and
between Intellikine LLC, a limited liability company organized and existing under the laws of the State of Delaware and successor to Intellikine, Inc. (“Intellikine”),
and Infinity Pharmaceuticals, Inc., a company organized and existing under the laws of the State of Delaware (“Infinity”). Intellikine and Infinity are each referred to
individually as a “Party” and together as the “Parties”.
RECITALS
WHEREAS, Intellikine and Infinity are parties to the Development and License Agreement, effective as of July 7, 2010 (the “Original Effective Date”), as
amended on December 20, 2010 (such agreement, as so amended, the “Original Agreement”), pursuant to which the Parties entered into a collaboration to research
Licensed Compounds and Products (as such terms are defined below) that Infinity will develop and commercialize on the terms and conditions set forth in this
Agreement;
WHEREAS, under the Original Agreement, Intellikine has certain rights, and related obligations, to participate in the development and commercialization of
Oncology Products and Shared Products (as each such term is defined in the Original Agreement) in the United States, including the Oncology Product Option, the Co-
Detailing Option and the right to participate in Profit-and-Loss (as each such term is defined in the Original Agreement), and certain rights with respect to Licensed
Compounds and Products (as each such term is defined below) prior to the initiation of a Phase II Study (as such term is defined in the Original Agreement) (all the
foregoing rights and obligations, the “Released Oncology Rights”), and the Parties now wish to terminate such rights and related obligations; and
WHEREAS, the Parties now wish to amend and restate the Original Agreement in its entirety;
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the Parties agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions. Unless the context otherwise requires, the terms in this Agreement with initial letters capitalized, shall have the meanings described below, or the
meaning as designated in the indicated places throughout this Agreement.
“AAA” means the American Arbitration Association.
“Accounting Standards” means, with respect to a Person, generally accepted accounting principles as practiced in the United States or applicable international
standards followed by such Person.
“Acquired Party” shall have the meaning set out in Section 18.1(b).
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“Acquired Party Pre-Existing Affiliates” shall have the meaning set out in Section 18.1(b). “Acquirer” shall have the meaning set out in Section 18.1(b).
“Acquirer Affiliates” shall have the meaning set out in Section 18.1(b).
“Affiliate” means any entity that directly or indirectly controls or is controlled by or is under common control with a Person. For purposes of this definition,
“control” or “controlled” means ownership, directly or indirectly, of more than fifty percent (50%) of the shares of stock entitled to vote for the election of
directors, in the case of a corporation, or more than fifty percent (50%) of the equity interest in the case of any other type of legal entity (or if the jurisdiction
where such corporation or other entity is domiciled prohibits foreign ownership of such entity, the maximum foreign ownership interest permitted under such
laws, provided that such ownership interest provides actual control over such entity), status as a general partner in any partnership, or any other arrangement
whereby a Person controls or has the right to control the Board of Directors or equivalent governing body of a corporation or other entity. Notwithstanding
anything to the contrary herein, Chemikine shall be deemed not to be an Affiliate of Intellikine.
“Agreement” shall have the meaning described in the preamble.
“Breaching Party” shall have the meaning set out in Section 14.2(a).
“Business Day” means any day other than Saturday or Sunday on which the banks in New York are open for business.
“Calendar Quarter” means the respective periods of three (3) consecutive calendar months ending on March 31, June 30, September 30 and December 31.
“Chemikine” means ShangHai Chemikine Co., Ltd. and its subsidiaries.
“Claims” shall have the meaning set out in Section 17.1.
“COGS” means, with respect to a Reverted Product, the aggregate of internal and external costs of Infinity and Infinity Related Parties to manufacture such
Reverted Product (including any drug delivery device sold, or, as applicable, reasonably intended to be sold, for a single price with such Reverted Product),
calculated as follows: (a) to the extent that Infinity or Infinity Related Parties performs all or any part of the manufacturing of such Reverted Product, the direct
material costs and direct labor costs for, plus manufacturing overhead reasonably allocable to, such manufacturing of such Reverted Product (which may
include facilities’ start-up costs, the costs of audits, all directly incurred manufacturing variances, the costs of failed batches of such Reverted Product,
manufacturing administrative and facilities costs (including depreciation)), all calculated in accordance with GAAP; and (b) to the extent that manufacturing of
such Reverted Product is performed by a Third Party, the Out-of-Pocket Expenses of Infinity or Infinity Related Parties for such manufacturing activities
(including, to the extent
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included in the fees charged by such Third Party, costs for failed batches of such Reverted Product) from such Third Party, and the reasonably allocated direct
labor costs incurred by Infinity or any Infinity Related Parties in managing and overseeing the Third Party relationship, determined in accordance with GAAP.
COGS shall also include royalties, license or other fees paid by Infinity or Infinity Related Parties to Third Parties to license Patent Rights or other intellectual
property rights specifically for the manufacture of such Reverted Product (to the extent not already included in the Out-of-Pocket Expenses under clause (b)
above).
“Combination Component” shall have the meaning described in the definition of “Combination Product”.
“Combination Product” means a combined product that contains or uses a Licensed Compound and at least one kit, article of manufacture, composition of
matter, material, compound, component, product or process other than a Licensed Compound (a “Combination Component”), together, where (a) such
Combination Component is not itself a Licensed Compound, (b) if such Combination Component(s) were removed from such combined product, the resulting
product would be a Product,
(c) such Combination Component and such Licensed Compound are sold separately, or if not at the time being sold by any Person can be sold separately,
whether in either case by Infinity, any Infinity Related Party or any other Person, (d) such Combination Component does not, by itself or together with a
Licensed Compound, function so as to achieve the same purpose for which such Licensed Compound is sold, and (e) the market price of such combined product
is higher than the market price for such Licensed Compound as a result of such combined product containing or using such Combination Component.
“Commercial Sale” means any sale of a Product to a Third Party in any country in the Territory after the receipt of the Marketing Authorization for that
country, if such Marketing Authorization is required.
“Compound” means a compound and any references to a Compound shall include all of its various chemical forms, including acids, bases, salts, metabolites,
esters, isomers, enantiomers, pro-drug forms, hydrates, solvates, polymorphs and degradants thereof in crystal, powder or other form.
“Confidential Information” means all Know-How and other proprietary scientific marketing, financial or commercial information or data, which is generated
by or on behalf of a Party or its Affiliates or which one Party or any of its Affiliates has supplied or otherwise made available to the other Party or its Affiliates,
whether made available orally, in writing, or in electronic form, including information comprising or relating to concepts, discoveries, inventions, data, designs
or formulae in relation to the Original Agreement or this Agreement.
“Control” or “Controlled” means, with respect to any Know-How, Patent Right, other intellectual property right or any Compound, the legal authority or right
(whether by ownership, license or otherwise, but without taking into account any rights granted by
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one Party to the other Party under the terms of this Agreement) of a Party or, as set forth herein, its relevant Affiliate, to grant access, a license or a sublicense
of or under such Know-How, Patent Right, intellectual property right or Compound to the other Party, or to otherwise disclose proprietary or trade secret
information to the other Party, without breaching the terms of any agreement with a Third Party, or misappropriating the proprietary or trade secret information
of a Third Party.
“Deductions” shall have the meaning described in the definition of “Net Sales”.
“Development Candidate” means a Licensed Compound with respect to which Infinity or any Infinity Related Party has achieved the event described as
Milestone No. 1 described in Exhibit 3 (whether prior to, on or after the Effective Date and irrespective of whether a payment is due with respect to such
milestone).
“Diligent Efforts” means the efforts that a prudent Person desirous of achieving a result would use in similar circumstances to achieve that result as
expeditiously as possible; provided, however, that a Person required to use “Diligent Efforts” under this Agreement will not be thereby required to take actions
that would result in a material adverse change in the benefits to such Person under this Agreement. Without limiting the generality of the foregoing, in
determining Diligent Efforts with respect to the development and commercialization of a Licensed Compound or Product, the Parties shall take into account the
following: the market potential of such Licensed Compound or Product, safety and efficacy, product profile, competitiveness of the marketplace for the Product,
the proprietary position of the Product, the regulatory structure involved, the availability and level of reimbursement for such treatment by Third Party payors or
health insurance plans, the potential total profitability of the applicable Product marketed or to be marketed and other relevant factors affecting the cost, risk and
timing of development and the total potential reward to be obtained if a Product is commercialized.
“Effective Date” shall have the meaning described in the preamble.
“EMA” means the European Medicines Agency and any successor thereto.
“Excluded Claim” shall have the meaning described in Section 18.5(g).
“FDA” means the United States Food and Drug Administration and any successor thereto.
“Field” means the treatment, prevention, palliation or diagnosis of any disease, disorder, syndrome or condition in humans and/or animals; provided, however,
that, for purposes of any sublicense granted under the Navy Agreement, “Field” means the diagnosis, prevention and/or treatment of cancer, autoimmune and
inflammatory disease in humans and/or animals.
“First Skipped Milestone Payment” shall have the meaning described in Section 8.2.
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“GAAP” means, with respect to a Person, U.S. generally accepted accounting principles, consistently applied and will mean the international financial reporting
standards (IFRS) at such time as IFRS becomes the generally accepted accounting standard in the United States and applicable laws in the United States require
use of IFRS.
“HHMI” means Howard Hughes Medical Institute.
“Home-Grown Compound” means (a) an Intellikine Existing Compound; or (b) a Compound, other than an Intellikine Existing Compound, that is identified,
generically or specifically, (i) during the Research Term in the course of performance of the Research Program by or on behalf of Intellikine, any Intellikine
Program Affiliate or Intellikine’s permitted subcontractors, (ii) by or on behalf of Intellikine or any of its Affiliates (other than its Acquirer and its Acquirer
Affiliates who complied with the obligations under Sections 11, 18.1(b) and 18.1(c) of the Original Agreement) at any time prior to the Effective Date, or (iii) at
any time (before, on or after the Effective Date) by or on behalf of (A) Infinity, (B) any Infinity Related Party that conducted work under the Research Program
or, with Infinity’s consent and on Infinity’s behalf, conducts research on Target Inhibitors, (C) Infinity’s permitted subcontractors that conducted work under the
Research Program or, with Infinity’s consent and on Infinity’s behalf, conduct research on Target Inhibitors, or (D) an Acquirer or Acquirer Affiliate of Infinity
which is researching, developing or commercializing (or collaborating with a Third Party with respect thereto) a Target Inhibitor not in compliance with
Sections 11.2(i) and 11.2(ii), which Compound in this clause (b) is a Target Inhibitor (irrespective of whether the determination that such Compound is a Target
Inhibitor is made before, during or after the Research Term).
“Home-Grown Product” means a Product containing or comprising a Home-Grown Compound. “[**]” means a [**].
“In-Licensed Patent” means a Patent Right owned by a Third Party that covers, generically or specifically, the composition of matter, or method of
manufacture or use, of an In-Licensed Compound, which Patent Right is exclusively or co-exclusively licensed to Infinity or the Infinity Related Parties to
commercialize the In-Licensed Product containing or comprising such In- Licensed Compound in the relevant country in the relevant Indication being
commercialized by Infinity or the relevant Infinity Related Party. “In-Licensed Patent” excludes any Infinity Patents.
“[**]” means a [**].
“IND” means an investigational new drug application filed with the FDA or the corresponding application for the investigation of a Product in any other
country or group of countries, as defined in the applicable laws and regulations and filed with the Regulatory Authority of such country or group of countries.
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“Indemnified Losses” shall have the meaning set out in Section 17.1.
“Indemnified Party” shall have the meaning set out in Section 17.3(a).
“Indemnifying Party” shall have the meaning set out in Section 17.3(a).
“Indication” means a disease, condition, disorder or syndrome.
“Infinity” shall have the meaning described in the preamble and shall include its successors and assigns as contemplated by Section 18.1.
“Infinity Indemnified Party” shall have the meaning set out in Section 17.1.
“Infinity Intellectual Property” means the Infinity Patents and Infinity Know-How.
“Infinity Know-How” means all Know-How Controlled by Infinity or any of its Affiliates, as of the Original Effective Date or during the Term that (i) covers,
generically or specifically, any Licensed Compound or Product, or its use, formulation, preparation or manufacture and (ii) is necessary or useful for (A) the
development, manufacture, import or use of any Licensed Compound or Product in the Field, or (B) the development, manufacture, import, use, offer for sale or
sale of any Reverted Compound and Reverted Product in the Field. Infinity Know-How includes Joint Know-How and Intellikine Program Inventions.
“Infinity Patents” means all Patent Rights Controlled by Infinity or any of its Affiliates, as of the Original Effective Date or during the Term (and for the sake
of clarity, all Patent Rights arising in the course of prosecution or maintenance of such Patent Rights), that (A) cover, generically or specifically, any Licensed
Compound or Product, or its use, formulation, preparation or manufacture and (B) are necessary or useful for (1) the development, manufacture, import or use
of any Licensed Compound or Product in the Field, or (2) the development, manufacture, import, use, offer for sale or sale of any Reverted Compound and
Reverted Product in the Field. Infinity Patents includes Joint Patents and Intellikine Program Patents.
“Infinity Related Party” shall mean any of Infinity’s Affiliates or any Third Party sublicensee of rights granted to Infinity under this Agreement, but not
including any Third Party that functions as a distributor. Notwithstanding the foregoing, in no event shall Intellikine be considered an Infinity Related Party.
“Intellikine” shall have the meaning described in the preamble and shall include its successors and assigns as contemplated by Section 18.1.
“Intellikine Additional Patents” means all Patent Rights Controlled by Intellikine as of the Original Effective Date (and for the sake of clarity, all Patent Rights
arising in the course of prosecution or maintenance of such Patent Rights), which cover, generically or specifically, any Licensed Compound or Product, or its
use, formulation, preparation or manufacture; provided, however, that Intellikine Additional Patents exclude all Intellikine Existing Patents, Joint Patents,
Intellikine Program Patents, UCSF Patent Rights, UCSF Other Patent Rights and Navy Patent Rights.
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“Intellikine Background Know-How” means all Know-How Controlled by Intellikine as of the Original Effective Date, or that becomes or became Controlled
by Intellikine or any Intellikine Program Affiliate during the Research Term, which Know-How is or was necessary or useful for the conduct of the Research
Program or the development, manufacture, import, use, offer for sale or sale of any Licensed Compound or Product in the Field, but excluding all Intellikine
Know-How, Joint Know-How, Intellikine Program Inventions, Research Agreement Intellectual Property and UCSF Know-How. “Intellikine Background
Know-How” includes any Intellikine Background Know-How that becomes or became Controlled by an Intellikine Pre-Acquisition Affiliate through
assignment or license by Intellikine or an Intellikine Program Affiliate to such Intellikine Pre-Acquisition Affiliate prior to a transaction described in Section
18.1(a)(ii) of the Original Agreement in which Intellikine is the Acquired Party, which transaction occurs at any time after the Original Effective Date, with
respect to the corporate structure of Intellikine as it existed on the Original Effective Date or at the relevant time thereafter.
“Intellikine Background Patents” means all Patent Rights that become or became Controlled by Intellikine or any Intellikine Program Affiliate during the
Research Term, arising in the course of the Research Program (and for the sake of clarity, all Patent Rights arising in the course of prosecution or maintenance
of such Patent Rights), which Patent Rights are or were (a) necessary or useful for the conduct of the Research Program or (b) necessary or useful for the
development, manufacture, import, use, offer for sale or sale of any Licensed Compound or Product in the Field, but excluding all Intellikine Patents, Joint
Patents, Intellikine Program Patents, Research Agreement Intellectual Property, UCSF Patent Rights, UCSF Other Patent Rights and Navy Patent Rights.
“Intellikine Background Patents” include any Intellikine Background Patents that become or became Controlled by an Intellikine Pre-Acquisition Affiliate
through assignment or license by Intellikine or an Intellikine Program Affiliate to such Intellikine Pre-Acquisition Affiliate prior to a transaction described in
Section 18.1(a)(ii) of the Original Agreement in which Intellikine is the Acquired Party, which transaction occurs at any time after the Original Effective Date,
with respect to the corporate structure of Intellikine as it existed on the Original Effective Date or at the relevant time thereafter.
“Intellikine Background Technology” means Intellikine Background Know-How and Intellikine Background Patents.
“Intellikine Existing Compound” means any Target Inhibitor that is or was Controlled by Intellikine that is claimed or disclosed, generically or specifically,
within the Intellikine Existing Patents as of the Original Effective Date (irrespective of whether the determination that a Compound claimed or disclosed,
generically or specifically, within the Intellikine Existing Patents is a Target Inhibitor is made before, during or after the Research Term).
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“Intellikine Existing Patents” means all Patent Rights Controlled by Intellikine as of the Original Effective Date which are listed on Exhibit 1 (and for the sake
of clarity, all Patent Rights arising in the course of prosecution or maintenance of such Patent Rights); provided, however, that Intellikine Existing Patents
exclude the UCSF Patent Rights, UCSF Other Patent Rights and the Navy Patent Rights.
“Intellikine Indemnified Party” shall have the meaning set out in Section 17.2.
“Intellikine Intellectual Property” means the Intellikine Patents and the Intellikine Know-How.
“Intellikine Know-How” means all Know-How Controlled by Intellikine or any Intellikine Program Affiliate as of the Original Effective Date or during the
Term, which Know-How (a) covers, generically or specifically, any Licensed Compound or Product, or its use, formulation, preparation or manufacture and (b)
is or was necessary or useful for (i) the development, manufacture, import, use, offer for sale or sale of any Licensed Compound or Product in the Field or (ii)
the conduct of the Research Program. Intellikine Know-How excludes all Joint Know-How, Intellikine Program Inventions, Research Agreement Intellectual
Property and UCSF Know-How. “Intellikine Know-How” includes any Intellikine Know- How that becomes or became Controlled by an Intellikine Pre-
Acquisition Affiliate through assignment or license by Intellikine or an Intellikine Program Affiliate to such Intellikine Pre-Acquisition Affiliate prior to a
transaction described in Section 18.1(a)(ii) of the Original Agreement in which Intellikine is the Acquired Party, which transaction occurs at any time after the
Original Effective Date, with respect to the corporate structure of Intellikine as it existed on the Original Effective Date or at the relevant time thereafter.
“Intellikine Mark” shall have the meaning described in Section 10.5.
“Intellikine Other Know-How” means all Know-How Controlled by Intellikine or any of its Affiliates (other than its Acquirer and its Acquirer Affiliates who
complied with the obligations under Sections 11, 18.1(b) and 18.1(c) of the Original Agreement) at any time on or before the Effective Date, which Know-How
is necessary or useful for the research, development, manufacture, import, use, offer for sale, or sale of any Licensed Compound or Product in the Field;
provided, however, that Intellikine Other Know-How excludes all Intellikine Know-How, Intellikine Background Know-How, Joint Know-How, Intellikine
Program Inventions, Research Agreement Intellectual Property and UCSF Know-How. “Intellikine Other Know-How” includes any Intellikine Other Know-
How that became Controlled by an Intellikine Pre-Acquisition Affiliate through assignment or license by Intellikine or an Intellikine Program Affiliate to such
Intellikine Pre-Acquisition Affiliate prior to a transaction described in Section 18.1(a)(ii) of the Original Agreement in which Intellikine was the Acquired
Party, which transaction occurs at any time after the Original Effective Date, with respect to the corporate structure of Intellikine as it existed on the Original
Effective Date or at the relevant time thereafter.
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“Intellikine Other Patents” means (a) any Patent Rights Controlled by Intellikine or any of its Affiliates (other than its Acquirer and its Acquirer Affiliates who
complied with the obligations under Sections 11, 18.1(b) and 18.1(c) of the Original Agreement) at any time on or before the Effective Date (and for the sake of
clarity, all Patent Rights arising in the course of prosecution or maintenance of such Patent Rights), which Patent Rights are necessary or useful for the research,
development, manufacture, import, use, offer for sale, or sale of any Licensed Compound or Product in the Field, and (b) any Patent Rights Controlled by
Intellikine or any of its Affiliates (other than its Acquirer and its Acquirer Affiliates who complied with the obligations under Sections 11, 18.1(b) and 18.1(c)
of the Original Agreement) at any time after the Effective Date which cover or claim any Intellikine Other Know-How or any Infinity Know-How that was
disclosed to Intellikine prior to the Effective Date (and for the sake of clarity, all Patent Rights arising in the course of prosecution or maintenance of such
Patent Rights). Intellikine Other Patents excludes all Intellikine Patents, Intellikine Additional Patents, Intellikine Background Patents, Joint Patents, Intellikine
Program Patents, Research Agreement Intellectual Property, UCSF Patent Rights, UCSF Other Patent Rights and Navy Patent Rights. “Intellikine Other
Patents” includes any Intellikine Other Patent that became Controlled by an Intellikine Pre-Acquisition Affiliate through assignment or license by Intellikine or
an Intellikine Program Affiliate to such Intellikine Pre-Acquisition Affiliate prior to a transaction described in Section 18.1(a)(ii) of the Original Agreement in
which Intellikine was the Acquired Party, which transaction occurs at any time after the Original Effective Date, with respect to the corporate structure of
Intellikine as it existed on the Original Effective Date or at the relevant time thereafter.
“Intellikine Other Technology” means the Intellikine Other Know-How and the Intellikine Other Patent Rights.
“Intellikine Patents” means the Intellikine Existing Patents.
“Intellikine Pre-Acquisition Affiliate” means any Affiliate of Intellikine in existence prior to any transaction described in Section 18.1(a)(ii) of
the Original Agreement (which transaction occurs at any time after the Original Effective Date, with respect to the corporate structure of
Intellikine as it existed on the Original Effective Date or at the relevant time thereafter) in which Intellikine is the Acquired Party.
“Intellikine Program Affiliate” means any Affiliate of Intellikine that conducted work under the Research Program.
“Intellikine Program Invention” shall have the meaning described in the definition of “Intellikine Program Patents”.
“Intellikine Program Patents” means all Patent Rights which become Controlled by Intellikine or any Intellikine Program Affiliate after the Original Effective
Date but during the Term (and for the sake of clarity, all Patent Rights arising in the course of prosecution or maintenance of such Patent Rights), which Patent
Rights (a) claim any Invention arising from the Research Program made by employees, agents, contractors or
9
consultants of Intellikine or any Intellikine Program Affiliate, and (b) cover, generically or specifically, any Licensed Compound or Product, or its use,
formulation, preparation or manufacture (and any Invention (other than a Patent Right) described in clause (a) which is a Licensed Compound or Product, or its
use, formulation, preparation or manufacture, an “Intellikine Program Invention”). Intellikine Program Patents exclude all Intellikine Existing Patents, Joint
Patents, Research Agreement Intellectual Property, UCSF Patent Rights, UCSF Other Patent Rights and Navy Patent Rights. “Intellikine Program Patents”
include any Intellikine Program Patents that become or became Controlled by an Intellikine Pre- Acquisition Affiliate through assignment or license by
Intellikine or an Intellikine Program Affiliate to such Intellikine Pre- Acquisition Affiliate prior to a transaction described in Section 18.1(a)(ii) of the Original
Agreement in which Intellikine is the Acquired Party, which transaction occurs at any time after the Original Effective Date, with respect to the corporate
structure of Intellikine as it existed on the Original Effective Date or at the relevant time thereafter.
“Inventions” shall have the meaning described in Section 10.1(a).
“Joint Know-How” shall have the meaning set out in Section 10.1(a).
“Joint Patents” shall have the meaning set out in Section 10.1(a).
“Know-How” means all technical information, know-how and data, including inventions, discoveries, trade secrets, specifications, instructions, processes,
formulae, materials, expertise and other technology applicable to formulations, compositions or products or to their manufacture, development, registration, use
or marketing or to methods of assaying or testing them or processes for their manufacture, formulations containing them or compositions incorporating or
comprising them, and including all biological, chemical, pharmacological, biochemical, toxicological, pharmaceutical, physical and analytical, safety, quality
control, manufacturing, nonclinical and clinical data, regulatory data and filings, instructions, processes, formulae, expertise and information, relevant to the
research, development, manufacture, use, importation, offering for sale or sale of, and/or which may be useful in studying, testing, developing, producing or
formulating, products, or intermediates for the synthesis thereof. Know-How excludes the Patent Rights covering any inventions.
“Launch” means the commencement of Commercial Sale of a Product in any country of the Territory. “Licensed Compound” means”
(a) a Home-Grown Compound;
(b) [**]; or
(c) [**].
10
For the avoidance of doubt, INK1197 (also known as IPI145) and IPI443 are Licensed Compounds.
“MAA” means an application for the authorization for marketing of a Product in any country or group of countries outside the United States, and all
supplements, including all documents, data and other information concerning the Product, as defined in the applicable laws and regulations and filed with the
Regulatory Authority of a given country or group of countries.
“Marketing Authorization” means the grant of all necessary permits, registrations, authorizations, licenses and approvals (or waivers) required for the
manufacture, promotion, marketing, storage, import, export, transport, distribution, use, offer for sale, sale or other commercialization of a Product in any
country, including, where required, Pricing and Reimbursement Approvals.
“MHLW” means the Japanese Ministry of Health, Labour and Welfare and any successor thereto. “Milestone Event” means an event identified in Exhibit 3
which triggers a Milestone Payment.
“Milestone Payment” means a payment identified in a cell in Column C or Column D of Exhibit 3 to be made by Infinity to Intellikine on the occurrence of a
Milestone Event.
“Navy” means the United States Department of the Navy at The Naval Medical Research Center.
“Navy Agreement” means the Partially Exclusive Patent License Agreement, dated as of August 6, 2009 between the Navy and Intellikine, as may be amended
from time to time as contemplated by Section 2.6(c) but subject to Section 16.4(a).
“Navy Patent Rights” means the Patent Rights licensed to Intellikine under the Navy Agreement. “Navy Sublicense Option” shall have the meaning described
in Section 2.6(a).
“Navy Sublicense Option Period” shall have the meaning described in Section 2.6(a).
“NDA” means, with respect to a Product, a new drug application and all supplements filed with the FDA with respect to such Product, including all documents,
data and other information concerning such Product which are necessary for, or included in, a Marketing Authorization to use, sell, supply or market such
Product in the United States.
“Net Sales” means the gross invoice price of any Product sold or disposed of in a country by Infinity or any Infinity Related Party to the first Third Party (other
than an Infinity Related Party) following first Commercial Sale in such country, excluding sales or dispositions for use in clinical trials or other scientific
testing, in either case for which
11
Infinity or the Infinity Related Party receives no revenue, subject to subsections (1) and (2) below, less the following items, (to the extent not previously
deducted and included in the gross amount invoiced or otherwise directly paid or incurred by Infinity or any Infinity Related Party) (the “Deductions”):
(i) allowances for amounts repaid or credited by reason of rejections, returns, defects or recalls or because of reasonable and customary chargebacks,
refunds, coupons, patient co-pay savings cards, rebates (including related administration fees), wholesaler fee for service, reasonable amounts
of physician samples, reasonable amounts of free products given to indigent patients, retroactive price reductions or any other items
substantially similar in character and substance to the foregoing, with equitable adjustments to be made from time to time for any differences
between these allowances and actual amounts;
(ii) trade, cash and quantity discounts actually allowed and taken directly with respect to such sales or other dispositions;
(iii) freight, transport packing and insurance charges associated with transportation of Products to Third Parties, included and separately stated in the
applicable invoice;
(iv) tariffs, duties or other taxes imposed upon and paid directly with respect to the delivery, sale or use of Products when included and separately
stated in the gross invoice price, but excluding national, state or local taxes assessed on income; and
(v) amounts previously included in Net Sales of Products that are written-off by Infinity or any Infinity Related Party as uncollectible in accordance
with Infinity’s or such Infinity Related Party’s standard practices for writing off uncollectible amounts consistently applied.
There shall be no double-counting in determining the foregoing deductions. Such amounts shall be determined from the books and records of Infinity or the
Infinity Related Party, as applicable, maintained in accordance with the Accounting Standards, consistently applied.
(1) For a Combination Product, Net Sales will be calculated on a country by country basis as follows
[A/(A+B)] x (Net Sales, calculated without regard to this formula, of the Combination Product), where
(a) “A” is the total of Net Sales of each Product containing or using only the Licensed Compound contained within or used in the Combination
Product (and no other Combination Component) when sold separately; and
12
(b) “B” is the total of Net Sales of all products containing or using only the Combination Components (and no Licensed Compound),
subject to the provisions of subsection (2) below and provided that in no event will Net Sales for a Combination Product calculated using this formula
be less than fifty percent (50%) of the Net Sales, calculated without regard to this formula, of the Combination Product.
(2) In those instances in which Infinity or an Infinity Related Party acquires a Product from one of the other such named Persons and then subsequently sells
such Product to a Third Party, Net Sales of Infinity or such Infinity Related Party, as the case may be, which sells to a Third Party, will be calculated
upon such sale of such Product to such Third Party, and no royalty will be due by Infinity hereunder with respect to any such earlier intermediate sale
of such Product by or among, as relevant, Infinity or the relevant Infinity Related Party.
“Non-Acquired Party” shall have the meaning set out in Section 18.1(b).
“Non-Breaching Party” shall have the meaning set out in Section 14.2(a).
“Original Effective Date” shall have the meaning described in the preamble.
“Out-of-Pocket Expenses” means, with respect to certain activities hereunder, direct expenses paid or payable by the relevant Party or its Affiliates, or, as
expressly set forth in the definition of “COGS”, Infinity Related Parties, to Third Parties (other than employees of such Party or its Affiliates or Infinity Related
Parties) that (a) are specifically identifiable and incurred (i) in connection with filings to any Regulatory Authority relating to the Licensed Compounds or
Products in the Field as requested by Infinity or (ii) pursuant to Sections 8.1(b), 10.1(a), 10.2(b), 10.3(e) or 10.3(f) or as expressly set forth in the definition of
“COGS”, and (b) have been recorded in accordance with the Accounting Standards, and for the avoidance of doubt, do not include travel expenses or capital
expenditures.
“Paid Party” shall have the meaning set out in Section 9.5(a).
“Paragraph IV Certification” shall have the meaning described in Section 10.3(a).
“Party” and “Parties” shall have the meaning described in the preamble.
“Patent Committee” shall have the meaning set out in Section 10.2(a).
“Patent Rights” means all patents and patent applications (including provisional applications), including all divisionals, continuations, substitutions,
continuations-in-part, re-examinations, re-issues, additions, renewals, extensions, confirmations, registrations, any confirmation patent or registration patent or
patent of addition based on any such patent, patent term extensions, and supplemental protection certificates or requests for continued examinations, foreign
counterparts, and the like of any of the foregoing.
13
“Patent Term Extensions” shall have the meaning described in Section 10.6(a).
“Paying Party” shall have the meaning set out in Section 9.5(a).
“Person” means any natural person, corporation, general partnership, limited partnership, joint venture, proprietorship or other business organization or a
governmental agency or a political subdivision thereto.
“Phase I Study” means a study in humans which provides for the first introduction into humans of a Product, conducted in normal volunteers or patients to
generate information on product safety, tolerability, pharmacological activity or pharmacokinetics, as more fully defined in Federal Regulation 21 C.F.R. §
312.21(a) and its foreign equivalents.
“Phase II Study” means a study in humans of the safety, dose ranging and efficacy of a Product, as described in Federal Regulation 21 C.F.R.§ 312.21(b) and
its foreign equivalents.
“Phase III Study” means a controlled study, or a portion of a controlled study, in humans of the efficacy and safety of a Product, which study (in its entirety or
portion, as applicable), is prospectively designed to demonstrate statistically whether such Product is effective and safe for use in a particular Indication in a
manner sufficient to file an NDA or MAA to obtain Marketing Authorization, as further defined in Federal Regulation 21 C.F.R. § 312.21(c) and its foreign
equivalents. For the sake of clarity, with respect to what is commonly called a phase 2/3 study, the Phase III Study definition is met upon the first patient, first
visit in the portion of such study that is prospectively designed to demonstrate statistically whether such Product is effective and safe for use in a particular
Indication in a manner sufficient to file an NDA or MAA to obtain Marketing Authorization, as further defined in Federal Regulation 21 C.F.R. § 312.21(c) and
its foreign equivalents.
“Pricing and Reimbursement Approval” means, with respect to a Product, the governmental approval, agreement, determination or decision establishing the
price or level of reimbursement for such Product, as required in a given jurisdiction prior to sale of such product in such jurisdiction.
“Product” means a preparation, kit, article of manufacture, composition of matter, material, compound, component or product which is, or which contains or
comprises a Licensed Compound, including all formulations, modes of administration and dosage forms thereof.
“Product Marks” shall have the meaning described in Section 10.5.
“Regulatory Authority” means a federal, national, multinational, state, provincial or local regulatory agency, department, bureau or other governmental entity
with authority over the testing, manufacture, use, storage, import, promotion, marketing or sale of a pharmaceutical product in a country or territory, including
the FDA, EMA and MHLW.
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“Regulatory Exclusivity” means the ability to exclude Third Parties from manufacturing or commercializing a product that could compete with a Product in a
country, either through data exclusivity rights, orphan drug designation, or such other rights conferred by a Regulatory Authority in such country other than
through Patent Rights.
“Release Payment” shall have the meaning set out in Section 8.6(b).
“Released Oncology Rights” shall have the meaning set out in the recitals.
“Research Agreement” means any agreement listed on Exhibit 9 other than the Navy Agreement and the UCSF Agreement.
“Research Agreement Intellectual Property” means all Patents Rights and Know-How to which Intellikine has the right to negotiate or obtain a license under
any Research Agreement, which Patent Rights and Know-How could reasonably be necessary or useful for the development, manufacture, import, use, offer for
sale or sale of any Licensed Compound or Product in the Field.
“Research Plan” means the plan of research during the Research Term (or portion thereof), and the budget for Intellikine’s activities thereunder, as agreed by
the Parties as of the Original Effective Date, and as was amended under the Original Agreement.
“Research Program” means the program of research conducted by Infinity and Intellikine under the Original Agreement in accordance with the Research Plan.
“Research Term” means the period commencing on the Original Effective Date and ending on the Effective Date.
“Reverted Compounds” shall have the meaning described in Section 15.2(a).
“Reverted Products” shall have the meaning described in Section 15.2(a).
“Royalties” means the royalty payments due by Infinity to Intellikine on Net Sales as set out in Section 8.3.
“Royalty-Bearing Product” means, on a country-by-country basis, each Home-Grown Product [**] (a “Priority Product”) which is commercialized by Infinity
or any Infinity Related Party in such country; provided, however, that:
(a) subject to clause (b), if, as of the relevant time (i.e., the time of the applicable Net Sales for purposes of determining if a royalty is due hereunder
with respect to [**]),
(i) [**] have ever been commercialized by Infinity or any Infinity Related Party in such country, no [**] shall be subject to a royalty;
15
(ii) [**] has ever been commercialized by Infinity or any Infinity Related Party in such country, then the [**] that is commercialized by
Infinity or any Infinity Related Party in such country shall be considered a Royalty- Bearing Product until the time, if any, that at least [**] have ever
been commercialized by Infinity or any Infinity Related Party in such country, with the [**]; and
(iii) [**] have ever been commercialized by Infinity or any Infinity Related Party in such country, then the [**] that are commercialized by
Infinity or any Infinity Related Party in such country shall be considered a Royalty- Bearing Product until the time, if any, that [**] have ever been
commercialized by Infinity or any Infinity Related Party in such country, with the [**];
(b) [**]; and
(c) for clarity, in no event may [**].
“Royalty Term” shall have the meaning described in Section 9.2(a).
“Second Skipped Milestone Payment” shall have the meaning described in Section 8.2.
“Senior Officers” shall have the meaning described in Section 10.2(a)(ii)(B).
“[**]” means [**].
“[**]” means [**].
“[**]” means [**].
“Takeda” means Takeda America Holdings, Inc.
“Target” means PI3K , PI3K or PI3K /.
“Target Inhibitor” means any Compound which meets the criteria described in Exhibit 4.
“Term” shall have the meaning described in Section 14.1.
“Territory” means worldwide.
“The Regents” means The Regents of the University of California.
“Third Party” means any Person other than Infinity or Intellikine or an Affiliate of Infinity or Intellikine.
“Third Party Infringement” shall have the meaning described in Section 10.3(a).
“UCSF Agreement” means the Exclusive License Agreement, dated as of August 10, 2007, as amended March 13, 2009 and July 8, 2009, between The
Regents and Intellikine, as may be amended from time to time as contemplated by Section 2.6(c) but subject to Section 16.4(a).
16
“UCSF Intellectual Property” means the UCSF Know-How and UCSF Patent Rights.
“UCSF Know-How” means the Know-How licensed to Intellikine under the UCSF Agreement.
“UCSF Other Patent Rights” means the Patent Rights licensed to Intellikine under the UCSF Agreement listed on Exhibit 2- B (and for the sake of clarity, all
Patent Rights arising in the course of prosecution and maintenance of such Patent Rights).
“UCSF Patent Rights” means the Patent Rights licensed to Intellikine under the UCSF Agreement listed on Exhibit 2-A (and for the sake of clarity, all Patent
Rights arising in the course of prosecution and maintenance of such Patent Rights).
“UCSF Sublicense Option” shall have the meaning described in Section 2.6(b).
“UCSF Sublicense Option Period” shall have the meaning described in Section 2.6(b).
“United States” or “U.S.” means the United States of America and its territories and possessions.
“Valid Claim” means a claim of any issued, unexpired patent within the Intellikine Patents, the Navy Patent Rights (following the exercise of the Navy
Sublicense Option and during the term of the sublicense granted to Infinity pursuant to Section 2.1 (b)), the UCSF Patent Rights (following the exercise of the
UCSF Sublicense Option and during the term of the sublicense granted to Infinity pursuant to Section 2.1(c)) or the Infinity Patents (including for clarity any of
the Intellikine Program Patents or Joint Patents), that has not been revoked or held unenforceable or invalid by a decision of a court or governmental agency of
competent jurisdiction from which no appeal can be taken, or with respect to which an appeal is not taken within the time allowed for appeal, and that has not
been disclaimed or admitted to be invalid or unenforceable through reissue, disclaimer or otherwise.
“Valid In-Licensed Claim” means a claim of any issued, unexpired patent within the In-Licensed Patents, that has not been revoked or held unenforceable or
invalid by a decision of a court or governmental agency of competent jurisdiction from which no appeal can be taken, or with respect to which an appeal is not
taken within the time allowed for appeal, and that has not been disclaimed or admitted to be invalid or unenforceable through reissue, disclaimer or otherwise.
“[**]” means [**].
17
1.2 Interpretations. In this Agreement, unless the context requires otherwise:
(a) the headings are included for convenience only and shall not affect its construction;
(b) words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders;
(c) references to the word “include” and “including” shall mean includes and including without limitation;
(d) a Party includes its permitted assignees and/or the respective successors in title to substantially the whole of its undertaking;
(e) any reference to an enactment or statutory provision is a reference to it as it has been amended, modified, consolidated or re-enacted as of the relevant
time;
(f) general words shall not be given a restrictive interpretation by reason of their being preceded or followed by words indicating a particular class of acts,
matters or things; and
(g) to distinguish between research and development of a Compound, “research” means, with respect to a Compound, activities prior to the initiation of the
first IND-enabling cGLP toxicology study for such Compound, and “develop” or “development” means with respect to a Compound, activities starting
with the initiation of the first IND-enabling cGLP toxicology study for such Compound, but, for clarity, excluding commercialization.
2. GRANT OF LICENSES AND OTHER RIGHTS
2.1 License Grant to Infinity.
(a) Subject to the terms and conditions of this Agreement, Intellikine hereby grants Infinity an exclusive, sublicensable (subject to Section 3.1), transferrable
(in accordance with Section 18.1) license under the Intellikine Intellectual Property, the Intellikine Additional Patents and the Intellikine Other
Technology to develop and have developed (which includes non-clinical activities to support development), manufacture, have manufactured, use,
sell, offer to sell, otherwise commercialize and import Licensed Compounds and Products in the Field in the Territory during the Term (or thereafter,
in accordance with Section 15.1(b)).
(b) Effective upon Infinity’s exercise of the Navy Sublicense Option pursuant to Section 2.6(a) and subject to the terms and conditions of this Agreement
(including Exhibit 7(A) with respect to the Navy Agreement) and the Navy Agreement, Intellikine shall, and hereby does (effective only and
automatically upon such exercise), grant Infinity an exclusive, sublicensable (subject to Section 3.1), transferrable (in accordance with Section 18.1)
sublicense under the Navy
18
Patent Rights to manufacture, have manufactured, use, sell, offer to sell, otherwise dispose of in accordance with law and import Licensed Compounds
and Products in the Field in the Territory during the Term (or the term of the Navy Agreement if such term ends prior to the Term).
(c) Effective upon Infinity’s exercise of the UCSF Sublicense Option pursuant to Section 2.6(b) and subject to the terms and conditions of this Agreement
(including Exhibit 7(B) with respect to the UCSF Agreement) and the UCSF Agreement, Intellikine shall, and hereby does (effective only and
automatically upon such exercise), grant Infinity
(i) an exclusive, sublicensable (subject to Section 3.1), transferrable (in accordance with Section 18.1) sublicense under the UCSF Patent Rights and
(ii) a non-exclusive, sublicenseable (subject to Section 3.1) sublicense under the UCSF Other Patent Rights and the UCSF Know-How, in each case to
manufacture, have manufactured, use, Sell (as defined in the UCSF Agreement), offer to Sell (as defined in the UCSF Agreement), otherwise
commercialize and import Licensed Compounds and Products in the Field in the Territory during the Term (or the term of the UCSF Agreement if
such term ends prior to the Term).
(d) Subject to the terms and conditions of this Agreement, Intellikine hereby grants to Infinity a non-exclusive, transferrable (in accordance with Section
18.1), sublicensable (subject to Section 3.1) license (i) under the Intellikine Background Technology, Intellikine Intellectual Property, Intellikine
Additional Patents and Intellikine Other Technology to research Compounds, (ii) under the Intellikine Background Technology to develop and have
developed (which includes non-clinical activities to support development) Licensed Compounds and Products in the Field during the Term, and (iii)
under the Intellikine Background Technology, to manufacture, have manufactured, use, sell, offer to sell, otherwise commercialize and import
Licensed Compounds and Products in the Field during the Term; provided, however, that the license under clause (i) shall be exclusive with respect to
any Licensed Compound (A) from and after the Effective Date, with respect to any Licensed Compound specified as a Development Candidate in
Section 5.1, and (B) with respect to any other Licensed Compound, only on and after the date on which such Infinity has provided Intellikine with
written notice of such Licensed Compound’s designation as a Development Candidate pursuant to Section 5.1.
2.2 No License Grant to Intellikine. Neither Intellikine nor any of Intellikine’s Affiliates or Third Party subcontractors shall have any rights under the Infinity
Intellectual Property to conduct any research, development or commercialization activities except as expressly provided in Article 15, if applicable.
2.3 Exclusivity of License. Except to the extent necessary to enable Intellikine to exercise its rights or perform its obligations under this Agreement, the term
“exclusive” for the purposes of Section 2.1(a), (b), (c) and (d) means to the exclusion of all others, including Intellikine and its Affiliates; provided, that, if at
any time Intellikine’s license under the
19
UCSF Patent Rights becomes non-exclusive pursuant to Section 10.8 of the UCSF Agreement, the UCSF Sublicense Option shall be modified to reflect that
such option is with respect to a non-exclusive license and any sublicense under the UCSF Patent Rights granted to Infinity under Section 2.1(c) shall
automatically become non-exclusive (but the sublicense granted by Intellikine to Infinity under the UCSF Patent Rights shall be exclusive as between
Intellikine and Infinity to the fullest extent possible, and Intellikine shall not grant any other sublicenses under the UCSF Patent Rights to manufacture, have
manufactured, use, Sell (as defined in Exhibit 7(B)), offer to Sell (as defined in Exhibit 7(B)), otherwise commercialize and import Licensed Compounds and
Products in the Field in the Territory).
2.4 Intentionally Omitted
2.5 Reservation of Rights. Subject to the licenses and, as applicable, sublicenses granted to each Party and the other terms and conditions of this Agreement
(including, for the sake of clarity, the provisions of Section 11), and the Navy Agreement and UCSF Agreement, as applicable, with respect to the Navy Patent
Rights, the UCSF Other Patent Rights and the UCSF Intellectual Property, respectively, (a) Intellikine will retain all rights under the Intellikine Intellectual
Property, Intellikine Additional Patents, Intellikine Background Technology, Intellikine Other Technology, Navy Patent Rights, UCSF Other Patent Rights and
UCSF Intellectual Property that are not expressly licensed or sublicensed to Infinity, including Intellikine’s retained rights to (i) develop, have developed,
manufacture, have manufactured, use, sell, offer to sell, otherwise commercialize and import all Compounds and products containing or comprising any such
Compound, which Compounds and products are not Licensed Compounds or Products, and (ii) research all Compounds other than Licensed Compounds which
are subject to the exclusive research rights granted to Infinity under Section 2.1(d); and Infinity agrees not to practice any Intellikine Intellectual Property,
Intellikine Additional Patents, Intellikine Background Technology, Intellikine Other Technology, Navy Patent Rights, UCSF Other Patent Rights and UCSF
Intellectual Property except pursuant to the licenses and sublicenses expressly granted to Infinity in this Agreement (it being agreed that no such license or
sublicense grants any right to research, develop, have developed, manufacture, have manufactured, use, sell, offer to sell, otherwise commercialize and/or
import any Compounds and products containing or comprising any such Compound, other than Licensed Compounds and Products to the extent set forth
herein), and (b) Infinity will retain all rights under the Infinity Intellectual Property that are not expressly licensed to Intellikine, including Infinity’s retained
rights (1) to research, develop, have developed, manufacture, have manufactured, use, sell, offer to sell, otherwise commercialize and import all Licensed
Compounds and Products, and (2) to research, develop, have developed, manufacture, have manufactured, use, sell, offer to sell, otherwise commercialize and
import all Compounds and products containing or comprising any such Compound, which Compounds and products are not Licensed Compounds or Products,
and Intellikine agrees not to practice any Infinity Intellectual Property except pursuant to the licenses expressly granted to Intellikine in this Agreement (it being
agreed that no such license or sublicense grants any right to research, develop, have developed, manufacture, have manufactured, use, sell, offer to sell,
otherwise commercialize and/or
20
import any Compounds and products containing or comprising any such Compound, other than Licensed Compounds and Products to the extent set forth
herein). For the avoidance of doubt: (i) all Intellikine Intellectual Property, Intellikine Additional Patents, Intellikine Background Technology, Intellikine Other
Technology, Navy Patent Rights, UCSF Other Patent Rights and UCSF Intellectual Property shall remain the property of Intellikine and, except as set forth in
Section 12.1, shall be considered Confidential Information of Intellikine; and (ii) all Infinity Intellectual Property, Joint Know-How, Joint Patents, Intellikine
Program Inventions and Intellikine Program Patents shall remain the property of Infinity and, except as set forth in Section 12.1, shall be considered
Confidential Information of Infinity. No right or license under any Patent Rights or Know-How of either Party is granted or shall be granted by implication. All
such rights or licenses are or shall be granted only as expressly provided in the terms of this Agreement.
2.6 Sublicense Options.
(a) Navy. Subject to the terms and conditions of this Agreement, Intellikine hereby grants to Infinity the exclusive option to obtain from Intellikine the
sublicense under the Navy Patent Rights provided in Section 2.1(b), subject to and effective only upon the prior written consent of Navy (the “Navy
Sublicense Option”). Infinity may exercise the Navy Sublicense Option upon written notice to Intellikine at any time during the period from the
Original Effective Date until the earlier to occur of (x) [**] or (y) the expiration or termination of the license to the Navy Patent Rights under the Navy
Agreement (the “Navy Sublicense Option Period”); provided that (a) Infinity will not be deemed to have been exercised the Navy Sublicense Option
until Navy consents to the sublicense to Infinity of the Navy Patent Rights; provided, however, that, as long as Infinity has issued the written notice of
exercise to Intellikine during the Navy Sublicense Option Period, then Infinity will be deemed to have exercised the Navy Sublicense Option
immediately upon such consent from Navy, even if such consent is granted after the Navy Sublicense Option Period; and (b) if Intellikine intends to
terminate its license under the Navy Patent Rights, Intellikine will give Infinity [**] days’ prior written notice of any such proposed termination so
that Infinity may exercise the Navy Sublicense Option prior to such proposed termination, and if Infinity issues to Intellikine a written notice to
exercise the Navy Sublicense Option prior to such proposed termination, Intellikine will not proceed with such termination. Upon exercise of the Navy
Sublicense Option in accordance herewith (i) the sublicense under the Navy Patent Rights granted under Section 2.1(b) shall immediately become
effective and (ii) Infinity shall comply, and shall cause any Infinity Related Parties who are sublicensed under the Navy Patent Rights to comply, with
the applicable terms and conditions of the Navy Agreement, including the terms and conditions set forth in Exhibit 7 (A), subject to any amendment to
the Navy Agreement as contemplated by Section 2.6(c), with respect to the Navy Patent Rights and any Products that are covered by the Navy Patent
Rights. If Infinity does not issue to Intellikine a written notice to exercise the Navy Sublicense Option during the Navy Sublicense Option Period, then
the Navy Sublicense
21
Option shall terminate and Infinity shall have no rights, and Intellikine shall have no obligations to Infinity, with respect to the Navy Agreement. At
Infinity’s request, Intellikine shall use reasonable efforts, at Infinity’s expense, to seek the consent of Navy to any sublicense under the Navy Patent
Rights to Infinity or its Affiliates, as designated by Infinity.
(b) UCSF. Subject to the terms and conditions of this Agreement, Intellikine hereby grants to Infinity the exclusive option to obtain from Intellikine the
sublicense under the UCSF Patent Rights, UCSF Know-How and UCSF Other Patent Rights provided in Section 2.1(c) (the “UCSF Sublicense
Option”). Infinity may exercise the UCSF Sublicense Option upon written notice to Intellikine at any time during the period from the Original
Effective Date until the earlier to occur of (x) [**] or (y) the expiration or termination of the license to the UCSF Patent Rights under the UCSF
Agreement (the “UCSF Sublicense Option Period”); provided that if Intellikine intends to terminate its license under the UCSF Patent Rights,
Intellikine will give Infinity [**] days’ prior written notice of any such proposed termination so that Infinity may exercise the UCSF Sublicense
Option prior to such proposed termination, and if Infinity exercises the UCSF Sublicense Option prior to such proposed termination, Intellikine will
not proceed with such termination. Upon exercise of the UCSF Sublicense Option in accordance herewith (i) the sublicense under the UCSF
Intellectual Property and UCSF Other Patent Rights granted under Section 2.1(c) shall immediately become effective and (ii) Infinity shall comply,
and shall cause any Infinity Related Parties who are sublicensed under the UCSF Intellectual Property or the UCSF Other Patent Rights to comply,
with the applicable terms and conditions of the UCSF Agreement, including the terms and conditions set forth in Exhibit 7 (B), subject to any
amendment to the UCSF Agreement as contemplated by Section 2.6(c), with respect to the UCSF Intellectual Property or the UCSF Other Patent
Rights and any Licensed Compounds and Products that are covered by the UCSF Intellectual Property or the UCSF Other Patent Rights. If Infinity
does not exercise the UCSF Sublicense Option during the UCSF Sublicense Option Period, then the UCSF Sublicense Option shall terminate and
Infinity shall have no rights, and Intellikine shall have no obligations to Infinity, with respect to the UCSF Agreement.
(c) During the Navy Sublicense Option Period or UCSF Sublicense Option Period and prior to Infinity’s exercise of, respectively, the Navy Sublicense Option
or the UCSF Sublicense Option, to the extent that any conflicts exist between the obligations set forth in Exhibit 7(A) or Exhibit 7(B), respectively,
and the terms of any agreement between Infinity and any Third Party to whom Infinity intends to sublicense the Navy Patent Rights or the UCSF
Intellectual Property and UCSF Other Patent Rights, respectively, (i) Intellikine shall, at the reasonable request of Infinity and at Infinity’s expense,
use commercially reasonable efforts to negotiate such amendments to, as applicable, the Navy Agreement or the UCSF Agreement, respectively, and
(ii) Infinity shall, at the reasonable request of Intellikine and at Infinity’s expense, use commercially reasonable efforts to negotiate such amendments
to, as applicable, such other agreement, in each case
22
of clauses (i) and (ii) as Intellikine and Infinity may reasonably agree. Notwithstanding anything to the contrary in Section 2.1(b) or 2.1(c), upon
Infinity’s request at the time of the exercise of the Navy Sublicense Option or the UCSF Sublicense Option, as applicable, the sublicense granted by
Intellikine pursuant to Section 2.1(b) or 2.1(c) shall be granted on a territory-by-territory basis to Infinity or its Affiliates, as designated by Infinity, in
lieu of the sublicense under Section 2.1(b) or 2.1(c), as applicable, but shall otherwise be treated as if such sublicense had been granted under this
Agreement and shall be subject to all terms and conditions of this Agreement, and in the case of the Navy Agreement, subject to and effectively only
upon obtaining the prior written consent of Navy.
2.7 Protection of Interests Under Owned IP.
(a) With respect to any Infinity Patent that is or was Controlled by Infinity or any of its Affiliates at any time between the Original Effective Date or thereafter
during the Term, such Infinity Patent shall still be considered an Infinity Patent for purposes of the determination of the relevant Royalty Term for
Royalties calculations if the ownership of such Infinity Patent, or the license agreement pursuant to which Infinity or any of its Affiliates Controlled
such Infinity Patent, is assigned to or among Infinity, its Affiliates or a Third Party.
(b) With respect to any Intellikine Intellectual Property, Intellikine Additional Patents, Intellikine Background Technology or Intellikine Other Technology
that is or was owned or Controlled by Intellikine or (to the extent set forth in the relevant definition of such intellectual property) any of its Affiliates,
at any time between the Original Effective Date or thereafter during the Term (or the relevant period set forth in the relevant definition of such
intellectual property), such intellectual property shall still be considered included in the relevant definitions of intellectual property for purposes of the
licenses and related prosecution, maintenance and enforcement rights granted to Infinity hereunder if the ownership of such intellectual property, or
the license agreement pursuant to which Intellikine or its relevant Affiliate Controlled such intellectual property, is assigned to or among Intellikine, its
Affiliates or a Third Party.
3. SUBLICENSING
3.1 By Infinity. Infinity shall have the right to grant sublicenses of the rights granted to it under Section 2.1(a), (b), (c) and (d) of this Agreement to its Affiliates or
any Third Party, through multiple tiers (with respect to Section 2.1(b) and (c) only to the extent permitted under the Navy Agreement and UCSF Agreement,
respectively), provided that:
(a) Intentionally Omitted;
(b) any sublicense agreement shall be in writing and shall be consistent with the relevant restrictions and limitations set forth in this Agreement;
23
(c) any such sublicense agreement shall provide for the termination of the sublicense upon termination of this Agreement (except as provided in Section
15.1(b)), except that any such sublicense of the rights granted under Section 2.1 to a Third Party to develop or commercialize Licensed Compounds or
Products shall not terminate upon termination of this Agreement but instead shall remain in full force and effect if the sublicensee is not then in
material breach of its sublicense agreement and such sublicensee provides to Intellikine within thirty (30) days after termination of this Agreement a
written agreement to be bound as licensee under the terms and conditions of this Agreement as to the field and territory in which such sublicensee has
been granted rights under its sublicense agreement; and
(d) Infinity shall be liable for the failure of its sublicensees to comply with the relevant obligations under this Agreement and shall, at its own cost, use
Diligent Efforts to enforce compliance by its sublicensees with the terms of the sublicense agreement.
3.2 Intentionally Omitted
3.3 Subcontracting. Infinity may subcontract the performance of research, development, manufacturing and commercialization activities with respect to Licensed
Compounds or Products to Affiliates or Third Parties at its discretion.
4. GOVERNANCE
4.1 General. The Parties acknowledge and agree that pursuant to this Agreement, Infinity is undertaking the responsibility for the research, development and
commercialization of the Licensed Compounds and Products.
5. RESEARCH AND DEVELOPMENT
5.1 Development Candidate Designation. The Parties acknowledge and agree that, as of the Effective Date, IPI145 and IPI443 are Licensed Compounds and
Development Candidates. Infinity may, in its discretion, provide to Intellikine’s in-house patent counsel a written notice of the chemical structure for any
Licensed Compound following the date on which such Licensed Compound becomes a Development Candidate. Intellikine’s patent counsel may disclose such
information pursuant to the last sentence of Section 12.1 solely on a need-to-know basis to Intellikine’s and its Affiliates’ employees, agents, contractors,
consultants and advisers who need to know in order to respect the research exclusivity granted to Infinity pursuant to Section 2.1(d).
5.2 Intellikine Know-How. During the Term, Intellikine will provide to Infinity such Intellikine Know-How, Intellikine Background Know-How and Intellikine Other
Know-How as is reasonably requested by Infinity or which Intellikine reasonably believes is necessary or useful, in either case for Infinity to research, develop,
have developed, manufacture, have manufactured, use, and import Licensed Compounds and Products and sell and offer to sell Products (including Licensed
Compounds included therein), in each case in the Field in the Territory.
24
5.3 Intentionally Omitted
5.4 Intentionally Omitted
5.5 Research Funding. Intellikine hereby acknowledges that all Out-of-Pocket Expenses and FTE Costs (each as defined in the Original Agreement) owed to
Intellikine by Infinity under the Original Agreement with respect to activities conducted by Intellikine under the Research Program or the Development
Program (as defined in the Original Agreement) have been paid in full.
5.6 Development. Subject to the terms and conditions of this Agreement, Infinity (itself or through the Infinity Related Parties), will use Diligent Efforts to develop at
least two (2) Products. Infinity’s Diligent Efforts to develop the Licensed Compounds and Products will include demonstration that it and Infinity Related
Parties, collectively, have made at least the [**] at least two (2) Products, except that [**]:
Relevant Period [**]
[**] [**]
[**] [**]
[**] [**]
For the sake of clarity, [**] with respect to the development of the relevant Products from and after the Original Effective Date, [**] relevant period.
[**], if during the period that [**], the conditions and considerations described in the definition of “Diligent Efforts” with respect to such Product [**] of
Infinity’s Diligent Efforts to develop such Product.
Infinity will be responsible for all costs of development of Licensed Compounds and Products in the Field in the Territory.
5.7 Intentionally Omitted
5.8 Intentionally Omitted
5.9 Regulatory. All regulatory filings submitted in connection with testing, or obtaining Marketing Authorizations to market, a Licensed Compound or Product in the
Field, including all IND, MAA and NDA submissions and other regulatory filings and Pricing and Reimbursement Approvals relating to the Licensed
Compounds and Products, shall be owned by and submitted by and in the name and at the sole expense of Infinity, an
25
Infinity Related Party or a subcontractor. Intellikine will reasonably cooperate with and provide reasonable assistance to Infinity, at Infinity’s expense for
Intellikine’s Out-of-Pocket Expenses, in connection with filings to any Regulatory Authority relating to the Licensed Compounds or Products in the Field,
including by executing any required documents, or providing copies of all reasonably required documentation.
5.10 Progress Reports. Infinity shall submit [**], summarizing Infinity’s (and its Affiliates’ and (sub)licensees’) activities related to the development of each Product
in the Field, including development activities and Milestone Events achieved and an overview of future development activities reasonably contemplated,
including anticipated timelines for achievement of Milestone Events, the status of obtaining Marketing Authorization for each of the United States, Europe and
Japan, and planning for commercialization in such territories; provided, however, that the report [**]. Such reports shall be submitted, with respect to activities
for the United States, until first Commercial Sale of such Product in the United States, and with respect to activities for countries or regions outside the United
States, until first Commercial Sale of such Product in any country outside the United States.
5.11 Manufacturing. Infinity will have the exclusive right to, and have the responsibility to, at its sole expense, manufacture and supply (or to have manufactured and
supplied) Licensed Compounds and Products being developed or commercialized under this Agreement. Infinity may subcontract or sublicense the manufacture
or supply of the Licensed Compounds or Products to Affiliates or Third Parties in accordance with Sections 3.1 or 3.3.
6. COMMERCIALIZATION
6.1 Commercialization. Infinity will have the exclusive right to, and have the responsibility to, at its sole expense, conduct all aspects of worldwide commercialization
of the Products in the Field, including planning, implementation, setting the price and establishing the distribution channel.
6.2 Infinity Responsibility. Infinity shall itself or through the Infinity Related Parties, at its sole cost use Diligent Efforts to (a) prepare, file, prosecute and maintain all
applications for Marketing Authorization for the marketing, use, promotion, import, sale, distribution or commercialization of at least two (2) Products in the
Field in the Territory and (b) commercialize such Products which receive Marketing Authorization in the Field in the Territory.
6.3 Lack of Diligence. In the event that Infinity (i) fails to use or continue to use Diligent Efforts to develop and commercialize Licensed Compounds and Products as
described in Sections 5.6 and 6.2, or (ii) notifies Intellikine that it will not conduct further development or commercialization with respect to all Licensed
Compounds or Products, then Intellikine may terminate this Agreement, upon written notice to Infinity, provided that Infinity will have a period of [**]
following receipt of such notice to demonstrate to Intellikine’s reasonable satisfaction that it has not failed to use or continue to use or to
26
initiate Diligent Efforts in accordance with Sections 5.6 and 6.2, and any termination shall be subject to Section 14.2(b) as if such termination by Intellikine was
effected under Section 14.2(a) for a material breach by Infinity.
6.4 Progress Reports. Within [**], Infinity shall provide a [**], for the relevant [**] of anticipated [**] and anticipated [**]; provided, however, that, if [**], the first
such [**] shall cover [**]. By way of example and without limitation, if [**], the first such [**] shall be due by [**].
7. Intentionally Omitted
8. FINANCIAL PROVISIONS
8.1 Upfront Payment; Option Payment.
(a) The Parties agree and acknowledge that the amounts in Section 8.1(a) of the Original Agreement were paid.
(b) In consideration of the Navy Sublicense Option and the UCSF Sublicense Option, [**], respectively, within thirty (30) days after the date of invoice
for such expenses.
8.2 Milestone Payments. In consideration of the granting of the licenses, sublicenses and rights to Infinity hereunder, after the achievement by or on behalf of Infinity
or any Infinity Related Party of each Milestone Event identified in Exhibit 3, Infinity will make the corresponding non-refundable, non-creditable Milestone
Payment. For the avoidance of doubt, none of the Milestone Payments shall be payable more than once, and should a Product be replaced by another Product,
no additional Milestone Payments shall be due for Milestone Events achieved by the replacement Product for which corresponding Milestone Payments were
previously made to Intellikine with respect to such replaced Product. If, at any time, the achievement of any of the Milestone Events in row 5, 8 or 11 of Exhibit
3 has occurred with respect to which a payment is due under Column C of Exhibit 3, and any of the Milestone Payments in row 2, 3 or 4 of Exhibit 3 have not
been due or been paid under Column C of Exhibit 3 (each, a “First Skipped Milestone Payment”), then each such First Skipped Milestone Payment shall
become due and payable concurrently with the Milestone Payment for such achieved Milestone Event. If, at any time, the achievement of any of Milestone
Events in row 5, 8 or 11 of Exhibit 3 has occurred with respect to which a payment is due under Column D of Exhibit 3, and any of the Milestone Payments in
row 2, 3 or 4 of Exhibit 3 have not been due or been paid under Column D of Exhibit 3 (each, a “Second Skipped Milestone Payment”), then each such Second
Skipped Milestone Payment shall become due and payable concurrently with the Milestone Payment for such achieved Milestone Event.
8.3 Royalty Payments. In consideration of the granting of the licenses and rights to Infinity hereunder, Infinity will pay Royalties to Intellikine, on a Royalty-Bearing
Product-by-Royalty-Bearing Product basis, on annual Net Sales of Royalty-Bearing Products at the
27
applicable rates set forth below, subject to Sections 8.4 and 9.2. For the avoidance of doubt, Royalties shall be payable only once with respect to the same unit
of Royalty-Bearing Product.
Annual Net Sales of each Royalty-Bearing Product in the United States
Royalty Rate
[**]
7%
[**]
8%
[**]
10%
[**]
11%
Annual Net Sales of each Royalty-Bearing Product outside the United States
Royalty Rate
[**]
7%
[**]
8%
[**]
10%
[**]
11%
Notwithstanding anything to the contrary herein, with respect to a [**], (a) Royalties shall only be due as set forth herein if, as of the relevant time (if any) that
Royalties would be due to Intellikine with respect to such [**].
8.4 Third Party Obligations.
(a) Except as provided in the subsequent sentence and in Section 8.4(b), Infinity and the Infinity Related Parties shall be responsible, at their own expense, for
obtaining any required licenses from a Third Party to Patent Rights, that, in the absence of such license, would be infringed by the manufacture, use,
offer for sale, sale or import of a particular Product in a particular country. In the event that Infinity or an Infinity Related Party (i) reasonably
determines in good faith that, in order to avoid infringement of any patent not licensed hereunder, it is required to obtain a license from a Third Party
to any Patent Right that, in the absence of such license, would be infringed by the manufacture, use, offer for sale, sale or import of such Product in a
particular country (including in connection with the settlement of a patent infringement claim), (ii) shall be subject to a final court or other binding
order or ruling requiring any payments, including the payment of a royalty to a Third Party patent holder in respect of future sales of any Product in a
country in the Territory, or (iii) makes any payment of license fees, milestone payments and/or royalties with respect to a
28
sublicense under Research Agreement Intellectual Property, as applicable, then Infinity may deduct fifty percent (50%) of the amount paid by Infinity
or an Infinity Related Party to such Third Party that is reasonably and appropriately allocable to such Product against Royalties due to Intellikine by
Infinity with respect to such Product in such country in any Calendar Quarter; provided, however, that in no event will the deduction under this
Section 8.4(a) and any adjustment under Section 9.2(c)(i) cause the Royalties due to Intellikine in such Calendar Quarter with respect to such Product
in such country to be less than fifty percent (50%) of the Royalties calculated under Section 8.3 without any such deduction and/or adjustment.
(b) Intellikine will be responsible for royalty obligations and all other payments, including milestones, sublicense income and patent prosecution and
enforcement payments (except as provided in Section 8.1(b)), to license the Navy Patent Rights under the Navy Agreement, to license the UCSF
Intellectual Property and UCSF Other Patent Rights under the UCSF Agreement, and to license or obtain rights under any other Patent Rights or
Know-How included in the Intellikine Intellectual Property, Intellikine Background Technology or Intellikine Other Technology (but not under
Research Agreement Intellectual Property); provided, however, that, if Infinity does not exercise the Navy Sublicense Option or the UCSF Sublicense
Option under Section 2.6(a) or 2.6(b), respectively, then Infinity shall be responsible, at its own expense, for obtaining any required licenses from
Navy or UCSF, as applicable, and if Infinity so obtains a license from Navy under the Navy Patent Rights and/or UCSF under the UCSF Patent Rights
or UCSF Other Patent Rights, the provisions of Section 8.4(a) shall not apply with respect to any payments to Navy and/or UCSF under any such
license.
(c) To the extent required under any license agreement pursuant to which a Third Party licenses intellectual property to a Party in respect of the Products,
either Party may disclose to the Third Party information regarding the development status and Net Sales of the Products which are the subject of such
license agreement; provided, however, that such disclosure is limited to the amount required under the license agreement and is subject to
confidentiality undertakings with respect to the information at least as restrictive as the terms of this Agreement.
8.5 Milestone Payment Acknowledgments. The Parties acknowledge and agree that as of the Effective Date, Infinity has paid the following Milestone Payments, each
as described in Exhibit 3: (a) Milestone Payment in row 1, Column C of Exhibit 3 of one million dollars (US$1,000,000) for the achievement of “the initiation
of the first IND-enabling cGLP toxicology study for a Licensed Compound (other than INK1197)”; (b) Milestone Payment in row 2, Column C of Exhibit 3 of
three million dollars (US$3,000,000) for the achievement of “first patient, first visit in a Phase I Study”; and (c) Milestone Payment in row 2, Column D of
Exhibit 3 of one million dollars (US$1,000,000) for the achievement of “first patient, first visit in a Phase I Study”.
29
8.6 Release Payment. Infinity will make the following payments, which, along with other amendments from the Original Agreement reflected in this Agreement, are
in consideration for the termination of the Released Oncology Rights:
(a) Upon the Effective Date, five million dollars (US$5,000,000), representing Milestone Payment in row 3, Column C of Exhibit 3, for the achievement of
“first patient, first visit in a Phase II Study”; and
(b) A non-refundable total payment of fifteen million dollars (US$15,000,000) (the “Release Payment”), to be paid in three (3) annual installments as follows:
Upon Effective Date
US$ 1,666,666
On or before January 2, 2014
US$ 6,666,667
On or before January 2, 2015
US$ 6,666,667
Aggregate Release Payment
US$15,000,000
9. REPORTS AND PAYMENT TERMS
9.1 Payment Terms.
(a) Infinity shall provide Intellikine with written notice of the achievement of a Milestone Event for which a payment would be due under Column C or
Column D of Exhibit 3 and make payment of the corresponding Milestone Payment within thirty (30) days after Infinity becomes aware of such
achievement.
(b) During the Term, following the Launch of a Product, Infinity shall furnish to Intellikine a quarterly reasonably detailed written accounting of Net Sales of
each Royalty-Bearing Product, [**], for the Calendar Quarter in sufficient detail to permit confirmation of the accuracy of the Royalties paid. Such
reports shall be due on the [**] day following the end of each Calendar Quarter. Royalties shown to have accrued by each report shall be due and
payable on the date such report is due. Such report shall also identify the date of first Commercial Sale of each Royalty-Bearing Product in each
country. Any reports provided under this Section 9.1(b) shall be deemed the Confidential Information of Infinity.
9.2 Royalty Term.
(a) Royalty Term. Subject to clauses (a)-(c) in the definition of “Royalty-Bearing Product”, Royalties will be payable on a Royalty-Bearing Product-by
Royalty-Bearing Product and country-by-country basis until the latest of (i) the expiration of the last to expire Valid Claim or [**] claiming the
composition or method of
30
manufacture or use of such Product (or any Licensed Compound therein) in such country, (ii) the expiration of the last to expire Valid Claim or [**]
covering the manufacture in the country of actual manufacture of such Product (or any Licensed Compound therein), (iii) the expiration of any
Regulatory Exclusivity with respect to such Product in such country, and (iv) [**] (“Royalty Term”).
(b) Paid Up License Following Royalty Term. Following the Royalty Term on a Royalty-Bearing Product-by-Royalty- Bearing Product and country-by-
country basis, Infinity’s licenses with respect to such Royalty-Bearing Product shall continue in effect, but become fully paid-up, royalty-free, non-
exclusive (but remain sublicenseable) and transferrable (in accordance with Section 18.1) and shall become perpetual and irrevocable upon expiration
of this Agreement or termination of this Agreement by Infinity under Section 14.2; provided, however, that, following the Royalty Terms with respect
to all Royalty-Bearing Products, on a country-by-country basis, Infinity’s licenses with respect to all Licensed Compounds and Products shall continue
in effect, but become fully paid-up, royalty-free, non-exclusive (but remain sublicenseable) and transferrable (in accordance with Section 18.1) and
shall become perpetual and irrevocable upon expiration of this Agreement or termination of this Agreement by Infinity under Section 14.2.
(c) Adjustment in Royalty Under Certain Circumstances. On a Product-by-Product and country-by-country basis, (i) if the sole basis for the continuance of a
Royalty Term is [**], the applicable royalty under Section 8.3 shall be [**], the applicable royalty under Section 8.3 shall be [**]; provided, however,
that in no event will any adjustment under Section 9.2(c)(i) and any reduction under Section 8.4(a) cause the Royalties due to Intellikine in such
Calendar Quarter with respect to such Product in such country to be less than fifty percent (50%) of the Royalties calculated under Section 8.3 without
any such adjustment and/or deduction.
(d) Notwithstanding anything to the contrary herein, Infinity shall have no obligation to pay Royalties on Products other than the Royalty-Bearing Products,
on a country-by-country basis.
9.3 Currency. All payments under this Agreement shall be payable in US dollars. When conversion of payments from any foreign currency is required in connection
with the payment of any Royalties under this Agreement, such conversion shall be made using either (a) the exchange rate used by Infinity or, as applicable, an
Infinity Related Party, in its worldwide accounting system for the Calendar Quarter to which such payments relate or (b) the applicable currency conversion rate
as published in The Wall Street Journal, Eastern Edition, on the last Business Day of the applicable Calendar Quarter in which such sales were made.
9.4 Taxes. Intellikine will be responsible for paying any and all taxes levied on account of any payments made to it under this Agreement. If any taxes imposed upon
payments due to Intellikine under this Agreement are required to be withheld by Infinity, Infinity will
31
(a) deduct such taxes from the payment made to Intellikine, (b) timely pay the taxes to the proper taxing authority, and (c) send proof of payment to Intellikine
and certify its receipt by the taxing authority promptly following such payment. Each Party shall provide reasonable assistance to the other Party in minimizing
or claiming exemptions from, or refunds of, any such applicable withholding taxes, upon the other Party’s written request.
9.5 Records and Audit Rights.
(a) Each Party (the “Paying Party”) shall keep and cause its applicable Affiliates to keep (and, in the case of Infinity, Infinity shall cause the Infinity Related
Parties to keep) complete, true and accurate books and records in accordance with its Accounting Standards in sufficient detail for the other Party (the
“Paid Party”) to determine the payments due and costs incurred under this Agreement, including the Royalties. Each Paying Party will keep such
books and records for at least three (3) years following the date of the payment to which they pertain.
(b) Upon the written request of the Paid Party and not more than once in each calendar year, the Paying Party shall permit an independent certified public
accounting firm of nationally recognized standing selected by the Paid Party and reasonably acceptable to the Paying Party to have access during
normal business hours to such of the records of the Paying Party and its applicable Affiliates (and, as applicable, the Infinity Related Parties) as may
be reasonably necessary to verify the accuracy of the payments due and costs incurred under this Agreement, including the royalty reports under this
Agreement, for any period ending not more than three (3) years prior to the date of such request. The accounting firm shall disclose to the Paid Party
only whether the payments due and costs incurred, including any payment reports (as applicable), are correct or incorrect and the specific details
concerning any discrepancies. No other information shall be provided to the Paid Party without the prior consent of the Paying Party unless disclosure
is required by law, regulation or judicial order. If the Paid Party determines that disclosure is required by law, regulation or judicial order, it shall, if
permitted, give the Paying Party prior notice thereof reasonably sufficient for the Paying Party to seek a protective order against or limiting such
disclosure. The Paying Party is entitled to require the accounting firm to execute a reasonable confidentiality agreement prior to commencing any such
audit.
(c) The fees charged by such accounting firm shall be paid by the Paid Party; provided, however, that if the audit uncovers an underpayment by the Paying
Party that exceeds five percent (5%) of the total payment owed, then the fees of such accounting firm shall be paid by the Paying Party unless the
reason for such underpayment was a miscalculation on the part of the Paid Party. Any underpayments or unpaid amounts discovered by such audit or
otherwise will be paid promptly by the Paying Party within thirty (30) days of the date the Paid Party delivers to the Paying Party such accounting
firm’s written report, or as otherwise agreed upon by the Parties, plus interest calculated in accordance with
32
Section 9.7 unless the reason for such underpayment was a miscalculation on the part of the Paid Party. In the event of an overpayment by the Paying
Party, the Paying Party shall be entitled to credit such overpayment against any subsequent payment due to the Paid Party under this Agreement.
9.6 Payment. Payments shall be made by electronic wire transfer of immediately available funds to the account of the Paid Party, as designated in writing to the
Paying Party.
9.7 Late Payments. Subject to Section 9.5(c), interest shall be payable by the Paying Party on any amounts payable to the Paid Party under this Agreement which are
not paid by the due date for payment. All interest shall accrue and be calculated on a daily basis (both before and after any judgment) at a rate per annum equal
to three (3) percentage points above the then current “prime rate” in effect published in The Wall Street Journal, Eastern Edition (but in no event in excess of
the maximum rate permissible under applicable law), for the period from the due date for payment until the date of actual payment. The payment of such
interest shall not limit the Paid Party from exercising any other rights it may have as a consequence of the lateness of any payment.
9.8 Other. Notwithstanding any other provision of this Agreement, if at any time legal restrictions prevent the prompt remittance of part or all of the payments
required hereunder in any country, payment shall be made through such lawful means or methods as the Parties may agree. The Parties hereby acknowledge that
the value contributed by Intellikine to any Product developed and/or commercialized by or on behalf of Infinity and its Affiliates, licensees and sublicensees is
the access to the Intellikine Intellectual Property and that the Milestone Payments described above in Article 8 will be payable by Infinity in accordance with
the terms and conditions hereof regardless of whether or not a Product is covered by an Intellikine Patent or, as applicable, Navy Patent Right or UCSF Patent
Right.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Ownership of Inventions.
(a) Ownership of all inventions arising from research, development or commercialization activities conducted by or on behalf of the Parties as contemplated
by the Original Agreement or this Agreement, including Patent Rights and other intellectual property rights covering such inventions (collectively,
“Inventions”), shall be as set forth in this Section 10.1. All Inventions made solely by employees, agents, contractors or consultants of Infinity or its
Affiliates shall be owned by Infinity or its Affiliates. All Inventions made solely by employees, agents, contractors or consultants of Intellikine or
Intellikine Program Affiliates shall be owned by Intellikine or its Affiliates; provided, however, that Intellikine, on behalf of itself and its Affiliates,
shall, and hereby does, assign all of its and their right, title and interest in and to Intellikine Program Inventions and Intellikine Program Patents to
Infinity. All Inventions made jointly by one or more employees, agents, contractors or consultants of
33
Intellikine or Intellikine Program Affiliates, on the one hand, and Infinity or its Affiliates, on the other hand, (such Inventions (other than the Patent
Rights therein), “Joint Know-How”, and any Patent Rights included in such Inventions, “Joint Patents”), shall be owned by Infinity, and Intellikine,
on behalf of itself and its Affiliates, shall, and hereby does, assign all of its and their right, title and interest in and to such Inventions to Infinity. At
Infinity’s request, Intellikine shall, and shall cause its Affiliates and its and their employees and consultants to, execute such further assignments,
documents and other instruments as may be necessary or desirable to fully and completely assign such Joint Know-How, Joint Patents, Intellikine
Program Inventions and Intellikine Program Patents to Infinity. At Infinity’s request, and at Infinity’s expense with respect to Intellikine’s reasonable
Out-of-Pocket Expenses, Intellikine shall, and shall cause its Affiliates to, assist Infinity in obtaining and maintaining Patent Rights or other rights in
the United States and in any foreign country with respect to any such assigned Invention or Patent Right. At Infinity’s reasonable request (which shall
not be unreasonably withheld or denied), and at Infinity’s expense with respect to Intellikine’s reasonable Out-of-Pocket Expenses, Intellikine shall,
and shall cause its Affiliates to, reasonably assist Infinity as necessary in enforcing Patent Rights or other rights in the United States and in any foreign
country with respect to any such assigned Invention or Patent Right. Determination of inventorship of Inventions shall be made in accordance with
U.S. patent laws.
(b) Intellikine’s rights in any Inventions, other than the Inventions assigned to Infinity pursuant to Section 10.1(a), shall be included in the Intellikine
Intellectual Property for the purposes of this Agreement. Infinity’s rights in any Inventions, including its interest in any Inventions assigned to Infinity
pursuant to Section 10.1(a), shall be included in the Infinity Intellectual Property for the purposes of this Agreement.
(c) In the event of any disagreement between the Parties regarding the inventorship or ownership of any Invention, the Parties shall refer such dispute to a
neutral Third Party patent attorney or other appropriately qualified person who is neither a current or former employee or director of, nor a current or
former consultant or outside counsel to, either Party and who is mutually agreed upon by the Parties.
(d) The provisions of Sections 10.2 through 10.7 are subject to the terms of any agreement pursuant to which a Third Party licensed any of the relevant
Intellikine Patents to Intellikine. If Infinity exercises the Navy Sublicense Option or the UCSF Sublicense Option in accordance with Section 2.6(a) or
2.6(b), references in Sections 10.2 through 10.7 to Intellikine Patents will include the Navy Patent Rights or the UCSF Patent Rights (but not the
UCSF Other Patent Rights), as applicable, subject to the rights of Navy under the Navy Agreement and to the rights of The Regents under the UCSF
Agreement, respectively. Intellikine shall use reasonable efforts to cause such licensors to reasonably cooperate with Intellikine and Infinity with
respect to such provisions and to join any suit brought by Infinity with respect to any Third Party Infringement.
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10.2 Patent Prosecution.
(a) Patent Committee.
(i) Intellikine and Infinity will form a patent committee (“Patent Committee”) composed of one (1) representative from each Party and one (1)
representative from each Party’s internal or outside patent counsel, as a forum to (A) keep Intellikine regularly and reasonably informed of the
status of Intellikine Patents, and (B) provide Intellikine with copies of all substantive documentation submitted to, or received from, the patent
offices in connection therewith. The Patent Committee shall meet as frequently as necessary for such purposes.
(ii) Decisions of the Patent Committee shall be made by unanimous vote, with Infinity’s representatives to the Patent Committee collectively having
one (1) vote and Intellikine’s representatives to the Patent Committee collectively having one (1) vote.
(A) In the event of a disagreement at the Patent Committee relating to a filing strategy or the prosecution or maintenance of [**].
(B) [**]; provided that Infinity shall not have power to resolve a dispute by unilaterally amending the terms of this Agreement or overriding
Intellikine’s rights under this Agreement.
(iii) To the extent that Intellikine wishes to have external patent counsel participate as one of its representatives on the Patent Committee, which
counsel is not the then-current mutually acceptable outside patent counsel described in Section 10.2(b), Intellikine shall bear all expenses with
respect to its external patent counsel’s participation as a representative on the Patent Committee.
(b) Subject to Section 10.2(d), [**], at Infinity’s expense (which, with respect to Intellikine’s activities, shall be limited to Intellikine’s Out-of-Pocket
Expenses), to file, prosecute and maintain the Intellikine Patents, using mutually acceptable outside patent counsel. As of the Effective Date, [**] are
mutually acceptable to the Parties. Intellikine will assist Infinity in connection with the filing, prosecution and maintenance of the Intellikine Patents,
including by providing access to relevant persons and executing all required documentation.
(c) (i) Infinity will have the sole right to file, prosecute and maintain any Infinity Patents at its own expense. (ii) Intellikine will have the sole right to file,
prosecute and maintain any Patents Rights within the Intellikine Additional Patents, the Intellikine Background Technology and the Intellikine Other
Technology at its own expense. Intellikine will keep Infinity regularly and fully informed through the Patent Committee of the status of the patents and
patent applications within the Intellikine Additional Patents, the Intellikine Background Technology and the Intellikine Other Technology.
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(d) In the event that (i) Infinity wishes to cease prosecution and/or maintenance of any Intellikine Patent in a country (ies) or (ii) Infinity does not wish to bear
the costs with respect to the filing, prosecution or maintenance of an Intellikine Patent in a country(ies), Infinity shall provide Intellikine with prompt
written notice thereof, and Intellikine shall have the right, in its discretion and at its own expense, to assume responsibility for the filing, prosecution
and maintenance of such Intellikine Patent in such country(ies). If Intellikine assumes responsibility for the filing, prosecution and maintenance of
such Intellikine Patent in such country(ies) or retains such responsibility, at its own expense, the license granted to Infinity under Section 2.1 under
such Intellikine Patent in such country (ies) shall terminate. Infinity will provide such written notice to Intellikine in sufficient time (but no less than
thirty (30) days before any statutory bar date) to permit Intellikine to file, prosecute or maintain such Intellikine Patent at its own expense.
10.3 Patent Infringement.
(a) Each Party will promptly notify the other Party in writing of (i) any actual or threatened infringement or misappropriation by a Third Party of any
Intellikine Patent or any Infinity Patent of which it becomes aware, as a result of such Third Party’s research, development, manufacture, use, sale,
offer for sale, other commercialization or importation of Licensed Compounds or Products in the Field in the Territory, including any certification filed
by a Third Party pursuant to 21 U.S.C. §355(b)(2)(A)(iv) or 355(j)(2)(A)(vii)(IV) or any notice under comparable U.S. or foreign law (a “Paragraph
IV Certification”), which references the foregoing; or (ii) an actual or threatened challenge to any Intellikine Patent or Infinity Patent by a Third
Party. The Parties will consult with each other through each Party’s patent attorneys to determine the response to any such infringement or challenge
by a Third Party of any Intellikine Patent, including any Paragraph IV Certification which references the foregoing (collectively “Third Party
Infringement”).
(b) To the fullest extent possible under applicable law, Infinity will have the first right, but not the obligation, to initiate proceedings or take other appropriate
action in connection with the Third Party Infringement as it reasonably determines appropriate, and Intellikine shall have the right, at its own expense,
to be represented in any such action by counsel of its own choice. Infinity may exercise such right itself or through any Infinity Related Party.
(c) If Infinity fails to initiate proceedings or take other appropriate action with respect to, or to terminate, Third Party Infringement of any such Intellikine
Patent (i) within ninety (90) days following Infinity’s receipt of the notice of alleged infringement or (ii) solely with respect to a Paragraph IV
Certification, within
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forty (40) days following Infinity’s receipt of notice thereof, Intellikine shall have the right, but not the obligation, to bring and control any such action
at its own expense and by counsel of its own choice, and Infinity shall have the right, at its own expense, to be represented in any such action by
counsel of its own choice.
(d) The Party conducting such action shall have full control over its conduct, including settlement thereof; provided, however, that, in no event shall either
Party, through any court action or proceeding, any settlement arrangement or any proceeding, filing or communication with any patent office, admit
the invalidity of, or otherwise impair the other Party’s rights in, any Intellikine Patent without the other Party’s prior written consent.
(e) At the request of the Party controlling a Third Party Infringement action, the other Party shall provide reasonable assistance and cooperation in connection
therewith, including by executing any required documents, participating in discovery (including producing laboratory notebooks and other
documentation and providing access to employees or relevant persons), and joining as a party to the action if required. The Party controlling such
Third Party Infringement action shall reimburse the reasonable Out-of-Pocket Expenses of such other Party incurred in providing such assistance
within thirty (30) days after receipt of a detailed and accurate invoice therefor.
(f) Unless otherwise agreed to by the Parties as part of any cost sharing arrangement, any recoveries resulting from an action relating to a claim of Third Party
Infringement (after payment of Out-of-Pocket Expenses related to such action incurred by each Party) will be retained by the Party that brought and
controlled such action; provided, however, that, if Infinity brought and controlled such action, any portion of such recovery (after payment of each
Party’s Out-of-Pocket Expenses related to such action) that is attributable to lost profits with respect to Products shall be subject to a royalty payment
to Intellikine in accordance with Section 8.3 equal to the amount that would be due if such amount were Net Sales under this Agreement.
(g) Intellikine will have the sole right, but not the obligation, to initiate proceedings or take other appropriate action, as it reasonably determines appropriate,
in connection with any actual or threatened infringement or misappropriation by a Third Party of any Intellikine Additional Patent, Intellikine
Background Patent or Intellikine Other Technology at its own expense, shall have full control over its conduct, including settlement thereof, and shall
retain any recoveries resulting from such action or proceeding.
10.4 Defense of Actions. In the event that a declaratory judgment or similar action alleging the invalidity or non-infringement, or any request for, or filing or
declaration of, any interference, opposition, reissue or reexamination, of any Intellikine Patent or Infinity Patent is initiated by any Third Party, each Party will
promptly notify the other and the rights and responsibilities for defending against any such action shall be determined in
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the same manner as prosecution and maintenance of the relevant Intellikine Patents and Infinity Patents pursuant to Section 10.2. Intellikine shall have the sole
right to defend against any declaratory judgment or similar action alleging the invalidity or non-infringement, or any request for, or filing or declaration of, any
interference, opposition, reissue or reexamination, of any Intellikine Additional Patent or Intellikine Background Patent.
10.5 Trademarks. Infinity shall have the right to brand the Products using Infinity related trademarks and trade names and any other trademarks and trade names it
determines appropriate for the Product, which may vary by country or within a country (“Product Marks”). Infinity and, if applicable, certain Infinity Related
Parties, shall own all right, title and interest in and to the Product Marks and Infinity or the Infinity Related Parties may file, seek registration and maintain the
Product Marks in the countries and regions they determine reasonably necessary. Notwithstanding the foregoing, (i) with respect to any Product sold in the
United States after receipt of Marketing Authorization for such Product in the United States, Infinity shall, to the extent permitted under applicable law and if
reasonably practicable, include the Intellikine name or logo (“Intellikine Mark”) on the commercial packaging for such Product, and a disclosure that such
Product is licensed from Intellikine, and
(ii) Infinity and Infinity Related Parties may otherwise include the Intellikine Mark on the Product or any packaging, labels, containers, advertisements and
other materials related thereto; provided, however, that any use of the Intellikine Mark shall be in compliance with Intellikine’s then-current reasonable
trademark guidelines provided to Infinity. Intellikine hereby grants Infinity a non-exclusive, sublicenseable, royalty-free, transferrable (in accordance with
Section 18.1) right to use the Intellikine Mark in connection with the foregoing. Intellikine or an Affiliate of Intellikine shall retain the ownership of the entire
right, title and interest in and to the Intellikine Mark, and all goodwill associated with or attached to the Intellikine Mark arising out of the use thereof by
Infinity, its Affiliates and sublicensees shall inure to the benefit of Intellikine. Infinity agrees that it will not contest, oppose or challenge Intellikine’s ownership
of the Intellikine Mark. Infinity agrees that it will not at any time do or suffer to be done any act or thing that will in any way impair Intellikine’s ownership of
or rights in and to the Intellikine Mark or any registration thereof or that may depreciate the value of the Intellikine Mark or the reputation of Intellikine.
10.6 Drug Price Competition and Patent Term Restoration Act.
(a) Intellikine shall cooperate with Infinity in an effort to avoid loss of any Intellikine Patents which may otherwise be available under the provisions of the
Drug Price Competition and Patent Term Restoration Act of 1984 or comparable United States or foreign laws, including by executing any documents
as may be reasonably required. In particular, Intellikine shall cooperate with Infinity in obtaining patent term restoration or supplemental protection
certificates or their equivalents in any country and region (“Patent Term Extensions”) where applicable to the Intellikine Patents. Intellikine shall
provide all reasonable assistance to Infinity, including permitting Infinity to proceed with applications for such in the name of Intellikine, if so
required.
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(b) After consultation by Infinity with Intellikine, Infinity shall have the sole right to determine, if applicable, for which, if any, of the Intellikine Patents the
Parties will attempt to seek Patent Term Extensions for any Licensed Compound or Product.
(c) Intellikine shall provide reasonable assistance to Infinity, including by executing any required documents and providing any relevant patent information
and other relevant information to Infinity, so that Infinity can obtain such extensions and additional protection and inform the FDA or other Regulatory
Authority of such intended Patent Term Extension.
(d) Intellikine shall not seek Patent Term Extensions for any Intellikine Background Technology, Intellikine Additional Patents or Intellikine Other Patents for
any Licensed Compound or Product.
10.7 Patent Marking. Infinity hereby agrees to mark each Product made, used or sold under the terms of this Agreement (or when the character of the product
precludes marking, the package containing any such Product) in accordance with all applicable laws relating to patent marking.
11. EXCLUSIVITY
11.1 Exclusivity.
(a) Intentionally Omitted
(b) Intentionally Omitted
(c) Subject to clauses (i) and (ii) below, Intellikine shall not, and Intellikine and its Affiliates shall ensure that the relevant individuals in clause (ii) below do
not (in the course and duration of their employment by Intellikine or its Affiliates), alone or through work conducted in collaboration with an Affiliate
or Third Party, research, develop, commercialize, distribute, market or sell (or license or otherwise grant rights to an Affiliate or a Third Party to do
any of the foregoing) in the Territory in the Field, unless otherwise agreed by Infinity, [**]; provided that, the restriction described in this Section
11.1(c) will apply only as follows:
(i) without limiting subsection (ii) below, [**] after the Effective Date (or the end of the Term, if earlier); and
(ii) [**].
The foregoing shall be subject to, and shall not reduce any of Infinity’s rights under, the exclusive licenses granted to Infinity pursuant to Section 2.1(a) and the
rights assigned to Infinity under Section 10.1(a).
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11.2 Competing Products. In the event that Infinity is an Acquired Party in a transaction described in Section 18.1(a)(ii), to the extent that the Acquirer or any
Acquirer Affiliate is then or later researching, developing or commercializing (or collaborating with a Third Party with respect thereto) a Target Inhibitor, such
Target Inhibitor shall be considered a Licensed Compound and Product unless (i) such Acquirer and Acquirer Affiliates do not obtain rights or access (other
than access in connection with due diligence prior to the transaction described in Section 18.1(a)(ii)) to (A) any Confidential Information of Intellikine and (B)
the Intellikine Intellectual Property and, as applicable, Navy Patent Rights, UCSF Intellectual Property and UCSF Other Patent Rights; (ii) the Acquirer’s and
all Acquirer Affiliates’ research, development, and commercialization activities related to such Target Inhibitor are kept separate from the research,
development, and commercialization activities for Licensed Compounds and Products under this Agreement; and (iii) Infinity otherwise continues to meet its
obligations under this Agreement.
12. CONFIDENTIALITY
12.1 Duty of Confidence. All Confidential Information disclosed or made available by a Party or its Affiliates to the other Party will be maintained in confidence and
otherwise safeguarded by the recipient Party. For clarification, all Intellikine Intellectual Property shall be Confidential Information of Intellikine and all
Infinity Intellectual Property shall be Confidential Information of Infinity; provided that (a) notwithstanding anything to the contrary in Section 12.2, Intellikine
and its Affiliates may not rely on Sections 12.2(b) or (d) with respect to the Intellikine Program Patents or any Inventions assigned to Infinity pursuant to
Section 10.1(a); and (b) Intellikine Know-How generated by or for Intellikine or Intellikine Program Affiliates, pursuant to and in accordance with the Original
Agreement or this Agreement, which Know-How solely and specifically relates to Licensed Compounds and Products in the Field, shall be the Confidential
Information of both Parties, with both Parties deemed to be recipient Parties and disclosing Parties. The recipient Party may only use the Confidential
Information of the other Party and its Affiliates for the purposes of this Agreement and pursuant to the rights granted to the recipient Party under this
Agreement. Each Party shall hold as confidential such Confidential Information of the other Party and its Affiliates in the same manner and with the same
protection as such recipient Party maintains its own confidential information, but no less than a reasonable standard of care. A recipient Party may disclose
Confidential Information of the other Party and its Affiliates to employees, agents, contractors, consultants and advisers of the recipient Party and its Affiliates
and sublicensees to the extent reasonably necessary for the purposes of, and for those matters undertaken pursuant to, this Agreement; provided that such
persons and entities are bound to maintain the confidentiality of the Confidential Information in a manner consistent with the confidentiality provisions of this
Agreement.
12.2 Exceptions. The obligations under Section 12.1 shall not apply to any information to the extent the recipient Party can demonstrate by competent evidence that
such information:
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(a) is (at the time of disclosure) or becomes (after the time of disclosure) known to the public or part of the public domain through no breach of the Original
Agreement or this Agreement by the recipient Party or its Affiliates;
(b) was known to, or was otherwise in the possession of, the recipient Party or its Affiliates prior to the time of disclosure by the disclosing Party;
(c) is disclosed to the recipient Party or any of its Affiliates on a non-confidential basis by a Third Party who is entitled to disclose it without breaching any
confidentiality obligation to the disclosing Party or any of its Affiliates; or
(d) is independently developed by or on behalf of the recipient Party or its Affiliates, as evidenced by its written records, without reference to the Confidential
Information disclosed by the disclosing Party or its Affiliates under the Original Agreement or this Agreement.
12.3 Authorized Disclosures.
(a) In addition to disclosures allowed under Section 12.1, each Party may disclose Confidential Information belonging to the other Party to the extent such
disclosure is necessary in the following instances: (i) filing or prosecuting Patent Rights as permitted by this Agreement; (ii) regulatory filings for
Products such Party has a license or right to develop hereunder; (iii) prosecuting or defending litigation as permitted by this Agreement; (iv)
complying with applicable court orders or governmental regulations; and (v) disclosure (A) to existing and potential consultants, investors, bankers,
lawyers, accountants, agents or other Third Parties in connection with due diligence or similar investigations by such Third Parties, or (B) to existing
and potential licensees or sublicensees, or (C) in the case of Infinity, disclosure of results of the Research Program and other research results to Third
Parties as reasonably necessary to develop and commercialize Licensed Compounds and Products; provided, in each case described in clauses (v)(A)
or (B), that any such consultant, investor, banker, lawyer, accountant, agent, licensee, sublicensee or Third Party is bound to maintain the
confidentiality of the Confidential Information in a manner consistent with the confidentiality provisions of this Agreement.
(b) In the event Infinity or any of its Affiliates discloses Intellikine Confidential Information to any Regulatory Authority to obtain Marketing Authorization
for any Product and/or Licensed Compound, or discloses such information in connection with the filing of a patent application or the prosecution and
maintenance of any patent, Infinity shall inform Intellikine as soon as reasonably practicable of the disclosure and use reasonable efforts to obtain
confidential treatment for such disclosure to the extent permitted by law or regulation.
(c) In the event the recipient Party is required to disclose Confidential Information of the disclosing Party by law, including to comply with any order of any
court or
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governmental or regulatory authority, such disclosure shall not be a breach of this Agreement; provided that the recipient Party (i) informs the
disclosing Party as soon as reasonably practicable of the required disclosure, (ii) takes all reasonable and lawful actions to obtain confidential
treatment for such disclosure and limits the disclosure to the required purpose, and (iii) at the disclosing Party’s request and expense, assists in an
attempt to object to or limit the required disclosure.
(d) In the event of a disclosure of the Original Agreement or this Agreement or the terms hereof as required by law, governmental regulation or the rules of
any recognized stock exchange or quotation system, the Parties shall coordinate with each other with respect to the timing, form and content of such
required disclosure to the extent practicable under the circumstances, and, if so requested by the other Party, the Party subject to such obligation shall
use reasonable commercial efforts to obtain an order protecting to the maximum extent possible the confidentiality of such provisions of this
Agreement as reasonably requested by the other Party. If the Parties are unable to agree on the form or content of any required disclosure, such
disclosure shall be limited to the minimum required, as determined by the disclosing Party in consultation with its legal counsel.
13. PUBLICATIONS; PUBLICITY
13.1 Publications. Any proposed oral public disclosures or written publications by Intellikine relating to a Product or a Licensed Compound (including results of the
Research Program) shall require the written consent of Infinity prior to their release (which consent shall not be unreasonably withheld); provided, that the
foregoing shall not apply to information which is not of a scientific or technical nature and which is in the public domain or any public disclosures required by
law or governmental regulation or by the rules of any recognized stock exchange or quotation system. Each Party shall have the right to review and comment on
any material proposed for disclosure or publication by the other Party, such as by oral presentation, manuscript or abstract, which includes Confidential
Information of the non-publishing Party or, with respect to disclosures or publications proposed by Intellikine, relate to a Product or Licensed Compound
(including results of the Research Program). Before any such material is submitted for publication, the Party proposing publication shall deliver a complete
copy to the other Party at least thirty (30) days prior to submitting the material to a publisher or initiating any other disclosure (or if the Party proposing
publication cannot reasonably provide such publication by such date, then as soon as practicable). Such other Party shall review any such material and give its
comments to the Party proposing publication at least ten (10) days prior to the planned date of submission or disclosure (but in any event no fewer than ten (10)
days after the delivery of such material to such other Party); provided, that such other Party shall make reasonable efforts to expedite review of such materials
and abstracts, and shall return such items as soon as practicable to the Party proposing publication with appropriate comments, if any. The publishing Party shall
comply with the other Party’s request to delete references to the other Party’s Confidential Information in any such material and agrees to delay any submission
for publication or other public disclosure for a period of up to an additional forty-five (45) days for the purpose of preparing and filing appropriate patent
applications.
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13.2 Publicity. Each Party agrees not to issue any press release or other public statement, whether oral or written, disclosing the existence of the Original Agreement
or this Agreement or the terms hereof without the prior written consent of the other Party. Subject to clause (c) below, the Party preparing any such public
announcement shall provide the other Party with a draft thereof at least three (3) Business Days prior to the date on which such Party would like to make the
public announcement. Notwithstanding the foregoing, (a) Infinity may issue the press release in substantially the form attached as Exhibit 8 to this Agreement
as soon as practicable following the execution of this Agreement; (b) each Party will be permitted to disclose the achievement of Milestone Events and the
payment of Milestone Payments, provided that the other Party is given the opportunity to review in advance (subject to clause (c) below) any such disclosure to
ensure that no Confidential Information of that other Party is disclosed; (c) neither Party will be prevented from complying with any duty of disclosure it may
have pursuant to law or governmental regulation or pursuant to the rules of any recognized stock exchange or quotation system; and (d) either Party may issue a
press release or public announcement or make such other disclosure if the contents of such press release, public announcement or disclosure has previously
been made public other than through a breach of this Agreement by the issuing Party or its Affiliates.
14. TERM AND TERMINATION
14.1 Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue until the earlier of (a) the termination of this Agreement in
accordance with Section 6.3, 14.2, 14.3 or 14.4 or (b) the last to occur of (i) the expiry of the last-to-expire Valid Claim, or (ii) the expiration of the last-to-
expire Royalty Term in accordance with Section 9.2.
14.2 Termination by Either Party.
(a) If either Infinity or Intellikine (the “Breaching Party”) is in material breach of any material obligation hereunder, the other Party (the “Non-Breaching
Party”) may give written notice to the Breaching Party specifying the claimed particulars of such breach, and in such event, if the breach is not cured
within seventy-five (75) days after such notice (thirty (30) days in the event of failure to make any payment when due), the Non-Breaching Party shall
have the right thereafter to terminate this Agreement immediately by giving written notice to the Breaching Party to such effect; provided, however,
that if such breach (other than failure to make any payment when due) is capable of being cured but cannot be cured within such seventy-five (75) day
period and the Breaching Party initiates actions to cure such breach within such period and thereafter diligently pursues such actions, the Breaching
Party shall have such additional period as is reasonable in the circumstances to cure such breach.
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(b) In the event the Non-Breaching Party gives notice to the Breaching Party pursuant to Section 14.2(a) as a result of a material breach (or alleged material
breach) by the Breaching Party and, on or before the end of the cure period therefor set forth above, either Party has requested an arbitration pursuant
to Section 18.5 in which the Breaching Party is in good faith disputing such basis for termination pursuant to Section 14.2(a), then this Agreement
shall not terminate unless and until such arbitrators issue a final ruling or award upholding such basis for termination (or unless and until the
Breaching Party is no longer disputing such basis in good faith, if earlier).
14.3 Termination by Intellikine. Intellikine shall have the right to terminate this Agreement upon thirty (30) days written notice to Infinity if Infinity or any Infinity
Related Party brings an action or proceeding that disputes the validity of any of the Intellikine Patents or files an opposition (or any equivalent action) against
any of the Intellikine Patents in any country of the Territory. Any such termination shall only become effective if Infinity or such Infinity Related Party, as
applicable, has not withdrawn such action before the end of the above notice period.
14.4 Termination for Convenience. Infinity may terminate this Agreement in its entirety at any time on one hundred eighty (180) days’ prior written notice to
Intellikine.
15. EFFECT OF TERMINATION
15.1 Effect of Termination. Upon any expiration or termination of this Agreement, any licenses granted by either Party to the other Party will terminate and revert to
the granting Party; provided that (a) in the case of any expiration or termination of this Agreement, any license granted under Section 15.2(a) or (b), if
applicable, will continue in accordance with its terms, (b) in the case of any expiration of this Agreement or termination of this Agreement by Infinity under
Section 14.2, any license described in Section 9.2(b) then in effect will continue in effect on a perpetual and irrevocable basis, and (c) the licenses and
sublicenses granted by Intellikine to Infinity under Sections 2.1(a) and 2.1(d)(ii) and (iii) and, if Infinity has exercised the Navy Sublicense Option and the
UCSF Sublicense Option, respectively, Sections 2.1(b) and 2.1(c), will continue in effect solely to the extent and during the period necessary for Infinity to
exercise its rights or perform its obligations under Sections 15.2(d), 15.2(f) or Section 15.3(a). If this Agreement terminates prior to full and complete payment
of the Release Payment, within thirty (30) days after the effective date of such termination, Infinity shall pay to Intellikine any portion of the Release Payment
not previously paid.
15.2 Effects of Termination by Intellikine under Section 6.3, 14.2 or 14.3 or by Infinity under Section 14.4. Upon termination of this Agreement by Intellikine
pursuant to Section 6.3, 14.2 or 14.3 or by Infinity pursuant to Section 14.4:
(a) Infinity shall, and it hereby does (effective only and automatically upon such termination), grant to Intellikine a non- exclusive, worldwide, fully-paid,
irrevocable, perpetual and transferrable (in accordance with Section 18.1) license,
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including the right to sublicense, under Infinity’s interest in the Infinity Know-How, to develop, make, have made, use, sell, have sold, offer for sale
and import any then-identified Licensed Compounds (“Reverted Compounds”), and Products containing Reverted Compounds (“Reverted
Products”), in the Field in the Territory;
(b) For termination under Section 6.3, Infinity shall, and it hereby does (effective only and automatically upon such termination), grant to Intellikine a non-
exclusive, worldwide, royalty-bearing, transferrable (in accordance with Section 18.1) license, including the right to sublicense, under the Infinity
Patents and Infinity Know-How (including, for the sake of clarity, any Joint Patents and Joint Know-How), to develop, make, have made, use, import,
offer for sale and sell any Reverted Compounds and Reverted Products, subject to a royalty obligation to Infinity on Infinity Patents and Infinity
Know-How (other than Joint Patents, Joint Know-How, Intellikine Program Patents and Intellikine Program Inventions), which royalty obligation, if
applicable, will be negotiated in good faith by the Parties for a period of [**] days immediately following such termination of the Agreement by
Intellikine, which royalty shall not exceed [**] percent ([**]%) of Net Sales (applied to Intellikine in the same manner as applied to Infinity). For
termination by Intellikine under Section 6.3, 14.2 or 14.3 or by Infinity under Section 14.4, Intellikine will have an exclusive right of first negotiation,
exercisable by written notice to Infinity at any time within [**] days of such termination, to obtain a worldwide, exclusive, royalty-bearing license,
with the right to sublicense, under the Infinity Patents and Infinity Know-How (except for the case of any Joint Patents, Joint Know- How, Intellikine
Program Patents and Intellikine Program Inventions with respect to which Infinity had automatically granted the royalty-free license described above
in this clause (b)), to develop, make, have made, use, sell, have sold, offer for sale and import Reverted Compounds and Reverted Products in the
Field in the Territory on commercially reasonable terms to be negotiated in good faith by the Parties for up to an additional [**] days following
exercise of such right of first negotiation;
(c) For the sake of clarity, any license granted to Intellikine as described in Section 15.2(a) or (b) will include the right to use clinical and regulatory data and
information generated by or on behalf of Infinity or its Affiliates and in Infinity’s or its Affiliates’ possession or control for regulatory purposes
relating to the Reverted Products;
(d) in the event that any development activities with regard to Reverted Compound(s) or Reverted Product(s) are ongoing at the time of such termination, the
Parties shall negotiate in good faith and adopt a plan to wind-down the development activities in an orderly fashion (not to exceed [**] months) or, at
Intellikine’s election, promptly transition such development activities to Intellikine or its designee, with due regard for patient safety and the rights of
any subjects that are participants in any clinical trials of any Reverted Compound or Reverted Product, and take any actions it deems reasonably
necessary or appropriate to avoid any human health or safety problems and in compliance with all applicable laws; all such activities shall be at
Intellikine’s cost;
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(e) the exclusive license, if any, and any exclusive license agreement entered into as described in Section 15.2(b) will provide for Infinity to transfer and
assign to Intellikine all of Infinity’s and the Infinity Related Parties’ right, title and interest in and to all U.S. and foreign regulatory submissions and
Marketing Authorizations with respect to the Reverted Products and all drug master files and drug dossiers with respect to the Reverted Products
(other than those related to manufacturing facilities);
(f) Infinity or Infinity Related Parties may continue, to the extent that Infinity or Infinity Related Parties continue to have stocks of usable Products, to fulfill
orders received for Reverted Products in the Field until [**] months following the date of termination. For Reverted Products sold by Infinity or
Infinity Related Parties after the effective date of a termination, Infinity shall continue to pay Royalties pursuant to Section 8.3. Prior to the end of
such [**] month period, Infinity shall provide Intellikine written notice of an estimate of the quantity of Reverted Products and shelf life remaining in
the inventory of Infinity at the end of such [**] month period and Intellikine shall have the right to purchase any such quantities of Products from
Infinity at a price equal to [**] for such Reverted Products. In addition, Infinity shall use reasonable efforts to transition to Intellikine, upon
Intellikine’s request and at Intellikine’s expense, any arrangement with any contractor from which Infinity had arranged to obtain supplies of Reverted
Compounds or Reverted Products, to the extent permitted under any such agreement with such contractor. In the event that Reverted Compounds or
Reverted Products are then being manufactured by Infinity, then, upon request by Intellikine, Infinity shall continue to provide Intellikine with such
materials at a price equal to [**] for such Reverted Products for not longer than [**] months;
(g) the provisions of Article 12 shall survive such termination for so long as Intellikine or any of its Affiliates, licensees or sublicensees develops or
commercializes any Reverted Compound or Reverted Product;
(h) except as provided in Sections 15.2(d) and 15.2(f), Infinity will immediately cease to use or exploit in any way the Reverted Products, the Intellikine
Marks, the Intellikine Intellectual Property, Intellikine Additional Patents, Intellikine Background Technology and Intellikine Other Technology (and,
if Infinity has exercised the Navy Sublicense Option and the UCSF Sublicense Option, the Navy Patent Rights and the UCSF Intellectual Property and
UCSF Other Patent Rights); provided that Infinity retains its right to use or exploit its ownership interest in Infinity Intellectual Property (including
Joint Patents and Joint Know-How), subject to any exclusive license granted thereunder to Intellikine as described in Section 15.2(b);
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(i) except as provided in Section 15.2(a), (b), (c), (d), (e) and (f), Intellikine will immediately cease to use or exploit in any way the Product Marks and the
Infinity Intellectual Property;
(j) within thirty (30) days of the date of such termination, Infinity will make all outstanding payments, including any royalty payments, due to Intellikine
hereunder at the date of such termination; and
(k) following the period set forth in Section 15.2(f), Infinity will promptly return, or at Intellikine’s option, destroy any Intellikine Know-How, Intellikine
Background Know-How, UCSF Know-How (if Infinity has exercised the UCSF Sublicense Option) and Intellikine Confidential Information and any
materials containing the Intellikine Know- How, Intellikine Background Know-How, UCSF Know-How (if Infinity has exercised the UCSF
Sublicense Option) or Intellikine Confidential Information in its or its Affiliates’ possession, custody or power, except for such records as may be
required to be retained by Infinity by any national or local laws, rules or regulations.
15.3 Effect of Termination by Infinity under Section 14.2. In the event of termination of this Agreement by Infinity under Section 14.2:
(a) Infinity and the Infinity Related Parties shall be entitled to continue to sell existing stocks of the Products in the Territory for a period of not longer than
six (6) months following the date of termination; provided that, Infinity pays Intellikine any Royalties due in respect of such sales in accordance with
the provisions of this Agreement;
(b) except as provided in Sections 9.2(b) and 15.3(a), Infinity will immediately cease to use or exploit in any way the Intellikine Marks and the Intellikine
Intellectual Property, Intellikine Additional Patents, Intellikine Background Technology and Intellikine Other Technology (and, if Infinity has
exercised the Navy Sublicense Option and the UCSF Sublicense Option, the Navy Patent Rights and the UCSF Intellectual Property and UCSF Other
Patent Rights), and Intellikine will immediately cease to use or exploit in any way the Infinity Intellectual Property; and
(c) following the period set forth in Section 15.3(a), Intellikine will promptly return, or at Infinity’s option, destroy any Infinity Know-How and Infinity
Confidential Information (other than data generated with respect to Licensed Compounds or Products in the conduct of the Research Program, which
shall thereafter be considered to be Intellikine Confidential Information) and any materials containing the Infinity Know-How or such Infinity
Confidential Information in its or its Affiliates’ possession, custody or power, except for such records as may be required to be retained by Intellikine
by any national or local laws, rules or regulations.
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15.4 Survival. Expiration or termination of this Agreement shall not relieve the Parties of any obligation accruing prior to such expiration or termination, nor affect in
any way the survival of any other right, duty or obligation of the Parties which is expressly stated elsewhere in this Agreement to survive such termination or
expiry. Without limiting the foregoing, Articles 1, 15 (including the additional sections that survive in accordance with the express terms of Section 15) and 18
and Sections 9.2 (b), 9.2(d), 9.5, 10.1, 13.2, 16.6, 17.1, 17.2, 17.3 and 17.4 shall survive expiration or termination of this Agreement. The provisions of Article
12 (Confidentiality) shall survive the termination or expiration of this Agreement for a period of ten (10) years (subject to Section 15.2(g)) and the provisions of
Section 17.5 (Insurance) shall survive the termination or expiration of this Agreement for a period of six (6) years. For the sake of clarity, Article 11 shall not
survive expiration or termination of this Agreement.
15.5 Exercise of Right to Terminate. The use by either Party of a termination right provided for under this Agreement shall not give rise to the payment of damages or
any other form of compensation or relief to the other Party solely with respect thereto.
15.6 Damages; Relief. Subject to Sections 15.4 and 15.5 above, termination of this Agreement shall not preclude either Party from claiming any other damages,
compensation or relief that it may be entitled to upon such termination.
15.7 Intentionally Omitted
15.8 Rights in Bankruptcy. All rights and licenses granted under or pursuant to this Agreement by Infinity or Intellikine are, and will otherwise be deemed to be, for
purposes of Section 365(n) of the U.S. Bankruptcy Code, licenses of right to “intellectual property” as defined under Section 101 of the U.S. Bankruptcy Code.
The Parties agree that each Party, as a licensee of such rights under this Agreement, will retain and may fully exercise all of its rights and elections under the
U.S. Bankruptcy Code. The Parties further agree that, in the event of the commencement of a bankruptcy proceeding by or against either Party under the U.S.
Bankruptcy Code, the Party that is not a party to such proceeding will be entitled to a complete duplicate of (or complete access to, as appropriate) any such
intellectual property and all embodiments of such intellectual property, and same, if not already in its possession, will be promptly delivered to it (a) upon any
such commencement of a bankruptcy proceeding upon their written request therefor, unless the Party subject to such proceeding elects to continue to perform
all of its obligations under this Agreement, or (b) if not delivered under subsection (a) above, following the rejection of this Agreement by or on behalf of the
Party subject to such proceeding upon written request therefor by the non-subject Party.
16. REPRESENTATIONS, WARRANTIES AND COVENANTS; DISCLAIMERS
16.1 Intentionally Omitted
16.2 Representations and Warranties by Intellikine. Intellikine represents and warrants to Infinity as of the Effective Date that:
(a) to the best of Intellikine’s knowledge, Intellikine had no Affiliates immediately prior to Intellikine’s acquisition by Takeda;
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(b) to the best of Intellikine’s knowledge, Intellikine had, immediately prior to the assignment to Infinity hereunder, the right and authority, on behalf of itself
and its Affiliates, to assign to Infinity the Joint Know-How, Joint Patents, Intellikine Program Inventions and Intellikine Program Patents; and
(c) to the best of Intellikine’s knowledge, Intellikine fully complied with its obligations under Sections 16.4(a) and 16.4 (g) of the Original Agreement.
With regard to any representation or warranty made by Intellikine under this Section 16.2 as of the Effective Date, notwithstanding anything in this Agreement
to the contrary, the sole remedy for a breach of any such representation or warranty shall be for Intellikine to use its reasonable efforts to cure the breach in a
manner that would afford Infinity the benefit that would have been afforded to Infinity if the representation or warranty had been true when made. For clarity,
no damages or termination right shall be available as a result of any such breach of a representation or warranty.
16.3 Intentionally Omitted
16.4 Covenants.
(a) Amendments to Navy Agreement and UCSF Agreement. During the Navy Sublicense Option Period and, if exercised in accordance with Section 2.6(a),
the term of the sublicense under the Navy Patent Rights under Section 2.1(b), and the UCSF Sublicense Option Period and, if exercised in accordance
with Section 2.6(b), the term of the sublicense under the UCSF Intellectual Property and UCSF Other Patents under Section 2.1(c), respectively,
Intellikine (i) shall not amend the Navy Agreement or the UCSF Agreement in a manner that would adversely affect the rights and obligations of
Infinity under this Agreement, except any amendment agreed under Section 2.6(c); (i) except in accordance with the procedures set forth in Section
2.6(a) or 2.6(b) during the Navy Sublicense Option Period or the UCSF Sublicense Option Period, respectively, shall not terminate the Navy
Agreement or the UCSF Agreement, respectively; and (iii) shall notify Infinity promptly upon receiving any notice of breach or termination from
Navy under the Navy Agreement or The Regents under the UCSF Agreement.
(b) Intentionally Omitted
(c) No Conflict by Intellikine. Intellikine and its Affiliates shall not grant any right or enter into any agreement with any Third Party that would prevent,
conflict with, or have a material adverse effect on Infinity’s exercise of its rights under this Agreement or Infinity’s performance of its obligations
under this Agreement.
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(d) No Conflict by Infinity. Infinity and its Affiliates shall not grant any right or enter into any agreement with any Third Party that would prevent, conflict
with, or have a material adverse effect on Intellikine’s exercise of its rights under this Agreement or Intellikine’s performance of its obligations under
this Agreement.
(e) IP Ownership and Confidentiality by Intellikine. Intellikine shall require that all of its and its Affiliates’ employees, consultants, contractors and agents
involved in the research, development or commercialization of Licensed Compounds or Products have entered into written confidentiality and
invention assignment agreements that are consistent with the terms of this Agreement and pursuant to which they assign any rights they may have in
any inventions made during such work to Intellikine.
(f) IP Ownership and Confidentiality by Infinity. Infinity shall require that all of its and its Affiliates’ employees, consultants, contractors and agents involved
in the research, development or commercialization of Licensed Compounds or Products have entered into written confidentiality and invention
assignment agreements that are consistent with the terms of this Agreement and pursuant to which they assign any rights they may have in any
inventions made during such work to Infinity. Infinity shall also require that all entities performing medicinal chemistry of Licensed Compounds or
Products as a subcontractor to Infinity or its Affiliates have entered into written invention assignment agreements that are consistent with the terms of
this Agreement and pursuant to which they assign any rights they may have in any inventions covering Licensed Compounds or Products made during
such work to Infinity.
(g) Research Agreements. With respect to any Research Agreements, Intellikine shall (i) immediately notify Infinity of the receipt of any notice of any
invention disclosure for Research Agreement Intellectual Property; and (ii) upon written request of Infinity, use commercially reasonable efforts to
obtain a license under such Research Agreement Intellectual Property to research, develop, manufacture, have manufactured, use, sell, offer to sell,
otherwise commercialize and import Licensed Compounds and Products in the Field in the Territory, with the right to grant a sublicense thereunder to
Infinity (whether exclusively or non-exclusively), and for Infinity to further sublicense such rights to the Infinity Related Parties, on the applicable
terms of the license granted to Intellikine by such Third Party; provided that before Intellikine obtains such license, Intellikine will provide the terms
of such license to Infinity, and will not enter into such license except with Infinity’s prior written consent, not to be unreasonably withheld, and upon
the entry into such license, Intellikine will sublicense such rights to Infinity in accordance with the terms of such license and will work together with
Infinity to enter into the appropriate documentation to effect such sublicense.
16.5 Debarment. Each Party represents and warrants to such other Party, as of the Effective Date, that none of the representing Party, its Affiliates, or any employee of
the representing Party or its Affiliates, in each case who is likely to perform development activities under this Agreement or in support of the Marketing
Authorizations, have ever been:
(a) debarred, or proposed to be debarred under Section 306(a) or 306(b) of the United States Federal Food, Drug and Cosmetic Act, as amended from time to
time, and the rules, regulations and guidelines promulgated thereunder, or under 42 U.S.C. Section 1320-7;
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(b) sanctioned by, suspended, debarred, excluded or otherwise ineligible to participate in any federal or state health care program, including Medicare and
Medicaid or in any federal procurement or non-procurement programs; or
(c) charged with or convicted of any felony or misdemeanor under 42 U.S.C. Section 1320a-7(a) or 42 U.S.C. Section 1320a-7(b)(1)-(3), or otherwise
proposed for exclusion.
Each Party will immediately inform the other Party, but in no event later than five (5) Business Days, if such Party becomes aware that such Party, any of its
Affiliates, or any employee of such Party or any of its Affiliates, in each case performing development activities under the Original Agreement or this
Agreement or in support of the Marketing Authorizations, is not in compliance with any of the representations set forth in clauses (a) through (c) on or after the
Effective Date.
16.6 Limitations; Acknowledgements. Notwithstanding anything contained in this Agreement, Intellikine gives no warranty and makes no representation that any
patent application within the Intellikine Patents shall proceed to grant or will be valid and enforceable. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH
IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF NON INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, THAT ANY OF THE
RESEARCH, DEVELOPMENT AND/OR COMMERCIALIZATION EFFORTS WITH REGARD TO ANY LICENSED COMPOUND OR PRODUCT WILL
BE SUCCESSFUL.
17. INDEMNIFICATION AND LIABILITY
17.1 Indemnification by Intellikine. Intellikine shall indemnify and hold Infinity and its Affiliates, and their respective officers, directors, employees, contractors,
agents and assigns (each, an “Infinity Indemnified Party”), harmless from and against losses, damages and liability, including reasonable legal expense and
attorneys’ fees (collectively, “Indemnified Losses”), incurred by any Infinity Indemnified Party as a result of any Third Party demands, claims or actions
(including product liability claims) (“Claims”) against any Infinity Indemnified Party to the extent arising or resulting from: (a) the negligence or willful
misconduct of Intellikine or any Intellikine Indemnified
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Party in performing Intellikine’s obligations or exercising Intellikine’s rights under the Original Agreement or this Agreement; (b) the breach of any of the
covenants, obligations, warranties and representations made by Intellikine to Infinity under the Original Agreement or this Agreement; or (c) the research of the
Licensed Compounds and/or Products by Intellikine or any of its Affiliates, or the development, manufacture, use, sale, offer for sale, other commercialization
or importation of Reverted Compounds or Reverted Products in the Field in the Territory by Intellikine or any of its Affiliates or sublicensees (other than
Infinity and any Infinity Related Party). Notwithstanding the foregoing, Intellikine shall not be responsible for the indemnification of any Infinity Indemnified
Party: (A) to the extent that the Indemnified Losses of such Infinity Indemnified Party were caused by the negligence or willful misconduct of such Infinity
Indemnified Party, or (B) to the extent that the Indemnified Losses of such Infinity Indemnified Party were caused by any breach by Infinity of its covenants,
obligations, warranties or representations pursuant to the Original Agreement or this Agreement.
17.2 Indemnification by Infinity. Infinity shall indemnify and hold Intellikine and its Affiliates, and their respective officers, directors, employees, contractors, agents
and assigns (each, an “Intellikine Indemnified Party”), harmless from and against Indemnified Losses incurred by any Intellikine Indemnified Party as a result
of any Claims against any Intellikine Indemnified Party to the extent arising or resulting from: (a) the research, development or commercialization of the
Licensed Compounds and/or Products by Infinity, any Infinity Indemnified Party or any Infinity Related Party; (b) the negligence or willful misconduct of
Infinity or any Infinity Related Party in performing Infinity’s obligations or exercising Infinity’s rights under the Original Agreement or this Agreement; (c) the
breach of any of the covenants, warranties and representations made by Infinity to Intellikine under the Original Agreement or this Agreement; or (d) if Infinity
does not exercise the Navy Sublicense Option or the UCSF Sublicense Option under Section 2.6(a) or 2.6(b), respectively, the practice, use, infringement or
misappropriation of any Navy Patent Rights or any UCSF Intellectual Property or UCSF Other Patent Right, as applicable, in the research, development or
commercialization of the Licensed Compounds and/or Products. Notwithstanding the foregoing, Infinity shall not be responsible for the indemnification of any
Intellikine Indemnified Party: (A) to the extent that the Indemnified Losses of such Intellikine Indemnified Party were caused by the negligence or willful
misconduct of such Intellikine Indemnified Party, or (B) to the extent that the Indemnified Losses of such Intellikine Indemnified Party were caused by any
breach by Intellikine of its covenants, obligations, warranties or representations pursuant to the Original Agreement or this Agreement.
17.3 Indemnification Procedure.
(a) Any Infinity Indemnified Party or Intellikine Indemnified Party seeking indemnification hereunder (“Indemnified Party”) shall notify the Party against
whom indemnification is sought (“Indemnifying Party”) in writing reasonably promptly after the assertion against the Indemnified Party of any
Claim in respect of which the Indemnified Party intends to base a claim for indemnification hereunder, but the failure or delay so to notify the
Indemnifying Party shall not
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relieve the Indemnifying Party of any obligation or liability that it may have to the Indemnified Party except to the extent that the Indemnifying Party’s
ability to defend or resolve such Claim is adversely affected thereby.
(b) Subject to the provisions of Sections 17.3(d) and (e) below, the Indemnifying Party shall have the right, upon written notice given to the Indemnified Party
within thirty (30) days after receipt of the notice from the Indemnified Party of any Claim, to assume the defense and handling of such Claim, at the
Indemnifying Party’s sole expense, in which case the provisions of Section 17.3(c) below shall govern.
(c) If the Indemnifying Party assumes the defense and handling of such Claim: The Indemnifying Party shall select counsel reasonably acceptable to the
Indemnified Party in connection with conducting the defense and handling of such Claim, and the Indemnifying Party shall defend or handle the same
in consultation with the Indemnified Party, and shall keep the Indemnified Party timely apprised of the status of such Claim. The Indemnified Party
shall not settle such Claim without the prior written consent of the Indemnifying Party. The Indemnifying Party shall not, without the prior written
consent of the Indemnified Party, agree to a settlement of such Claim which could lead to liability or create any financial or other obligation on the
part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or would involve any admission of
wrongdoing on the part of the Indemnified Party. The Indemnified Party shall cooperate with the Indemnifying Party, at the request and expense of the
Indemnifying Party, and shall be entitled to participate in the defense and handling of such Claim with its own counsel and at its own expense.
Notwithstanding the foregoing, in the event the Indemnifying Party fails to conduct the defense and handling of any Claim in good faith after having
assumed such, then the provisions of Section 17.3 (e) below shall govern.
(d) If the Indemnifying Party does not give written notice to the Indemnified Party, within thirty (30) days after receipt of the notice from the Indemnified
Party of any Claim, of the Indemnifying Party’s election to assume the defense and handling of such Claim, the provisions of Section 17.3(e) below
shall govern.
(e) Unless Section 17.3(c) applies: The Indemnified Party may, at the Indemnifying Party’s expense, select counsel reasonably acceptable to the Indemnifying
Party in connection with conducting the defense and handling of such Claim and defend or handle such Claim in such manner as it may deem
appropriate; provided, however, that the Indemnified Party shall keep the Indemnifying Party timely apprised of the status of such Claim and shall not
settle such Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. The Indemnifying
Party shall not settle such Claim without the prior written consent of the Indemnified Party. If the Indemnified Party defends or handles such Claim,
the Indemnifying Party shall cooperate with the Indemnified Party, at the Indemnified Party’s request but at no expense to the Indemnified Party, and
shall be entitled to participate in the defense and handling of such Claim with its own counsel and at its own expense.
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(f) In the event a Claim is based partially on an indemnified claim and partially on a non-indemnified claim or based partially on a claim indemnified by one
Party and partially on a claim indemnified by the other Party, any payments in connection with such Claim shall be apportioned between the Parties in
accordance with the degree of cause attributable to each Party.
(g) Nothing in this Section 17 will act to negate any obligation under common law of either Party to mitigate damages with respect to any Claim for which
such Party is seeking indemnification from the other Party hereunder.
17.4 Special, Indirect and Other Losses. IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS AFFILIATES BE LIABLE FOR SPECIAL, INDIRECT,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS SUFFERED BY THE OTHER PARTY, EXCEPT FOR LIABILITY
FOR (A) BREACH OF ARTICLE 12 OF THE ORIGINAL AGREEMENT OR THIS AGREEMENT, OR (B) TO THE EXTENT ANY SUCH DAMAGES
ARE REQUIRED TO BE PAID TO A THIRD PARTY PURSUANT TO SECTIONS 17.1 THROUGH 17.3 AS PART OF A CLAIM (AS DEFINED IN
SECTION 17.1). IN NO EVENT WILL PAYMENTS DUE UNDER SECTION 8 BE CONSIDERED LOST PROFITS.
17.5 Insurance. Each Party, at its own expense, shall maintain liability insurance (or self-insure) with respect to its activities hereunder in an amount consistent with
industry standards. Each Party shall provide a certificate of insurance (or evidence of self-insurance) evidencing such coverage to the other Party upon request.
Without limitation of the foregoing, during the Term and thereafter for the period of time required below, Infinity shall maintain on an ongoing basis
comprehensive general liability insurance in the minimum amount of $[**] per occurrence and $[**] annual aggregate combined single limit for bodily injury
and property damage liability; and products liability insurance (including contractual liability coverage on Infinity’s indemnification obligations under this
Agreement) in the amount of at least $[**] per occurrence and as an annual aggregate combined single limit for bodily injury and property damage liability;
provided, however, that, commencing not later than [**] by Infinity or any Infinity Related Party, and thereafter for the period of time required below, Infinity
shall obtain and maintain on an ongoing basis products liability insurance (including contractual liability coverage on Infinity’s indemnification obligations
under this Agreement) in the amount of at least $[**] per occurrence and as an annual aggregate combined single limit for bodily injury and property damage
liability. All of such insurance coverage may be maintained through a self insurance plan that substantially complies with the foregoing limits and requirements
and may be satisfied through one or more policies, including an umbrella policy. Not later than thirty (30) days following receipt of written request from
Intellikine, Infinity shall provide to Intellikine a letter(s) affirming appropriate self-insurance and/or a Certificate of Insurance evidencing such coverage in
accordance with this Agreement. Thereafter, Infinity shall maintain such
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insurance and/or self-insurance coverage without interruption during the Term and for a period of six (6) years thereafter, and, if applicable, shall provide
certificates and/or letters evidencing such insurance coverage without interruption as reasonably requested during the period of time for which such coverage
must be maintained. Intellikine shall be provided at least thirty (30) days’ prior written notice of any cancellation or material decrease in the insurance coverage
limits described above.
18. GENERAL PROVISIONS
18.1 Assignment.
(a) Neither Party may assign its rights and obligations under this Agreement without the other Party’s prior written consent, except that (i) either Party may
assign its rights and obligations under this Agreement or any part hereof to one or more of its Affiliates without the consent of any other Party,
provided that the assigning Party shall remain liable and responsible to the non-assigning Party for the performance and observance of all such duties
and obligations by such Affiliate; and (ii) either Party may assign this Agreement in its entirety to a Third Party successor to all or substantially all of
its business relating to Licensed Compounds and Products, whether by merger, sale of stock, sale of assets or otherwise and whether this Agreement is
actually assigned or is assumed by the acquirer by operation of law, including in the context of a reverse triangular merger. The assigning Party shall
provide the other Party with prompt written notice of any such assignment. This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and permitted assigns. Any attempted assignment in contravention of the foregoing shall be void.
(b) In connection with a transaction described in Section 18.1(a)(ii) with respect to a transaction that occurs at any time after the Original Effective Date (with
respect to the corporate structure of the Acquired Party (as defined below) as it existed on the Original Effective Date or at the relevant time
thereafter): (1) the “Acquired Party” means the Party that is a party to such transaction; (2) the “Acquired Party Pre-Existing Affiliates” means the
Affiliates of the Acquired Party existing immediately prior to the closing of such transaction; (3) the “Acquirer” means the acquiring Third Party in
such transaction; (4) the “Acquirer Affiliates” means all Affiliates of the Acquirer other than, following such transaction, the Acquired Party and the
Acquired Party Pre-Existing Affiliates; and (5) “Non- Acquired Party” means the Party that is not a party to such transaction.
18.2 Performance by Affiliates. Any obligation of Infinity under or pursuant to this Agreement may be satisfied, met or fulfilled, in whole or in part, at Infinity’s sole
and exclusive option, either by Infinity directly or by any Affiliate of Infinity that Infinity causes to satisfy, meet or fulfill such obligation, in whole or in part.
Any obligation of Intellikine under or pursuant to this Agreement may be satisfied, met or fulfilled, in whole or in part, at Intellikine’s sole and exclusive
option, either by Intellikine directly or by any Affiliate of Intellikine that Intellikine causes to satisfy, meet or fulfill such
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obligation, in whole or in part. With respect to any particular action, the use of the words “Infinity will” or “Infinity shall” also means “Infinity will cause” the
particular action to be performed, and the use of the words “Intellikine will” or “Intellikine shall” also means “Intellikine will cause” the particular action to be
performed. Each of the Parties guarantees the performance of all actions, agreements and obligations to be performed by any Affiliates of such Party under the
terms and conditions of this Agreement.
18.3 Severability. Should one or more of the provisions of this Agreement become void or unenforceable as a matter of law, then this Agreement shall be construed as
if such provision were not contained herein and the remainder of this Agreement shall be in full force and effect, and the Parties will use their best efforts to
substitute for the invalid or unenforceable provision a valid and enforceable provision which conforms as nearly as possible with the original intent of the
Parties.
18.4 Governing Law. This Agreement shall be governed by and construed under the laws of the State of New York, USA, without giving effect to the conflicts of
laws provision thereof.
18.5 Dispute Resolution.
(a) The Parties shall negotiate in good faith and use reasonable efforts to settle any dispute, controversy or claim arising from or related to this Agreement or
the breach thereof. If the Parties cannot resolve the dispute, controversy or claim (other than any such matter to be resolved by the Patent Committee,
which shall not be subject to this Section 18.5 but shall be resolved solely pursuant to the procedures set forth in Article 10 (except with respect to any
disputes not resolved as a result of the proviso in Section 10.2(a)(ii)(B)) within thirty (30) days of a written request by either Party to the other Party,
the Parties agree to hold a meeting, attended by the Senior Officers (or their designee with executive authority), as appropriate in light of the subject
matter of the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within thirty (30)
days after such written request, the Parties have not succeeded in negotiating a resolution of the dispute, and a Party wishes to pursue the matter, each
such dispute, controversy or claim that is not an Excluded Claim shall be resolved by binding arbitration in accordance with the Commercial
Arbitration Rules and Supplementary Procedures for Large Complex Disputes of AAA as then in effect, and judgment on the arbitration award may be
entered in any court having jurisdiction thereof; provided, however, that a Party may pursue any matter described under Section 18.6 as described
therein. The decision rendered in any such arbitration will be final and not appealable. If either Party intends to commence binding arbitration of such
dispute, controversy or claim, such Party will provide written notice to the other Party informing the other Party of such intention and the issues to be
resolved. Within thirty (30) days after the receipt of such notice, the other Party may by written notice to the Party initiating binding arbitration, add
additional issues which meet the criteria in the second (2nd) sentence of this Section 18.5(a) (and are not Excluded Claims), to be resolved.
56
(b) The arbitration shall be conducted by a panel of three (3) persons experienced in the pharmaceutical business, none of whom shall be a current or former
employee or director, or a then-current stockholder, of either Party, their respective Affiliates or any other Infinity Related Party. Within thirty (30)
days after receipt of the original notice of binding arbitration (the “Notice Date”), each Party shall select one person to act as arbitrator and the two
Party- selected arbitrators shall select a third arbitrator within ten (10) Business Days of their appointment. If the arbitrators selected by the Parties are
unable or fail to agree upon the third arbitrator, the third arbitrator shall be appointed by the AAA. The place of arbitration shall be New York, New
York, and all proceedings and communications shall be in English.
(c) It is the intention of the Parties that discovery, although permitted as described herein, will be limited except in exceptional circumstances. The arbitrators
will permit such limited discovery necessary for an understanding of any legitimate issue raised in the arbitration, including the production of
documents. No later than thirty (30) days after selection of the third arbitrator, the Parties and their representatives shall hold a preliminary meeting
with the arbitrators, to mutually agree upon and thereafter follow procedures seeking to assure that the arbitration will be concluded within six (6)
months from such meeting. Failing any such mutual agreement, the arbitrators will design and the Parties shall follow procedures to such effect.
(d) The arbitrators will, in rendering their decision, apply the substantive law of the State of New York, without giving effect to its principles of conflicts of
law, and without giving effect to any rules or laws relating to arbitration.
(e) Either Party may apply to the arbitrators for interim injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either
Party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any injunctive or provisional relief
necessary to protect the rights or property of that Party pending the arbitration award. The arbitrators shall have no authority to award punitive or any
other non- compensatory damages, except as may be permitted by Section 17.4. Each Party shall bear its own costs and expenses and attorneys’ fees
and an equal share of the arbitrators’ and any administrative fees of arbitration.
(f) Except to the extent necessary to confirm or enforce an award or as may be required by law, neither a Party nor an arbitrator may disclose the existence,
content, or results of an arbitration without the prior written consent of both Parties. In no event shall an arbitration be initiated after the date when
commencement of a legal or equitable proceeding based on the dispute, controversy or claim would be barred by the applicable New York statute of
limitations.
57
(g) As used in this Section, the term “Excluded Claim” shall mean a dispute, controversy or claim that concerns the validity, enforceability or infringement of
a patent, trademark or copyright.
18.6 Injunctive Relief. Each Party acknowledges and agrees that, due to the unique and valuable nature of the other Party’s Confidential Information, there would be
no adequate remedy at law for any breach by such Party of Section 11.1(c), the proviso in Section 16.4(g), Article 12 or Article 13, that any such breach may
result in irreparable harm to the other Party for which monetary damages would be inadequate to compensate such party and that the other Party shall have the
right, in addition to any other rights available under applicable law, to obtain from any court of competent jurisdiction injunctive relief to restrain any breach or
threatened breach of, or otherwise to specifically enforce, any covenant or obligation of such Party under such provisions, without the necessity of posting any
bond or security.
18.7 Force Majeure. Neither Party shall be responsible to the other for any failure or delay in performing any of its obligations under this Agreement or for other
nonperformance hereunder (excluding, in each case, the obligation to make payments when due) if such delay or nonperformance is caused by strike, fire,
flood, earthquake, accident, war, act of terrorism, act of God or of the government of any country or of any local government, or by cause unavoidable or
beyond the reasonable control of such Party. In such event, the Party affected will use commercially reasonable efforts to resume performance of its obligations.
18.8 Waivers and Amendments. The failure of any Party to assert a right hereunder or to insist upon compliance with any term or condition of this Agreement shall
not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition by the other Party. No waiver shall be effective
unless it has been given in writing and signed by the Party giving such waiver. No provision of this Agreement may be amended or modified other than by a
written document signed by authorized representatives of each Party.
18.9 Relationship of the Parties. Nothing contained in this Agreement shall be deemed to constitute a partnership, joint venture, or legal entity of any type between
Intellikine and Infinity, or to constitute one as the agent of the other. Each Party shall act solely as an independent contractor, and nothing in this Agreement
shall be construed to give any Party the power or authority to act for, bind, or commit the other.
18.10 Notices. All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when
(a) delivered by hand (with written confirmation of receipt), (b) sent by fax (with written confirmation of receipt), provided that a copy is sent by an
internationally recognized overnight delivery service (receipt requested), or (c) when received by the addressee, if sent by an
58
internationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and fax numbers set forth below (or to such
other addresses and fax numbers as a Party may designate by notice):
If to Intellikine:
Intellikine LLC
c/o Millennium Pharmaceuticals, Inc.
40 Landsdowne Street
Cambridge, MA 02139
Attn: Chief Executive Officer
Facsimile: (617) 621-0264
with copies to:
Intellikine LLC
c/o Millennium Pharmaceuticals, Inc.
40 Landsdowne Street
Cambridge, MA 02139
Attn: General Counsel
Facsimile: (617) 374-0074
If to Infinity:
Infinity Pharmaceuticals, Inc.
780 Memorial Drive
Cambridge, Massachusetts 02139
Attn: Chief Executive Officer
Fax: 1-617-453-1001
with copies to:
Infinity Pharmaceuticals, Inc.
780 Memorial Drive
Cambridge, Massachusetts 02139
Attn: General Counsel
Fax: 1-617-453-1001
59
and
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, MA 02109
Attn: Steven D. Singer, Esq.
Fax: 1-617-526-5000
18.11 Further Assurances. Infinity and Intellikine hereby covenant and agree, without the necessity of any further consideration, to execute, acknowledge and deliver
any and all such other documents and take any such other action as may be reasonably necessary to carry out the intent and purposes of this Agreement.
18.12 Compliance with Law. Each Party shall perform its obligations under this Agreement in material compliance with all applicable laws and current international
regulatory standards, including (a) all applicable international, national, state, regional and local laws and regulations in performing its obligations hereunder
and in its use, manufacture, sale or import of Licensed Compounds and Products (including cGMP, cGLP, cGCP and other rules, regulations and requirements),
(b) all applicable United States and foreign laws with respect to the transfer of Products and related technical data to countries other than the United States,
including the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations, and (c) applicable government importation laws and
regulations of a particular country for Products made outside the particular country in which such Products are used, sold or otherwise exploited. No Party shall,
or shall be required to, undertake any activity under or in connection with this Agreement which violates, or which it believes, in good faith, may violate, any
applicable law.
18.13 No Third Party Beneficiary Rights. This Agreement is not intended to and shall not be construed to give any Third Party any interest or rights (including any
third party beneficiary rights) with respect to or in connection with any agreement or provision contained herein or contemplated hereby, other than to the extent
provided in Article 17, the Indemnified Parties.
18.14 Entire Agreement. This Agreement, together with its Exhibits, which is effective as of the Effective Date, sets forth the entire agreement and understanding of
the Parties as to the subject matter hereof and supersedes all proposals, oral or written, and all other communications between the Parties with respect to such
subject matter, including the Original Agreement. For clarity, the Original Agreement is superseded in its entirety as of the Effective Date; provided, however,
that any breach of the Original Agreement with respect to the period prior to the Effective Date shall be deemed a breach of this Agreement and the Parties may
exercise their respective rights and remedies under this Agreement with respect to such a breach of the Original Agreement, and, for clarity, as set forth in
Article 17, the Parties may exercise their respective indemnification rights and remedies under this Agreement with respect to a breach of the Original
Agreement. In the event of any conflict between a substantive provision of this Agreement and any Exhibit hereto, the substantive provisions of this Agreement
shall prevail.
60
18.15 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Signatures provided by facsimile transmission or in Adobe™ Portable Document Format (PDF) sent by electronic mail
shall be deemed to be original signatures.
18.16 Expenses. Each Party shall pay its own costs, charges and expenses incurred in connection with the negotiation, preparation and execution of this Agreement.
18.17 Additional Agreements. Each Party further agrees that it has not entered into this Agreement in reliance upon any representation, warranty or undertaking of the
other Party which is not expressly set out in this Agreement.
18.18 Effect of Laws. Nothing in this Agreement shall operate to:
(a) exclude any provision implied into this Agreement by law and which may not be excluded by law; or
(b) limit or exclude any liability, right or remedy to a greater extent than is permissible under law.
[THIS SPACE INTENTIONALLY LEFT BLANK]
61
IN WITNESS WHEREOF, the Parties intending to be bound have caused this Agreement to be executed by their duly authorized representatives
SIGNED for and on behalf of
INTELLIKINE LLC
)
)
/s/ Laurie B. Keating
Laurie B. Keating, Esq.
)
Secretary
SIGNED for and on behalf of
)
/s/ Adelene Q. Perkins
INFINITY PHARMACEUTICALS, INC.
)
)
Adelene Q. Perkins
President and Chief Executive Officer
62
EXHIBIT 3
Milestone Events and Milestone Payments
Infinity will pay to Intellikine the Milestone Payments shown below within thirty (30) days after Infinity becomes aware of achievement of such Milestone
Event (or in the case of the achievement of Milestone Event in row 3, Column 3, upon the Effective Date).
For purposes of clarity:
(a) The Milestone Payments listed in each cell (i.e., a cell in a row and each of Column C or Column D) below shall not be payable more than once for
each achievement thereof.
(b) Once a Milestone Event has been achieved with respect to a cell in a row in a Column (for example Column C), on the one hand, and a cell in a row in the
other Column (Column D), on the other hand, it shall not be payable again if subsequently the same or different Licensed Compound or Product achieves the same
Milestone Event in such cell (i.e., the same row and column).
(c) After the achievement of a Milestone Event in any cell of rows 2 through 13, Column C by a Licensed Compound or Product, that Milestone Event
in the cell in Column D of such row may only be achieved by a different Licensed Compound or Product than achieved the Milestone Event in Column C for
such row.
(d) With respect to the Milestone Events in each of (i) rows 5-7, collectively, (ii) rows 8-10, collectively, and (iii) rows 11-13, collectively, [**]
(e) By way of example and without limitation:
[**].
No.
Milestone Event
Column C: Milestone
Payment
upon [**]
Column D: Milestone
Payment
upon [**]
1.
Initiation of the first IND-enabling cGLP toxicology study for a Licensed Compound
(other than INK1197)
$1,000,000
PAID
N/A
2.
First Patient, First Visit in a Phase I Study
$3,000,000
PAID
$1,000,000
PAID
3.
First Patient, First Visit in a Phase II Study
$5,000,000
Payable upon
Effective Date
$2,000,000
This milestone will not
be triggered by IPI145
(for which payment in
row 3, Column 3 is being
paid as of the Effective
Date)
63
No. Milestone Event
Column C: Milestone Payment
upon [**]
Column D: Milestone
Payment
upon [**]
4. First Patient, First Visit in a Phase II Study
$10,000,000
[**]
5. [**]
[**]
[**]
6. [**]
[**]
[**]
7. [**]
[**]
[**]
8. [**]
[**]
[**]
9. [**]
[**]
[**]
10. [**]
[**]
[**]
11. [**]
[**]
[**]
12. [**]
[**]
[**]
13. [**]
[**]
[**]
14. [**]
[**]
[**]
15. [**]
[**]
[**]
16. [**]
[**]
[**]
17. [**]
[**]
[**]
18. [**]
[**]
[**]
19. [**]
[**]
[**]
TOTAL ALL MILESTONES:
U.S. $475,000,000
64
EXHIBIT 4
Target Inhibitor Criteria
For a given small molecule compound, such compound meets the [**] selectivity criteria as described below: [**].
65
EXHIBIT 7
Exhibit 7(A)
NAVY AGREEMENT TERMS
[**]
66
Exhibit 7(B)
UCSF AGREEMENT
[**]
67
EXHIBIT 9
AGREEMENTS RELATING TO LICENSED COMPOUNDS
[**]
68
1100 Massachusetts Avenue
Cambridge, MA
Tel: 617-453-1000
Fax: 617-453-1001
www.infi.com
February 22, 2023
Adelene Perkins
1100 Massachusetts Avenue
Cambridge, MA 02138
Dear Adelene:
As you know, Infinity Pharmaceuticals, Inc. (“Infinity”) is entering into a merger agreement with MEI Pharma, Inc. (“MEI”) by which, if
the merger is completed in accordance with its terms, Infinity will become a subsidiary of MEI. References to “Infinity” below include MEI
if and after the merger closes. We recognize that your contributions to Infinity in the past have been integral to its success and that your
continued involvement with and after the merger will be necessary to facilitate the completion of the merger and are critical to ensuring the
success of the merged company.
To incentivize you to remain with Infinity through the closing of the merger (the “Closing”), you will be eligible to receive the payment
described in this agreement (the “Agreement”).
(1)
You agree to remain in the employ of Infinity through the Closing. While employed, you agree to continue to devote your full time
and best efforts to Infinity. Upon, and in connection with, the Closing, your employment with Infinity will terminate without Cause
and you will join the MEI Board of Directors.
(2)
Your employment is and will be at-will. You understand that Infinity retains the right to terminate your services with or without Cause
and you retain the right to terminate your services for Infinity at any time. For the purposes of this Agreement and the application of
the term elsewhere in this Agreement, "Cause" shall have the meaning set forth in the Infinity Executive Severance Benefits Plan as
in effect on the date of this Agreement and without regard to any future amendments thereto (the “Severance Plan”), but with
clause (i) of such “Cause” definition replaced with “a good faith finding by the Board of Directors of the Company or its public parent
corporation of a knowing and willful failure by the employee to perform the employee’s material duties for the Company in a manner
reasonably acceptable to the Company, which failure continues for a period of more than 30 days after notice thereof has been
provided to the employee in writing by the Company, setting forth in reasonable detail the nature of such failure.”
(3)
As an incentive for you to remain employed with Infinity through the Closing, you will be eligible to receive a retention bonus (the
“Retention Bonus”) in the amount of $250,000, payable in a lump sum in the next payroll whose cutoff date follows the Closing.
(4)
If your employment with Infinity terminates for any reason prior to the Closing, no portion of the Retention Bonus will be paid to you.
(5)
In addition to the Retention Bonus under the terms of Sections 3 and 4 provided above, you will be eligible to receive severance
benefits under the Severance Plan (as determined using the terms in effect as of the date of this letter) (the “Severance Benefits”)
when Infinity terminates your employment without Cause in connection with the Closing or if Infinity terminates your employment
before the Closing for any reason other than for either Cause or disability. The Severance Benefits are subject to the release
requirements in Section 6 of the Severance Plan, provided that the Severance Benefits shall be made in a single lump sum rather than
in the installments specified in Sections 6 and 7 of the Severance Plan. You will also receive any other benefits under the Severance
Plan (including outplacement and benefits continuation) in accordance with the terms of the Severance Plan, with Cause as modified
herein.
(6)
All payments described in this Agreement are subject to applicable tax and other withholdings and Section 12 of the Severance Plan
(regarding the application of Section 409A of the Internal Revenue Code of 1986, as amended) as though the Retention Bonus were
paid under the Severance Plan.
(7)
You acknowledge that this Agreement supersedes any prior agreements or understandings, whether oral or written, between you and
either Infinity pertaining to any incentive payments being offered to you in connection with the merger and this Agreement, taken
together with the Severance Plan, constitutes the entire agreement between us regarding transaction-related bonuses and severance.
You acknowledge that this Agreement may be assigned by Infinity Pharmaceuticals, Inc. to MEI at or after the Closing and, if so
assigned, that MEI shall have sole responsibility for satisfying any obligations to you hereunder. You further acknowledge that this
Agreement and the payment of the Retention Bonus hereunder is contingent upon the Closing, and this Agreement will terminate and
no Retention Bonus will be paid hereunder in the event that the Closing is not consummated.
[Remainder of Page Blank]
On behalf of Infinity Pharmaceuticals, Inc., I thank you for your continued assistance and support. If you have any questions regarding any of
the terms of this Agreement, please do not hesitate to contact me. Once you have read and understood the terms of this Agreement, please
indicate your Agreement to the terms by signing below.
Very truly yours,
INFINITY PHARMACEUTICALS, INC.
By: /s/ Norman Selby
Chair of the Compensation Committee
ACCEPTED AND AGREED:
/s/ Adelene Perkins
Adelene Perkins
1100 Massachusetts Avenue
Cambridge, MA
Tel: 617-453-1000
Fax: 617-453-1001
www.infi.com
February 22, 2023
Robert Ilaria
1100 Massachusetts Avenue
Cambridge, MA 02138
Dear Robert:
As you know, Infinity Pharmaceuticals, Inc. (“Infinity”) is entering into a merger agreement with MEI Pharma, Inc. (“MEI”) by which, if
the merger is completed in accordance with its terms, Infinity will become a subsidiary of MEI. References to “Infinity” below include MEI
if and after the merger closes. We recognize that your contributions to Infinity in the past have been integral to its success and that your
continued involvement with and after the merger will be necessary to facilitate the completion of the merger and are critical to ensuring the
success of the merged company.
To incentivize you to remain with Infinity through the closing of the merger (the “Closing”) and for at least the remainder of 2023, and to
provide you the possibility of receiving certain benefits after the Closing, you will be eligible to receive the payments described in this
agreement (the “Agreement”).
(1)
You agree to remain in the employ of Infinity through the date of the closing (the “Closing Date”) of the merger and until December
31, 2023. While employed, you agree to continue to devote your full time and best efforts to Infinity.
(2)
Your employment is and will be at-will. You understand that Infinity retains the right to terminate your services with or without Cause
and you retain the right to terminate your services for Infinity at any time. For the purposes of this Agreement and the application of
the term elsewhere in this Agreement, "Cause" shall have the meaning set forth in the Infinity Executive Severance Benefits Plan as
in effect on the date of this Agreement and without regard to any future amendments thereto (the “Severance Plan”), but with
clause (i) of such “Cause” definition replaced with “a good faith finding by the Board of Directors of the Company or its public parent
corporation of a knowing and willful failure by the employee to perform the employee’s material duties for the Company in a manner
reasonably acceptable to the Company, which failure continues for a period of more than 30 days after notice thereof has been
provided to the employee in writing by the Company, setting forth in reasonable detail the nature of such failure.”
(3)
As an incentive for you to remain employed with Infinity through the Closing and through December 31, 2023, you will be eligible to
receive a retention bonus (the “Retention Bonus”) in the amount of $250,000, payable 50% in the next payroll whose cutoff date
follows June 30, 2023, with the remainder payable on December 31, 2023 or in the first payroll thereafter whose cutoff date follows
such date as Infinity may elect. If your
employment ends because you are terminated other than for either Cause or disability before June 30, 2023, you will receive the first
50% in the same payroll in which you receive your Severance Benefits, and the remaining portion of the Retention Bonus will be
forfeited. If your employment ends because you are terminated other than for either Cause or disability on or after June 30, 2023 and
provided that the Closing has occurred prior to such termination, you will receive the remaining 50% of the Retention Bonus (and the
initial 50% if not yet paid) in the same payroll in which you receive your Severance Benefits. For the avoidance of doubt, references
to a termination without Cause do not include a situation in which Infinity or MEI offers you continuing employment through at least
December 31, 2023 as Chief Medical Officer of Infinity or MEI and you decline to remain so employed.
(4)
If you resign from employment with Infinity (including for Good Reason as defined in the Severance Plan) or Infinity terminates your
employment for Cause or due to disability, no portion of the Retention Bonus will be paid to you.
(5)
In addition to the Retention Bonus under the terms of Sections 3 and 4 provided above, you will be eligible to receive severance
benefits under the Severance Plan (as determined using the terms in effect as of the date of this letter) (the “Severance Benefits”) if
Infinity terminates your employment for any reason other than for either Cause or disability or you resign for Good Reason, in each
case no later than one (1) year following the Closing Date or such longer period as the Severance Plan applies to you. If, after the
Closing Date, Infinity adopts a plan providing Severance Benefits that are more generous than those now in effect, you will be eligible
for the additional benefits in accordance with their terms. The Severance Benefits and any payments of the Retention Bonus that are
paid in connection with your termination of employment are subject to the release requirements in Section 6 of the Severance Plan,
provided that the total payments shall be made in a single lump sum rather than in the installments specified in Sections 6 and 7 of the
Severance Plan. You will also receive any other benefits under the Severance Plan (including outplacement and benefits continuation)
in accordance with the terms of the Severance Plan, with Cause as modified herein.
(6)
All payments described in this Agreement are subject to applicable tax and other withholdings and Section 12 of the Severance Plan
(regarding the application of Section 409A of the Internal Revenue Code of 1986, as amended) as though the Retention Bonus were
paid under the Severance Plan.
(7)
You acknowledge that this Agreement supersedes any prior agreements or understandings, whether oral or written, between you and
either Infinity pertaining to any incentive payments being offered to you in connection with the merger and this Agreement, taken
together with the Severance Plan, constitutes the entire agreement between us regarding transaction-related bonuses and severance.
You acknowledge that this Agreement may be assigned by Infinity Pharmaceuticals, Inc. to MEI at or after the Closing and, if so
assigned, that MEI shall have sole responsibility for satisfying any obligations to you hereunder.
[Remainder of Page Blank]
On behalf of Infinity Pharmaceuticals, Inc., I thank you for your continued assistance and support. If you have any questions regarding any of
the terms of this Agreement, please do not hesitate to contact me. Once you have read and understood the terms of this Agreement, please
indicate your Agreement to the terms by signing below.
Very truly yours,
INFINITY PHARMACEUTICALS, INC.
By: /s/ Adelene Perkins
Chief Executive Officer and Chair of the Board
ACCEPTED AND AGREED:
/s/ Robert Ilaria
Robert Ilaria
1100 Massachusetts Avenue
Cambridge, MA
Tel: 617-453-1000
Fax: 617-453-1001
www.infi.com
February 22, 2023
Stéphane Peluso
1100 Massachusetts Avenue
Cambridge, MA 02138
Dear Stéphane:
As you know, Infinity Pharmaceuticals, Inc. (“Infinity”) is entering into a merger agreement with MEI Pharma, Inc. (“MEI”) by which, if
the merger is completed in accordance with its terms, Infinity will become a subsidiary of MEI. References to “Infinity” below include MEI
if and after the merger closes. We recognize that your contributions to Infinity in the past have been integral to its success and that your
continued involvement with and after the merger will be necessary to facilitate the completion of the merger and are critical to ensuring the
success of the merged company.
To incentivize you to remain with Infinity through the closing of the merger (the “Closing”) and for at least the remainder of 2023, and to
provide you the possibility of receiving certain benefits after the Closing, you will be eligible to receive the payments described in this
agreement (the “Agreement”).
(1)
You agree to remain in the employ of Infinity through the date of the closing (the “Closing Date”) of the merger and until December
31, 2023. While employed, you agree to continue to devote your full time and best efforts to Infinity.
(2)
Your employment is and will be at-will. You understand that Infinity retains the right to terminate your services with or without Cause
and you retain the right to terminate your services for Infinity at any time. For the purposes of this Agreement and the application of
the term elsewhere in this Agreement, "Cause" shall have the meaning set forth in the Infinity Executive Severance Benefits Plan as
in effect on the date of this Agreement and without regard to any future amendments thereto (the “Severance Plan”), but with
clause (i) of such “Cause” definition replaced with “a good faith finding by the Board of Directors of the Company or its public parent
corporation of a knowing and willful failure by the employee to perform the employee’s material duties for the Company in a manner
reasonably acceptable to the Company, which failure continues for a period of more than 30 days after notice thereof has been
provided to the employee in writing by the Company, setting forth in reasonable detail the nature of such failure.”
(3)
As an incentive for you to remain employed with Infinity through the Closing and through December 31, 2023, you will be eligible to
receive a retention bonus (the “Retention Bonus”) in the amount of $200,000, payable 50% in the next payroll whose cutoff date
follows June 30, 2023, with the remainder payable on December 31, 2023 or in the first payroll thereafter whose cutoff date follows
such date as Infinity may elect. If your employment ends because you are terminated other than for either Cause or disability
before June 30, 2023, you will receive the first 50% in the same payroll in which you receive your Severance Benefits, and the
remaining portion of the Retention Bonus will be forfeited. If your employment ends because you are terminated other than for either
Cause or disability on or after June 30, 2023 and provided that the Closing has occurred prior to such termination, you will receive the
remaining 50% of the Retention Bonus (and the initial 50% if not yet paid) in the same payroll in which you receive your Severance
Benefits. For the avoidance of doubt, references to a termination without Cause do not include a situation in which Infinity or MEI
offers you continuing employment through at least December 31, 2023 as Chief Science Officer of Infinity or MEI and you decline to
remain so employed.
(4)
If you resign from employment with Infinity (including for Good Reason as defined in the Severance Plan) or Infinity terminates your
employment for Cause or due to disability, no portion of the Retention Bonus will be paid to you.
(5)
In addition to the Retention Bonus under the terms of Sections 3 and 4 provided above, you will be eligible to receive severance
benefits under the Severance Plan (as determined using the terms in effect as of the date of this letter) (the “Severance Benefits”) if
Infinity terminates your employment for any reason other than for either Cause or disability or you resign for Good Reason, in each
case no later than one (1) year following the Closing Date or such longer period as the Severance Plan applies to you. If, after the
Closing Date, Infinity adopts a plan providing Severance Benefits that are more generous than those now in effect, you will be eligible
for the additional benefits in accordance with their terms. The Severance Benefits and any payments of the Retention Bonus that are
paid in connection with your termination of employment are subject to the release requirements in Section 6 of the Severance Plan,
provided that the total payments shall be made in a single lump sum rather than in the installments specified in Sections 6 and 7 of the
Severance Plan. You will also receive any other benefits under the Severance Plan (including outplacement and benefits continuation)
in accordance with the terms of the Severance Plan, with Cause as modified herein.
(6)
All payments described in this Agreement are subject to applicable tax and other withholdings and Section 12 of the Severance Plan
(regarding the application of Section 409A of the Internal Revenue Code of 1986, as amended) as though the Retention Bonus were
paid under the Severance Plan.
(7)
You acknowledge that this Agreement supersedes any prior agreements or understandings, whether oral or written, between you and
either Infinity pertaining to any incentive payments being offered to you in connection with the merger and this Agreement, taken
together with the Severance Plan, constitutes the entire agreement between us regarding transaction-related bonuses and severance.
You acknowledge that this Agreement may be assigned by Infinity Pharmaceuticals, Inc. to MEI at or after the Closing and, if so
assigned, that MEI shall have sole responsibility for satisfying any obligations to you hereunder.
[Remainder of Page Blank]
On behalf of Infinity Pharmaceuticals, Inc., I thank you for your continued assistance and support. If you have any questions regarding any of
the terms of this Agreement, please do not hesitate to contact me. Once you have read and understood the terms of this Agreement, please
indicate your Agreement to the terms by signing below.
Very truly yours,
INFINITY PHARMACEUTICALS, INC.
By: /s/ Adelene Perkins
Chief Executive Officer and Chair of the Board
ACCEPTED AND AGREED:
/s/ Stéphane Peluso
Stéphane Peluso
1100 Massachusetts Avenue
Cambridge, MA
Tel: 617-453-1000
Fax: 617-453-1001
www.infi.com
February 22, 2023
Seth Tasker
1100 Massachusetts Avenue
Cambridge, MA 02138
Dear Seth:
As you know, Infinity Pharmaceuticals, Inc. (“Infinity”) is entering into a merger agreement with MEI Pharma, Inc. (“MEI”) by which, if
the merger is completed in accordance with its terms, Infinity will become a subsidiary of MEI. References to “Infinity” below include MEI
if and after the merger closes. We recognize that your contributions to Infinity in the past have been integral to its success and that your
continued involvement with and after the merger will be necessary to facilitate the completion of the merger and are critical to ensuring the
success of the merged company.
To incentivize you to remain with Infinity through June 30, 2023 (the “Payment Date”), you will be eligible to receive the payment
described in this agreement (the “Agreement”).
(1)
You agree to remain in the employ of Infinity through the Payment Date, the closing of the merger (the “Closing”), and for a
transition period thereafter. While employed, you agree to continue to devote your full time and best efforts to Infinity. Your
employment will end on a termination without Cause after the transition period that Infinity requests on or before the Closing and to
which you agree.
(2)
Your employment is and will be at-will. You understand that Infinity retains the right to terminate your services with or without Cause
and you retain the right to terminate your services for Infinity at any time. For the purposes of this Agreement and the application of
the term elsewhere in this Agreement, "Cause" shall have the meaning set forth in the Infinity Executive Severance Benefits Plan as
in effect on the date of this Agreement and without regard to any future amendments thereto (the “Severance Plan”), but with
clause (i) of such “Cause” definition replaced with “a good faith finding by the Board of Directors of the Company or its public parent
corporation of a knowing and willful failure by the employee to perform the employee’s material duties for the Company in a manner
reasonably acceptable to the Company, which failure continues for a period of more than 30 days after notice thereof has been
provided to the employee in writing by the Company, setting forth in reasonable detail the nature of such failure.”
(3)
As an incentive for you to remain employed with Infinity through the Payment Date, you will be eligible to receive a retention bonus
(the “Retention Bonus”) in the amount of $225,000, payable in a lump sum in the next payroll whose cutoff date follows the Payment
Date. If your employment ends because you are terminated other than for either Cause or disability before the Payment Date, you will
receive the Retention Bonus in a lump sum in the same payroll in which you receive your Severance Benefits.
(4)
If you resign from employment with Infinity (including for Good Reason as defined in the Severance Plan) or Infinity terminates your
employment for Cause or due to disability prior to the Payment Date, no portion of the Retention Bonus will be paid to you.
(5)
In addition to the Retention Bonus under the terms of Sections 3 and 4 provided above, you will be eligible to receive severance
benefits under the Severance Plan (as determined using the terms in effect as of the date of this letter) (the “Severance Benefits”) if
Infinity terminates your employment for any reason other than for either Cause or disability before the Closing or when your
employment with Infinity terminates post-Closing as described in Section 1 above. The Severance Benefits and the Retention Bonus
payment that are paid in connection with your termination of employment are subject to the release requirements in Section 6 of the
Severance Plan, provided that the total payments shall be made in a single lump sum rather than in the installments specified in
Sections 6 and 7 of the Severance Plan. You will also receive any other benefits under the Severance Plan (including outplacement
and benefits continuation) in accordance with the terms of the Severance Plan, with Cause as modified herein.
(6)
All payments described in this Agreement are subject to applicable tax and other withholdings and Section 12 of the Severance Plan
(regarding the application of Section 409A of the Internal Revenue Code of 1986, as amended) as though the Retention Bonus were
paid under the Severance Plan.
(7)
You acknowledge that this Agreement supersedes any prior agreements or understandings, whether oral or written, between you and
either Infinity pertaining to any incentive payments being offered to you in connection with the merger and this Agreement, taken
together with the Severance Plan, constitutes the entire agreement between us regarding transaction-related bonuses and severance.
You acknowledge that this Agreement may be assigned by Infinity Pharmaceuticals, Inc. to MEI at or after the Closing and, if so
assigned, that MEI shall have sole responsibility for satisfying any obligations to you hereunder.
[Remainder of Page Blank]
On behalf of Infinity Pharmaceuticals, Inc., I thank you for your continued assistance and support. If you have any questions regarding any of
the terms of this Agreement, please do not hesitate to contact me. Once you have read and understood the terms of this Agreement, please
indicate your Agreement to the terms by signing below.
Very truly yours,
INFINITY PHARMACEUTICALS, INC.
By: /s/ Adelene Perkins
Chief Executive Officer and Chair of the Board
ACCEPTED AND AGREED:
/s/ Seth Tasker
Seth Tasker
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the following Registration Statements:
(1) Registration Statement (Form S-3MEF No. 333-253026) of Infinity Pharmaceuticals, Inc.,
(2) Registration Statement (Form S-3 No. 333-230258) of Infinity Pharmaceuticals, Inc.,
(3) Registration Statement (Form S-3 No. 333-256096) of Infinity Pharmaceuticals, Inc.,
(4) Registration Statements (Form S-8 Nos. 333-167488 and 333-182005) pertaining to the Infinity Pharmaceuticals, Inc. 2010 Stock Incentive Plan,
(5) Registration Statements (Form S-8 Nos. 333-189342 and 333-205585) pertaining to the Infinity Pharmaceuticals, Inc. 2010 Stock Incentive Plan and the Infinity
Pharmaceuticals, Inc. 2013 Employee Stock Purchase Plan,
(6) Registration Statement (Form S-8 No. 333-232110) pertaining to the Infinity Pharmaceuticals, Inc. 2019 Equity Incentive Plan and the Infinity Pharmaceuticals,
Inc. 2013 Employee Stock Purchase Plan,
(7) Registration Statement (Form S-8 No. 333-257029) pertaining to the Infinity Pharmaceuticals, Inc. 2013 Employee Stock Purchase Plan, as amended,
(8) Registration Statement (Form S-8 No. 333-258360) pertaining to Nonqualified Stock Option Inducement Award and Restricted Stock Unit Inducement Award
granted outside of the Registrant's 2019 Equity Incentive Plan,
(9) Registration Statement (Form S-8 No. 333-260685) pertaining to Nonqualified Stock Option Inducement Award granted outside of the Registrant's 2019 Equity
Incentive Plan, and
(10) Registration Statement (Form S-8 No. 333-265654) pertaining to Infinity Pharmaceuticals, Inc. 2019 Equity Incentive Plan, as amended;
of our report dated March 28, 2023, with respect to the consolidated financial statements of Infinity Pharmaceuticals, Inc. included in this Annual Report (Form 10-K) of
Infinity Pharmaceuticals, Inc. for the year ended December 31, 2022.
/s/ Ernst & Young LLP
Boston, Massachusetts
March 28, 2023
EXHIBIT 31.1
CERTIFICATION
I, Adelene Q. Perkins, certify that:
1. I have reviewed this annual report on Form 10-K of Infinity Pharmaceuticals, Inc. (the “Registrant”);
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;
4. The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have:
(a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that
material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the
period in which this annual report is being prepared;
(b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with
generally accepted accounting principles;
(c) evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s most recent fiscal
quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant’s
internal control over financial reporting; and
5. The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant’s
auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent functions):
(a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to
adversely affect the Registrant’s ability to record, process, summarize and report financial information; and
(b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal control over
financial reporting.
Date: March 28, 2023
/S/ ADELENE Q. PERKINS
Adelene Q. Perkins
Chief Executive Officer
(Principal Executive Officer)
EXHIBIT 31.2
CERTIFICATION
I, Lawrence E. Bloch, certify that:
1. I have reviewed this annual report on Form 10-K of Infinity Pharmaceuticals, Inc. (the “Registrant”);
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;
4. The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have:
(a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that
material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the
period in which this annual report is being prepared;
(b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with
generally accepted accounting principles;
(c) evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s most recent fiscal
quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant’s
internal control over financial reporting; and
5. The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant’s
auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent functions):
(a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to
adversely affect the Registrant’s ability to record, process, summarize and report financial information; and
(b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal control over
financial reporting.
Date: March 28, 2023
/s/ LAWRENCE E. BLOCH, M.D., J.D.
Lawrence E. Bloch, M.D., J.D.
President
(Principal Financial Officer and Principal Accounting Officer)
EXHIBIT 32.1
STATEMENT PURSUANT TO 18 U.S.C. §1350
Pursuant to 18 U.S.C. §1350, the undersigned certifies that, to her knowledge, this Annual Report on Form 10-K for the period ended December 31, 2022 fully
complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that the information contained in this report fairly presents, in all
material respects, the financial condition and results of operations of Infinity Pharmaceuticals, Inc.
Date: March 28, 2023
/S/ ADELENE Q. PERKINS
Adelene Q. Perkins
Chief Executive Officer
(Principal Executive Officer)
A signed original of this written statement required by Section 906 has been provided to Infinity Pharmaceuticals, Inc. and will be retained by Infinity
Pharmaceuticals, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.
EXHIBIT 32.2
STATEMENT PURSUANT TO 18 U.S.C. §1350
Pursuant to 18 U.S.C. §1350, the undersigned certifies that, to his knowledge, this Annual Report on Form 10-K for the period ended December 31, 2022 fully
complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that the information contained in this report fairly presents, in all
material respects, the financial condition and results of operations of Infinity Pharmaceuticals, Inc.
Date: March 28, 2023
/s/ Lawrence E. Bloch, M.D., J.D.
Lawrence E. Bloch, M.D., J.D.
President
(Principal Financial Officer and Principal Accounting Officer)
A signed original of this written statement required by Section 906 has been provided to Infinity Pharmaceuticals, Inc. and will be retained by Infinity
Pharmaceuticals, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.