2018 ANNUAL REPORT
CORPORATE
HEADQUARTERS
999 SKYWAY ROAD
SUITE 150
SAN CARLOS, CA 94070
TEL: (650) 260–7120
INFO@IOVANCE.COM
WEBSITE
WWW.IOVANCE.COM
LETTER FROM THE PRESIDENT & CEO
DEAR IOVANCE BIOTHERAPEUTICS
STOCKHOLDERS,
(AACR) meeting and a further update about Cohort 2
will be presented at the American Society of Clinical
Oncology (ASCO) annual meeting in June 2019.
2018 WAS AN OUTSTANDING YEAR FOR IOVANCE.
We made considerable progress in bringing our Tumor
I’m also encouraged by our progress beyond melanoma.
Infi ltrating Lymphocyte (TIL) product for metastatic
In May 2018, we received orphan drug designation
melanoma, lifi leucel, toward registration, while
from the FDA for TIL therapy for the treatment of
fi nancially strengthening the company to support our
cervical cancer, specifi cally for patients with a tumor
development programs. We engaged with the FDA in
size greater than 2 cm in diameter. In February 2019,
defi ning a clear and fast path to approval of lifi leucel
the FDA granted Fast Track designation to Iovance
and initiated our registration-enabling study
TIL therapy in development for treatment of patients
in metastatic melanoma.
The established Iovance proprietary manufacturing
method for TIL therapy, the Gen 2 method, requires
only 22 days and yields a cryopreserved product.
Compared with previous approaches, this method
reduces the amount of time a patient has to wait to
receive therapy, allows fl exibility of dosing for patients
and clinical sites, and reduces the cost of goods for
with cervical cancer with disease progression during
or after chemotherapy. These distinctions are granted
for products that address unmet clinical needs and
offer additional benefi t to the currently available care
for cervical cancer. Our study of TIL therapy in cervical
carcinoma, the innovaTIL-04 study, continues to enroll
patients and we will updated data from this study at
ASCO in June 2019.
the product. Early in 2018, we released clinical data
Iovance is working to maximize the potential of TIL
from our metastatic melanoma study demonstrating
therapy in diverse treatment areas. We are currently
that our Gen 2 method for TIL therapy demonstrates
conducting Phase 2 studies in melanoma, cervical
strong activity in a heavily pretreated melanoma patient
cancer, head and neck, and lung cancers. In addition, as
population. We therefore began to administer this
part of a collaboration with Ohio State University, we
new Gen 2 product exclusively with all ongoing and
have also developed a cell therapy, peripheral blood
upcoming trials.
With results in hand using the Gen 2 method in patients
with melanoma, we engaged with the FDA to discuss
the registration path for lifi leucel and the FDA agreed
that a single arm cohort within an ongoing melanoma
study could support registration. We have recently
initiated dosing patients in this pivotal cohort and
lymphocytes (PBL), for treatment of blood cancers. We
expect to fi le an Investigational New Drug application
in 2019 to begin clinical development of PBL therapy.
There may be opportunities for TIL therapy in the
treatment of ovarian cancer, sarcomas, and pancreatic
cancer, and we are working with partners to evaluate
these opportunities.
expect a Biologics License Application (BLA) fi ling
To date, the company has dosed well over 100 patients
with FDA in 2020.
Furthermore, we have strengthened our intellectual
property portfolio to maintain our strong position as
a leader in the fi eld of cancer cell therapy.
Our progress in developing lifi leucel has been
signifi cant. Not only did the FDA agree to a single arm
cohort as supportive of initial registration in September
2018, but we also received the Regenerative Medicine
Advanced Therapy designation (RMAT) at the same
time. This designation allows for closer coordination
with the FDA as compared to a standard regulatory
review process. This is an important designation, as
it demonstrates that FDA recognizes the potential
clinical benefi t of lifi leucel. I am also extremely pleased
that we had the opportunity to present our latest
melanoma data in an oral presentation at the Society
for Immunotherapy of Cancer (SITC) Annual Meeting
in November 2018. Results from 47 consecutively
dosed patients that had failed PD-1 inhibitor treatment
showed an objective response rate (ORR) of 38 percent
in a heavily pretreated patient population. Additional
research from our melanoma study was presented at
the 2019 American Association for Cancer Research
with the Iovance Gen 2 manufacturing process, Now
that we have clearly demonstrated the ability to deliver
results with the Iovance Gen 2 manufacturing process
and have the FDA’s agreement on a targeted patient
population for registration in melanoma, we are moving
forward with site selection and future construction
of our own manufacturing facility in anticipation of
commercialization of lifi leucel in the U.S.
We are pleased by the signifi cant progress and growth
that we have had over the past year, and would like
to acknowledge our employees whose dedication
and hard work has led to our progress to date, and
the contributions of you, the shareholders who have
provided the resources that enable us to work towards
making TIL therapy a broadly accessible treatment
option in the near future.
Maria Fardis,
PRESIDENT & CHIEF EXECUTIVE OFFICER
LETTER FROM THE PRESIDENT & CEO
DEAR IOVANCE BIOTHERAPEUTICS
STOCKHOLDERS,
2018 WAS AN OUTSTANDING YEAR FOR IOVANCE.
We made considerable progress in bringing our Tumor
Infi ltrating Lymphocyte (TIL) product for metastatic
melanoma, lifi leucel, toward registration, while
fi nancially strengthening the company to support our
development programs. We engaged with the FDA in
defi ning a clear and fast path to approval of lifi leucel
and initiated our registration-enabling study
in metastatic melanoma.
The established Iovance proprietary manufacturing
method for TIL therapy, the Gen 2 method, requires
only 22 days and yields a cryopreserved product.
Compared with previous approaches, this method
reduces the amount of time a patient has to wait to
receive therapy, allows fl exibility of dosing for patients
and clinical sites, and reduces the cost of goods for
the product. Early in 2018, we released clinical data
from our metastatic melanoma study demonstrating
that our Gen 2 method for TIL therapy demonstrates
strong activity in a heavily pretreated melanoma patient
population. We therefore began to administer this
new Gen 2 product exclusively with all ongoing and
upcoming trials.
With results in hand using the Gen 2 method in patients
with melanoma, we engaged with the FDA to discuss
the registration path for lifi leucel and the FDA agreed
that a single arm cohort within an ongoing melanoma
study could support registration. We have recently
initiated dosing patients in this pivotal cohort and
expect a Biologics License Application (BLA) fi ling
with FDA in 2020.
Furthermore, we have strengthened our intellectual
property portfolio to maintain our strong position as
a leader in the fi eld of cancer cell therapy.
Our progress in developing lifi leucel has been
signifi cant. Not only did the FDA agree to a single arm
cohort as supportive of initial registration in September
2018, but we also received the Regenerative Medicine
Advanced Therapy designation (RMAT) at the same
time. This designation allows for closer coordination
with the FDA as compared to a standard regulatory
review process. This is an important designation, as
it demonstrates that FDA recognizes the potential
clinical benefi t of lifi leucel. I am also extremely pleased
that we had the opportunity to present our latest
melanoma data in an oral presentation at the Society
for Immunotherapy of Cancer (SITC) Annual Meeting
in November 2018. Results from 47 consecutively
dosed patients that had failed PD-1 inhibitor treatment
showed an objective response rate (ORR) of 38 percent
in a heavily pretreated patient population. Additional
research from our melanoma study was presented at
the 2019 American Association for Cancer Research
(AACR) meeting and a further update about Cohort 2
will be presented at the American Society of Clinical
Oncology (ASCO) annual meeting in June 2019.
I’m also encouraged by our progress beyond melanoma.
In May 2018, we received orphan drug designation
from the FDA for TIL therapy for the treatment of
cervical cancer, specifi cally for patients with a tumor
size greater than 2 cm in diameter. In February 2019,
the FDA granted Fast Track designation to Iovance
TIL therapy in development for treatment of patients
with cervical cancer with disease progression during
or after chemotherapy. These distinctions are granted
for products that address unmet clinical needs and
offer additional benefi t to the currently available care
for cervical cancer. Our study of TIL therapy in cervical
carcinoma, the innovaTIL-04 study, continues to enroll
patients and we will updated data from this study at
ASCO in June 2019.
Iovance is working to maximize the potential of TIL
therapy in diverse treatment areas. We are currently
conducting Phase 2 studies in melanoma, cervical
cancer, head and neck, and lung cancers. In addition, as
part of a collaboration with Ohio State University, we
have also developed a cell therapy, peripheral blood
lymphocytes (PBL), for treatment of blood cancers. We
expect to fi le an Investigational New Drug application
in 2019 to begin clinical development of PBL therapy.
There may be opportunities for TIL therapy in the
treatment of ovarian cancer, sarcomas, and pancreatic
cancer, and we are working with partners to evaluate
these opportunities.
To date, the company has dosed well over 100 patients
with the Iovance Gen 2 manufacturing process, Now
that we have clearly demonstrated the ability to deliver
results with the Iovance Gen 2 manufacturing process
and have the FDA’s agreement on a targeted patient
population for registration in melanoma, we are moving
forward with site selection and future construction
of our own manufacturing facility in anticipation of
commercialization of lifi leucel in the U.S.
We are pleased by the signifi cant progress and growth
that we have had over the past year, and would like
to acknowledge our employees whose dedication
and hard work has led to our progress to date, and
the contributions of you, the shareholders who have
provided the resources that enable us to work towards
making TIL therapy a broadly accessible treatment
option in the near future.
Maria Fardis,
PRESIDENT & CHIEF EXECUTIVE OFFICER
“2018 was an outstanding year for Iovance.
We made signifi cant progress in forwarding our
Tumor Infi ltrating Lymphocyte product, lifi leucel,
for metastatic melanoma toward registration,
while fi nancially strengthening the company to
support the development program.”
BOARD OF DIRECTORS
OFFICERS
Iain Dukes, D.Phil.
Maria Fardis, Ph.D.
VENTURE PARTNER, ORBIMED ADVISORS LLC
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Maria Fardis, Ph.D.
Timothy E. Morris
PRESIDENT AND CHIEF EXECUTIVE OFFICER,
CHIEF FINANCIAL OFFICER
IOVANCE BIOTHERAPEUTICS, INC.
Ryan Maynard
CHIEF FINANCIAL OFFICER, BLADE THERAPEUTICS, INC.
Frederick G. Vogt, Ph.D., Esq.
GENERAL COUNSEL
General Merrill A. McPeak
CHIEF OF STAFF, U.S. AIR FORCE (RET.)
Wayne Rothbaum
PRESIDENT, QUOGUE CAPITAL, LLC
Michael Weiser, M.D., Ph.D.
PRINCIPAL, ACTIN BIOMED, LLC
2018 AUDITORS
Marcum LLP
SECURITIES COUNSEL
DLA Piper LLP
NEW YORK, NEW YORK
SHORT HILLS,
NEW JERSEY
REGISTRAR &
TRANSFER AGENT
Continental
Stock Transfer
1 STATE STREET,
CORPORATE
HEADQUARTERS
999 SKYWAY ROAD
SUITE 150
SAN CARLOS, CA 94070
SECURITIES LISTING
30TH FLOOR
TEL: (650) 260–7120
The Nasdaq
Global Market
COMMON STOCK: IOVA
NEW YORK, NY 10004
INFO@IOVANCE.COM
TEL: (212) 845–3215
WEBSITE
WWW.IOVANCE.COM
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, 2018
or
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transaction period from __________ to __________
Commission file number: 001-36860
IOVANCE BIOTHERAPEUTICS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
999 Skyway Road, Suite 150, San Carlos, California
(Address of Principal Executive Offices)
75-3254381
(I.R.S. Employer
Identification No.)
94070
(Zip Code)
(650) 260-7120
(Registrant’s Telephone Number, Including Area Code)
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class
Common Stock, $ 0.000041666 Par Value per Share
Name Of Each Exchange
On Which Registered
The Nasdaq Global Market
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes 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 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 if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405) is not contained herein, and will not be
contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K.
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or
an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
Non-accelerated filer
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 is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes No
The aggregate market value of the registrant’s common stock held by non-affiliates on June 30, 2018, the last business day of the registrant’s most
recently completed second fiscal quarter, was $1,125,017,562. Shares of common stock held by directors and executive officers and any ten percent
or greater stockholders and their respective affiliates have been excluded from this calculation, because such stockholders may be deemed to be
"affiliates" of the Registrant. This is not necessarily determinative of affiliate status of other purposes. As of February 13, 2019, there were
123,420,091 shares of the registrant’s common stock outstanding.
Portions of registrant’s proxy statement relating to registrant’s 2019 Annual Meeting of Stockholders (the “Proxy Statement”) to be filed with the
Securities and Exchange Commission pursuant to Regulation 14A, not later than 120 days after the close of the registrant’s fiscal year, are
incorporated by reference in Part III of this Annual Report on Form 10-K. Except with respect to information specifically incorporated by reference
in this Annual Report on Form 10-K, the Proxy Statement is not deemed to be filed as part of this Annual Report on Form 10-K.
Documents Incorporated By Reference
TABLE OF CONTENTS
Page
PART I
Item 1.
Item 1A.
Item 1B.
Item 2.
Item 3.
Item 4.
PART II
Item 5.
Item 6.
Item 7.
Item 7A.
Item 8.
Item 9.
Item 9A.
Item 9B.
PART III
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
PART IV
Item 15.
Item 16.
Business
Risk Factors
Unresolved Staff Comments
Properties
Legal Proceedings.
Mine Safety Disclosures.
Market for Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Selected Financial Data
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Quantitative and Qualitative Disclosures About Market Risk
Financial Statements and Supplementary Data
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Controls and Procedures
Other Information
Directors, Executive Officers and Corporate Governance
Executive Compensation
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Certain Relationships and Related Transactions, and Director Independence.
Principal Accounting Fees and Services.
Exhibits, Financial Statements Schedules.
10-K Summary.
4
31
69
69
70
72
72
73
74
80
81
81
81
81
82
82
82
82
82
82
85
2
Forward-Looking Statements and Market Data
This Annual Report on Form 10-K contains forward-looking statements that are based on management’s beliefs and assumptions and
on information currently available to management. All statements other than statements of historical facts contained in this report are
forward-looking statements. In some cases, you can identify forward-looking statements by the following words: “may,” “will,”
“could,” “would,” “should,” “expect,” “intend,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “project,” “aim,” “potential,”
“continue,” “ongoing,” “goal,” or the negative of these terms or other similar expressions, although not all forward-looking statements
contain these words.
These statements involve risks, uncertainties and other factors that may cause actual results, levels of activity, performance or
achievements to be materially different from the information expressed or implied by these forward-looking statements. Although we
believe that we have a reasonable basis for each forward-looking statement contained in this report, we caution you that these
statements are based on a combination of facts and factors currently known by us and our projections of the future, about which we
cannot be certain. Forward-looking statements in this Annual Report on Form 10-K include, but are not limited to, statements about:
the success, cost, enrollment, and timing of our clinical trials;
the success, cost and timing of our product development activities;
the ability of our third-party contract manufactures to continue to manufacture tumor infiltrating lymphocytes, or TIL, in
accordance with our selected process;
our ability to design, construct and staff our own manufacturing facility on a timely basis and within the estimated expenses
the success of competing therapies that are or may become available;
the timing of and our ability to obtain and maintain U.S. Food and Drug Administration (“FDA”) or other regulatory
authority approval of, or other action with respect to, our product candidates;
our ability to attract and retain key scientific or management personnel;
the accuracy of our estimates regarding expenses, future revenue, capital requirements and needs for additional financing;
our ability to obtain funding for our operations, including funding necessary to complete further development and
commercialization of our product candidates;
the ability and willingness of our third-party research institution collaborators to continue research and development activities
relating to our product candidates;
the potential of our other research and development and strategic collaborations;
our expectations regarding our ability to obtain and maintain intellectual property protection for our manufacturing methods
and product candidates;
our plans to research, develop and commercialize our product candidates;
the size and growth potential of the markets for our product candidates, and our ability to serve those markets;
our ability to contract with third-party suppliers and manufacturers and their ability to perform adequately;
regulatory developments in the United States and foreign countries;
fluctuations in the trading price of our common stock; and
our use of cash and other resources.
Actual results may differ from those set forth in this Annual Report on Form 10-K due to the risks and uncertainties inherent in the
Company’s business, including, without limitation: the FDA may not agree with the Company’s interpretation of the results of its
clinical trials; later developments with the FDA that may be inconsistent with already completed FDA meetings; the preliminary
clinical results, including efficacy and safety results, from ongoing Phase 2 may not be reflected in the final analyses of these trials
including new cohorts within these trials; the results obtained in the Company’s ongoing clinical trials, such as the studies and trials
referred to in this 10-K, may not be indicative of results obtained in future clinical trials or supportive of product approval; regulatory
authorities may potentially delay the timing of FDA or other regulatory authority approval of, or other action with respect to, the
Company’s product candidates (specifically, the Company’s description of FDA interactions are subject to FDA’s interpretation, as
well as FDA’s authority to request new or additional information); the Company may not be able to obtain or maintain FDA or other
regulatory authority approval of its product candidates; the Company’s ability to address FDA or other regulatory authority
requirements relating to its clinical programs and registrational plans, such requirements including, but not limited to, clinical and
safety requirements as well as manufacturing and control requirements; risks related to the Company’s accelerated FDA review
designations; the ability of the Company to obtain and maintain intellectual property rights relating to its product pipeline; and the
acceptance by the market of the Company’s product candidates and their potential reimbursement by payors, if approved.
We caution you that the risks, uncertainties and other factors referenced above may not contain all the risks, uncertainties and other
factors that are important to you. In addition, we cannot guarantee future results, level of activity, performance or achievements. Any
forward-looking statement made by us in this Annual Report on Form 10-K speaks only as of the date of this Annual Report on Form
10-K or as of the date on which it is made. Except as required by law, we undertake no obligation to publicly update any forward-
looking statements, whether because of new information, future events or otherwise, after the date of this Annual Report on Form 10-
K.
Unless the context requires otherwise, in this report the terms “Iovance,” the “Company,” “we,” “us” and “our” refer to Iovance
Biotherapeutics, Inc.
3
Item 1.
Business
Overview
PART I
We are a clinical-stage biopharmaceutical company focused on the development and commercialization of novel cancer
immunotherapy products designed to harness the power of a patient’s own immune system to eradicate cancer cells. Tumor infiltrating
lymphocyte, or TIL, therapy is a platform technology that has already been studied for the treatment of metastatic melanoma and
metastatic cervical cancer and other solid tumors by the National Cancer Institute, or NCI. Our lead product candidate, lifileucel for
metastatic melanoma, previously known as LN-144, is an autologous adoptive cell therapy utilizing TIL, which are T cells derived
from patients’ tumors. We are also developing a second product candidate, an autologous adoptive cell therapy utilizing TIL for the
treatment of cancers other than metastatic melanoma, which is known as LN-145. We are investigating the effectiveness and safety of
TIL therapy for the treatment of metastatic melanoma, squamous cell carcinoma of the head and neck, cervical cancer and metastatic
non-small cell lung cancer through company sponsored trials, as well as for other oncology indications in investigator-sponsored
trials. Our sponsored clinical trials and our investigator-sponsor clinical trials are described in more detail below.
We have an on-going Phase 2 clinical trial, C-144-01, of our lead product candidate, lifileucel, for the treatment of metastatic
melanoma. This multicenter trial is enrolling patients with melanoma whose disease has progressed following treatment with at least
one systemic therapy, including a PD-1 inhibitor and if BRAF mutated, a BRAF, or BRAF/MEK inhibitor (National Clinical Trial
identification number NCT02360579). The purpose of the trial is to evaluate the efficacy and safety of lifileucel. The C-144-01 trial
uses our proprietary Generation 2, or Gen 2, manufacturing process. We completed and closed Cohort 2 in this trial in 2018, and a
new single-arm registrational cohort, Cohort 4, of this trial began enrollment in early 2019.
In addition to our ongoing trial in metastatic melanoma, we have initiated clinical trials of LN-145, TIL therapy in cervical,
head and neck, and other cancers. C-145-04 is an ongoing Phase 2, multicenter trial that will assess the safety and efficacy of LN-145
for the treatment of patients with recurrent, metastatic or persistent cervical cancer (NCT03108495). C-145-03 is an ongoing Phase 2,
multicenter trial that will enroll up to 47 patients and will assess the safety and efficacy of LN-145 for the treatment of patients with
recurrent metastatic squamous cell carcinoma of the head and neck (NCT03083873).
We are investigating the potential of our TIL therapies in earlier lines of treatment. IOV-COM-202 is a Phase 2, multicenter
trial that is composed of three cohorts to enroll up to a total of 36 patients. In Cohort 1, we intend to enroll advanced unresectable or
metastatic melanoma patients who have not received prior immunotherapy including checkpoint inhibitors such as anti-PD-1/anti-PD-
L1 therapy. The patients will receive lifileucel in combination with pembrolizumab. In Cohort 2, we intend to enroll advanced head
and neck squamous cell carcinoma patients who are also naïve to prior immunotherapy including anti-PD-1/anti-PD-L1 therapy. The
patients will receive LN-145 in combination with pembrolizumab. In Cohort 3, we intend to enroll non-small cell lung cancer patients
who have previously received systemic therapy which could include checkpoint inhibitors. This trial is open for patient enrollment
(NCT03645928).
We are also investigating TIL therapy in non-small cell lung cancer, or NSCLC, in combination with anti-PD-L1 therapy. We
have initiated a trial, IOV-LUN-201, in anti-PD-1/ PD-L1 naïve patients for the treatment of patients with a combination of LN-145
and durvalumab (NCT03419559). This trial was initiated in the first half of 2018 and is a collaboration with MedImmune, the global
biologics research and development arm of AstraZeneca. In addition to this trial, we have financially sponsored an investigator-
sponsored trial in NSCLC in collaboration with the H. Lee Moffitt Cancer Center and Research Institute, or Moffitt, Stand Up To
Cancer, and others evaluating the combination of TIL therapy and nivolumab (NCT03215810). Patients who are treatment naïve to
prior anti-PD-1/ PD-L1 therapy with stage IV or recurrent NSCLC are being enrolled in this trial. Patients receive the TIL product if
they do not respond to treatment with nivolumab. The TIL product is manufactured by Moffitt for this trial. Patient dosing began in
the fourth quarter of 2017, and preliminary results from the Moffitt trial were presented at the World Conference on Lung Cancer in
September 2018.
As part of our collaboration program with the MD Anderson Cancer Center, or MDACC, two new Phase 2 trials were initiated
in 2018. The first trial, 2017-0672 (NCT03449108), is intended to allow for investigation of LN-145 manufactured by us using our
Gen 2 manufacturing process to treat patients with soft tissue sarcoma, osteosarcoma and platinum resistant ovarian cancer. A second
trial under the collaboration with MDACC is now active as well (NCT03610490). This trial will use TIL manufactured by MDACC
using urelumab as part of the manufacturing process. Both trials are sponsored by MDACC.
4
Our current product candidate pipeline and selected investigator-sponsored proof-of-concept studies are summarized in the
graph below:
For the two investigator-sponsored trials listed in our pipeline graph above, MDACC is the sponsor. For one of the studies,
NCT03610490, MDACC uses its own manufacturing process, referred to here as MDACC TIL. The data obtained using this
manufacturing process may not be representative of our data.
2018 Developments
In 2018, we reported several significant events, including the following:
Clinical
Enrollment in Cohort 2 of our global Phase 2 lifileucel metastatic melanoma clinical trial, C-144-01, reached full
enrollment in late 2018 and was therefore closed for further enrollment.
We presented new data from Cohort 2 of the C-144-01 clinical trial in a poster and as an oral presentation at the
Society for Immunotherapy of Cancer, or SITC, 33rd Annual Meeting in Washington, D.C. on November 7-11,
2018. The presentation included interim analysis of 47 consecutively dosed patients with an objective response rate,
or ORR, of 38%, with a median duration of response, or DOR, as of the date of the data extract, of 6.4 months and
range of 1.3+ to 14+ months. The ORR includes one complete response and 17 partial responses. Patients in Cohort
2 had a mean of 3.3 prior systemic therapies and all the patients had received anti-PD-1 immunotherapy. The most
common treatment emergent adverse events observed in Cohort 2 to date include chills, febrile neutropenia, anemia,
decreased platelet count, pyrexia, and hypophosphataemia. Two grade 5 events were reported, one not related to TIL
therapy and one possibly related to TIL therapy.
We continued patient dosing in our C-145-04 clinical trial for cervical cancer. We dosed our first patient in Europe
in this trial. This design is based on a Simon’s two-stage design. The first stage has been completed and enrollment
in the trial continues with target enrollment of 47. The preliminary data from the trial for 15 patients was an ORR of
27% with a DOR ranging from 2.4 to 2.5+ months. Patients in the trial had a median of five prior therapies. The
safety findings from this trial remain consistent with previous reports. The most common treatment emergent
adverse events observed to date include chills, pyrexia, anemia, hypotension, platelet count decrease, and vomiting.
The protocol for this trial has been amended to limit the number of prior therapies to no more than three and to
exclude patients who have been treated with prior immunotherapy, and to use Gen 2 TIL manufacturing. We
anticipate providing an update on this trial in 2019.
In our C-145-03 clinical trial for head and neck cancer, to date, preliminary data for 13 patients was an ORR of
31%, with 4 partial responses, with the DOR ranging from 2.8 to 7.6 months. Patients in the trial had a median of
three prior therapies. The safety findings from this trial are also consistent with previous reports. The protocol for
this trial has been amended to use Gen 2 TIL manufacturing. The most common treatment emergent adverse events
observed to date include chills, hypotension, pyrexia, hyponatremia, and anemia.
We amended the protocol for our clinical trial in NSCLC in collaboration with MedImmune, IOV-LUN-201, to
eliminate the TIL monotherapy cohort. Patients will now be enrolled for treatment with LN-145 and durvalumab.
There are currently nine sites active for this trial.
Our clinical trial in PD-1 naïve melanoma and head and neck patients with TIL therapy in combination with
pembrolizumab, and LN-145 as monotherapy in NSCLC patients, IOV-COM-202, was opened to enrollment with
two sites active.
As of the end of 2018, we have expanded to over 90 clinical sites for our five company-sponsored studies.
5
Companysponsored studiesSelect investigator sponsored proof-of-concept studiesLifileucelC-144-01NCT02360579Melanoma164—LN-145C-145-04NCT03108495Cervicalcancer47—LN-145C-145-03NCT03083873Head & neckcancer47—Lifileucel + pembrolizumabLN-145 + pembrolizumabLN-145IOV-COM-202NCT03645928MelanomaHead & neckNon-small cell lung36—LN-145 + durvalumabIOV-LUN-201NCT03419559Non-small cell lung12RegimenTrialMDACC TILNCT03610490Ovarian,sarcomas, pancreatic~54LN-145NCT03449108Ovarian,sarcomas~54IndicationNPartnerPhase 1Phase 2Pivotal
Regulatory
We received Regenerative Medicine Advanced Therapy, or RMAT, designation for lifileucel for the treatment of
patients with metastatic melanoma from the U.S. Food and Drug Administration, or FDA.
We held an end of Phase 2 meeting with the FDA during which the FDA acknowledged that a single-arm cohort as
part of the C-144-01 clinical trial could be supportive of initial registration of lifileucel and that conduct of a
randomized Phase 3 trial in the patient population being enrolled may not be feasible. We began patient enrollment
in a new cohort, Cohort 4, of our C-144-01 clinical trial in early 2019. This will be a single-arm cohort for
registration in metastatic melanoma in a patient population that is post PD-1 blocking antibody and, if BRAF
mutation positive, a BRAF inhibitor or BRAF inhibitor with MEK inhibitor. We expect to fully enroll the necessary
patients into this cohort by late 2019 or early 2020. Cohort 4 is expected to enroll 75 patients. The primary endpoint
is ORR as determined by Blinded Independent Review Committee, or BIRC. This protocol was submitted and
approved by the FDA.
Research
Under a collaboration with the Ohio State University, we have developed a product candidate called peripheral
blood lymphocytes, or PBLs. A clinical program to administer PBLs in chronic lymphocytic leukemia patients is
expected to begin in 2019.
We presented preclinical data from our PD-1 selected TIL therapy, one of our next-generation TIL products, at SITC
in November 2018.
Under a research collaboration with Roswell Park Cancer Institute, or RPCI, we performed preclinical studies of
TIL therapy in bladder cancer. An investigator-sponsored clinical trial of TIL in bladder cancer patients at RPCI is
expected to begin in 2019.
We announced a preclinical research collaboration with Cellectis S.A., or Cellectis, to investigate transcription
activator-like effector nucleases, or TALEN, for genetic editing in conjunction with TIL therapy.
We announced a preclinical research collaboration with Phio Pharmaceuticals, Inc., or Phio, to investigate self-
delivering ribonucleic acid interference methods for altering genetic expression in conjunction with TIL therapy.
Manufacturing
We announced a new three-year manufacturing services agreement, or MSA, with MaSTherCell S.A, or
MaSTherCell. MaSTherCell will manufacture TIL therapies for our European late-stage clinical trials in its
commercial-ready current Good Manufacturing Practices, or cGMP, manufacturing suites. The MSA increases our
capacity for manufacturing TIL therapies in Europe.
We announced that we intend to begin building our own commercial manufacturing facility in the U.S. in 2019.
Corporate
In January 2018 we closed an underwritten public offering of 15,000,000 shares of our common stock at a public
offering price of $11.50 per share, before underwriting discounts. The shares sold included 1,956,521 shares issued
upon the exercise in full by the underwriter of its option to purchase additional shares at the public offering price,
less the underwriting discount. The net proceeds from the offering, after deducting the underwriting discounts,
commissions and other offering expenses payable by us, were $162.0 million.
In October 2018, we closed an underwritten public offering of 25,300,000 shares of our common stock at a public
offering price of $9.97 per share, before underwriting discounts. The shares sold included 3,300,000 shares issued
upon the exercise in full by the underwriter of its option to purchase additional shares at the public offering price,
less the underwriting discount. The net proceeds from the offering, after deducting the underwriting discounts,
commissions and other offering expenses payable by us, were $236.7 million.
We obtained two U.S. patents, U.S Patent Nos. 10,130,659 and 10,166,257, covering therapeutic methods based
upon our proprietary Gen 2 TIL manufacturing process.
Corporate Strategy
Our goal is to be a leader in the development and commercialization of TIL-based immunotherapies to treat solid tumors. We
are developing a portfolio of TIL-based product candidates with the potential to meaningfully improve survival and quality of life for
cancer patients. Key elements of our strategy include:
Expedite clinical development, regulatory approval, and commercialization of our lead product candidate lifileucel for the
treatment of metastatic melanoma.
Based on results of TIL therapy from trials sponsored by the NCI and our own clinical trials in metastatic melanoma, we are
focused on expediting the development, regulatory approval and commercialization of our lead product candidate, lifileucel, for the
treatment of patients with metastatic melanoma. We filed an investigational new drug application, or IND, with the FDA in December
6
2014 to initiate a company-sponsored Phase 2 single-arm, multicenter clinical trial of lifileucel in patients with metastatic melanoma.
We began enrollment of this trial in the second half of 2015 and expanded it into three cohorts in 2017. In 2019 we will expand into an
additional cohort, Cohort 4, which will serve as the basis for registration. Cohort 1 evaluated our first-generation TIL manufacturing
process, Cohort 2 evaluated our second-generation, Gen 2, TIL manufacturing process and Cohort 3 evaluated retreatment of certain
patients with a second dose of TIL. We announced initial data from the first two arms of this trial at the ASCO and SITC Annual
Meetings in 2017 and presented updated data from Cohort 2 in November 2018 at SITC. Patient enrollment in Cohort 4 began in early
2019.
We held an end of Phase 2 meeting with the FDA in September 2018. In addition we received an RMAT designation for
lifileucel. Based on the meeting and subsequent dialog with the FDA we submitted and the FDA has approved the protocol for Cohort
4 of the C-144-01 trial. We began patient enrollment in Cohort 4 in early 2019. We expect to fully enroll the expected 75 patients into
this cohort by late 2019 or early 2020. The primary endpoint is ORR as determined by BIRC.
Continue to improve our TIL manufacturing process and develop new TIL manufacturing technology to become the
preferred provider of TIL therapy in the U.S. and the rest of the world.
We believe that we are the only company in the United States to have a centralized TIL manufacturing process and location. In
2018, we utilized our second generation TIL manufacturing process, known as Gen 2, which reduced TIL manufacturing time from 5-
6 weeks to 22 days, allowing for a more commercially-viable product candidate. Gen 2 also produces a cryopreserved product for ease
of administration and handling. The Gen 2 manufacturing process was utilized in completed Cohort 2 of our ongoing C-144-01 trial
and will be used for Cohort 4 of this trial and has also been selected for use in most of our other ongoing TIL clinical development.
We have included Gen 2 as the manufacturing process for registration for our discussions with the FDA and eventually the anticipated
Biologics License Application, or BLA, filing for lifileucel. Our strategy is to establish our Gen 2 process as a commercial
manufacturing process for TIL therapies, including lifileucel.
Collaborate with governmental, academic and corporate partners to improve and develop TIL and PBL therapies for new
indications or for use in combination with other therapies, and to evaluate new manufacturing methods.
In addition to our own research and process development efforts, we seek to collaborate with government, academic research
institutions, and corporate partners to improve TIL manufacturing and to develop TIL therapies for new indications. For example, in
2018, we announced new collaborations with RPCI, Cellectis, and Phio, as described in the following sections, and continued our
collaborations with Moffitt, MDACC, and the Ohio State University, to evaluate several new solid tumor and hematologic indications
for TIL and PBL therapy in clinical and preclinical studies as well as, in some cases, new TIL manufacturing approaches. In August
2016, we expanded our Cooperative Research and Development Agreement, or CRADA, with the NCI for another 5-year term. This
collaboration with the NCI is directed at research on unmodified TIL therapy and also addresses human papilloma virus, or HPV-
associated cancers (cervical and head and neck), lung, bladder, and breast cancer. A description of these collaborations and related
agreements is provided in the following sections of this Annual Report on Form 10-K.
Continue to establish manufacturing capacity for TIL products.
We continue to invest in improving the process and efficiency of manufacturing our product candidates in the United States and
Europe for TIL manufacturing. Currently we use several contract manufacturing organizations, or CMOs, to supply our TIL-based
products for our clinical trials under various MSAs. CMOs limit the amount of upfront capital investment.
We intend to begin construction of our own manufacturing facility in 2019, in order to provide for better margins and rapid
implementation of innovative changes for TIL therapies that we may develop or commercialize. We intend to carefully manage our
cost structure, and reduce the long-term cost of manufacturing our products, although there can be no assurance that we will be able to
reduce our manufacturing costs to commercially attractive levels.
In October 2018, we entered into a three-year MSA and related statement of work with MaSTherCell S.A., a subsidiary of
Orgenesis Inc., a cell therapy-dedicated Contract Development and Manufacturing Organization. Pursuant to the MSA, MaSTherCell
agreed to provide manufacturing and other services for use in our European clinical trials.
In 2017, we entered into a three-year MSA and related statements of work with PharmaCell B.V., or PharmaCell, a contract
manufacturing services company based in the Netherlands, to manufacture our autologous cell therapy products for use in our
European clinical trials. PharmaCell was subsequently acquired by Lonza Group Ltd., or Lonza. Lonza manufactures TIL products for
our European clinical trials in its clinical and commercial facility in Geleen, the Netherlands.
Also in 2017, we entered into a two-year MSA and related statements of work with Moffitt, to manufacture our autologous cell
therapy products for use in clinical trials.
7
In 2016, we entered into a three-year MSA and related statements of work with WuXi AppTec, Inc., or WuXi, in order to
increase our TIL manufacturing capacity in facilities with both clinical and commercial capability. We have extended the term of the
MSA and related statements of work until May 2020. We intend to use WuXi as the initial manufacturer for commercial production of
lifileucel.
Iovance-Sponsored Clinical Trials
We currently have five ongoing Phase 2 clinical studies. The ongoing studies include C-144-01, of our lead product candidate,
lifileucel, for the treatment of metastatic melanoma; C-145-04, of our product candidate LN-145 for recurrent, metastatic or persistent
cervical cancer; and C-145-03, of our product candidate LN-145, for recurrent and/or metastatic squamous cell carcinoma of the head
and neck. During 2018, we initiated a Phase 2 clinical trial, IOV-COM-202, a basket trial that will treat checkpoint naïve patients with
TIL in combination with pembro for metastatic melanoma and head and neck cancer. The trial also includes a cohort that will treat
relapsed and refractory NSCLC patients with TIL alone. Additional information about our clinical trials is presented as follows:
Lifileucel for Metastatic Melanoma
We are developing lifileucel to treat metastatic melanoma. Melanoma is a common type of skin cancer, accounting for
approximately 91,000 patients diagnosed and 9,320 deaths each year in the United States according to the NCI’s Surveillance,
Epidemiology and End Results program, or SEER program, as of 2018. Our ongoing Phase 2 trial, C-144-01, is a prospective,
registrational, four-cohort interventional study evaluating lifileucel in metastatic melanoma patients who have progressed after prior
anti-PD-1 therapy and if BRAF mutant, after BRAF or BRAF/MEK inhibitor therapy. Patients enrolled in this trial to date have failed
several prior treatment regimens.
Patients with metastatic melanoma who have failed at least one treatment under the current standards of care have an
unfavorable prognosis with very few curative treatment options. The National Comprehensive Cancer Network, or NCCN, has
updated its recommendations for the treatment of patients with unresectable or metastatic melanoma. Initial therapy can include
checkpoint inhibitors either alone or in combination (ipilimumab, nivolumab, pembrolizumab), targeted therapies for patients with
BRAF mutations (dabrafenib/trametinib, vemurafenib/cobimetinib combinations or single agents) or participating in a clinical trial.
For patients not responding or progressing and who have an adequate clinical status, agents selected from the previous list or of a
different therapeutic class can be used as well as high dose IL-2. NCCN experts also recommend participating in a clinical trial at any
stage of disease. Patients who do not respond to the current second-line therapies have very few treatment options and typically have a
very poor prognosis, with limited median survival measured in months. According to estimates from Decision Resource Group’s
Disease Landscape and Forecast for Malignant Melanoma report, in the United States in 2018, approximately 4,950 melanoma
patients are on their 3rd or 4th line of therapy and approximately 6,282 melanoma patients are on their 2nd line of therapy.
We are using our Gen 2 manufacturing process for all ongoing Phase 2 trials, and as a result, Cohort 1 of C-144-01, using our
first generation or Gen 1 manufacturing process, was closed to enrollment in 2017 and subsequent patients were enrolled in Cohort 2.
The planned enrollment in C-144-01 was reached in late 2018 and Cohort 2 is closed to enrollment. Cohort 3 is a retreatment cohort.
In November 2018, we reported preliminary data from Cohort 2 of C-144-01 for 47 patients, who demonstrated an ORR of 38% with
an initial DOR of 6.4 months and a range of 1.3+ to 14+ months. ORR was determined by response evaluation criteria in solid tumors
version 1.1, or RECIST 1.1, as reported by each investigator. The ORR includes one complete response and 17 partial responses, one
of which is unconfirmed because of the patient not having reached the follow-on assessment as of the end of 2018. Patients in the
study had a mean of 3.3 prior systemic therapies and all the patients had received anti-PD-1 immunotherapy. The safety findings for
C-144-01 remain consistent with previous reports. The most common treatment emergent adverse events observed in this cohort to
date include chills, febrile neutropenia, anemia, decreased platelet count, pyrexia, and hypophosphataemia. Two grade 5 treatment
emergent adverse events have been observed to date. As additional patients are enrolled in the C-144-01 study, the safety profile of
lifileucel may change.
We held an End of Phase 2 meeting with the FDA, in September 2018 to discuss the C-144-01 study. In its written minutes to
the meeting, the FDA acknowledged that conduct of a randomized Phase 3 study may not be feasible in its intended population of
advanced melanoma patients, who have been treated with at least one systemic therapy including an anti-PD-1 antibody and if BRAF
mutation positive, a BRAF inhibitor or BRAF inhibitor with MEK inhibitor, and that a randomized study is not required for the
registration of lifileucel. The FDA further acknowledged that a single-arm cohort of the C-144-01 trial may be acceptable for
registration in this indication. A new cohort, Cohort 4, of 75 patients will be enrolled in C-144-01 with a prospective definition of the
primary endpoint of ORR to be read out by a BIRC, to support registration of lifileucel. The FDA recommended that we validate a
potency assay prior to starting Cohort 4, which we have done. We began enrolling patients in Cohort 4 in early 2019 in the United
States and in Europe and expect it to be fully enrolled by late 2019 or early 2020. A BLA submission to the FDA including Cohort 4
results is expected in the second half of 2020.
8
LN-145 for Cervical Cancer
We are developing LN-145 to treat cervical cancer. According to estimates from the SEER program, approximately 13,000
women were diagnosed with cervical cancer, and approximately 4,000 cervical cancer-related deaths occurred in the United States in
2018.
In August 2017, we enrolled our first patient in our ongoing Phase 2 trial, C-145-04, for the treatment of patients with recurrent,
metastatic or persistent cervical cancer who have failed one prior therapy. The trial met the initial efficacy threshold for the first stage
of the Simon’s two stage design and continued to enroll patients to reach the full target sample size of 47 patients. The study is
enrolling patients in the United States and Europe. Preliminary data for 15 patients yielded an ORR of 27%. While the median DOR
was not reached at the time of that data report, the range of available data was from 2.4 to 2.5+ months. Patients in the study had a
median of five prior therapies. The safety findings from this study remained consistent with previous reports. The most common
treatment emergent adverse events observed to date included chills, pyrexia, anemia, hypotension, platelet count decrease, and
vomiting. The protocol for this study has been amended to limit the number of prior therapies to 1-3 and to exclude patients who have
been treated with prior immunotherapy, and to exclusively use Gen 2 TIL manufacturing process. We anticipate providing an update
on this study at a medical conference in 2019. As additional patients are enrolled in the C-145-04 study, the safety profile of LN-145
may change.
LN-145 for Head and Neck Cancer
According to estimates from the SEER program, approximately 65,000 people were diagnosed with head- and neck-related
cancers, and approximately 14,000 head- and neck- related cancer deaths occurred in the United States in 2018.
We are developing LN-145 to treat head and neck cancers. In June 2017, we enrolled our first patient in our ongoing Phase 2
trial, C-145-03, for the treatment of patients with recurrent and/or metastatic squamous cell carcinoma of the head and neck, who have
failed one prior therapy. The trial has met the initial efficacy threshold for the first stage of the Simon’s two stage design and will
continue to enroll patients to the full target sample size of 47 patients. The trial is enrolling patients in the United States. We have
amended the protocol so that newly enrolled patients will be treated using LN-145 produced from the Gen 2 manufacturing process.
To date, preliminary data for 13 patients has yielded an ORR of 31%, with 4 partial responses, with the DOR ranging from 2.8 to 7.6
months. Patients in the study had a median of three prior therapies. The safety findings from this study are also consistent with
previous reports. The protocol for this study has been amended to use Gen 2 TIL manufacturing. The most common treatment
emergent adverse events observed to date include chills, hypotension, pyrexia, hyponatremia, and anemia. As additional patients are
enrolled in the C-145-03 study, the safety profile of LN-145 may change.
LN-145 for Non-Small Cell Lung Cancer
We are developing LN-145 to treat NSCLC. According to estimates from the SEER program, approximately 234,000 people
were diagnosed with lung and bronchus cancers, and approximately 154,000 deaths occurred related to these cancers in the United
States in 2018.
Under our collaboration with MedImmune, we have initiated a two-cohort Phase 2 trial, IOV-LUN-201, in combination with
durvalumab for the treatment of patients with locally advanced metastatic NSCLC. Patients in this study will be naïve to PD-1 or PD-
L1 therapy. The study is expected to begin enrollment in 2019. The study will use Gen 2 TIL manufacturing process.
Investigator-Sponsored Clinical Trials
TIL in Other Solid Tumor Indications
We are collaborating with MDACC on clinical trials to evaluate TIL therapy in sarcomas, ovarian cancer and pancreatic cancer.
These trials, NCT03610490 and NCT03449108, began enrolling patients in 2018. Patients in these trials will be treated with LN-145
or TIL manufactured by MDACC.
We are collaborating with RPCI on a clinical trial to evaluate TIL therapy in bladder cancer. This trial is expected to begin
enrolling patients in 2019. Patients in this trial will be treated with LN-145.
9
TIL in Combination with Other Immunotherapy Drugs
Checkpoint inhibitors are a class of immunotherapy drugs that seek to overcome one of cancer’s main defenses against an
immune system attack. PD-1 is a checkpoint protein found on immune cells called T cells. It normally acts as a type of “off switch”
that helps prevent T cells from attacking other cells in the body. It does this by attaching to PD-L1, a protein found on both normal
and cancerous cells, which may then shut down an attack by a T cell. Some cancer cells have large amounts of PD-L1 expressed on
their surfaces, which helps them evade T cell attack.
We are collaborating with Moffitt in study NCT03215810, which is currently enrolling patients to evaluate TIL therapy in
combination with the checkpoint inhibitor nivolumab in NSCLC. An additional clinical trial, NCT03374839, is being conducted by
Moffitt to evaluate TIL therapy in combination with nivolumab in metastatic melanoma. We have also previously collaborated with
Moffitt on a clinical trial, NCT01701674, to evaluate TIL therapy in combination with the CTLA-4 checkpoint inhibitor ipilimumab.
Under our CRADA, we are collaborating with the NCI in study NCT02621021 to evaluate TIL therapy in combination with the
checkpoint inhibitor pembrolizumab in a 170-patient clinical trial in patients with advanced melanoma. This study is currently
enrolling.
TIL Therapy Background
Immune system
The immune system recognizes danger signals and responds to threats at a cellular level. The most significant components of
the cellular aspect of the adaptive immune response are T cells, or T lymphocytes, so called because they mature in the thymus and are
distinguished from B cells which mature in the bone marrow. T cells can be distinguished from other white blood cells by T cell
receptors present on their cell surface. These receptors contribute to tumor surveillance by helping T cells recognize infected cells as
well as cancerous cells. T cells are involved in both sensing and killing infected or cancerous cells, as well as coordinating the
activation of other cells in an immune response.
Cancer immunotherapy
Despite the progress that has been made over the past several decades, effective treatment of cancer, especially solid tumors,
continues to be challenging. Some reasons solid tumors are so difficult to treat are: (i) in many solid tumors, multiple genes (as many
as hundreds or thousands of genes) are mutated, and solid tumors are heterogeneous, (ii) it is not always clear which particular
mutations are critical, and (iii) tumors can adapt and find a way to evade treatments that target a single mutation. In addition, the
tumor can suppress the patient’s natural immune response. When T cells with cancer-specific receptors are absent, present in low
numbers, of poor quality, or rendered inactive by suppressive mechanisms employed by tumor tissue, the cancer can grow and spread
to various organs. In addition, standard of care treatments for cancer can be deleterious to T cells' ability to kill cancer.
We believe that adoptive cell therapy, with the use of human cells as therapeutic entities to reengage the immune system, may
be a significant advancement in the treatment of cancer. These one-time cellular therapies may avoid the long-term side effects
associated with current treatments and have the potential to be effective. We believe TIL therapy, in particular, has the potential to
treat solid tumors by increasing the effectiveness and number of a patient's cancer-specific T cells. TIL therapy is polyclonal, and we
believe that it is capable of targeting multiple tumor antigens on cancer cells. Furthermore, the non-myeloablative lymphodepleting
chemotherapy administered prior to TIL infusion is capable of suppressing the hostile tumor microenvironment, which we believe will
enhance the efficacy of TIL therapy.
Tumor-infiltrating lymphocytes
Adoptive cell therapy with TIL involves the following steps:
1. Excision: After a surgical resection of a lesion, a patient’s TIL are removed from the tumor
2. Extraction: Tumor is fragmented and placed in media for TIL to leave the tumor
3. Expansion: TIL expanded exponentially ex vivo to yield 109 – 1011 TIL
4. Preparation and Infusion: Patient receives non-myeloablative lymphodepletion to eliminate potentially suppressive
tumor microenvironment and maximize engraftment and potential potency of TIL therapy; patient is infused with their
expanded TIL and up to 6 doses of IL-2 to promote activation, proliferation and anti-tumor cytolytic activity of TIL
10
Currently, our Gen 2 manufacturing process takes 22 days from receipt of the patient’s tumor at the manufacturing facility until
shipping of the final TIL product to the institution for infusion of the TIL back into the patient. We currently treat patients with a
single infusion of TIL, although our protocols allow for evaluation of more than one administration of TIL. After infusion, TIL can
potentially infiltrate the tumor microenvironment to eliminate large numbers of cancer cells. TIL can also further proliferate in the
body. TIL therapy can potentially overcome several mechanisms of tumor escape to which endogenous T cells may be susceptible due
to the hostile tumor microenvironment.
Historical clinical results with TIL in metastatic melanoma
To date, hundreds of metastatic melanoma patients have already been treated with TIL therapy produced locally using different
manufacturing methods at different academic institutions and hospitals in the United States, Europe, Canada, and Israel. At NCI,
clinical responses have been relatively consistent in several trials: over 50% of the melanoma patients treated with TIL have an
objective response (i.e. tumor regression of 30% or more, as defined by RECIST criteria) and approximately 22-24% of patients have
a complete response (tumor regression of 100%) with no evidence of disease remaining after only one administration. Most patients
who have had a complete response remained in response in 3-7 years of follow up. Furthermore, patients can respond to TIL therapy
regardless of their prior therapies.
In September 2015, Dr. Rosenberg, a recognized pioneer in immuno-oncology and adoptive cell therapy using TIL, presented
updated findings from a Phase 2 clinical trial of TIL therapy in metastatic melanoma at the American Association for Cancer Research
Inaugural International Cancer Immunotherapy Conference. Data was presented from a 101 patient, Phase 2 clinical trial conducted at
the NCI. In the trial, patients with advanced metastatic melanoma were equally divided in two groups. Both groups were treated
according to a standard TIL protocol using nonmyeloablative, or NMA, chemotherapy, with the second group also receiving total
body irradiation. 54% of the patients treated with TIL therapy achieved an objective response. An objective response occurs when
there is a complete remission or a partial remission of the tumor. Out of the 101 patients, 24, or 24%, had experienced a complete
remission and 23 of the 24, or 96%, showed ongoing durability of this response at 30 to 47 months following treatment, at the time of
publication. Median follow-up time was approximately 40.9 months. Overall survival, or OS, was approximately 80% at 12 months,
and median OS had not yet been achieved. Median progression-free survival was approximately 8-10 months. This observation was
also presented by Dr. Stephanie Goff at the 2016 ASCO meeting and published in the Journal of Clinical Oncology in June 2016. At
the ASCO 2018 meeting, Dr. Goff presented updated findings from the study. Patients that had prior anti PD-1 treatment had an ORR
of 20-25%.
11
Overall Survival of patients in TIL ± TBI study
Source: Goff, S.L. et al. Randomized, Prospective Evaluation Comparing Intensity of Lymphodepletion Before Adoptive
Transfer of Tumor-Infiltrating Lymphocytes for Patients With Metastatic Melanoma. Journal of Clinical Oncology, 34(20), 2389-
2397.
Clinical results with TIL in other solid tumor indications
Under our CRADA with the NCI, we are providing research, development and clinical funding for the development of
unmodified TIL therapy for a variety of solid tumor indications, including HPV-associated cancers (cervical, head and neck), bladder,
breast, and lung cancers. The NCI has an ongoing clinical trial involving TIL therapy to treat advanced HPV-positive cervical cancer.
Data from this trial was published in the Journal of Clinical Oncology in April 2015 and in Science in April 2017 and was updated at
the ASCO meeting in 2018. Out of 18 cervical cancer patients treated with HPV-TIL, two experienced complete remissions reported
as ongoing at 53 and 67 months. Another three patients experienced a three-month partial response. Additionally, the NCI has ongoing
trials to treat patients using TIL with colorectal cancer, gastric cancer, pancreatic cancer, hepatocellular carcinoma and
cholangiocarcinoma and lung cancer. Depending on results from the research and development and clinical trials conducted at the NCI
under our CRADA, we may pursue the development and regulatory approval of TIL therapy for additional indications.
Safety
We continue to enroll patients in our ongoing TIL programs and we closely monitor our studies to learn about all safety events
occurring, as described elsewhere in this Annual Report on Form 10-K. Some of these events may be associated with TIL therapy. To
date, however, the largest set of data for TIL therapy was generated by the NCI as part of their multiple clinical studies. Per
publications from the NCI, toxicities or adverse events during TIL therapy have been mostly associated with either the
lymphodepletion regimen or the high-dose IL-2 therapy given after TIL infusion as described by Goff et al. in the Journal of Clinical
Oncology in June 2016. The standard approach to the administration of high-dose IL-2 is to continue dosing until patients can no
longer tolerate treatment. Our trials, however, have limited administration of IL-2 to up to 6 doses.
Next Generation TIL Product Strategies
We are developing next generation TIL products using owned and licensed intellectual property rights, in some cases in
combination with collaborators such as Phio Pharmaceuticals and Cellectis, as described elsewhere in this Annual Report on Form 10-
K. These products include both genetically-modified TIL and PD-1 selected TIL therapies. We are also developing PBL therapy for
chronic lymphocytic leukemia.
12
Process Development, Manufacturing, and Manufacturing Agreements
Our first generation TIL manufacturing process was based on the NCI’s original manufacturing and processing of TIL, which
we modified so that it could be reproduced in a cGMP environment. This first-generation process expanded the number of TIL over a
5 to 6 week period and produced a non-cryopreserved product for administration to the patient. Our Gen 2 TIL manufacturing process,
which was developed by our internal research and process development team, shortens the manufacturing process while allowing for a
cryopreserved product. The Gen 2 process is currently in use in all of our trials in which we manufacture TIL products, including
lifileucel and LN-145. We have selected Gen 2 for product registration and ongoing and future TIL clinical development, although we
continue to develop new TIL manufacturing processes.
The Gen 2 manufacturing process begins with the collection of the patient’s tumor, which is then sent to a central
manufacturing facility, where the T cells are isolated. These cells are stimulated to proliferate, then propagated in cell culture flasks
until sufficient cells are available for infusion back into the patient. The TIL is then washed and put in media suitable for
cryopreservation and infusion. The final product is shipped back to the clinical center where it can be administered to the patient. The
following diagram illustrates our Gen 2 TIL manufacturing process.
We have entered into MSAs with WuXi, Moffitt, MaSTherCell, and PharmaCell, which was acquired by Lonza, pursuant to
which they have agreed to manufacture, package, ship and handle quality assurance and quality control of certain clinical trials for our
TIL products working closely with our employees. We have two suites for clinical manufacturing at WuXi, and one of those suites is
also available to manufacture TIL for commercial use. Cell processing activities will be conducted at all companies under cGMP,
using qualified equipment and materials. We believe that all materials and components utilized in the production of the final TIL
product are readily available from qualified suppliers. We expect to rely on these CMOs, to meet anticipated clinical trial and if
approved, commercial demands. In the future, we may rely on them or other third parties, or our own manufacturing capabilities for
the manufacturing and processing of TIL-based product candidates for our clinical trials.
To meet projected needs for commercial sale quantities, we intend to build our own commercial manufacturing facility to
supply and process products. Developing our own manufacturing capabilities may be costlier than we anticipate or result in significant
delays. If we are unable to develop our own manufacturing capabilities, we may need to rely on CMOs, including both current and
alternate suppliers, to ensure sufficient capacity is available for commercial purposes.
WuXi AppTec
In November 2016, the Company entered into a three-year manufacturing and services agreement, or MSA, with WuXi
pursuant to which WuXi agreed to provide manufacturing and other services. Under the agreement, the Company entered into two
statements of work for two cGMP manufacturing suites to be established and operated by WuXi for the Company, one of the suites is
expected to be capable of being used for the commercial manufacture of our products. The statements of work for each facility include
a fixed component to reserve a dedicated suite and a variable component, mainly labor and materials used during the manufacturing
process. The Company and WuXi have extended the terms of the related statements of work until May 2020.
13
Personalized Patient Product Management
In September 2017, we entered into a partnership with TrakCel Ltd. to build a scheduling and logistics software tool that
automates the supply chain for our TIL therapy products. The TrakCel software will electronically link us with our clinical sites,
CMOs and couriers to schedule and track TIL therapies for each patient. The TrakCel software is also intended to help manage
capacity utilization and throughput and will provide efficiencies in the delivery of TIL treatment.
The TrakCel software is also designed to ensure chain of identity for each patient’s product. Because our product candidates are
specifically manufactured for each individual patient, we will be required to maintain a chain of identity with respect to the patient’s
tumor as it moves from the patient to the manufacturing facility, through the manufacturing process, and back to the patient.
Orphan Drug Designation
During 2015, we received an orphan-drug designation for lifileucel in the United States to treat malignant melanoma stages
IIB-IV. If approved, this designation provides seven years of market exclusivity in the United States, subject to certain limited
exceptions. However, the orphan drug designation does not convey any advantage in, or shorten the duration of, the regulatory review
or approval process.
During 2018, we received an orphan drug designation from the FDA for L-145 for the treatment of cervical cancer with a tumor
size of greater than 2 cm in diameter.
Fast Track Designation
In August 2017, we announced that the FDA had granted Fast Track designation for lifileucel for the treatment of advanced
melanoma. The FDA’s Fast Track process is designed to facilitate the development and expedite the review of drugs that treat serious
conditions and fill an unmet medical need. Fast Track designation allows more frequent meetings and communications with the FDA
to discuss the drug’s development plans and review process. The Fast Track designation also allows for the possibility a rolling review
of a BLA by FDA.
Regenerative Medicine Advanced Therapy Designation
In October 2018, we announced that the FDA had granted RMAT designation for lifileucel for the treatment of patients with
metastatic melanoma. The RMAT designation is based on data provided to the FDA from our C-144-01 study. RMAT designation is
granted for regenerative medicine drugs and allows for increased access to FDA during development. Under this designation,
surrogate endpoints can be used to receive approval for a product, accelerated approval may be granted, and a rolling review of a BLA
may be permitted by FDA.
Commercialization Plan
We currently have no sales, marketing or commercial product distribution capabilities. We have limited personnel dedicated to
commercialization. As we make progress towards registration of lifileucel, we plan to build sales and commercialization capabilities
in support of commercialization of our products.
We have not yet decided on a commercial strategy for our TIL products. Our commercial strategy for markets outside the U.S.
may include the use of strategic partners, distributors, a contract sales force or the establishment of our own commercial infrastructure.
We plan to further evaluate these alternatives as we approach approval for one of our product candidates.
As additional product candidates advance through our pipeline, our commercial plans may change. Clinical data, size of the
development programs, size of the target market, size of a commercial infrastructure, intellectual property protection and
manufacturing needs may all influence our U.S., Europe and rest-of-world strategies.
Intellectual Property
Intellectual property is of importance in our field and in biotechnology generally. We seek to protect and enhance proprietary
technology, inventions, and improvements that are commercially important to the development of our business by seeking,
maintaining, and defending patent rights, whether developed internally or licensed from third parties. We also plan to rely on
regulatory protection afforded through orphan drug designations, available regulatory exclusivities and patent term extensions where
available. To achieve this objective, a strategic focus for us has been to develop our own intellectual property, while also identifying
and licensing patents that provide protection and serve as an optimal platform to enhance our intellectual property and technology
base.
14
We have engaged in the development of our own patent portfolio based on internal research and development activities in
2018. As a result, we now own a number of pending patent applications and granted patents in the fields of TIL therapy, marrow
infiltrating lymphocyte or MIL therapy, PBL therapy, TIL, MIL, and PBL manufacturing processes, and TIL, MIL, and PBL
expansion methods. Our patent portfolio includes two recently-granted U.S. patents related to our Gen 2 TIL manufacturing process.
We expect to further develop our own patent portfolio as a strategic focus in 2019.
Research, Development and License Agreements
Currently, preclinical research and development is conducted primarily at our own internal research and development
laboratory in Tampa, Florida, and additionally with the NCI, Moffitt, and MDACC, as described below. We also have preclinical
collaborations with MDACC, RPCI, and Ohio State University. We sponsor our own clinical trials and also collaborate on
investigator-sponsored clinical trials with the NCI, Moffitt, MDACC, and RPCI.
In addition, we hold exclusive, co-exclusive, and non-exclusive licenses to certain patent and other intellectual property rights
with the National Institutes of Health, or NIH, an agency of the United States Public Health Service within the Department of Health
and Human Services, Moffitt, MDACC, and PolyBioCept as described below in this Annual Report on Form 10-K.
National Institutes of Health and the National Cancer Institute
Cooperative Research and Development Agreement
In August 2011, we signed a five-year CRADA with the NCI to work with Dr. Steven Rosenberg on developing adoptive cell
immunotherapies that are designed to destroy metastatic melanoma cells using a patient’s tumor infiltrating lymphocytes.
In January 2015, we executed an amendment to the CRADA to include four new indications. As amended, in addition to
metastatic melanoma, the CRADA included the development of TIL therapy for the treatment of patients with bladder, lung, triple-
negative breast, and HPV-associated cancers.
In August 2016, the NCI and we entered into a second amendment to the CRADA. The principal changes effected by the
second amendment included (i) extending the term of the CRADA by another five years to August 2021, and (ii) modifying the focus
on the development of unmodified TIL as a stand-alone therapy or in combination with FDA-licensed products and commercially
available reagents routinely used for adoptive cell therapy. The parties will continue the development of improved methods for the
generation and selection of unmodified TIL with anti-tumor reactivity in metastatic melanoma, bladder, lung, breast, and HPV-
associated cancers.
Pursuant to the terms of the CRADA, as amended, we are required to make quarterly payments of $0.5 million to the NCI for
support of research activities. To the extent we license patent rights relating to TIL-based product candidates under this agreement, we
will be responsible for all patent-related expenses and fees, past and future, relating to the TIL-based product candidate. In addition,
we may be required to supply certain test articles, including TIL, grown and processed under cGMP conditions, suitable for use in
clinical trials, where we hold the investigational new drug application for such clinical trial. The extended CRADA has a five-year
term expiring in August 2021. Either party may unilaterally terminate the CRADA for any reason or for no reason at any time by
providing written notice at least 60 days before the desired termination date.
Patent License Agreement Related to the Development and Manufacture of TIL
Effective October 5, 2011, we entered into a Patent License Agreement (“the Patent License Agreement”) with the NIH, which
Patent License Agreement was subsequently amended on February 9, 2015 and October 2, 2015. Pursuant to the Patent License
Agreement as amended, the NIH granted us licenses, including exclusive, co-exclusive, and non-exclusive licenses, to certain
technologies relating to unmodified autologous tumor infiltrating lymphocyte adoptive cell therapy products for the treatment of
metastatic melanoma, lung, breast, bladder and HPV-positive cancers. Unless terminated sooner, the license shall remain in effect
until the last licensed patent right expires. The Patent License Agreement requires the Company to pay royalties based on a percentage
of net sales (which percentage is in the mid-single digits), a percentage of revenues from sublicensing arrangements, and lump sum
benchmark royalty payments on the achievement of certain clinical and regulatory milestones for each of the various indications and
other direct costs incurred by the NIH pursuant to the agreement.
15
Exclusive Patent License Agreement Related to TIL Selection
On February 10, 2015, we entered into an Exclusive Patent License Agreement (the “Exclusive Patent License Agreement”)
with the NIH under which we received an exclusive license to the NIH’s rights to patent-pending technologies related to methods for
improving adoptive cell therapy through potentially more potent and efficient production of TIL from melanoma tumors by selecting
for T-cell populations that express various inhibitory receptors. Unless terminated sooner, the license shall remain in effect until the
last licensed patent right expires. Under the Exclusive Patent License Agreement, the Company agreed to pay customary royalties
based on a percentage of net sales of a licensed product (which percentage is in the mid-single digits), a percentage of revenues from
sublicensing arrangements, and lump sum benchmark payments upon the successful completion of clinical studies involving licensed
technologies, the receipt of the first FDA approval or foreign equivalent for a licensed product or process resulting from the licensed
technologies, the first commercial sale of a licensed product or process in the United States, and the first commercial sale of a licensed
product or process in any foreign country.
H. Lee Moffitt Cancer Center
Research Collaboration and Clinical Grant Agreements with Moffitt
In December 2016, we entered into a new three-year sponsored research agreement, or SRA, with Moffitt. The SRA covers
research aimed at better understanding TIL products and enhancing the therapeutic efficacy of TIL.
We have entered into three clinical grant agreements with Moffitt involving investigator-sponsored trials. In June 2017, we
entered into a clinical grant agreement with Moffitt to evaluate TIL therapy in a clinical trial that combines TIL with nivolumab in
NSCLC. Dosing in this clinical trial began in late 2017. This Phase 1 study (NCT03215810) is designed to enroll up to 18 patients
with advanced NSCLC. Initial results were reported at the 19th World Conference on Lung Cancer in September 2018. Under this
clinical grant agreement, we obtained a non-exclusive, royalty-free license to any new Moffitt inventions made in the performance of
the agreement. In December 2016, we entered into a clinical grant agreement with Moffitt under which we provide support for an
ongoing clinical trial at Moffitt that combines TIL therapy with nivolumab for the treatment of patients with metastatic melanoma. In
July 2014, we entered into a clinical grant agreement with Moffitt under which we provided support for a clinical trial at Moffitt that
combines TIL therapy with ipilimumab for the treatment of patients with metastatic melanoma. Under all three clinical grant
agreements with Moffit, we have non-exclusive rights to clinical data arising from the respective clinical trials.
Exclusive License Agreement with Moffitt
We entered into a license agreement with Moffitt, or the “First Moffitt License”, effective as of June 28, 2014, under which we
received a world-wide license to Moffitt’s rights to patent-pending technologies related to methods for improving TIL for adoptive
cell therapy using toll-like receptor agonists. Unless earlier terminated, the term of the license extends until the earlier of the
expiration of the last issued patent related to the licensed technology or 20 years after the effective date of the license agreement.
Pursuant to the First Moffitt License, we paid an upfront licensing fee in the amount of $0.1 million. A patent issuance fee will
also be payable under the First Moffitt License, upon the issuance of the first U.S. patent covering the subject technology. In addition,
we agreed to pay milestone license fees upon completion of specified milestones, customary royalties based on a specified percentage
of net sales (which percentage is in the low single digits) and sublicensing payments, as applicable, and annual minimum royalties
beginning with the first sale of products based on the licensed technologies, which minimum royalties will be credited against the
percentage royalty payments otherwise payable in that year. We will also be responsible for all costs associated with the preparation,
filing, maintenance and prosecution of the patent applications and patents covered by the First Moffitt License related to the treatment
of any cancers in the United States, Europe and Japan and in other countries designated by us in agreement with Moffitt.
PolyBioCept and Karolinska University Hospital
PolyBioCept Exclusive and Co-Exclusive License Agreement
On September 14, 2016, we entered into an exclusive and co-exclusive license Agreement, or the PolyBioCept Agreement, with
PolyBioCept. PolyBioCept has filed two patent applications with claims related to a cytokine cocktail for use in expansion of
lymphocytes, one of which has been abandoned. Under the PolyBioCept Agreement, we received the exclusive right and license to
PolyBioCept’s intellectual property to develop, manufacture, market and genetically engineer TIL produced by expansion, selection
and enrichment using a proprietary cytokine cocktail. We also received a co-exclusive license (with PolyBioCept) to develop,
manufacture and market genetically engineered TIL under the same intellectual property. The licenses are for the use in all cancers
and are worldwide in scope, with the exception that the uses in melanoma are not included for certain countries of the former Soviet
Union.
16
We paid PolyBioCept a total of $2.5 million as an upfront exclusive license payment. We will also have to make additional
milestone payments to PolyBioCept under the PolyBioCept Agreement if, and when, (i) certain product development milestones are
achieved, (ii) certain regulatory approvals have been obtained from the FDA and/or the European Medicines Agency, and (iii) certain
product sales targets are achieved. The milestone payments will be payable both in cash (U.S. dollars) and in shares of our common
stock. If all the foregoing product development, regulatory approval and sales milestone payments are met, we will have to pay
PolyBioCept an additional $8.7 million and will have to issue to PolyBioCept a total 2,219,376 shares of unregistered common stock.
In addition to these potential payments, we reimbursed PolyBioCept $0.2 million in expenses related to the transfer of know-how and
paid PolyBioCept $0.1 million as a clinical trials management fee. The PolyBioCept Agreement has an initial term of 30 years and
may be extended for additional five-year periods.
Karolinska University Hospital and Karolinska Institute Agreements
In connection with the execution of the PolyBioCept Agreement, we also (i) entered into a clinical trials agreement with the
Karolinska University Hospital to conduct clinical trials in glioblastoma and pancreatic cancer at the Karolinska University Hospital,
and (ii) agreed to enter into a sponsored research agreement with the Karolinska Institute for the research of the cytokine cocktail in
additional indications. In the year ended December 31, 2016, we paid Karolinska University Hospital $1.6 million to conduct these
clinical trials. As of April 9, 2018, we terminated the clinical trials agreement with the Karolinska University Hospital. In June 2018,
we received a refund of $1.6 million from Karolinska University Hospital, which resulted in a reversal of prior period expenses and a
credit of $0.4 million in our consolidated statement of operations for the year ended December 31, 2018.
M.D. Anderson Cancer Center
In April 2017, we entered into a Strategic Alliance Agreement, or SAA, with MDACC under which we and MDACC agreed to
conduct clinical and preclinical research studies. We agreed in the SAA to provide total funding not to exceed approximately $14.2
million for the performance of the multi-year studies under the SAA. In return, we will acquire all rights to inventions resulting from
the studies and have been granted a non-exclusive, sub-licensable, royalty-free, and perpetual license to specified background
intellectual property of MDACC reasonably necessary to exploit, including the commercialization thereof. We have also been granted
certain rights in clinical data generated by MDACC outside of the clinical trials to be performed under the SAA. The SAA’s term shall
continue in effect until the later of the fourth anniversary of the SAA or the completion or termination of the research and receipt of all
deliverables due to us from M.D. Anderson thereunder. In May 2017, the Company made a prepayment of $1.4 million under this
agreement.
Roswell Park Cancer Institute
In November 2018, we entered into an SAA with RPCI to conduct a clinical research study of TIL therapy in bladder cancer.
The trial is being conducted and sponsored by RPCI and will use LN-145 manufactured by us. We plan to initiate dosing in this study
in 2019. Previously, in July 2018, we entered into a Research Collaboration Agreement with Roswell Park Cancer Institute for a pre-
clinical collaboration to explore the potential for TIL therapy in bladder and other cancers.
MedImmune
In December 2015, we entered into a collaboration agreement, which we refer to as the MedImmune Agreement, with
MedImmune, the global biologics research and development arm of AstraZeneca, to conduct clinical and preclinical research in
immuno-oncology. Under the terms of the MedImmune Agreement, we will fund and conduct at least one clinical trial combining
MedImmune's PD-L1 inhibitor, durvalumab, which will be supplied by MedImmune, with TIL product manufactured by us. In
December 2017, under the MedImmune Agreement, we announced a Phase 2 multicenter clinical trial in NSCLC, IOV-LUN-201, to
be sponsored by us. The protocol for this trial was amended in 2018 to enroll 12 anti-PD-1/ PD-L1 naïve NSCLC patients for
treatment with durvalumab first, and if they fail to respond, for treatment with LN-145. This clinical trial is expected to begin
enrolling patients in 2019.
Ohio State University
In September 2017, we entered into a preclinical research collaboration with the Ohio State University focused on TIL, MIL
and PBL technologies. The collaboration focuses on hematologic malignancies in areas of poor prognostic cancer with high unmet
need, which include AML and CLL.
17
Cellectis and Phio
In June 2018, we entered into a preclinical research collaboration with Cellectis S.A., or Cellectis, to investigate transcription
activator-like effector nucleases, or TALEN, for genetic editing in conjunction with TIL therapy. In May 2018, we entered into a
preclinical research collaboration with Phio Pharmaceuticals, Inc., or Phio, to investigate self-delivering ribonucleic acid interference
methods for altering genetic expression in conjunction with TIL therapy.
Competition
The biotechnology and pharmaceutical industries put significant resources in developing novel and proprietary therapies for the
treatment of cancer. We compete with multiple entities who have developed and are developing immuno-oncology therapies,
including large and specialty pharmaceutical and biotechnology companies, academic research institutions and governmental agencies
and public and private research institutions, as well as companies developing novel targeted therapies for cancer. Universities and
public and private research institutions in the U.S. and Europe are also potential competitors. For example, a Phase 3 study comparing
TIL to standard ipilimumab in patients with metastatic melanoma is currently being conducted in Europe by the Netherlands Cancer
Institute, the Copenhagen University Hospital at Herlev, and the University of Manchester. While these universities and public and
private research institutions primarily have educational objectives, they may develop proprietary technologies that lead to other FDA-
approved therapies or that secure patent protection. We anticipate that we will face possibly increasing competition as new drugs and
therapies enter the market and advanced technologies become available.
Due to the promising clinical therapeutic effect of their therapies in clinical exploratory trials, we anticipate substantial direct
competition from other organizations developing advanced T-cell therapies targeting patients who have received prior anti-PD-1/PD-
L1 therapies. In particular, we expect to compete with other new therapies for our lead indications developed by companies such as
Bristol-Myers Squibb, Merck, Nektar Therapeutics, Idera Pharmaceuticals, Syndax Pharmaceuticals, Dynavax Technologies, Oncosec
Medical, Immetacyte, WindMIL Therapeutics, and others. We also may compete with therapies based on genetically engineered T
cells rendered reactive against tumor-associated antigens prior to their administration to patients. Genetically engineered T cells are
being pursued by several companies, including Adaptimmune, Celgene (in collaboration with bluebird bio as well as through
Celgene’s subsidiary Juno Therapeutics), Gilead Sciences, Novartis and others. To date, these technologies have been primarily
applicable to hematologic malignancies, but their application in solid tumor indications may create competition with us.
Competition for late stage melanoma patients may come, if approved, from several compounds currently under development.
NKTR-214, a pegylated version of IL-2, a CD122 agonist, under development by Nektar, in combination with nivolumab has reported
20 out of 38 stage 4 treatment naïve melanoma patients reported a partial or complete response. NKTR-214 activates cancer-fighting T
cells and natural killer cells directly in the tumor, and it boosts PD-1 expression. At least two companies are combining novel agents,
such as TLR9 agonists, with checkpoint inhibitors in melanoma indications. Idera Pharmaceuticals reported preliminary results from
an ongoing Phase 3 clinical trial of the TLR9 agonist IMO-2125 in combination with ipilimumab indicating an ORR of 29% in 34
melanoma patients who had previously received anti-PD-1 therapy. Dynavax reported preliminary results from an ongoing Phase 1b
clinical trial of the TLR9 agonist SD-101 in combination with pembrolizumab indicating an ORR of 21% in 29 patients who had
received prior anti-PD-1 therapy.
While other types of cancer immunotherapies may potentially be used in combination with TIL, such as checkpoint inhibitors,
to enhance efficacy, we also expect substantial direct competition from other types of immunotherapies. We face competition from
immunotherapy treatments offered by companies such as Amgen, AstraZeneca, Bristol-Myers Squibb, Merck, and Roche.
Immunotherapy is also being pursued by several biotechnology companies as well as by large-cap pharmaceutical companies. We
cannot predict whether other types of immunotherapies may be enhanced and show greater efficacy. As a result, we may have direct
and substantial competition from such immunotherapies in the future.
Many potential competitors, either alone or with their strategic partners, have substantially greater financial, technical and
human resources than we do. Accordingly, our competitors may be more successful than us in obtaining approval for treatments and
achieving widespread market acceptance and may render our treatments obsolete or non-competitive. Mergers and acquisitions in the
biotechnology and pharmaceutical industries may result in even more resources being concentrated among a smaller number of our
competitors. These competitors also compete with us in recruiting and retaining qualified scientific and management personnel and
establishing clinical study sites and patient registration for clinical studies, as well as in acquiring technologies complementary to, or
necessary for, our programs. Smaller or early-stage companies may also prove to be significant competitors, particularly through
collaborative arrangements with large and established companies.
18
Our commercial success may depend in part on our ability to obtain and maintain patent and other proprietary protection for
commercially important technology, inventions and know-how related to our business; defend and enforce our patents; preserve the
confidentiality of our trade secrets; and operate without infringing the valid enforceable patents and proprietary rights of third parties.
Our ability to stop third parties from making, using, selling, offering to sell or importing our products may depend on the extent to
which we have rights under valid and enforceable patents or trade secrets that cover these activities. With respect to both licensed and
company-owned intellectual property, we cannot be sure that patents will be granted with respect to any of our pending patent
applications or with respect to any patent applications filed by us in the future, nor can we be sure that any of our existing patents or
any patents that may be granted to us in the future will be commercially useful in protecting our commercial products and methods of
manufacturing the same. We may rely, in some circumstances, on trade secrets to protect our technology. However, trade secrets can
be difficult to protect.
We seek to protect our proprietary technology and processes, in part, by entering into confidentiality agreements with our
employees, consultants, scientific advisors and contractors. We also seek to preserve the integrity and confidentiality of our data and
trade secrets by maintaining physical security of our premises and physical and electronic security of our information technology
systems. While we have confidence in these individuals, organizations and systems, agreements or security measures may be
breached, and we may not have adequate remedies for any breach. In addition, our trade secrets may otherwise become known or be
independently discovered by competitors. To the extent that our consultants, contractors or collaborators use intellectual property
owned by others in their work for us, disputes may arise as to the rights in related or resulting know-how and inventions.
Government Regulations
The FDA and other regulatory authorities at federal, state, and local levels, as well as in foreign countries, extensively regulate,
among other things, the research, development, testing, manufacture, quality control, import, export, safety, effectiveness, labeling,
packaging, storage, distribution, record keeping, approval, advertising, promotion, marketing, post-approval monitoring, and post-
approval reporting of biologics such as those we are developing. We, along with our third-party contractors, will be required to
navigate the various preclinical, clinical and commercial approval and post-approval requirements of the governing regulatory
agencies of the countries in which we wish to conduct studies or seek approval or licensure of our product candidates. The process of
obtaining regulatory approvals and the subsequent compliance with appropriate federal, state, local, and foreign statutes and
regulations require the expenditure of substantial time and financial resources.
Biologic products are regulated by the FDA under a combination of the Federal Food, Drug, and Cosmetic Act, or FFDCA, and
Public Health Services Act, or PHSA, and the FDA’s implementing regulations. Failure to comply with regulatory requirements may
result in significant regulatory actions. Such actions may include refusal to approve pending applications, license suspension or
revocation, withdrawal of an approval, imposition of a clinical hold or termination of clinical trials, warning letters, untitled letters,
cyber letters, modification of promotional materials or labeling, provision of corrective information, imposition of post-market
requirements including the need for additional testing, imposition of distribution or other restrictions under a Risk Evaluation and
Mitigation Strategy, or REMS, product recalls, product seizures or detentions, refusal to allow imports or exports, total or partial
suspension of production or distribution, FDA debarment, injunctions, fines, consent decrees, corporate integrity agreements,
debarment from receiving government contracts and new orders under existing contracts, exclusion from participation in federal and
state healthcare programs, restitution, disgorgement, or civil or criminal penalties, including fines and imprisonment, and adverse
publicity, among other adverse consequences.
The process required by the FDA before biologic product candidates may be marketed in the United States generally involves
the following:
completion of preclinical laboratory tests and animal studies performed in accordance with the FDA’s current Good
Laboratory Practices, or GLP, regulation, as well as manufacturing development and formulation studies;
submission to the FDA of an investigational new drug application, or IND, which must become effective before clinical
trials may begin and must be updated annually or when significant changes are made;
approval by an independent Institutional Review Board, or IRB, or ethics committee at each clinical site or centrally,
before the trial is begun;
performance of adequate and well-controlled human clinical trials to establish the safety, and efficacy of the proposed
biologic product candidate for its intended purpose;
preparation of and submission to the FDA of a BLA, after completion of pivotal clinical trial(s);
satisfactory completion of an FDA Advisory Committee review, if applicable;
a determination by the FDA within 60 days of its receipt of a BLA to file the application for review;
satisfactory completion of an FDA pre-approval inspection of the manufacturing facility or facilities at which the proposed
product is produced to assess compliance with cGMP, and to assure that the facilities, methods and controls are adequate to
preserve the biological product’s continued safety, purity and potency, and of selected clinical sites to assess compliance
with current Good Clinical Practices, or cGCPs; and
FDA review and approval of the BLA to permit commercial marketing of the product for particular indications for use in
the United States, which must be updated periodically when changes are made.
19
The testing and approval process requires substantial time, effort and financial resources, and we cannot be certain that any
approvals for our product candidates will be granted on a timely basis, if at all. Prior to beginning the first clinical trial with a new
product candidate, we must submit an IND to the FDA. An IND is a request for authorization from the FDA to administer an
investigational new drug product to humans. The central focus of an IND submission is on the general investigational plan and the
protocol(s) for clinical studies. The IND also includes results of animal and in vitro studies assessing the toxicology,
pharmacokinetics, pharmacology, and pharmacodynamic characteristics of the product; chemistry, manufacturing, and controls
information; and any available human data or literature to support the use of the investigational product. An IND must become
effective before human clinical trials may begin. The IND automatically becomes effective 30 days after receipt by the FDA, unless
the FDA, within the 30-day time period, raises concerns or questions about the proposed clinical trial. In such a case, the IND may be
placed on clinical hold and the IND sponsor and the FDA must resolve any outstanding concerns or questions before the clinical trial
can begin. Clinical holds also may be imposed by the FDA at any time before or during trials due to safety concerns or non-
compliance. Submission of an IND therefore may or may not result in FDA authorization to begin a clinical trial.
Human immunotherapy products are a new category of therapeutics. Because this is a relatively new and expanding area of
novel therapeutic interventions, there can be no assurance as to the length of the trial period, the number of patients the FDA will
require to be enrolled in the trials in order to establish the safety, efficacy, purity and potency of immunotherapy products, or that the
data generated in these trials will be acceptable to the FDA to support marketing approval.
Clinical trials involve the administration of the investigational product to human subjects under the supervision of qualified
investigators in accordance with cGCPs, which include the requirement that all research subjects provide their informed consent for
their participation in any clinical study. Clinical trials are conducted under protocols detailing, among other things, the objectives of
the study, the parameters to be used in monitoring safety and the effectiveness criteria to be evaluated, and a statistical analysis plan.
A separate submission to the existing IND must be made for each successive clinical trial conducted during product development and
for any subsequent protocol amendments. Investigators must also provide certain information to the clinical trial sponsors to allow the
sponsors to make certain financial disclosures to the FDA.
Furthermore, an independent IRB for each site proposing to conduct the clinical trial or centrally must review and approve the
plan for any clinical trial, its informed consent form and any subject communications, before the clinical trial begins at that site, and
upon amendment of the trial, and must monitor the study until completed. An IRB considers, among other things, whether the risks to
individuals participating in the trials are minimized and are reasonable in relation to anticipated benefits and whether the planned
human subject protections are adequate. Informed consent must be received from each study subject prior to participation in a clinical
study. Progress reports detailing the results of the clinical trials must also be submitted at least annually to the FDA and the IRB and
more frequently if serious adverse events or other significant safety information is found.
Regulatory authorities, the IRB, or the sponsor may suspend a clinical trial at any time on various grounds, including a finding
that the subjects are being exposed to an unacceptable health risk, that the trial is not being conducted in accordance with regulatory or
IRB requirements, or that the trial is unlikely to meet its stated objectives. Sponsors may also discontinue studies or development
programs for many reasons, including changing business objectives. Some studies also include oversight by an independent group of
qualified experts organized by the clinical study sponsor, known as a data safety monitoring board, or DSMB, which provides
recommendations and assessments for whether or not a study should move forward at designated check points based on access to
certain data from the study. Following a review by a DSMB, the study may be halted if there is an unacceptable safety risk for subjects
or on other grounds, such as failure to demonstrate efficacy. There are also requirements governing the reporting of ongoing clinical
studies and clinical study results to public registries. For instance, we are required to register certain clinical trials and post the results
of certain completed clinical trials on a government-sponsored database, ClinicalTrials.gov, within specified timeframes. Failure to do
so can result in enforcement actions and adverse publicity.
For purposes of BLA approval, human clinical trials are typically conducted in three sequential phases that may overlap.
Although these are the typical phases for progression, and characteristics of the phases of a clinical development program, certain
expedited programs allow for variations that could support a marketing application based on surrogate endpoints, intermediate clinical
endpoints, or single-arm as opposed to comparative or placebo-controlled studies.
Phase 1 - The investigational product is initially introduced into healthy human subjects or patients with the target disease
or condition. These studies are designed to test the safety, dosage tolerance, absorption, metabolism and distribution of the
investigational product in humans, the side effects associated with increasing doses, and, if possible, to gain early
evidence on effectiveness.
Phase 2 - The investigational product is administered to a limited patient population with a specified disease or condition
to evaluate the preliminary efficacy, optimal dosages and dosing schedule and to identify possible adverse side effects and
safety risks. Multiple Phase 2 clinical trials may be conducted to obtain information prior to beginning larger and more
expensive Phase 3 clinical trials.
20
Phase 3 - The investigational product is administered to an expanded patient population in adequate and well-controlled
studies to further evaluate dosage, to provide statistically significant evidence of clinical efficacy and to further test for
safety, generally at multiple geographically dispersed clinical trial sites. These clinical trials are intended to establish the
overall risk/benefit relationship of the investigational product and to provide an adequate basis for product approval.
Typically, two Phase 3 studies are required by the FDA for product approval.
Phase 4 - In some cases, the FDA may require, or companies may voluntarily pursue, additional clinical trials after a
product is approved to gain more information about the product. These so-called Phase 4 studies may be made a
condition to approval of the BLA.
Additional types of data may also help to support a BLA, such as real-world evidence and patient experience data. Phase 1,
Phase 2 and Phase 3, and Phase 4 testing, if applicable, may not be completed successfully within a specified period, if at all, and there
can be no assurance that the data collected will support FDA approval or licensure of the product. Concurrent with clinical trials,
companies may complete additional animal studies and develop additional information about the biological characteristics of the
product candidate and must finalize a process for manufacturing the product in commercial quantities in accordance with cGMP
requirements. The manufacturing process must be capable of consistently producing quality batches of the product candidate and,
among other things, must develop methods for testing the identity, strength, quality and purity of the final product, or for biologics, the
safety, purity and potency. Additionally, appropriate packaging must be selected and tested, and stability studies must be conducted to
demonstrate that the product candidate does not undergo unacceptable deterioration over its shelf life and manufacturing processes
must be validated.
The manufacture of investigational biologics for the conduct of human clinical trials is subject to cGMP requirements.
Investigational biologics and active ingredients imported into the United States are also subject to regulation by the FDA relating to
their labeling and distribution. Further, the export of investigational products outside of the United States is subject to regulatory
requirements of the importing country as well as U.S. export requirements under the FFDCA. Additional United States and foreign
laws and regulations may also be applicable to the handling, import, export, and transportation of biological materials, including tissue
samples.
During the development of a new therapeutic, a sponsor may be able to request a Special Protocol Assessment, or SPA, the
purpose of which is to reach an agreement with the FDA on the Phase 3 clinical trial protocol design and analysis that will form the
primary basis of product approval and an efficacy claim, as well as preclinical carcinogenicity trials and stability studies. An SPA may
only be modified with the agreement of the FDA and the trial sponsor, or if the director of the FDA reviewing division determines that
a substantial scientific issue essential to determining the safety or efficacy of the product was identified after the testing began. An
SPA is intended to provide assurance that, in the case of clinical trials, if the agreed upon clinical trial protocol is followed, the clinical
trial endpoints are achieved, and there is a favorable risk-benefit profile, the data may serve as the primary basis for an efficacy claim
in support of a BLA. However, SPA agreements are not a guarantee of approval of a product candidate or any permissible claims
about the product candidate. In particular, SPAs are not binding on the FDA if, among other reasons, previously unrecognized public
health concerns arise during the performance of the clinical trial, other new scientific concerns regarding the product candidate’s
safety or efficacy arise, or if the sponsoring company fails to comply with the agreed upon clinical trial protocol.
In addition, under the Pediatric Research Equity Act, or PREA, a BLA or supplement to a BLA for a new active ingredient,
indication, dosage form, dosage regimen, or route of administration, 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. Also, under the FDA Reauthorization Act
of 2017, beginning in 2020, sponsors submitting applications for product candidates intended for the treatment of adult cancer which
are directed at molecular targets that the FDA determines to be substantially relevant to the growth or progression of pediatric cancer
must submit, with the application, reports from molecularly targeted pediatric cancer investigations designed to yield clinically
meaningful pediatric study data, using appropriate formulations, to inform potential pediatric labeling. The FDA may, on its own
initiative or at the request of the applicant, 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. Orphan products are also exempt from PREA
requirements.
The FDA also may require submission of REMS, to ensure that the benefits of the biologic outweigh the risks. The REMS plan
could include medication guides, physician communication plans, and elements to assure safe use, such as restricted distribution
methods, patient registries, or other risk minimization tools. An assessment of the REMS must also be conducted at set intervals.
Following product approval, a REMS may also be required by the FDA if new safety information is discovered and the FDA
determines that a REMS is necessary to ensure that the benefits of the biologic outweigh the risks.
21
BLA Submission and Review by the FDA
Assuming successful completion of all required testing in accordance with all applicable regulatory requirements, the results of
product development, nonclinical studies and clinical trials are submitted to the FDA as part of a BLA requesting approval to market
the product for one or more indications. The BLA must include all relevant data available from pertinent preclinical and clinical
studies, including negative or ambiguous results as well as positive findings, together with detailed information relating to the
product’s chemistry, manufacturing, controls, and proposed labeling, among other things. Data can come from company-sponsored
clinical studies intended to test the safety and effectiveness of a use of the product, or from a number of alternative sources, including
studies initiated by investigators. The submission of a BLA requires payment of a substantial user fee to the FDA, under the
Prescription Drug User Fee Act, and the sponsor of an approved BLA is also subject to annual program fees. These fees are typically
increased annually. A waiver of user fees may be obtained under certain limited circumstances.
Once a BLA has been submitted, the FDA has sixty days to determine whether it will accept the application for filing. The
FDA accepts applications for filing if it determines that the application is substantially complete to permit a substantive review. The
FDA may request additional information rather than accept a BLA 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’s goal is to review the application within ten months after it accepts the application for filing, or, if the application
relates to a serious or life-threatening indication and, if approved, the product would provide a significant improvement in safety and
efficacy, six months after the FDA accepts the application for filing, which is referred to as Priority Review. The review process is
often significantly extended if the FDA requests additional information or clarification. The FDA reviews a BLA to determine, among
other things, whether a product is safe, pure and potent and the facility in which it is manufactured, processed, packed, or held meets
standards designed to assure the product’s continued safety, purity and potency. There are numerous FDA personnel assigned to
review different aspects of a BLA, and uncertainties can be presented by their ability to exercise judgment and discretion during the
review process. The development and provision of additional data and information requested by FDA during review of a BLA may be
time consuming and expensive.
The FDA may convene an advisory committee to provide clinical insight on application review questions. Before approving a
novel biologic, the FDA must either refer that biologic to an external advisory committee or provide in an action letter, a summary of
the reasons why the FDA did not refer the product candidate to an advisory committee. An advisory committee is typically a panel
that includes clinicians and other experts, which review, evaluate, and make 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.
Before approving a BLA, the FDA will typically inspect the facility or facilities where the product is manufactured. 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 a BLA, the FDA will typically inspect one or more clinical sites to assure compliance with cGCP.
If the FDA determines that the application, manufacturing process or manufacturing facilities are not acceptable, it will outline
the deficiencies in the submission and often will request additional testing, clinical studies, application modifications, or information
in a complete response letter, or CRL. A CRL indicates that the review cycle for the application is complete and that the application is
not ready for approval. If a CRL is issued, the applicant may either: resubmit the BLA, addressing all the deficiencies identified in the
letter; withdraw the application; or request an opportunity for a hearing. Notwithstanding the submission of any requested additional
information, the FDA ultimately may decide that the application does not satisfy the regulatory criteria for approval. Data obtained
from clinical trials are not always conclusive and the FDA may interpret data differently than an applicant interprets the same data.
If the FDA finds that a BLA is approvable, the FDA may issue an approval letter. An approval letter authorizes commercial
marketing of the product with specific prescribing information for specific indications. However, even if the FDA approves a product,
it may limit the approved indications for use of the product, require that contraindications, warnings, or precautions be included in the
product labeling, including a boxed warning, require that post-approval studies, including Phase 4 clinical trials, be conducted to
further assess a product’s safety and efficacy after approval, require testing and surveillance programs to monitor the product after
commercialization, or impose other conditions, including distribution restrictions or other risk management mechanisms under a
REMS which can materially affect the potential market and profitability of the product. The FDA may also not approve label
statements that are necessary for successful commercialization and marketing.
If compliance with the pre- and post-marketing regulatory standards are not maintained or if problems occur after the product
reaches the marketplace, the FDA may also withdraw the product approval. Further, should new safety information arise, additional
testing, product labeling, or FDA notification may be required.
22
A sponsor may seek approval of its product candidate under programs designed to accelerate the FDA’s review and approval of
new drugs and biological products that meet certain criteria. Specifically, new drugs and biological 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. For a Fast Track designation, the FDA may consider sections of the BLA for review on a rolling basis before
the complete application is submitted if relevant criteria are met. Fast Track-designated products are also eligible for more frequent
FDA interactions. A Fast Track-designated product candidate may also qualify for Rriority Review, under which the FDA sets the
target date for FDA action on the BLA at six months after the FDA accepts the application for filing. Priority Review is granted when
there is evidence that the proposed product would be a significant improvement in the safety or effectiveness of the treatment,
diagnosis, or prevention of a serious condition. If criteria are not met for Priority Review, the application is subject to the standard
FDA review period of 10 months after the FDA accepts the application for filing. Priority Review designation does not change the
scientific/medical standard for approval or the quality of evidence necessary to support approval.
Under the Accelerated Approval Program, the FDA may approve a BLA on the basis of either a surrogate endpoint that is
reasonably likely to predict clinical benefit, or on a clinical endpoint that can be measured earlier than irreversible morbidity or
mortality, that is reasonably likely to predict an effect on irreversible morbidity or mortality or other clinical benefit, taking into
account the severity, rarity, or prevalence of the condition and the availability or lack of alternative treatments. To qualify for
Accelerated Approval, the product must be intended to treat a serious condition and must generally provide a meaningful advantage
over available therapies. Post-marketing studies or completion of ongoing studies after marketing approval are required to verify the
biologic’s clinical benefit in relationship to the surrogate endpoint or ultimate outcome in relationship to the clinical benefit. If this
trial is not conducted, if it fails to verify the benefit, if other evidence demonstrates that the product is not safe, pure or potent, or if the
applicant disseminates false or misleading promotional material, the FDA may withdraw approval of the application on an expedited
basis. Sponsors of products under the Accelerated Approval Pathway must further submit promotional materials to the FDA before
dissemination.
In addition, the Food and Drug Administration Safety and Innovation Act, or FDASIA, which was enacted and signed into law
in 2012, established the new Breakthrough Therapy Designation. A sponsor may seek FDA designation of its product candidate as a
Breakthrough Therapy if the product candidate is intended, alone or in combination with one or more other drugs or biologics, to treat
a serious or life-threatening disease or condition and preliminary clinical evidence indicates that the therapy may demonstrate
substantial improvement over existing therapies on one or more clinically significant endpoints, such as substantial treatment effects
observed early in clinical development. Sponsors may request the FDA to designate a Breakthrough Therapy at the time of or any time
after the submission of an IND, but ideally before an end-of-Phase 2 meeting with the FDA. If the FDA designates a Breakthrough
Therapy, it may take actions appropriate to expedite the development and review of the application, which may include holding
meetings with the sponsor and the review team throughout the development of the therapy; providing timely advice to, and interactive
communication with, the sponsor regarding the development of the drug to ensure that the development program to gather the
nonclinical and clinical data necessary for approval is as efficient as practicable; involving senior managers and experienced review
staff, as appropriate, in a collaborative, cross-disciplinary review; assigning a cross-disciplinary project lead for the FDA review team
to facilitate an efficient review of the development program and to serve as a scientific liaison between the review team and the
sponsor; and considering alternative clinical trial designs when scientifically appropriate, which may result in smaller trials or more
efficient trials that require less time to complete and may minimize the number of patients exposed to a potentially less efficacious
treatment. Breakthrough Therapy designation also allows the sponsor to file sections of the BLA for review on a rolling basis.
Recently, through the 21st Century Cures Act, or Cures Act, Congress also established another expedited program, called a
Regenerative Medicine Advanced Therapy, or RMAT, designation. The Cures Act directs the FDA to facilitate an efficient
development program for and expedite review of RMATs. To qualify for this program, the product must be a cell therapy, therapeutic
tissue engineering product, human cell and tissue product, or a combination of such products, and not a product solely regulated as a
human cell and tissue product. The product must be intended to treat, modify, reverse, or cure a serious or life-threatening disease or
condition, and preliminary clinical evidence must indicate that the product has the potential to address an unmet need for such disease
or condition. Advantages of the RMAT designation include all the benefits of the Fast Track and breakthrough therapy designation
programs, including early interactions with the FDA. These early interactions may be used to discuss potential surrogate or
intermediate endpoints to support accelerated approval.
In August 2017, we announced that the FDA had granted Fast Track designation for lifileucel, for advanced metastatic
melanoma. The Fast Track designation does not change the standards for approval but may expedite the development or approval
process. In October 2018, we announced that lifileucel had received the RMAT designation for metastatic melanoma.
Orphan Drugs
During 2015, we received an orphan drug designation for lifileucel in the United States to treat malignant melanoma stages IIB-
IV. We plan to seek orphan drug designation for some or all our other product candidates in specific orphan indications in which there
is a medically plausible basis for the use of such products.
23
During 2018, we received an orphan-drug designation from the FDA for LN-145 for the treatment of cervical cancer with a
tumor size of great than 2cm in diameter.
Under the Orphan Drug Act, the FDA may grant orphan drug designation to a drug or biologic intended to treat a rare disease
or condition, defined as a disease or condition with a patient population of fewer than 200,000 individuals in the United States, or a
patient population greater than 200,000 individuals in the United States and when there is no reasonable expectation that the cost of
developing and making available the drug or biologic in the United States will be recovered from sales in the United States for that
drug or biologic. Additionally, sponsors must present a plausible hypothesis for clinical superiority to obtain orphan drug designation
if there is a product already approved by the FDA that is intended for the same indication and that is considered by the FDA to be the
same product as the already approved product. This hypothesis for clinical superiority must be demonstrated to obtain orphan
exclusivity. Orphan drug designation must be requested before submitting a BLA. After the FDA grants orphan drug designation, the
generic identity of the therapeutic agent and its potential orphan use are disclosed publicly by the FDA.
If a product that has orphan drug designation subsequently receives the first FDA approval for a particular active ingredient for
the disease for which it has such designation, the product is entitled to orphan product exclusivity, which means that the FDA may not
approve any other applications, including a full BLA, to market the same biologic, as sameness is defined in FDA’s regulations, for
the same indication for seven years, except in limited circumstances, such as a showing of clinical superiority to the product with
orphan drug exclusivity or if the FDA finds that the holder of the orphan drug exclusivity has not shown that it can assure the
availability of sufficient quantities of the orphan drug to meet the needs of patients with the disease or condition for which the drug
was designated. Orphan drug exclusivity does not prevent the FDA from approving a different drug or biologic for the same disease or
condition, or the same drug or biologic for a different disease or condition. Among the other benefits of orphan drug designation are
tax credits for certain research, opportunities for certain research grant funding, and a waiver of the BLA application fees. The tax
credit, however, was recently limited through Congress’s tax reform efforts. Despite these benefits, the orphan drug designation does
not convey any advantage in, or shorten the duration of, the regulatory review or approval process.
A designated orphan drug may not receive orphan drug exclusivity if it is approved for a use that is broader than the indication
for which it received orphan designation. In addition, orphan drug exclusive marketing rights in the United States may be lost if the
FDA later determines that the request for designation was materially defective or if the manufacturer is unable to assure sufficient
quantities of the product to meet the needs of patients with the rare disease or condition. The FDA may also approve a product deemed
to be the same as an approved orphan product for the same orphan indication, despite periods of exclusivity, if the new product is
demonstrated to be clinically superior to the former product.
Market and Data Exclusivity and Biosimilars
While the FDA may eventually license products, as further described below, that are biosimilar to any of our product candidates
that are approved, our products may receive periods of regulatory exclusivity, in addition to orphan drug exclusivity for those products
with orphan drug designations, providing additional protection from certain forms of competition. For instance, our products may
receive 12 years of reference product exclusivity that begins running at the time of first licensure. During this time, the FDA may not
make an approval of a biosimilar product effective and may not accept a biosimilar application for four years from the date of
licensure. However, certain changes and supplements to an approved BLA, and subsequent applications filed by the same sponsor,
manufacturer, licensor, predecessor in interest, or other related entity do not qualify for the exclusivity period. The PHSA also
includes provisions to protect reference products that have patent protection. The biosimilar product sponsor and reference product
sponsor may, but are not required to, exchange certain patent and product information for the purpose of determining whether there
should be a legal patent challenge. Based on the outcome of negotiations surrounding the exchanged information, the reference
product sponsor may bring a patent infringement suit and injunction proceedings against the biosimilar product sponsor. The
biosimilar applicant may also be able to bring an action for declaratory judgment concerning the patent.
The Biologics Price Competition and Innovation Act, or BPCIA, created an abbreviated approval pathway for biological
products shown to be highly similar to or interchangeable with an FDA-licensed reference biological product. Accordingly, if we
receive FDA licensure, we may face competition from biosimilar products. Biosimilarity sufficient to reference a prior FDA-approved
product requires a high similarity to the reference product notwithstanding minor differences in clinically inactive components, and no
clinically meaningful differences between the biological product and the reference product in terms of safety, purity, and potency.
Biosimilarity must be shown through analytical studies, animal studies, and at least one clinical trial, absent a waiver by the
FDA. There must be no difference between the reference product and a biosimilar in conditions of use, route of administration, dosage
form, and strength. A biosimilar product may be deemed interchangeable with a prior approved product if it meets the higher hurdle of
demonstrating that it can be expected to produce the same clinical results as the reference product and, for products administered
multiple times, the biologic and the reference biologic may be switched after one has been previously administered without increasing
safety risks or risks of diminished efficacy relative to exclusive use of the reference biologic.
24
Pediatric Exclusivity and Patent Term Extension
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 marketing protection to the term of any existing regulatory exclusivity. This six-month
exclusivity may be granted if a 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, whatever regulatory periods of exclusivity that already cover the product are extended by six months.
If approved, biologics may also be eligible for periods of U.S. patent term restoration. If granted, patent term restoration
extends the patent life of a single unexpired patent that has not previously been extended, for a maximum of five years. The total
patent life of the product with the extension also cannot exceed fourteen years from the product’s approval date. Subject to the prior
limitations, the period of the extension is calculated by adding half of the time from the effective date of an IND to the initial
submission of a marketing application, and all the time between the submission of the marketing application and its approval. This
period may also be reduced by any time that the applicant did not act with due diligence. Whether any of our product candidates will
be eligible for patent term restoration is currently unknown. Even if any of our product candidates are found to be eligible for patent
term protection, the applicable authorities may subsequently determine that we are not eligible for such restoration periods.
Post-Approval Requirements
Any products for which we receive FDA approvals are subject to continuing regulation by the FDA, including, among other
things, record-keeping requirements, reporting of adverse experiences with the product and deviations, annual reporting and
monitoring and providing the FDA with updated safety and efficacy information, product sampling and distribution requirements,
certain electronic records and signatures, fulfilling post-marketing study and REMS commitments, and complying with FDA
promotion and advertising requirements, which include, among other things, standards for direct-to-consumer advertising, restrictions
on promoting products for uses or in patient populations that are not described in the product’s approved uses (known as “off-label
use”), limitations on industry-sponsored scientific and educational activities, and requirements for promotional activities involving the
internet. Although physicians may prescribe legally available products for off-label use, if they deem such use to be appropriate in
their professional medical judgment, manufacturers may not market or promote such off-label uses. Recent court decisions have
impacted FDA’s enforcement activity regarding off-label promotion in light of First Amendment considerations; however, there are
still significant risks in this area, in part due to the potential for False Claims Act exposure.
In addition, quality control and manufacturing procedures must continue to conform to applicable manufacturing requirements
after approval to ensure the long-term stability of the product. cGMP regulations require among other things, quality control and
quality assurance as well as the corresponding maintenance of records and documentation and the obligation to investigate and correct
any deviations from cGMP. Manufacturers and other entities involved in the manufacture and distribution of approved products are
required to register their establishments with the FDA and certain state agencies that list their products, and are subject to periodic
unannounced inspections by the FDA and certain state agencies for compliance with cGMP and other laws. Accordingly,
manufacturers must continue to expend time, money, and effort in the areas of production and quality control to maintain cGMP
compliance. Discovery of problems with a product after approval may result in restrictions on a product, manufacturer, or holder of an
approved BLA, including, among other things, withdrawal of approval, recall or withdrawal of the product from the market. In
addition, changes to the manufacturing process are strictly regulated, and depending on the significance of the change, may require
prior FDA approval or notification before being implemented. Other types of changes to the approved product, such as adding new
indications and claims, are also subject to further FDA review and approval.
The Drug Supply Chain Security Act, or DSCSA, imposes obligations on manufacturers of prescription biopharmaceutical
products for commercial distribution, regulating the distribution of the products at the federal level, and sets certain standards for
federal or state registration and compliance of entities in the supply chain, including manufacturers and repackagers, wholesale
distributors, third-party logistics providers, and dispensers. The DSCSA preempts previously enacted state laws and the pedigree
requirements of the Prescription Drug Marketing Act, or PDMA. Trading partners within the drug supply chain must now ensure
certain product tracing requirements are met that they are doing business with other authorized trading partners; and they are required
to exchange transaction information, transaction history, and transaction statements. Further, the DSCSA limits the distribution of
prescription pharmaceutical products and imposes requirements to ensure overall accountability and security in the drug supply chain.
As of November 27, 2018, product identifier information, an aspect of the product tracing scheme, is required.
25
As previously mentioned, the FDA may also require Phase 4 testing and surveillance to monitor the effects of an approved
product. Discovery of previously unknown problems with a product or the failure to comply with applicable FDA requirements can
have negative consequences, including adverse publicity, judicial or administrative enforcement, warning letters from the FDA,
mandated corrective advertising or communications with doctors, and civil or criminal penalties, among others. Newly discovered or
developed safety or effectiveness data may require changes to a product’s approved labeling, including the addition of new warnings
and contraindications, and may require the implementation of other risk management measures. Also, new government requirements,
including those resulting from new legislation, may be established, or the FDA’s policies may change, which could delay or prevent
regulatory approval of our products under development.
Additional Biologic Requirements
To help reduce the increased risk of the introduction of adventitious agents, the PHSA emphasizes the importance of
manufacturing controls for products whose attributes cannot be precisely defined. The PHSA also provides authority to the FDA to
immediately suspend licenses in situations where there exists a danger to public health, to prepare or procure products in the event of
shortages and critical public health needs, and to authorize the creation and enforcement of regulations to prevent the introduction or
spread of communicable diseases in the United States and between states.
After a BLA is approved, the product may also be subject to official lot release as a condition of approval. As part of the
manufacturing process, 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 by the FDA, the manufacturer submits samples of each lot of product to the
FDA, together with a release protocol showing the results of all the manufacturer's tests performed on the lot. The FDA may also
perform certain confirmatory tests on lots of some products before releasing the lots for distribution by the manufacturer.
In addition, the FDA conducts laboratory research related to the regulatory standards on the safety, purity, potency, and
effectiveness of biological products. After approval of biologics, manufacturers must address any safety issues that arise, are subject to
recalls or a halt in manufacturing, and are subject to periodic inspection after approval.
Other Healthcare Laws and Compliance Requirements
Our sales, promotion, medical education and other activities following product approval will be subject to regulation by
numerous regulatory and law enforcement authorities in the United States, and in addition to the FDA, these entities may include the
Federal Trade Commission, the Department of Justice, the Centers for Medicare & Medicaid Services, other divisions of the
Department of Health and Human Services and state and local governments. Our promotional and scientific/educational programs
must comply with the federal Anti-Kickback Statute, or AKS, the Foreign Corrupt Practices Act, or FCPA, the False Claims Act, or
FCA, the Veterans Health Care Act, physician payment transparency laws, privacy laws, security laws, and additional state laws
similar to the foregoing.
The federal AKS prohibits, among other things, any person or entity, from knowingly and willfully offering, paying, soliciting
or receiving any remuneration, directly or indirectly, overtly or covertly, in cash or in kind, to induce or in return for purchasing,
leasing, ordering or arranging for the purchase, lease or order of any item or service reimbursable under Medicare, Medicaid or other
federal healthcare programs, in whole or in part. The term remuneration has been interpreted broadly to include anything of value. The
federal AKS has been interpreted to apply to arrangements between pharmaceutical manufacturers on the one hand and prescribers,
purchasers, and formulary managers on the other. There are a number of statutory exceptions and regulatory safe harbors protecting
some common activities from prosecution. The exceptions and safe harbors are drawn narrowly and practices that involve
remuneration that may be alleged to be intended to induce prescribing, purchasing or recommending may be subject to scrutiny if they
do not qualify for an exception or safe harbor. Failure to meet all the requirements of a particular applicable statutory exception or
regulatory safe harbor does not make the conduct per se illegal under the AKS. Instead, the legality of the arrangement will be
evaluated on a case-by-case basis based on a cumulative review of all its facts and circumstances. Our practices may not in all cases
meet all the criteria for protection under a statutory exception or regulatory safe harbor.
Additionally, the intent standard under the federal AKS was amended by the Patient Protection Affordable Care Act of 2010, as
amended by the Health Care and Education Reconciliation Act of 2010, which is collectively referred to as the Affordable Care Act,
or ACA, to a stricter standard such that a person or entity no longer needs to have actual knowledge of the statute or specific intent to
violate it in order to have committed a violation. In addition, the ACA codified case law that a claim including items or services
resulting from a violation of the federal AKS constitutes a false or fraudulent claim for purposes of the federal civil False Claims Act.
On January 31, 2019, the U.S. Department of Health and Human Services issued a proposed rule aimed at eliminating certain AKS
safe harbor protections for drug rebates.
The civil monetary penalties statute imposes penalties against any person or entity who, among other things, is determined to
have presented or caused to be presented a claim to a federal healthcare program that the person knows or should know is for an item
or service that was not provided as claimed or is false or fraudulent.
26
The FCA imposes liability on persons who, among other things, knowingly present or cause to be presented false or fraudulent
claims for payment to, or approval by the federal government knowingly making or using, or causing to be made or used a false
statement or record material to a claim to the federal government, or avoiding, decreasing or concealing an obligation to pay money to
the federal government. The civil FCA has been or can be used to assert liability on the basis of kickbacks and other improper
referrals, improperly reported government pricing metrics such as Best Price and Average Manufacturer Price, improper promotion of
uses not expressly approved by the FDA in a drug’s label, false statements associated with government grants, and allegations of
misrepresentations with respect to services rendered, as well as claims for payment that are inaccurate or fraudulent, that are for
services not provided as claimed, or for services that are not medically necessary. FCA claims may be based on noncompliance with
regulatory requirements under an implied certification theory if material to the government’s decision to buy or pay for a drug. Intent
to deceive is not required to establish liability under the civil FCA. Civil FCA liability may also be imposed for Medicare or Medicaid
overpayments caused by understated rebate amounts that are not refunded within 60 days of discovering the overpayment, even if the
overpayment was not caused by a false or fraudulent act. Actions under the FCA may be brought by the government or as a qui tam
action by a private individual in the name of the government. If the government intervenes in a qui tam action, and prevails, the qui
tam plaintiff will share in the proceeds from damages and fines or settlement funds. If the government declines to intervene, the qui
tam plaintiff may pursue the case alone. Violations of the FCA can result in significant monetary penalties and treble damages. The
government may further prosecute conduct under the criminal FCA, which prohibits the making or presenting of a claim to the
government knowing the claim to be false, fictitious or fraudulent. Unlike the civil FCA, conviction requires proof of intent to submit
a false claim.
Additionally, the FCPA, and similar worldwide anti-bribery laws, generally prohibit companies and their intermediaries from
making, offering or authorizing improper payments or other items of value, directly or indirectly, to foreign officials, political parties,
or candidates for the purpose of obtaining or retaining business. The FCPA also obligates companies whose securities are listed in the
United States to comply with accounting provisions requiring the company to maintain books and records that accurately and fairly
reflect all transactions of the corporation, including international subsidiaries, and to devise and maintain an adequate system of
internal accounting controls for international operations. Activities that violate the FCPA, even if they occur wholly outside the United
States, can result in criminal and civil fines, imprisonment, disgorgement, oversight, and debarment from government contracts. We
cannot assure you that our internal control policies and procedures will protect us from reckless or negligent acts committed by our
employees, future distributors, partners, collaborators or agents. Violations of these laws, or allegations of such violations, could result
in fines, penalties or prosecution and have a negative impact on our business, results of operations and reputation.
Payment or reimbursement of prescription drugs by Medicaid or Medicare requires manufacturers of the drugs to submit
pricing information to the Centers for Medicare & Medicaid Services, or CMS. The Medicaid Drug Rebate statute requires
manufacturers to calculate and report price points, which are used to determine Medicaid rebate payments shared between the states
and the federal government and Medicaid payment rates for the drug. For drugs paid under Medicare Part B, manufacturers must also
calculate and report their Average Sales Price or ASP, which is used to determine the Medicare Part B payment rate for the drug.
Drugs that are approved under a Biologic License Application, or BLA, or an NDA, including 505(b)(2) drugs, are subject to an
additional inflation penalty which can substantially increase rebate payments. In addition, for BLA and NDA drugs, the Veterans
Health Care Act, or VHCA, requires manufacturers to calculate and report to the Veterans Administration, or VA, a different price
called the Non-Federal Average Manufacturing Price, which is used to determine the maximum price that can be charged to certain
federal agencies, referred to as the Federal Ceiling Price, or FCP. Like the Medicaid rebate amount, the FCP includes an inflation
penalty. A Department of Defense regulation requires manufacturers to provide this discount on drugs dispensed by retail pharmacies
when paid by the TRICARE Program. All these price reporting requirements create risk of submitting false information to the
government, and potential FCA liability.
The VHCA also requires manufacturers of covered drugs participating in the Medicaid program to enter into Federal Supply
Schedule contracts with the VA through which their covered drugs must be sold to certain federal agencies at FCP and to report
pricing information. This necessitates compliance with applicable federal procurement laws and regulations and subjects us to
contractual remedies as well as administrative, civil, and criminal sanctions. In addition, the VHCA requires manufacturers
participating in Medicaid to agree to provide different mandatory discounts to certain Public Health Service grantees and other safety
net hospitals and clinics.
The federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, also created federal criminal statutes that
prohibit, among other actions, knowingly and willfully executing, or attempting to execute, a scheme to defraud or to obtain, by means
of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control
of, a healthcare benefit program, regardless of whether the payor is public or private, knowingly and willfully embezzling or stealing
from a health care benefit program, willfully obstructing a criminal investigation of a health care offense, and knowingly and willfully
falsifying, concealing, or covering up by any trick or device a material fact or making any materially false statements in connection
with the delivery of, or payment for, healthcare benefits, items, or services relating to healthcare matters. The ACA amended the intent
requirement of certain of these criminal statutes under HIPAA so that a person or entity no longer needs to have actual knowledge of
the statute, or the specific intent to violate it, to have committed a violation.
27
We may also be subject to data privacy and security regulation by both the federal government and the states in which we
conduct our business. HIPAA, as amended by the Health Information Technology and Clinical Health Act, or HITECH, and their
respective implementing regulations, including the final omnibus rule published on January 25, 2013, imposes specified requirements
relating to the privacy, security and transmission of individually identifiable health information. Among other things, HITECH makes
HIPAA’s privacy and security standards directly applicable to “business associates,” defined as a person or entity that performs
certain functions or activities that involve the use or disclosure of protected health information in connection with providing a service
for or on behalf of, or provide services to, a covered entity. HITECH also increased the civil and criminal penalties that may be
imposed against covered entities, business associates and possibly other persons, and gave state attorneys general new authority to file
civil actions for damages or injunctions in federal courts to enforce the federal HIPAA laws and seek attorney’s fees and costs
associated with pursuing federal civil actions. In addition, state laws govern the privacy and security of health information in certain
circumstances, many of which differ from each other in significant ways and may not have the same effect.
Even for entities that are not deemed “covered entities” or “business associates” under HIPAA, according to the United States
Federal Trade Commission, or the FTC, failing to take appropriate steps to keep consumers’ personal information secure constitutes
unfair acts or practices in or affecting commerce in violation of Section 5(a) of the Federal Trade Commission Act, or the FTCA, 15
USC § 45(a). The FTC expects a company's data security measures to be reasonable and appropriate in light of the sensitivity and
volume of consumer information it holds, the size and complexity of its business, and the cost of available tools to improve security
and reduce vulnerabilities. Medical data is considered sensitive data that merits stronger safeguards. The FTC's guidance for
appropriately securing consumers' personal information is similar to what is required by the HIPAA Security Rule.
Payments made to physicians and other healthcare providers, and other financial interests, have been the subject of a range of
federal and state laws. The federal physician payment transparency requirements, sometimes referred to as the Physician Payments
Sunshine Act, or the Sunshine Act, was created under the ACA. The Sunshine Act, among other things, imposes reporting
requirements on drug manufacturers for payments or other transfers of value made by them to physicians and teaching hospitals, as
well as ownership and investment interests held by physicians, other healthcare providers, and their immediate family members.
Failure to submit required information may result in civil monetary penalties of up to an aggregate of $150,000 per year and up to an
additional aggregate of $1 million per year for “knowing failures,” for all payments, transfers of value or ownership or investment
interests that are not timely, accurately and completely reported in an annual submission. Beginning in 2021, the reporting and
transparency requirements for physicians will extend to physician assistants, nurse practitioners, and other mid-level healthcare
professionals, requiring the reporting of payments and transfers made in that same calendar year. Additionally, certain states also
mandate implementation of commercial compliance programs, impose restrictions on drug manufacturer marketing practices and/or
require the tracking and reporting of gifts, compensation and other remuneration to physicians and other healthcare professionals.
Analogous state laws and regulations, such as state anti-kickback and false claims laws, may apply to items or services
reimbursed by any third-party payor, including commercial insurers, and in some cases may apply regardless of payor. 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 drug manufacturers to report pricing and
marketing information, including, among other things, information related to payments to physicians and other healthcare providers or
marketing expenditures, state and local laws that require the registration of pharmaceutical sales representatives, and state laws
governing the privacy and security of health information and the use of prescriber-identifiable data in certain circumstances, many of
which differ from each other in significant ways and may not have the same effect, thus complicating compliance efforts.
To the extent that any of our products are sold in a foreign country, we may be subject to similar foreign laws and regulations,
which may include, for instance, applicable post-marketing requirements, including safety surveillance, anti-fraud and abuse laws, and
implementation of corporate compliance programs and reporting of payments or transfers of value to healthcare professionals.
If our operations are found to be in violation of any of such laws or any other governmental regulations that apply to us, we
may be subject to penalties, including, without limitation, civil, administrative, and criminal penalties, damages, fines, disgorgement,
the curtailment or restructuring of our operations, exclusion from participation in federal and state healthcare programs and individual
imprisonment, injunctions, private qui tam actions brought by individual whistleblowers in the name of the government, as well as
additional reporting obligations and oversight if we become subject to a corporate integrity agreement or other agreement to resolve
allegations of non-compliance with these laws, any of which could adversely affect our ability to operate our business and our
financial results.
28
Coverage and Reimbursement
Sales of pharmaceutical products depend significantly on the availability of third-party coverage and reimbursement. Third-
party payors include Medicare, Medicaid, and other government programs at the federal and state level, managed care providers,
private health insurers and other organizations. Third party payors decide which drugs they will pay for on behalf of their beneficiaries
and establish reimbursement levels for health care. Although we currently believe that third-party payors will provide coverage and
reimbursement for our product candidates, if approved, these third-party payors are increasingly challenging the price and examining
the cost-effectiveness of medical products and services, with a recent focus on prioritization of “equivalent,” less expensive
alternatives when available. In addition, significant uncertainty exists as to the reimbursement status of newly approved healthcare
products. We may need to conduct expensive clinical studies to demonstrate the comparative cost-effectiveness of our products. The
product candidates that we develop may not be considered cost-effective. It is time consuming and expensive for us to seek coverage
and reimbursement from third-party payors. Moreover, a payor’s decision to provide coverage for a drug product does not imply that
an adequate reimbursement rate will be approved, especially for product candidates such as ours, which are used in the inpatient
setting, usually resulting in no separate reimbursement for pharmaceuticals. There are additional pressures on pricing as a result of
other, peripheral policies impacting reimbursement across both government and private payors. Non-health specific policies may
impart downstream impacts on private insurance reimbursement decision-making. In consideration of these numerous factors,
reimbursement may not be available or sufficient to allow us to sell our products on a competitive and profitable basis.
Medicare is a federally-funded program managed by CMS through local contractors that administer coverage and
reimbursement for certain healthcare items and services furnished to the elderly and disabled. Medicare Part A covers inpatient
hospitalization and Medicare Part B covers outpatient medical services. Medicare coverage of drugs and biological products and
payment rates to providers are established by federal law and regulations. Medicaid is an insurance program for certain categories of
low income patients who are otherwise uninsured and is both federally and state funded and managed by each state. The federal
government sets general guidelines for Medicaid and requires rebates on outpatient drugs and biological products, including those
administered by physicians if the cost is billed separately. Each state creates specific regulations that govern its individual program,
including supplemental rebate programs that prioritize coverage for drugs on the state Preferred Drug List. Government laws and
regulations also establish price controls on prescription drugs purchased by government agencies that provide health care and certain
federally funded hospital outpatient departments and clinics. In the United States, private health insurers and other third-party payors
often provide reimbursement for products and services based on the level at which the government provides reimbursement through
the Medicare or Medicaid programs for such products and services. These restrictions and limitations influence the purchase of
healthcare services and products. In addition, government programs like Medicaid include substantial penalties for increasing
commercial prices over the rate of inflation which can affect realization and return on investment. Further, some stakeholders have
recently questioned whether the market price of prescription drugs may be inflated by virtue of the built-in cost imparted by the
government rebate model, often negotiated indirectly in exchange for a coverage determination or formulary placement where
relevant.
In the United States, the European Union, and other potentially significant markets for our product candidates, government
authorities and private third-party payors are increasingly attempting to limit or regulate the price of medical products and services,
particularly for new and innovative products and therapies, which often has resulted in average selling prices lower than they would
otherwise be. Manufacturers frequently must rebate a portion of the prescription price to the third-party payors as a condition of
coverage, which can greatly reduce realization on the sale. Third-party payors are increasingly challenging the price and examining
the medical necessity and cost-effectiveness of medical products and services, in addition to their safety and efficacy, and are
developing increasingly sophisticated methods of controlling healthcare costs. They may limit coverage to specific drug products on
an approved list, or formulary, which might not include all the FDA-approved drug products for a particular indication, or they may
control costs, particularly for new expensive therapies, by requiring prior authorization or imposing other restrictions before covering
certain products, or they may condition payment based on achieving performance metrics. Legislative proposals to reform healthcare
or reduce costs under government programs may result in lower reimbursement for our product candidates or exclusion of our product
candidates from coverage.
Achieving favorable CMS coverage and reimbursement is usually a significant gating issue for successful introduction of a new
product, because Medicare and Medicaid can represent a sizeable share of the market and because private payors often rely on the lead
of the governmental payors in rendering coverage and reimbursement determinations. Further, the increased emphasis on managed
healthcare in the United States and on country and regional pricing and reimbursement controls in the European Union will likely put
additional pressure on product pricing, reimbursement, and utilization, which may adversely affect our future product sales and results
of operations. These pressures can arise from rules and practices of managed care groups, competition within therapeutic classes,
availability of generic equivalents, judicial decisions and governmental laws and regulations related to Medicare, Medicaid, and
healthcare reform, pharmaceutical coverage and reimbursement policies, and pricing in general. 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. Sales of our product candidates will therefore depend substantially, both domestically and
abroad, on the extent to which the costs of our products will be paid by health maintenance, managed care, pharmacy benefit and
similar healthcare management organizations, or reimbursed by government health administration authorities, such as Medicare and
Medicaid, private health insurers, and other third-party payors.
29
As a result of the above, we may need to conduct expensive pharmacoeconomic studies in order to demonstrate the medical
necessity and cost-effectiveness of our products, in addition to the costs required to obtain FDA approvals. Our product candidates
may not be considered medically necessary or cost-effective. A payor’s decision to provide coverage for a drug product does not
imply that an adequate reimbursement rate will be approved. Adequate third-party reimbursement may not be available to ensure
acceptance and use of our products and product candidates or enable us to maintain price levels sufficient to realize an appropriate
return on our investment in drug development. Legislative and regulatory proposals to reform healthcare or reduce costs under
government insurance programs may result in lower reimbursement for our products and product candidates or exclusion of our
products and product candidates from coverage. The cost containment measures that healthcare payors and providers are instituting
and any healthcare reform could significantly reduce our revenues from the sale of any approved product candidates. We cannot
provide any assurances that we will be able to obtain and maintain third-party coverage or adequate reimbursement for our product
candidates in whole or in part.
Healthcare Reform
The United States and some foreign jurisdictions are considering or have enacted a number of legislative and regulatory
proposals to change the healthcare system in ways that could affect our ability to sell our products profitably. Among policy makers
and payors in the United States and elsewhere, there is significant interest in promoting changes in healthcare systems with the stated
goals of containing healthcare costs, improving quality and/or expanding access. In the United States, the pharmaceutical industry has
been a particular focus of these efforts and has been significantly affected by major federal and state legislative initiatives.
In addition, other legislative and regulatory changes have been proposed and adopted since the ACA was enacted. These
changes include aggregate reductions to Medicare payments to providers of up to 2% per fiscal year, starting in 2013, which will
remain in effect through 2025 unless additional Congressional action is taken. In January 2013, the American Taxpayer Relief Act of
2012, which, among other things, further reduced Medicare payments to several providers, including hospitals and cancer treatment
centers, increased the statute of limitations period for the government to recover overpayments to providers from three to five years. In
2017, CMS promulgated a rule reducing Medicare Part B reimbursement to hospitals for drugs purchased under the 340B program by
30%. Although hospital trade associations filed a lawsuit challenging the regulation, the final rule is now in effect. These new laws
may result in additional reductions in Medicare and other healthcare funding, which could have a material adverse effect on customers
for our product candidates, if approved, and, accordingly, our financial operations.
Any reduction in reimbursement from Medicare or other government-funded programs may result in a similar reduction in
payments from private payors. The implementation of cost containment measures or other healthcare reforms may prevent us from
being able to generate revenue, attain profitability or commercialize our drugs.
The cost of pharmaceuticals continues to generate substantial governmental and third-party payor interest and states have begun
to take action to increase transparency in drug pricing through mandatory reporting requirements. We expect that the pharmaceutical
industry will experience pricing pressures due to the trend toward managed healthcare, the increasing influence of managed care
organizations, and additional legislative proposals. Our results of operations could be adversely affected by current and future
healthcare reforms. While we cannot predict whether any proposed cost-containment measures will be adopted or otherwise
implemented in the future, the announcement or adoption of these proposals could have a material adverse effect on our ability to
obtain adequate prices for our product candidates and operate profitably.
Foreign Regulation
In addition to regulations in the United States, we will be subject to a variety of foreign regulations governing clinical trials and
commercial sales and distribution of our products to the extent we choose to develop or sell any products outside of the United States.
The approval process varies from country to country and the time may be longer or shorter than that required to obtain FDA approval.
The requirements governing the conduct of clinical trials, product licensing, pricing and reimbursement vary greatly from country to
country.
In the EU, member states require both regulatory clearances by the national competent authority and a favorable ethics
committee opinion prior to the commencement of a clinical trial. Under the EU regulatory systems, marketing authorization
applications may be submitted under either a centralized or decentralized procedure. The centralized procedure provides for the grant
of a single marketing authorization that is valid for all EU member states. It is compulsory for medicines produced by certain
biotechnological processes. Because our products are produced in that way, we would be subject to the centralized process. Under the
centralized procedure, pharmaceutical companies submit a single marketing authorization application to the European Medicines
Agency. Once granted by the European Commission, a centralized marketing authorization is valid in all EU member states, as well as
the European Economic Area countries. By law, a company can only start to market a medicine once it has received a marketing
authorization.
30
Employees
As of December 31, 2018, we had 88 employees, 67 of whom were engaged in research and development activities and 21 of
whom were engaged in general and administrative support activities. None of our employees are subject to a collective bargaining
agreement. We consider our relationship with our employees to be good. Our future performance depends significantly upon the
continued service of our key scientific, technical and senior management personnel.
Available Information
We maintain a website at www.iovance.com and make available there, free of charge, our periodic reports filed with the
Securities and Exchange Commission (SEC), as soon as is reasonably practicable after filing. The SEC maintains a website at
http:/www.sec.gov that contains reports, proxy and information statements, and other information regarding issuers such as us that file
electronically with the SEC.
Item 1A.
Risk Factors
The risks described below may not be the only ones relating to our company. Additional risks that we currently believe are
immaterial may also impair our business operations. Our business, financial conditions and future prospects and the trading price of
our common stock could be harmed as a result of any of these risks. Investors should also refer to the other information contained or
incorporated by reference in this Annual Report on Form 10-K, including our financial statements and related notes, and our other
filings from time to time with the Securities and Exchange Commission.
Risks Related to Our Business
We have a history of operating losses; we expect to continue to incur losses and we may never be profitable.
We are a clinical-stage biotechnology company focused on the development and commercialization of novel cancer
immunotherapy products designed to harness the power of a patient's own immune system to eradicate cancer cells. We do not have
products approved for commercial sale and have not generated revenue from operations. As of December 31, 2018, we had an
accumulated deficit of $372.8 million. In addition, during the fiscal year ended December 31, 2018, we incurred a net loss of $123.6
million. Since our inception we have not generated any revenues from operations. We do not expect to generate any meaningful
product sales or royalty revenues for the foreseeable future. We expect to incur significant additional operating losses in the future as
we expand our development and clinical trial activities in support of demonstrating the effectiveness of our products.
Our ability to achieve long-term profitability is dependent upon obtaining regulatory approvals for our products and
successfully commercializing our products alone or with third parties. However, our operations may not be profitable even if any of
our products under development are successfully developed and produced and thereafter commercialized.
We have limited experience in operating our current business, which makes it difficult to evaluate our business plan and
our prospects.
We have only a limited operating history in our current line of business on which a decision to invest in our company can be
based. The future of our company currently is dependent upon our ability to implement our business plan, as that business plan may be
modified from time to time by our management and Board of Directors. While we believe that we have a sound business plan and
research and development strategy, we have only a limited operating history against which we can test our plans and assumptions, and
investors therefore cannot evaluate the likelihood of our success.
We face the problems, expenses, difficulties, complications and delays normally associated with a small, biotechnology
company, many of which are beyond our control. Accordingly, our prospects should be considered in light of the risks, expenses and
difficulties frequently encountered in the establishment of a new business developing technologies in an industry that is characterized
by a number of market entrants and intense competition. Because of our size and limited resources, we may not possess the ability to
successfully overcome many of the risks and uncertainties frequently encountered by early stage companies involved in the rapidly
evolving field of immunotherapy. If our research and development efforts are successful, we may also face the risks associated with
the shift from development to commercialization of new products based on innovative technologies. There can be no assurance that
we will be successful in developing our new business.
31
We are substantially dependent on the success of our product candidates and cannot guarantee that these product
candidates will successfully complete development, receive regulatory approval, or be successfully commercialized.
We currently have no products approved for commercial distribution. We have invested a significant portion of our efforts and
financial resources in the development of our current product candidates, lifileucel and LN-145 and expect that we will continue to
invest heavily in our current product candidates, as well as in any future product candidates we may develop. Our business depends
entirely on the successful development and commercialization of our product candidates, which may never occur. Our ability to
generate revenues in the future is substantially dependent on our ability to develop, obtain regulatory approval for, and then
successfully commercialize our product candidates. We currently generate no revenue from the sale of any products, and we may
never be able to develop or commercialize a marketable product.
Our product candidates will require additional clinical and non-clinical development, regulatory approval, commercial
manufacturing arrangements, establishment of a commercial organization, significant marketing efforts, and further investment before
we generate any revenue from product sales. We cannot assure you that we will meet our timelines for our current or future clinical
trials, which may be delayed or not completed for a number of reasons.
We are not permitted to market or promote any of our product candidates before we receive regulatory approval from the FDA
or comparable foreign regulatory authorities, and we may never receive such regulatory approval for any of our product candidates or
regulatory approval that will allow us to successfully commercialize our product candidates. If we do not receive FDA approval with
the necessary conditions to allow successful commercialization, and then successfully commercialize our product candidates, we will
not be able to generate revenue from those product candidates in the United States in the foreseeable future, or at all. Any significant
delays in obtaining approval for and commercializing our product candidates will have a material adverse impact on our business and
financial condition.
We have not previously submitted a BLA to the FDA, or similar marketing application to comparable foreign authorities, for
any product candidate, and we cannot be certain that our current or any future product candidates will be successful in clinical trials or
receive regulatory approval.
Our product candidates are susceptible to the risks of failure inherent at any stage of product development, including the
appearance of unexpected adverse events or failure to achieve primary endpoints in clinical trials. Further, our product candidates may
not receive regulatory approval even if they are successful in clinical trials.
If approved for marketing by applicable regulatory authorities, our ability to generate revenues from our product candidates will
depend on our ability to:
create market demand for our product candidates through our own marketing and sales activities, and any other
arrangements to promote these product candidates that we may otherwise establish;
receive regulatory approval for claims that are necessary or desirable for successful marketing;
hire, train, and deploy a sales force or contract with a third party for a sales force to commercialize product candidates in
the United States;
manufacture product candidates in sufficient quantities and at acceptable quality and manufacturing cost to meet
commercial demand at launch and thereafter;
establish and maintain agreements with wholesalers, distributors, and group purchasing organizations on commercially
reasonable terms;
create partnerships with, or offer licenses to, third parties to promote and sell product candidates in foreign markets where
we receive marketing approval;
maintain patent and trade secret protection and regulatory exclusivity for our product candidates;
launch commercial sales of our product candidates, whether alone or in collaboration with others;
achieve market acceptance of our product candidates by patients, the medical community, and third-party payors;
achieve appropriate reimbursement for our product candidates;
effectively compete with other therapies or competitors; and
maintain a continued acceptable safety profile of our product candidates following launch.
We have limited experience as a company conducting clinical trials and face risks due to the need to rely on third parties.
We have limited experience conducting pre-clinical and clinical trials and have no experience as a company in filing and
supporting the applications necessary to gain marketing approvals. Securing marketing approval requires the submission of extensive
preclinical and clinical data and supporting information to regulatory authorities for each therapeutic indication to establish the
product candidate’s safety, purity, and potency for that indication. Securing marketing approval also requires the submission of
information about the product manufacturing process to, and inspection of manufacturing facilities and clinical trial sites by,
applicable regulatory authorities. Clinical testing is expensive and can take many years to complete, and its outcome is inherently
uncertain. Failure can occur at any time during the clinical trial process. We have limited experience in designing clinical trials and
may be unable to design and execute a clinical trial to support marketing approval.
32
Prior to 2015, all the preclinical and clinical trials relating to our product candidates manufactured using the Gen 1 process had
been conducted by the NCI. We have recruited a team that has experience with clinical trials; however, we as a company have limited
experience in conducting clinical trials. In part because of this lack of experience, we cannot be certain that our ongoing clinical trials
will be completed on time, if at all, will progress according to our plans or expectations, or that our planned clinical trials will be
initiated, progress according to our plans or expectations, or be completed on time, if they are completed at all.
Large-scale trials require significant financial and management resources, and reliance on third-party clinical investigators,
contract research organizations or CROs, contract manufacturing organizations or CMOs, or consultants. Relying on third-party clinical
investigators, CROs or CMOs may force us to encounter delays and challenges that are outside of our control. We rely on CMOs in the
United States and Europe to manufacture TIL for use in our trials. We may not be able to demonstrate sufficient comparability between
products manufactured at different facilities to allow for inclusion of the clinical results from patients treated with products from these
different facilities, in our product registrations. Further, our CMOs may not be able to manufacture TIL or otherwise fulfill their
obligations to us because of interruptions to their business, including the loss of their key staff or interruptions to their raw material
supply.
We rely on third party CROs and clinical trial sites to conduct, supervise, and monitor our clinical trials for our product
candidates. We expect to continue to rely on third parties, such as CROs, clinical data management organizations, medical institutions,
independent review organizations and clinical investigators, to conduct our clinical trials. While we have agreements governing their
activities, we have limited influence over their actual performance and control only certain aspects of their activities. The failure of
these third parties to successfully carry out their contractual duties or meet expected deadlines could substantially harm our business
because we may be delayed in completing or unable to complete the clinical trials required to support future approval of our product
candidates, or we may not obtain marketing approval for or commercialize our product candidates in a timely manner or at all.
Moreover, these agreements might terminate for a variety of reasons, including a failure to perform by the third parties. For example,
as of April 9, 2018, we terminated our clinical trials agreement with the Karolinska University Hospital. If we need to enter into
alternative arrangements, that could delay our product development activities and adversely affect our business.
Our reliance on these third parties for development activities will reduce our control over these activities. Nevertheless, we are
responsible for ensuring that each of our studies is conducted in accordance with the applicable protocol, legal, regulatory, and
scientific standards and our reliance on the CROs, clinical trial sites, and other third parties does not relieve us of our regulatory
responsibilities. For example, we will remain responsible for ensuring that each of our clinical trials is conducted in accordance with
the general investigational plan and protocols for the trial and for ensuring that our preclinical trials are conducted in accordance with
Good Laboratory Practices, or GLPs, as appropriate. Moreover, the FDA and comparable foreign regulatory authorities require us to
comply with GCPs 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. Regulatory authorities enforce
these requirements through periodic inspections of trial sponsors, clinical investigators, and trial sites. If we, our CROs, clinical trial
sites, or other third parties fail to comply with applicable GCPs or other regulatory requirements, we or they may be subject to
enforcement or other legal actions, the clinical data generated in our clinical trials may be deemed unreliable and the FDA or
comparable foreign regulatory authorities may require us to perform additional clinical trials. We cannot assure you that upon
inspection by a given regulatory authority, such regulatory authority will determine that any of our clinical trials complies with GCP
regulations.
In addition, we will be required to report certain financial interests of our third-party investigators if these relationships exceed
certain financial thresholds or meet other criteria. The FDA or comparable foreign regulatory authorities may question the integrity of
the data from those clinical trials conducted by investigators that are determined to have conflicts of interest.
In addition, our clinical trials must be conducted with product candidates that were produced under cGMP regulations. Our
failure to comply or our CMOs’ failure to comply with these regulations may require us to repeat clinical trials, which would delay the
regulatory approval process. We also are required to register certain clinical trials and post the results of certain completed clinical
trials on a government sponsored database, ClinicalTrials.gov, within specified timeframes. Failure to do so can result in enforcement
actions and adverse publicity.
33
Our CROs, clinical trial sites, and other third parties may also have relationships with other entities, some of which may be our
competitors, for whom they may also be conducting clinical trials or other therapeutic development activities that could harm our
competitive position. In addition, these third parties are not our employees, and except for remedies available to us under our
agreements with them, we cannot control whether or not they devote sufficient time and resources to our ongoing clinical, non-
clinical, and preclinical programs. If these third parties do not successfully carry out their contractual duties, meet expected deadlines
or conduct our clinical trials in accordance with regulatory requirements or our stated protocols, if they need to be replaced or if the
quality or accuracy of the data they obtain is compromised due to the failure to adhere to our protocols, regulatory requirements or for
other reasons, our trials may be repeated, extended, delayed, or terminated and we may not be able to obtain, or may be delayed in
obtaining, marketing approvals for our product candidates and will not be able to, or may be delayed in our efforts to, successfully
commercialize our product candidates, or we or they may be subject to regulatory enforcement actions. As a result, our results of
operations and the commercial prospects for our product candidates would be harmed, our costs could increase and our ability to
generate revenues could be delayed. To the extent we are unable to successfully identify and manage the performance of third party
service providers in the future, our business may be materially and adversely affected.
If any of our relationships with these third parties terminate, we may not be able to enter into arrangements or do so on
commercially reasonable terms. Switching or adding additional contractors involves additional cost and requires management time
and focus. In addition, there is a natural transition period when a new third party commences work. As a result, delays could occur,
which could compromise our ability to meet our desired development timelines. Though we carefully manage our relationships with
our third-party service providers, there can be no assurance that we will not encounter similar challenges or delays in the future or that
these delays or challenges will not have a material adverse impact on our business, financial condition and prospects or results of
operations.
We also rely on other third parties to distribute our products for the clinical trials that we conduct. Any performance failure on
the part of our distributors could delay clinical development or marketing approval of our product candidates or any additional product
candidates or commercialization of our product candidates, if approved, producing additional losses and depriving us of potential
product revenue.
We may encounter substantial delays in our clinical trials or may not be able to conduct our trials on the timelines we expect
and we may be required to conduct additional clinical trials or modify current or future clinical trials based on feedback we receive
from the FDA.
Clinical testing is expensive, time consuming, and subject to uncertainty. We cannot guarantee that any current or future
clinical studies will be conducted as planned or completed on schedule, if at all, or that any of our product candidates will receive
regulatory approval. We initiated clinical trials in patients with metastatic melanoma, cervical, head and neck and non-small cell lung
cancers, and in other indications in collaboration with third parties. We plan to initiate trials in new indications, and new cohorts in
existing trials. Even as these trials progress, issues may arise that could require us to suspend or terminate such clinical trials or could
cause the results of one cohort to differ from a prior cohort. A failure of one or more clinical studies can occur at any stage of testing,
and our future clinical studies may not be successful. Events that may prevent successful or timely initiation or completion of clinical
development, or product approval include:
inability to generate sufficient preclinical data to support the initiation of clinical studies;
regulators or Institutional Review Boards, or IRBs may not authorize us or our investigators to commence a clinical trial,
conduct a clinical trial at a prospective trial site, or amend trial protocols, or regulators or IRBs may require that we modify
or amend our clinical trial protocols;
delays in reaching a consensus or inability to obtain agreement with regulatory agencies on study design;
the FDA or comparable foreign regulatory authorities may disagree with our intended indications, study design or our
interpretation of data from preclinical studies and clinical trials or find that a product candidate’s benefits do not outweigh
its safety risks;
the FDA or comparable foreign regulatory authorities may not accept data from studies with clinical trial sites in foreign
countries;
the FDA may not allow us to use the clinical trial data from a research institution to support an IND if we cannot
demonstrate the comparability of our product candidates with the product candidate used by the relevant research
institution in its clinical studies;
delays in or failure to reach an agreement on acceptable terms with prospective CROs and clinical study sites, the terms of
which can be subject to extensive negotiation and may vary significantly among different CROs and clinical study sites;
delays in obtaining required IRB approval at each clinical study site;
imposition of a temporary or permanent clinical hold, suspensions or terminations by regulatory agencies, IRBs, or us for
various reasons, including noncompliance with regulatory requirements or a finding that the participants are being exposed
to unacceptable health risks, undesirable side effects, or other unexpected characteristics of the product candidate, or due to
findings of undesirable effects caused by a chemically or mechanistically similar therapeutic or therapeutic candidate;
34
delays in recruiting suitable patients to participate in our clinical studies;
delay in adding new investigators or clinical trial sites, or withdrawal of clinical trial sites from a study;
delay or change in strategic direction for an indication resulting from differences in results between cohorts in a clinical
trial, such as Cohort 2 and Cohort 4 of the C-144-01 clinical trial, including differences in patient population, or from
different interpretations of the results using a BIRC;
failure by our CROs, clinical trial sites, patients, or other third parties, or us to adhere to clinical study requirements,
including regulatory, contractual or protocol requirements;
failure to perform in accordance with the FDA’s cGCP requirements, or applicable regulatory guidelines in other countries;
the number of patients required for clinical trials of our product candidates may be larger than we anticipate or enrollment
in these clinical trials may be slower than we anticipate;
patients that enroll in our studies may misrepresent their eligibility or may otherwise not comply with the clinical trial
protocol, resulting in the need to drop such patients from the study or clinical trial, increase the needed enrollment size for
the study or clinical trial or extend the study’s or clinical trial’s duration;
patients dropping out of a study;
occurrence of adverse events associated with the product candidate that are viewed to outweigh its potential benefits;
changes in regulatory requirements and guidance that require amending or submitting new clinical protocols to regulatory
authorities and IRBs, and which may cause delays in our development programs, or changes to regulatory review times;
there may be regulatory questions or disagreements regarding interpretations of data and results, or new information may
emerge regarding our product candidates;
changes in the standard of care on which a clinical development plan was based, which may require new or additional
trials;
the cost of clinical studies of our product candidates being greater than we anticipate, or we may have insufficient funds for
a clinical trial or to pay the substantial user fees required by the FDA upon the filing of a BLA;
clinical studies of our product candidates producing negative or inconclusive results may fail to provide sufficient data and
information to support product approval, or our studies may fail to reach the necessary level of statistical or clinical
significance, which may result in our deciding, or regulators requiring us, to conduct additional clinical studies, or
preclinical studies, or abandon product development programs;
early results from our clinical studies of our product candidates may be negatively affected by changes in efficacy
measures such as overall response rate and duration of response as more patients are enrolled in our clinical trials or as new
cohorts of our clinical trials are tested, and overall response rate and duration of response may be negatively affected by the
inclusion of unconfirmed responses in preliminary results that we report if such responses are not later confirmed;
we may not be able to demonstrate that a product candidate provides an advantage over current standards of care or current
or future competitive therapies in development;
there may be changes to the therapeutics or their regulatory status which we are administering in combination with our
product candidates;
the FDA or comparable foreign regulatory authorities may fail to approve or subsequently find fault with the
manufacturing processes or our manufacturing facilities for clinical and future commercial supplies;
the FDA or comparable regulatory authorities may take longer than we anticipate making a decision on our product
candidates;
transfer of our manufacturing processes to our contract manufacturers or other larger-scale facilities operated by a CMO
and delays or failure by our CMOs or us to make any necessary changes to such manufacturing process;
our use of different manufacturing processes within our clinical trials, including our Gen 1 and Gen 2 manufacturing
processes, and any effects that may result from the use of different processes on the clinical data that we have reported and
will report in the future; and
delays in manufacturing, testing, releasing, validating, or importing/exporting sufficient stable quantities of our product
candidates for use in clinical studies or the inability to do any of the foregoing, including as a result of any quality issues
associated with the contract manufacturer.
We also may conduct clinical and preclinical research in collaboration with other biotechnology and biologics entities in which
we combine our technologies with those of our collaborators. Such collaborations may be subject to additional delays because of the
management of the trials, contract negotiations, the need to obtain agreement from multiple parties, and the necessity of obtaining
additional approvals for therapeutics used in the combination trials. These combination therapies will require additional testing and
clinical trials will require additional FDA regulatory approval and will increase our future cost of expenses.
35
Any inability to successfully complete preclinical and clinical development could result in additional costs to us or impair our
ability to generate revenue. In addition, if we make manufacturing or formulation changes to our product candidates, we may be
required to, or we may elect to, conduct additional studies to bridge our modified product candidates to earlier versions. These
changes may require the FDA approval or notification, may not have their desired effect and the FDA may not accept data from prior
versions of the product to support an application, delaying our clinical trials or programs or necessitating additional clinical or
preclinical studies. By example, we changed our manufacturing process from our first generation, or Gen 1 to our second generation,
or Gen 2 to decrease the production time and allow for the cryopreservation of the product. We may find that this update has
unintended consequences that necessitates additional development and manufacturing work, additional clinical and preclinical studies,
or that results in non-approval of a BLA.
Clinical study delays could shorten any periods during which our products have patent protection and may allow our
competitors to bring products to market before we do, which could impair our ability to successfully commercialize our product
candidates and may harm our business and results of operations.
Regulatory authorities have substantial discretion in the approval process and may refuse to accept any application or may
decide that our data are insufficient for approval and require additional preclinical, clinical or other studies. The number and types of
preclinical studies and clinical trials that will be required for regulatory approval also varies depending on the product candidate, the
disease or condition that the product candidate is designed to address, and the regulations applicable to any particular product
candidate. Approval policies, regulations or the type and amount of clinical data necessary to gain approval may change during the
course of a product candidate’s clinical development and may vary among jurisdictions. It is possible that neither of our product
candidates nor any product candidates we may seek to develop in the future will ever obtain the appropriate regulatory approvals
necessary for us or any future collaborators to commence product sales. Any delay in completing development, obtaining or failure to
obtain required approvals could also materially adversely affect our ability or that of any of our collaborators to generate revenue from
any such product candidate, which likely would result in significant harm to our financial position and adversely impact our stock
price.
It may take longer and cost more to complete our clinical trials than we project, or we may not be able to complete them at
all.
For budgeting and planning purposes, we have projected the date for the commencement of future trials, and continuation and
completion of our ongoing clinical trials. However, a number of factors, including scheduling conflicts with participating clinicians
and clinical institutions, and difficulties in identifying and enrolling patients who meet trial eligibility criteria, may cause significant
delays. We may not commence or complete clinical trials involving any of our products as projected or may not conduct them
successfully.
We have opened enrollment of our company-sponsored, Phase 2 clinical trials to establish the feasibility of our product, and to
assess its overall safety in patients with metastatic melanoma, cervical, head and neck and lung cancers. However, we may experience
difficulties in patient enrollment in our clinical trials for a variety of reasons. For example, we have nine active clinical sites for the
company-sponsored NSCLC study, yet we have not yet been able to infuse any patients. As a further example, KEYTRUDA has
recently been approved in cervical cancer patients that expressed PD-L1≥ 1. We have recently amended the protocol for our cervical
cancer study to exclude patients with prior immunotherapy treatment and to limit the number of prior treatments to no more than three.
It is difficult to assess the impact, if any, on the recent approval of KEYTRUDA and the amendment of the protocol on the potential
enrollment in the cervical cancer study. Our ability to enroll or treat patients in our other studies, or the duration or costs of those
studies, could be affected by similar factors. Furthermore, the timely completion of clinical trials in accordance with their protocols
depends, among other things, on our ability to enroll a sufficient number of patients who remain in the study until its conclusion. In
addition, our clinical trials will compete with other clinical trials for product candidates that are in the same therapeutic areas as our
product candidates, and this competition will reduce the number and types of patients available to us, because some patients who
might have opted to enroll in our trials may instead opt to enroll in a trial being conducted by one of our competitors. Accordingly, we
cannot guarantee that the trial will progress as planned or as scheduled. Delays in patient enrollment may result in increased costs or
may affect the timing or outcome of our ongoing clinical trial and planned clinical trials, which could prevent completion of these
trials and adversely affect our ability to advance the development of our product candidates.
We expect to rely on medical institutions, academic institutions or CROs to conduct, supervise or monitor some or all aspects
of clinical trials involving our products. We will have less control over the timing and other aspects of these clinical trials than if we
conducted them entirely on our own. If we fail to commence or complete, or experience delays in, any of our planned clinical trials,
our stock price and our ability to conduct our business as currently planned could be harmed.
We currently anticipate that we will have to rely on our CMOs to manufacture our adoptive cell therapy products for clinical
trials. If they fail to commence or complete, or experiences delays in, manufacturing our adoptive cell therapy products, our planned
clinical trials will be delayed, which will adversely affect our stock price and our ability to conduct our business as currently planned.
36
Clinical trials are expensive, time-consuming and difficult to design and implement, and our clinical trial costs may be
higher than for more conventional therapeutic technologies or drug products.
Clinical trials are expensive and difficult to design and implement, in part because they are subject to rigorous regulatory
requirements. Because our product candidates are based on new cell therapy technologies and manufactured on a patient-by-patient
basis, we expect that they will require extensive research and development and have substantial manufacturing costs. In addition, costs
to treat patients with relapsed/refractory cancer and to treat potential side effects that may result from our product candidates can be
significant. Some clinical trial sites may not bill, or obtain coverage from, Medicare, Medicaid, or other third-party payors for some or
all of these costs for patients enrolled in our clinical trials, and we may be required by those trial sites to pay such costs. Accordingly,
our clinical trial costs are likely to be significantly higher per patient than those of more conventional therapeutic technologies or drug
products. In addition, our proposed personalized product candidates involve several complex and costly manufacturing and processing
steps, the costs of which will be borne by us. We are also responsible for the manufacturing costs of products for patients that may
have a tumor resection but ultimately do not receive an infusion. Depending on the number of patients that we ultimately screen and
enroll in our trials, and the number of trials that we may need to conduct, our overall clinical trial costs may be higher than for more
conventional treatments.
Our clinical trials may fail to demonstrate adequately the safety and efficacy of our product candidates, which would
prevent or delay regulatory approval and commercialization.
The clinical trials of our product candidates are, and the manufacturing and marketing of our products will be, subject to
extensive and rigorous review and regulation by numerous government authorities in the United States and in other countries where
we intend to test and market our product candidates. Before obtaining regulatory approvals for the commercial sale of any of our
product candidates, we must demonstrate through lengthy, complex and expensive preclinical testing and clinical trials that our
product candidates are both safe and effective for use in each target indication. Because our product candidates are subject to
regulation as biological drug products, we will need to demonstrate that they are safe, pure, and potent for use in their target
indications. Each product candidate must demonstrate an adequate risk versus benefit profile in its intended patient population and for
its intended use. The risk/benefit profile required for product licensure will vary depending on these factors and may include not only
the ability to show tumor shrinkage, but also adequate duration of response, a delay in the progression of the disease, and/or an
improvement in survival. For example, response rates from the use of our product candidates may not be sufficient to obtain
regulatory approval unless we can also show an adequate duration of response. Regulatory authorities may ultimately disagree with
our chosen endpoints or may find that our studies or study results do not support product approval. Clinical testing is expensive and
can take many years to complete, and its outcome is inherently uncertain. Failure can occur at any time during the clinical trial
process. The results of preclinical studies and early clinical trials of our product candidates with small patient populations may not be
predictive of the results of later-stage clinical trials or the results once the applicable clinical trials are completed. Preliminary, single
cohort, or top-line results from clinical studies may not be representative of the final study results. The results of studies in one set of
patients or line of treatment may not be predictive of those obtained in another and the results in various human clinical trials reported
in scientific and medical literature may not be indicative of results we obtain in our clinical trials. Product candidates in later stages of
clinical trials may fail to show the desired safety and efficacy traits despite having progressed through preclinical studies and initial
clinical trials. Preclinical studies may also reveal unfavorable product candidate characteristics, including safety concerns.
We expect there may be greater variability in results for products processed and administered on a patient-by-patient basis, as
anticipated for our product candidates, than for “off-the-shelf” products, like many other drugs. There is typically an extremely high
rate of attrition from the failure of product candidates proceeding through clinical trials. Product candidates in later stages of clinical
trials may fail to show the desired safety and efficacy profile despite having progressed through preclinical studies and initial clinical
trials. Many companies in the biopharmaceutical industry have suffered significant setbacks in advanced clinical trials due to lack of
efficacy or unacceptable safety issues, notwithstanding promising results in earlier trials. Most product candidates that begin clinical
trials are never approved by regulatory authorities for commercialization.
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 clinical trial protocols and the rate of dropout among clinical trial
participants. Our current and future clinical trial results may not be successful. Moreover, should there be a flaw in a clinical trial, it
may not become apparent until the clinical trial is well advanced. Further, because we currently plan to develop our product candidates
for use with other oncology products, the design, implementation, and interpretation of the clinical trials necessary for marketing
approval may be more complex than if we were developing our product candidates alone.
In addition, even if such trials are successfully completed, we cannot guarantee that the FDA or foreign regulatory authorities
will interpret the results as we do, and more trials could be required before we submit our product candidates for approval. To the
extent that the results of the trials are not satisfactory to the FDA or foreign regulatory authorities for support of a marketing
application, we may be required to expend significant resources, which may not be available to us, to conduct additional trials in
support of potential approval of our product candidates.
37
We have reported preliminary results for clinical trials of our product candidates, including TIL for the treatment of metastatic
melanoma, cervical cancer, and head and neck cancers. These preliminary results, which include assessments of efficacy such as
ORR, are subject to substantial risk of change due to small sample sizes, and may change as patients are evaluated or as additional
patients are enrolled in these clinical trials. These outcomes may be unfavorable, deviate from our earlier reports, and/or delay or
prevent regulatory approval or commercialization of our product candidates, including candidates for which we have reported
preliminary efficacy results. In clinical studies where a staged expansion is expected, such as studies using a Simon’s two stage
design, these outcomes may result in the failure to meet an initial efficacy threshold for the first stage. Furthermore, other measures of
efficacy for these clinical trials and product candidates may not be as favorable.
If we encounter difficulties enrolling patients in our clinical trials, our clinical development activities could be delayed or
otherwise adversely affected.
The timely completion of clinical trials in accordance with their protocols depends, among other things, on our ability to enroll
a sufficient number of patients who remain in the trial until its conclusion. We may experience difficulties or delays in patient
enrollment in our clinical trials for a variety of reasons, including:
the size and nature of the patient population;
the severity of the disease under investigation;
the patient eligibility criteria defined in the protocol;
the size of the study population required for analysis of the trial’s primary endpoints;
the proximity of patients to trial sites;
the design of the trial;
our ability to recruit clinical trial investigators with the appropriate competencies and experience;
the efforts to facilitate timely enrollment in clinical trials and the effectiveness of recruiting publicity;
the patient referral practices of physicians;
competing clinical trials for similar therapies or other new therapeutics not involving cell-based immunotherapy;
clinicians’ and patients’ perceptions as to the potential advantages and side effects of the product candidate being studied in
relation to other available therapies, including any new drugs or treatments that may be approved for the indications we are
investigating;
clinical investigators enrolling patients who do not meet the enrollment criteria, requiring the inclusion of additional
patients in the clinical trial;
approval of new indications for existing therapies or approval of new therapies in general;
our ability to obtain and maintain patient consents; and
the risk that patients enrolled in clinical trials will not complete a clinical trial, return for post-treatment follow-up, or
follow the required study procedures. For instance, patients, including patients in any control groups, may withdraw from
the clinical trial if they are not experiencing improvement in their underlying disease or condition. Withdrawal of patients
from our clinical trials may compromise the quality of our data.
In addition, our clinical trials will compete with other clinical trials for product candidates that are in the same therapeutic areas
as our product candidates, and this competition will reduce the number and types of patients available to us, because some patients
who might have opted to enroll in our trials may instead opt to enroll in a trial being conducted by one of our competitors. Because the
number of qualified clinical investigators is limited, we expect to conduct some of our clinical trials at the same clinical trial sites that
some of our competitor’s use, which will reduce the number of patients who are available for our clinical trials at such clinical trial
sites. Moreover, because our product candidates represent a departure from more commonly used methods for cancer treatment,
potential patients and their doctors may be inclined to use conventional therapies, such as chemotherapy and approved
immunotherapies, rather than enroll patients in any future clinical trial. In addition, potential enrollees may opt to participate in other
clinical trials because of the length of time between the time that their tumor is excised and the TIL is infused back into the patient.
Amendments to our clinical protocols may affect enrollment in, or results of, our trials, including recent amendments we have made to
limit the number and type of prior therapies.
Even if we are able to enroll a sufficient number of patients in our clinical trials, delays in patient enrollment or small
population size may result in increased costs or may affect the timing or outcome of the planned clinical trials, which could prevent
completion of these trials and adversely affect our ability to advance the development of our product candidates.
38
Our product candidates may cause undesirable side effects or have other properties that could halt their clinical
development, prevent their regulatory approval, limit their commercial potential or result in significant negative consequences.
Results of our trials could reveal a high and unacceptable severity and prevalence of side effects or unexpected characteristics.
Undesirable side effects caused by our product candidates could cause us, IRBs, Drug Safety Monitoring Boards or DSMBs, or
regulatory authorities to interrupt, delay or halt clinical trials and could result in a more restrictive label or the delay or denial of
regulatory approval by the FDA or other comparable foreign regulatory authorities. Even if we were to receive product approval, such
approval could be contingent on inclusion of unfavorable information in our product labeling, such as limitations on the indicated uses
for which the products may be marketed or distributed, a label with significant safety warnings, including boxed warnings,
contraindications, and precautions, a label without statements necessary or desirable for successful commercialization, or requirements
for costly post marketing testing and surveillance, or other requirements, including REMS, to monitor the safety or efficacy of the
products, and in turn prevent us from commercializing and generating revenues from the sale of our current or future product
candidates.
If unacceptable toxicities or side effects arise in the development of our product candidates, we, an IRB, DSMB or the FDA or
comparable foreign regulatory authorities could order us to cease clinical trials, order our clinical trials to be placed on clinical hold,
or deny approval of our product candidates for any or all targeted indications. The FDA or comparable foreign regulatory authorities
may also require additional data, clinical, or pre-clinical studies should unacceptable toxicities arise. We may need to abandon
development or limit development of that product candidate 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. Toxicities associated with our
trials and products may also negatively impact our ability to conduct clinical trials using TIL therapy in larger patient populations,
such as in patients that have not yet been treated with other therapies or have not yet progressed on other therapies.
Treatment-related side effects could also affect patient recruitment or the ability of enrolled subjects to complete our trials or
result in potential product liability claims. Such toxicities, which may arise from TIL therapy in general, including co-therapies, may
include, for example, pyrexia, anemia, neutrophil and platelet count decrease, febrile neutropenia, fatigue, chills, hyponatremia, and
hypotension. For example, the recent update from the C-144-01 trials included two grade 5 treatment emergent adverse events. In
addition, these side effects and deaths may not be appropriately recognized or managed by the treating medical staff, as toxicities
resulting from personalized cell therapy are not normally encountered in the general patient population and by medical personnel. Any
of these occurrences may harm our business, financial condition and prospects significantly.
The manufacture of our product candidates is complex, and we may encounter difficulties in production, particularly with
respect to process development or scaling-out of our manufacturing capabilities. If we, or any of our third-party manufacturers
encounter such difficulties, our ability to provide supply of our product candidates for clinical trials or our products for patients, if
approved, could be delayed or stopped, or we may be unable to maintain a commercially viable cost structure.
Our product candidates are biologics and the process of manufacturing our products is complex, highly-regulated and subject to
multiple risks. The manufacture of our product candidates involves complex processes, including harvesting tumor fragments from
patients, multiplying the T cells to obtain the desired dose, and ultimately infusing the T cells back into a patient. As a result of the
complexities, the cost to manufacture biologics is generally higher than traditional small molecule chemical compounds, and the
manufacturing process is less reliable and is more difficult to reproduce. Our manufacturing process will be susceptible to product loss
or failure due to logistical issues associated with the collection of tumor fragments, or starting material, from the patient, shipping
such material to the manufacturing site, shipping the final product back to the patient, and infusing the patient with the product,
manufacturing issues associated with the differences in patient starting material, interruptions in the manufacturing process,
contamination, equipment failure, improper installation or operation of equipment, vendor or operator error, inconsistency in cell
growth, and variability in product characteristics. Even minor deviations from normal manufacturing processes could result in reduced
production yields, product defects, and other supply disruptions. If for any reason we lose a patient’s starting material, or later-
developed product at any point in the process, or if any product does not meet the applicable specifications, the manufacturing process
for that patient will need to be restarted, including resection of the proper amount of tumor fragment and the resulting delay may
adversely affect that patient’s outcome. If microbial, viral, environmental or other contaminations are discovered in our product
candidates or in the manufacturing facilities in which our product candidates are made, such manufacturing facilities may need to be
closed for an extended period of time to investigate and remedy the contamination.
Because our product candidates are manufactured specifically for each individual patient, we will be required to maintain a
chain of identity with respect to the patient’s tumor as it moves from the patient to the manufacturing facility, through the
manufacturing process, and back to the patient. Maintaining such a chain of identity is difficult and complex, and failure to do so
could result in adverse patient outcomes, loss of product, or regulatory action including withdrawal of our products from the market.
Further, as product candidates are developed through preclinical to late stage clinical trials towards approval and commercialization, it
is common that various aspects of the development program, such as manufacturing methods, are altered along the way to optimize
processes and results. Such changes carry the risk that they will not achieve these intended objectives, and any of these changes could
cause our product candidates to perform differently and affect the results of planned clinical trials or other future clinical trials or
otherwise necessitate the conduct of additional studies.
39
Currently, our product candidates are manufactured using processes developed or modified by us or by our third-party research
institution collaborators that we may not intend to use for more advanced clinical trials or commercialization. We have selected Gen 2
as the manufacturing process for product registration, and all ongoing and future company-sponsored clinical trials. Although we
believe Gen 2 is a commercially viable process, there are risks associated with scaling to the level required for advanced clinical trials
or commercialization, including, among others, cost overruns, potential problems with process scale-out, process reproducibility,
stability issues, lot consistency, and timely availability of raw materials. This includes potential risks associated with FDA not
agreeing with all of the details of our validation data or our potency assay prior to starting Cohort 4 of our C-144-01 clinical trial.
Furthermore, some of our CMOs may not be able to establish comparability of their products with TIL product used in Cohort 2 or
may not be fully validated prior to starting Cohort 4. As a result of these challenges, we may experience delays in our clinical
development and/or commercialization plans. We may ultimately be unable to reduce the cost of goods for our product candidates to
levels that will allow for an attractive return on investment if and when those product candidates are commercialized.
Our current manufacturing strategy involves the use of CMOs. Currently our product candidates are manufactured by WuXi,
Lonza Netherlands (formerly PharmaCell), and Moffitt. In 2019 we anticipate that MasTHerCell will manufacture product candidates
for use in our European clinical sites. Should we continue to use CMOs, we may not succeed in maintaining our relationships with our
current CMOs or establishing relationships with additional or alternative CMOs. Our product candidates may compete with other
products and product candidates for access to manufacturing facilities. There are a limited number of manufacturers that operate under
cGMP regulations and that are both capable of manufacturing for us and willing to do so. If our CMOs should cease manufacturing for
us, we would experience delays in obtaining sufficient quantities of our product candidates for clinical trials and, if approved,
commercial supply. Further, our CMOs may breach, terminate, or not renew these agreements. If we were to need to find alternative
manufacturing facilities it would significantly impact our ability to develop, obtain regulatory approval for or market our product
candidates, if approved. The commercial terms of any new arrangement could be less favorable than our existing arrangements and the
expenses relating to the transfer of necessary technology and processes could be significant.
Reliance on third-party manufacturers entails exposure to risks to which we would not be subject if we manufactured the
product candidate ourselves, including:
inability to negotiate manufacturing agreements with third parties under commercially reasonable terms;
reduced day-to-day control over the manufacturing process for our product candidates as a result of using third-party
manufacturers for all aspects of manufacturing activities;
reduced control over the protection of our trade secrets and know-how from misappropriation or inadvertent disclosure;
termination or nonrenewal of manufacturing agreements with third parties in a manner or at a time that may be costly or
damaging to us or result in delays in the development or commercialization of our product candidates; and
disruptions to the operations of our third-party manufacturers or suppliers caused by conditions unrelated to our business
or operations, including the bankruptcy of the manufacturer or supplier.
In the future, we plan to establish our own manufacturing capabilities and infrastructure, including a manufacturing facility. We
would expect that development of our own manufacturing facility would provide us with enhanced control of material supply for both
clinical trials and the commercial market, enable the more rapid implementation of process changes, and allow for better long-term
margins. However, we have no experience as a company in developing a manufacturing facility and may never be successful in
developing our own manufacturing facility or capability. We may establish multiple manufacturing facilities as we expand our
commercial footprint to multiple geographies, which may lead to regulatory delays or prove costly. Even if we are successful, our
manufacturing capabilities could be affected by cost-overruns, unexpected delays, equipment failures, labor shortages, natural
disasters, power failures, and numerous other factors that could prevent us from realizing the intended benefits of our manufacturing
strategy and have a material adverse effect on our business.
The manufacture of biopharmaceutical products requires significant expertise and capital investment, including the
development of advanced manufacturing techniques and process controls. Manufacturers of therapeutics often encounter difficulties in
production, particularly in scaling up initial production. These problems include difficulties with production costs and yields, quality
control, including stability of the product candidate and quality assurance testing, shortages of qualified personnel, and compliance
with strictly enforced federal, state, local and foreign regulations.
Moreover, any problems or delays we or our CMOs experience in preparing for commercial scale manufacturing of a product
candidate or component may result in a delay in the FDA approval of the product candidate or may impair our ability to manufacture
commercial quantities or such quantities at an acceptable cost, which could result in the delay, prevention, or impairment of clinical
development and commercialization of our product candidates and could adversely affect our business. Furthermore, if we or our
commercial manufacturers fail to deliver the required commercial quantities of our product candidates on a timely basis and at
reasonable costs, we would likely be unable to meet demand for our products and we would lose potential revenues.
40
In addition, the manufacturing process and facilities for any products that we may develop is subject to FDA and foreign
regulatory authority approval processes, and we or our CMOs will need to meet all applicable FDA and foreign regulatory authority
requirements, including cGMPs, on an ongoing basis. The cGMP requirements include quality control, quality assurance, and the
maintenance of records and documentation. The FDA and other regulatory authorities enforce these requirements through facility
inspections. Manufacturing facilities must be approved by the FDA pursuant to inspections that will be conducted after we submit our
marketing applications to the agency. Manufacturers are also subject to continuing FDA and other regulatory authority inspections
following marketing approval. Further, we, in cooperation with our CMOs, must supply all necessary chemistry, manufacturing, and
control documentation in support of a BLA on a timely basis.
Our, or our CMOs’, manufacturing facilities may be unable to comply with our specifications, cGMPs, and with other FDA,
state, and foreign regulatory requirements. Poor control of production processes can lead to the introduction of adventitious agents or
other contaminants, or to inadvertent changes in the properties or stability of product candidate that may not be detectable in final
product testing. If we or our CMOs are unable to reliably produce products to specifications acceptable to the FDA or other regulatory
authorities, or in accordance with the strict regulatory requirements, we may not obtain or maintain the approvals we need to
commercialize such products. Even if we obtain regulatory approval for any of our product candidates, there is no assurance that either
we or our CMOs will be able to manufacture the approved product to specifications acceptable to the FDA or other regulatory
authorities, to produce it in sufficient quantities to meet the requirements for the potential launch of the product, or to meet potential
future demand. Deviations from manufacturing requirements may further require remedial measures that may be costly and/or time-
consuming for us or a third party to implement and may include the temporary or permanent suspension of a clinical trial or
commercial sales or the temporary or permanent closure of a facility. Any such remedial measures imposed upon us or third parties
with whom we contract could materially harm our business.
Even to the extent we use and continue to use CMOs, we are ultimately responsible for the manufacture of our products and
product candidates. A failure to comply with these requirements may result in regulatory enforcement actions against our
manufacturers or us, including fines and civil and criminal penalties, which could result in imprisonment, suspension or restrictions of
production, suspension, injunctions, delay or denial of product approval or supplements to approved products, clinical holds or
termination of clinical studies, warning or untitled letters, regulatory authority communications warning the public about safety issues
with the biologic, refusal to permit the import or export of the products, product seizure, detention, or recall, operating restrictions,
suits under the civil False Claims Act, corporate integrity agreements, consent decrees, or withdrawal of product approval.
Any of these challenges could delay completion of clinical trials, require bridging clinical trials or the repetition of one or more
clinical trials, increase clinical trial costs, delay approval of our product candidate, impair commercialization efforts, increase our cost
of goods, and have an adverse effect on our business, financial condition, results of operations and growth prospects.
Cell-based therapies rely on the availability of reagents, specialized equipment, and other specialty materials, which may not
be available to us on acceptable terms or at all. For some of these reagents, equipment, and materials, we rely or may rely on sole
source vendors or a limited number of vendors, which could impair our ability to manufacture and supply our products.
Manufacturing our product candidates requires many reagents, which are substances used in our manufacturing processes to
bring about chemical or biological reactions, and other specialty materials and equipment, some of which are manufactured or
supplied by small companies with limited resources and experience to support commercial biologics production. We currently depend
on a limited number of vendors for certain materials and equipment used in the manufacture of our product candidates. Some of these
suppliers may not have the capacity to support clinical trials and commercial products manufactured under cGMP by
biopharmaceutical firms or may otherwise be ill-equipped to support our needs. We also do not have supply contracts with many of
these suppliers and may not be able to obtain supply contracts with them on acceptable terms or at all. Accordingly, we may
experience delays in receiving key materials and equipment to support clinical or commercial manufacturing.
For some of these reagents, equipment, and materials, we rely and may in the future rely on sole source vendors or a limited
number of vendors. An inability to continue to source product from any of these suppliers, which could be due to a number of issues,
including regulatory actions or requirements affecting the supplier, adverse financial or other strategic developments experienced by a
supplier, labor disputes or shortages, unexpected demands, or quality issues, could adversely affect our ability to satisfy demand for
our product candidates, which could adversely and materially affect our product sales and operating results or our ability to conduct
clinical trials, either of which could significantly harm our business.
As we continue to develop and scale our manufacturing process, we expect that we will need to obtain rights to and supplies of
certain materials and equipment to be used as part of that process. We may not be able to obtain rights to such materials on
commercially reasonable terms, or at all, and if we are unable to alter our process in a commercially viable manner to avoid the use of
such materials or find a suitable substitute, it would have a material adverse effect on our business. Even if we are able to alter our
process so as to use other materials or equipment, such a change may lead to a delay in our clinical development and/or
commercialization plans. If such a change occurs for product candidate that is already in clinical testing, the change may require us to
perform both ex vivo comparability studies and to collect additional data from patients prior to undertaking more advanced clinical
trials.
41
The deviations in our proposed new products from existing products may require us to perform additional testing, which will
increase the cost, and extend the time for obtaining approval.
Our TIL based therapy is based on the adoptive cell therapy technology that we licensed from the NIH and that is presently in
use as a physician-sponsored investigational therapy for the treatment of Stage IV metastatic melanoma in the United States at the
NCI, MDACC Cancer Center, and Moffit. These current methods of treatment are very labor intensive and expensive, which has
limited its widespread application. We have developed new processes that we anticipate will enable more efficient manufacturing of
TIL. We may have difficulty demonstrating that the products produced from our new processes are comparable to the existing
products. The FDA may require additional clinical testing before permitting a larger clinical trial with the new processes, and the
product may not be as efficacious in the new clinical trials. Cellular products are not considered as well characterized products
because there are hundreds of markers present on these cells, and even small changes in manufacturing processes could alter the cell
types. It is unclear at this time which of those markers are critical for success of these cells to combat cancer, so our ability to predict
the outcomes with newer manufacturing processes is limited. The changes that we have made to the historical manufacturing process
may require additional testing, which may increase costs and timelines associated with these developments.
In addition to developing a TIL based therapy on existing ACT technology, we are currently conducting clinical trials of our
products in combination with other existing drugs. These combination therapies will require additional testing and clinical trials will
require additional FDA regulatory approval and will increase our future cost of development.
We will be unable to commercialize our products if our trials are not successful.
Our research and development programs are at an early stage. We must demonstrate our products’ safety and efficacy in
humans through extensive clinical testing. We may experience numerous unforeseen events during, or as a result of, the testing
process that could delay or prevent commercialization of our products, including but not limited to the following:
safety and efficacy results in various human clinical trials reported in scientific and medical literature may not be indicative
of results we obtain in our clinical trials;
after reviewing test results, we or our collaborators may abandon projects that we might previously have believed to be
promising;
we, our collaborators or regulators, may suspend or terminate clinical trials if the participating subjects or patients are being
exposed to unacceptable health risks;
the effects our potential products have may not be the desired effects or may include undesirable side effects or other
characteristics that preclude regulatory approval or limit their commercial use if approved;
manufacturers may not meet the necessary standards for the production of the product candidates or may not be able to
supply the product candidates in a sufficient quantity; and
regulatory authorities may find that our clinical trial design or conduct does not meet the applicable approval requirements.
Clinical testing is very expensive, can take many years, and the outcome is uncertain. It can take as much as 12 months or more
before we learn the results from any clinical trial using our adoptive cell therapy with TIL. The data collected from our clinical trials
may not be sufficient to support approval by the FDA of our TIL-based product candidates for the treatment of solid tumors. The
clinical trials for our products under development may not be completed on schedule and the FDA may not ultimately approve any of
our product candidates for commercial sale. If we fail to adequately demonstrate the safety and efficacy of any product candidate
under development, we may not receive regulatory approval for those products, which would prevent us from generating revenues or
achieving profitability.
Even if our lead product, lifileucel, is approved and commercialized, we may not become profitable.
Our lead product, lifileucel, is initially targeting a small population of refractory patients that suffer from metastatic melanoma.
Even if the FDA approves this new therapy, and even if we obtain significant market share for this initial product candidate, because
the potential target population for lifileucel in refractory patients may be small, we may never achieve profitability without obtaining
regulatory approval for additional indications. The FDA often approves new therapies initially only for use in patients with relapsed or
refractory metastatic disease. We expect to initially seek approval of our product candidates in this setting and are currently studying
these patient populations.
42
We collaborate with governmental, academic and corporate partners to improve and develop TIL therapies for new
indications for use in combination with other therapies and to evaluate new TIL manufacturing methods, the results of which,
because the manufacturing processes are not within our control, may be incorrect or unreliable.
In addition to our own research and process development efforts, we seek to collaborate with government, academic research
institutions and corporate partners to improve TIL manufacturing and to develop TIL therapies for new indications. In 2017, we
announced collaborations with Moffitt, MDACC and Ohio State University to evaluate several new solid tumor and hematologic
indications for TIL therapy in clinical and preclinical studies as well as, in some cases, new TIL manufacturing approaches. The
results of these collaborations may be used to support our filing with the FDA of INDs to conduct more advanced clinical trials of our
product candidates, or to otherwise analyze or make predictions or decisions with respect to our current or future product candidates.
However, because the majority of our collaborations are conducted at outside laboratories and we do not have complete control over
how the studies are conducted or reported or over the manufacturing methods used to manufacture TIL product, the results of such
studies, which we may use as the basis for our conclusions, projections or decisions with respect to our current or future product
candidates, may be incorrect or unreliable, or may have a negative impact on us if the results of such studies are imputed to our
products or proposed indications, even if such imputation is improper. For example, we have entered into collaborations with Moffitt
and MDACC to perform clinical trials using TIL products that differ from our products, but the results of these clinical trials, if
negative, may adversely impact our stock price and our development plans for our products. Additionally, we may use third party data
to analyze, reach conclusions or make predictions or decisions with respect to our product candidates that may be incomplete,
inaccurate or otherwise unreliable.
We will need additional financing to fund our operations and complete the development and commercialization of our
various product candidates, and if we are unable to obtain such financing, we may be unable to complete the development and
commercialization of our product candidates. Raising additional capital may cause dilution to our existing stockholders, restrict
our operations or require us to relinquish rights to our technologies or product candidates.
Our operations have consumed substantial amounts of cash since inception. From our inception to December 31, 2018, we have
an accumulated deficit of $372.8 million. In addition, our research and development and our operating costs have also been substantial
and are expected to increase. In January 2018, we closed an underwritten public offering of our common stock. The net proceeds from
the offering, after deducting the underwriting discounts and commissions and other offering expenses payable by us, were $162.0
million. In October 2018, we closed an underwritten public offering of our common stock. The net proceeds from the offering, after
deducting the underwriting discounts and commissions and other estimated offering expenses payable by the Company, were of
$236.7 million. We expect to continue to spend substantial amounts to continue the clinical development of our product candidates. As
of December 31, 2018, we had $468.5 million in cash, cash equivalents and short-term investments.
Accordingly, we believe that our existing cash, cash equivalents and short-term investments will be sufficient to fund our
operations for at least the next twelve months from the date this Annual Report on Form 10-K is issued. However, in order to
complete the development of our current product candidates, and in order to affect our business plan (including establishing our own
manufacturing facility), we anticipate that we will have to spend more than the funds currently available to us. Furthermore, changing
circumstances may cause us to increase our spending significantly faster than we currently anticipate, and we may require additional
capital for the further development and commercialization of our product candidates and may need to raise additional funds sooner if
we choose to expand more rapidly than we presently anticipate. Moreover, our fixed expenses such as rent, minimum payments to our
contract manufacturers, and other contractual commitments, including those for our research collaborations, are substantial and are
expected to increase in the future.
We will need to obtain additional financing to fund our future operations, including completing the development and
commercialization of our product candidates. Our future funding requirements will depend on many factors, including, but not limited
to:
Progress, timing, scope and costs of our clinical trials, including the ability to timely initiate clinical sites, enroll subjects
and manufacture TIL for treatment for patients in our ongoing, planned and potential future clinical trials;
Time and cost necessary to obtain regulatory approvals that may be required by regulatory authorities to execute clinical
trials or commercialize our product;
Our ability to successfully commercialize our product candidates, if approved;
Our ability to have clinical and commercial product successfully manufactured consistent with FDA and European
Medicines Agency, or EMA, regulations;
Amount of sales and other revenues from product candidates that we may commercialize, if any, including the selling
prices for such potential products and the availability of adequate third-party coverage and reimbursement for patients;
Sales and marketing costs associated with commercializing our products, if approved, including the cost and timing of
building our marketing and sales capabilities;
43
Cost of building, staffing and validating our own manufacturing facility in the United States;
Terms and timing of our current and any potential future collaborations, licensing or other arrangements that we have
established or may establish;
Cash requirements of any future acquisitions or the development of other product candidates;
Costs of operating as a public company;
Time and cost necessary to respond to technological, regulatory, political and market developments;
Costs of filing, prosecuting, defending and enforcing any patent claims and other intellectual property rights; and
Costs associated with any potential business or product acquisitions, strategic collaborations, licensing agreements or other
arrangements that we may establish.
Unless and until we can generate a sufficient amount of revenue, we may finance future cash needs through public or private
equity offerings, license agreements, debt financings, collaborations, strategic alliances and marketing or distribution arrangements.
Additional funds may not be available when we need them on terms that are acceptable to us, or at all. We have no committed source
of additional capital and if we are unable to raise additional capital in sufficient amounts or on terms acceptable to us, we may be
required to delay or reduce the scope of or eliminate one or more of our research or development programs or our commercialization
efforts. Our current license and collaboration agreements may also be terminated if we are unable to meet the payment obligations
under those agreements. As a result, we may seek to access the public or private capital markets whenever conditions are favorable,
even if we do not have an immediate need for additional capital at that time.
To the extent that we raise additional capital through the sale of equity or convertible debt securities, your ownership interest
will be diluted, and the terms may include liquidation or other preferences that adversely affect your rights as a stockholder. The
incurrence of indebtedness would result in increased fixed payment obligations and could involve certain restrictive covenants, such as
limitations on our ability to incur additional debt, limitations on our ability to acquire or license intellectual property rights and other
operating restrictions that could adversely impact our ability to conduct our business. If we raise additional funds through strategic
partnerships and alliances and licensing arrangements with third parties, we may have to relinquish valuable rights to our technologies
or product candidates, or grant licenses on terms unfavorable to us.
Subject to various spending levels approved by the Board of Directors, our management will have broad discretion in the use
of the net proceeds from our capital raises, including our October 2018 January 2018, and September 2017 public offerings, and
may not use them effectively.
Our management will have discretion in the application of the net proceeds from our capital raises, including our October 2018,
January 2018 and September 2017 public offerings, and our stockholders will not have the opportunity as part of their investment
decision to assess whether the net proceeds from those capital raises are being used appropriately. You may not agree with our
decisions, and our use of the proceeds from our capital raises may not yield any return to stockholders. Because of the number and
variability of factors that will determine our use of the net proceeds from our capital raises, including our October 2018, January 2018
and September 2017 public offerings, their ultimate use may vary substantially from their currently intended use. Our failure to apply
the net proceeds of our capital raises, including our October 2018, January 2018 and September 2017 public offerings, effectively
could compromise our ability to pursue our growth strategy and we might not be able to yield a significant return, if any, on our
investment of those net proceeds. Stockholders will not have the opportunity to influence our decisions on how to use our net proceeds
from capital raises, including our October 2018, January 2018 and September 2017 public offerings. Pending their use, we may invest
the net proceeds from our capital raises, including our October 2018, January 2018 and September 2017 public offerings, in interest
and non-interest bearing cash accounts, short-term, investment-grade, interest-bearing instruments and U.S. government securities.
These temporary investments are not likely to yield a significant return.
The use of our net operating loss carryforwards and research tax credits may be limited.
Our net operating loss carryforwards and any future research and development tax credits may expire and not be used. As of
December 31, 2018, we had U.S. federal net operating loss carryforwards of approximately $251.5 million. Our net operating loss
carryforwards arising in taxable years ending on or prior to December 31, 2018 will begin expiring in 2027 if we have not used them
prior to that time. Net operating loss carryforwards arising in taxable years ending after December 31, 2018 are no longer subject to
expiration under the Internal Revenue Code of 1986, as amended, or the Code. Additionally, our ability to use any net operating loss
and credit carryforwards to offset taxable income or tax, respectively, in the future will be limited under Sections 382 and 383 of the
Code, respectively, if we have a cumulative change in ownership of more than 50% within a three-year period.
44
We have performed an IRC Section 382 analysis as of December 31, 2017. Per the analysis, the May 2013 recapitalization,
private placements in 2014 and 2016 may have already triggered such an ownership change. As a result, the federal and state
carryforwards associated with the net operating loss and credit deferred tax assets were reduced by the amount of tax attributes
estimated to expire during their respective carryforward periods. In addition, since we will need to raise substantial additional funding
to finance our operations, we may undergo further ownership changes in the future. Any such annual limitation may significantly
reduce the utilization of the net operating loss carryforwards and research tax credits before they expire. Depending on our future tax
position, limitation of our ability to use net operating loss carryforwards in states in which we are subject to income tax could have an
adverse impact on our results of operations and financial condition.
Recently enacted tax reform legislation in the U.S. could adversely affect our business and financial condition.
On December 22, 2017, the Tax Cuts and Jobs Act of 2017, or the Tax Act, was signed into law, making significant changes to
the Internal Revenue Code. Changes under the Tax Act include, but are not limited to, a corporate tax rate decrease from 35% to 21%
effective for tax years beginning after December 31, 2017, a one-time transition tax on the mandatory deemed repatriation of
cumulative foreign earnings, limitation of the tax deduction for interest expense to 30% of adjusted earnings (except for certain small
businesses), limitation of the deduction for net operating losses to 80% of current year taxable income and elimination of net operating
loss carrybacks, one time taxation of offshore earnings at reduced rates regardless of whether they are repatriated, elimination of U.S.
tax on foreign earnings (subject to certain important exceptions), immediate deductions for certain new investments instead of
deductions for depreciation expense over time, and modifying or repealing many business deductions and credits (including reducing
the business tax credit for certain clinical testing expenses incurred in the testing of orphan drugs). The overall impact of the new
federal tax law is uncertain, and our business and financial condition could be adversely affected. For example, because of the tax rate
decrease, our deferred tax assets and our corresponding valuation allowance against these deferred tax assets have been reduced and
may continue to be adversely impacted. In addition, it is uncertain if and to what extent various states will conform to Tax Act and
what effect that legal challenges will have on the Tax Act, including litigation in the U.S. and international challenges brought at
organizations such as the World Trade Organization. The impact of the Tax Act on holders of our common stock is also uncertain and
could be adverse. Investors should consult with their legal and tax advisors with respect to this legislation and the potential tax
consequences of investing in or holding our common stock.
We are subject to extensive regulation, which can be costly, time consuming and can subject us to unanticipated delays;
even if we obtain regulatory approval for some of our products, those products may still face regulatory difficulties.
Our potential products, cell processing and manufacturing activities, are subject to comprehensive regulation by the FDA in the
United States and by comparable authorities in other countries. The process of obtaining FDA and other required regulatory approvals,
including foreign approvals, is expensive and often takes many years and can vary substantially based upon the type, complexity and
novelty of the products involved. In addition, regulatory agencies may lack experience with our technologies and products, which may
lengthen the regulatory review process, increase our development costs and delay or prevent their commercialization.
No adoptive cell therapy using TIL has been approved for marketing in the FDA. Consequently, there is no precedent for the
successful commercialization of products based on our technologies. In addition, we have had only limited experience in filing and
pursuing applications necessary to gain regulatory approvals, which may impede our ability to obtain timely FDA approvals, if at all.
We have not yet sought FDA approval for any adoptive cell therapy product. We will not be able to commercialize any of our
potential products until we obtain FDA approval, and so any delay in obtaining, or inability to obtain, FDA approval would harm our
business.
If we violate regulatory requirements at any stage, whether before or after marketing approval is obtained, we may face a
number of regulatory consequences, including refusal to approve pending applications, license suspension or revocation, withdrawal
of an approval, imposition of a clinical hold or termination of clinical trials, warning letters, untitled letters, cyber letters, modification
of promotional materials or labeling, provision of corrective information, imposition of post-market requirements including the need
for additional testing, imposition of distribution or other restrictions under a REMS, product recalls, product seizures or detentions,
refusal to allow imports or exports, total or partial suspension of production or distribution, FDA debarment, injunctions, fines,
consent decrees, corporate integrity agreements, debarment from receiving government contracts, and new orders under existing
contracts, exclusion from participation in federal and state healthcare programs, restitution, disgorgement, or civil or criminal
penalties, including fines and imprisonment, and adverse publicity, among other adverse consequences. Additionally, we may not be
able to obtain the labeling claims necessary or desirable for the promotion of our products. We may also be required to undertake post-
marketing trials. In addition, if we or others identify side effects after any of our adoptive cell therapies are on the market, or if
manufacturing problems occur, regulatory approval may be withdrawn, and reformulation of our products may be required.
45
We may not be able to license new TIL technology from the NIH and others.
An element of our intellectual property portfolio is to license additional rights and technologies from the NIH. Our inability to
license the rights and technologies that we have identified, or that we may in the future identify, could have a material adverse impact
on our ability to complete the development of our products or to develop additional products. No assurance can be given that we will
be successful in licensing any additional rights or technologies from the NIH and others. Failure to obtain additional rights and
licenses may detrimentally affect our planned development of additional product candidates and could increase the cost, and extend
the timelines associated with our development of such other products.
Our projections regarding the market opportunities for our product candidates may not be accurate, and the actual market
for our products may be smaller than we estimate
Our projections of both the number of people who have the cancers we are targeting, as well as the subset of people with these
cancers who are in a position to receive second or third line therapy, and who have the potential to benefit from treatment with our
product candidates, are based on our beliefs and estimates. These estimates have been derived from a variety of sources, including
scientific literature, surveys of clinics, patient foundations, or market research by third parties, and may prove to be incorrect. Further,
new studies or approvals of new therapeutics may change the estimated incidence or prevalence of these cancers. The number of
patients may turn out to be lower than expected. Additionally, the potentially addressable patient population for our product candidates
may be limited or may not be amenable to treatment with our product candidates and may also be limited by the cost of our treatments
and the reimbursement of those treatment costs by third-party payors. For instance, we expect lifileucel to initially target a small
patient population that suffers from metastatic melanoma. Even if we obtain significant market share for our product candidates,
because the potential target populations are small, we may never achieve profitability without obtaining regulatory approval for
additional indications.
We are required to pay substantial royalties and lump sum benchmark payments under our license agreements with the
NIH, Moffitt, and PolyBioCept, and we must meet certain milestones to maintain our license rights.
Under our license agreements with the NIH for our adoptive cell therapy technologies, we are currently required to pay both
substantial benchmark payments and royalties to that institution based on our revenues from sales of our products utilizing the
licensed technologies. Likewise, under our license agreement with PolyBioCept, we are required to make lump sum payments if, and
when certain product sales targets are achieved. These payments could adversely affect the overall profitability for us of any products
that we may seek to commercialize under the NIH or PolyBioCept licenses. In order to maintain our license rights under the NIH,
Moffitt, and PolyBioCept license agreements, we will need to meet certain specified milestones, subject to certain cure provisions, in
the development of our product candidates. There is no assurance that we will be successful in meeting these milestones on a timely
basis, or at all.
Because our current products represent, and our other potential product candidates will represent novel approaches to the
treatment of disease, there are many uncertainties regarding the development, the market acceptance, third-party reimbursement
coverage and the commercial potential of our product candidates.
Human immunotherapy products are a new category of therapeutics. Because this is a relatively new and expanding area of
novel therapeutic interventions, there are many uncertainties related to development, marketing, reimbursement, and the commercial
potential for our product candidates. There can be no assurance as to the length of the trial period, the number of patients the FDA will
require to be enrolled in the trials in order to establish the safety, efficacy, purity and potency of immunotherapy products, or that the
data generated in these trials will be acceptable to the FDA to support marketing approval. The FDA may take longer than usual to
come to a decision on any BLA that we submit and may ultimately determine that there is not enough data, information, or experience
with our product candidates to support an approval decision. The FDA may also require that we conduct additional post-marketing
studies or implement risk management programs, such as REMS until more experience with our product candidates is obtained.
Finally, after increased usage, we may find that our product candidates do not have the intended effect or have unanticipated side
effects, potentially jeopardizing initial or continuing regulatory approval and commercial prospects.
We may also find that the manufacture of our product candidates is more difficult than anticipated, resulting in an inability to
produce a sufficient amount of our product candidates for our clinical trials or, if approved, commercial supply. Moreover, because of
the complexity and novelty of our manufacturing process, there are only a limited number of manufacturers who have the capability of
producing our product candidates. Should any of our contract manufacturers no longer produce our product candidates, it may take us
significant time to find a replacement, if we are able to find a replacement at all.
46
There is no assurance that the approaches offered by our products will gain broad acceptance among doctors or patients or that
governmental agencies or third-party medical insurers will be willing to provide reimbursement coverage for proposed product
candidates. Moreover, we do not have verifiable internal marketing data regarding the potential size of the commercial market for our
product candidates, nor have we obtained current independent marketing surveys to verify the potential size of the commercial
markets for our current product candidates or any future product candidates. Since our current product candidates and any future
product candidates will represent novel approaches to treating various conditions, it may be difficult, in any event, to accurately
estimate the potential revenues from these product candidates. Accordingly, we may spend significant capital trying to obtain approval
for product candidates that have an uncertain commercial market. The market for any products that we successfully develop will also
depend on the cost of the product. We do not yet have sufficient information to reliably estimate what it will cost to commercially
manufacture our current product candidates, and the actual cost to manufacture these products could materially and adversely affect
the commercial viability of these products. Our goal is to reduce the cost of manufacturing and providing our therapies. However,
unless we can reduce those costs to an acceptable amount, we may never be able to develop a commercially viable product. If we do
not successfully develop and commercialize products based upon our approach or find suitable and economical sources for materials
used in the production of our products, we will not become profitable, which would materially and adversely affect the value of our
common stock.
Our TIL therapy may be provided to patients in combination with other agents provided by third parties. The cost of such
combination therapy may increase the overall cost of TIL therapy and may result in issues regarding the allocation of reimbursements
between our therapy and the other agents, all of which may affect our ability to obtain reimbursement coverage for the combination
therapy from third party medical insurers.
No assurance can be given that the Gen 2 manufacturing process we have selected will be FDA-compliant, more efficient
and lower the cost to manufacture TIL products.
Pursuant to the CRADA, and in cooperation with our contract manufacturers and potentially other manufacturers, we have
developed and are developing improved methods for the generating and selecting autologous TILs, and methods for large-scale
production of autologous TILs that are in accord with current cGMP procedures. We have developed a new and more efficient TIL
manufacturing process that we believe can be more efficient and cost effective, and in a more automated manner than previous
processes. The production and control of the physical and/or chemical attributes of our products in a cGMP facility is subject to many
uncertainties and difficulties. We have never manufactured our adoptive cell therapy product candidate on a commercial scale, nor
have our partners. As a result, we cannot give any assurance that the Gen 2 process or any future process that we select will be a
manufacturing process that can produce our products in compliance with the applicable regulatory requirements, at a cost or in
quantities necessary to make them commercially viable. Moreover, our third-party manufacturers will have to continually adhere to
current cGMP regulations enforced by the FDA through its facilities inspection program. If the facilities of these manufacturers cannot
pass a pre-approval plant inspection, the FDA pre-market approval of our products will not be granted. In complying with cGMP and
foreign regulatory requirements, we and any of our third-party manufacturers will be obligated to expend time, money and effort in
production, record-keeping and quality control to assure that our products meet applicable specifications and other requirements. If we
or any of our third-party manufacturers fail to comply with these requirements, we may be subject to regulatory action. No assurance
can be given that we will be able to develop such a manufacturing process, or that our partners will thereafter be able to establish and
operate such a production facility.
If product liability lawsuits are brought against us, we may incur substantial liabilities and may be required to limit
commercialization of our product candidates.
We face an inherent risk of product liability as a result of the clinical testing of our product candidates and will face an even
greater risk if we commercialize any products. For example, we may be sued if our product candidates cause or are perceived to cause
injury or are found to be otherwise unsuitable during clinical testing, manufacturing, marketing or sale. Any such product liability
claims may include allegations of defects in manufacturing, defects in design, a failure to warn of dangers inherent in the product,
negligence, strict liability or a breach of warranties. Claims could also be asserted under state consumer protection acts. Large
judgements have also been awarded in class action lawsuits based on therapeutics that had unanticipated side effects. If we cannot
successfully defend ourselves against product liability claims, we may incur substantial liabilities or be required to limit
commercialization of our product candidates. Even successful defense would require significant financial and management resources.
Regardless of the merits or eventual outcome, liability claims may result in:
decreased demand for our product candidates;
injury to our reputation;
withdrawal of clinical trial participants or sites and potential termination of clinical trial sites or entire clinical programs;
initiation of investigations by regulators, refusal to approve marketing applications or supplements, and withdrawal or
limitation of product approvals;
47
costs to defend the related litigation;
a diversion of management’s time and our resources;
substantial monetary awards to trial participants or patients;
product recalls, withdrawals or labeling, marketing or promotional restrictions;
loss of revenue;
significant negative media attention;
decrease in the price of our stock and overall value of our company;
exhaustion of our available insurance coverage and our capital resources; or
the inability to commercialize our product candidates.
Our inability to obtain sufficient product liability insurance at an acceptable cost to protect against potential product liability
claims could prevent or inhibit the commercialization of products we develop, alone or with corporate collaborators. Our insurance
policies may also have various exclusions, and we may be subject to a product liability claim for which we have no coverage. While
we have obtained clinical trial insurance for our Phase 2 clinical trials, we may have to pay amounts awarded by a court or negotiated
in a settlement that exceed our coverage limitations or that are not covered by our insurance, and we may not have, or be able to
obtain, sufficient capital to pay such amounts. Even if our agreements with any future corporate collaborators entitle us to
indemnification against losses, such indemnification may not be available or adequate should any claim arise.
We face significant competition from other biotechnology and pharmaceutical companies and from non-profit institutions.
Competition in the field of cancer therapy is intense and is accentuated by the rapid pace of technological development.
Research and discoveries by others may result in breakthroughs which may render our products obsolete even before they generate
any revenue. There are products that are approved and currently under development by others that could compete with the products
that we are developing. Many of our potential competitors have substantially greater research and development capabilities and
approval, manufacturing, marketing, financial and managerial resources and experience than we do. Our competitors may:
develop safer, more convenient or more effective immunotherapies and other therapeutic products;
develop therapies that are less expensive or have better reimbursement from private or public payors;
reach the market more rapidly, reducing the potential sales of our products; or
establish superior proprietary positions.
Due to the promising clinical therapeutic effect of competitor therapies in clinical exploratory trials, we anticipate substantial
direct competition from other organizations developing advanced T-cell therapies targeting patients who have received prior anti-PD-
1/PD-L1 therapies. In particular, we expect to compete with other new therapies for our lead indications developed by companies such
as Bristol-Myers Squibb, Merck, Nektar Therapeutics, Idera Pharmaceuticals, Dynavax Technologies, Oncosec Medical, Immetacyte,
WindMIL Therapeutics, and others. We also may compete with therapies based on genetically engineered T cells rendered reactive
against tumor-associated antigens prior to their administration to patients. Genetically engineered T cells are being pursued by several
companies, including Adaptimmune, Celgene (in collaboration with bluebird bio as well as through Celgene’s subsidiary Juno
Therapeutics), Gilead Sciences, Novartis and others. To date, these technologies have been primarily applicable to hematologic
malignancies, but their application in solid tumor indications may create competition with us. Many of these companies and our other
current and potential competitors have substantially greater research and development capabilities and financial, scientific, regulatory,
manufacturing, marketing, sales, human resources, and experience than we do. Many of our competitors have several therapeutic
products that have already been developed, approved and successfully commercialized, or are in the process of obtaining regulatory
approval for their therapeutic products in the United States and internationally. Our competitors may obtain regulatory approval for
their products more rapidly than we may obtain approval for ours, which could result in competitors establishing a strong market
position before we are able to enter the market.
Universities and public and private research institutions in the U.S. and Europe are also potential competitors. For example, a
Phase 3 trial comparing TIL to standard ipilimumab in patients with metastatic melanoma is currently being conducted in Europe by
the Netherlands Cancer Institute, the Copenhagen County Herlev University Hospital, and the University of Manchester. While these
universities and public and private research institutions primarily have educational objectives, they may develop proprietary
technologies that lead to other FDA approved therapies or that secure patent protection that we may need for the development of our
technologies and products.
Our lead product candidate, lifileucel, is a therapy for the treatment of metastatic melanoma. Currently, there are numerous
companies that are developing various alternate treatments for melanoma, including patients that have progressed after prior treatment
with checkpoint inhibitors. Accordingly, lifileucel faces significant competition in the melanoma treatment space from multiple
companies. Even if we obtain regulatory approval for lifileucel, the availability and price of our competitors’ products could limit the
demand and the price we are able to charge for our melanoma therapy. We may not be able to implement our business plan if the
acceptance of our products is inhibited by price competition or the reluctance of physicians to switch from other methods of treatment
to our product, or if physicians switch to other new therapies, drugs or biologic products or choose to reserve our product for use in
limited circumstances.
48
Mergers and acquisitions in the pharmaceutical and biotechnology industries may result in even more resources being
concentrated among a smaller number of our competitors. Early stage companies may also prove to be significant competitors,
particularly through collaborative arrangements with large and established companies. These third parties 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, our programs.
We are dependent on third parties to support our research, development and manufacturing activities and, therefore, are
subject to the efforts of these parties and our ability to successfully collaborate with these third parties.
As a result of our current strategy to outsource most of our manufacturing, we rely very heavily on third parties to perform for
us the manufacturing of our products for our clinical trials. We also license a portion of our technology from others. We intend to rely
upon our contract manufacturers to produce large quantities of materials needed for clinical trials and potentially product
commercialization. Third party manufacturers may not be able to meet our needs with respect to timing, quantity or quality. If we are
unable to contract for a sufficient supply of needed materials on acceptable terms, or if we should encounter delays or difficulties in
our relationships with manufacturers, our clinical testing may be delayed, thereby delaying the submission of products for regulatory
approval or the market introduction and subsequent sales of our products. Any such delay may lower our revenues and potential
profitability.
In addition, in order to supplement our own efforts to improve TIL manufacturing and develop TIL therapies in new indications
in clinical trials, we currently work and collaborate with government and academic research institutions, medical institutions and
corporate partners such as the NCI, Moffitt, MedImmune, Roswell Park Cancer Institute, Phio Pharmaceuticals, and Cellectis. We also
intend to continue to enter into additional third-party collaborative agreements in the future. However, we may not be able to
successfully negotiate any additional collaborative arrangements. If established, these relationships may not be scientifically or
commercially successful. The success of these and future collaborations and joint development arrangements may be subject to
numerous risks and uncertainties, including the inability or unwillingness of our partners to perform in the manner, or to the extent
anticipated, and may also be subject to disagreements regarding the rights, interests, and performance of the counterparties under our
licenses and development agreements. Disagreements between parties to a collaboration arrangement regarding clinical development
and commercialization matters can lead to delays in the development process or commercialization of the applicable product candidate
and, in some cases, termination of the collaboration arrangement. These disagreements can be difficult to resolve if neither of the
parties has final decision-making authority under the collaboration agreement.
With regard to future collaboration efforts, we face significant competition in seeking appropriate collaborators. Our ability to
reach a definitive agreement for collaboration will depend, among other things, upon our assessment of the collaborator’s resources
and expertise, the terms and conditions of the proposed collaboration and, an evaluation by the proposed collaborator of a number of
similar or unique factors.
Collaborations with biopharmaceutical companies and other third parties often are terminated or allowed to expire by the other
party. Any such termination or expiration would adversely affect us financially and could harm our business reputation. Any
collaboration may pose a number of risks, including the following:
collaborators may not perform their obligations as expected;
collaborators may not pursue development and commercialization of any product candidates that achieve regulatory
approval or may elect not to continue or renew development or commercialization programs based on clinical trial results,
changes in the collaborators’ strategic focus or available funding, or external factors, such as an acquisition, that divert
resources or create competing priorities;
collaborators may delay clinical trials, provide insufficient funding for a clinical trial program, stop a clinical trial or
abandon a product candidate, repeat or conduct new clinical trials or require a new formulation of a product candidate for
clinical testing;
collaborators could fail to make timely regulatory submissions for a product candidate;
collaborators may not comply with all applicable regulatory requirements or may fail to report safety data in accordance
with all applicable regulatory requirements;
collaborators could independently develop, or develop with third parties, products that compete directly or indirectly with
our products or product candidates if the collaborators believe that competitive products are more likely to be successfully
developed or can be commercialized under terms that are more economically attractive than ours;
product candidates discovered in collaboration with us may be viewed by our collaborators as competitive with their own
product candidates or products, which may cause collaborators to cease to devote resources to the commercialization of our
product candidates;
49
a collaborator with marketing and distribution rights to one or more of our product candidates that achieve regulatory
approval may not commit sufficient resources to the marketing and distribution of such product candidate or product;
disagreements with collaborators, including disagreements over proprietary rights, contract interpretation or the preferred
course of development, might cause delays or termination of the research, development or commercialization of product
candidates, might lead to additional responsibilities for us with respect to product candidates, or might result in litigation
or arbitration, any of which would be time consuming and expensive;
collaborators may not properly maintain or defend our intellectual property rights or may use our proprietary information
in such a way as to invite litigation that could jeopardize or invalidate our intellectual property or proprietary information
or expose us to potential litigation;
collaborators may infringe the intellectual property rights of third parties, which may expose us to litigation and potential
liability;
collaborators may be involved in a business combination, resulting in the decreased emphasis or termination of
development or commercialization of any product candidate subject to the collaboration agreement; and
termination of a collaboration agreement may make it more difficult to attract new collaborators and our and our products’
or product candidates’ reputation in the medical, business, and financial communities could be adversely affected.
If any third-party collaborator breaches or terminates its agreement with us or fails to conduct its activities in a timely manner,
the commercialization of our products under development could be slowed down or blocked completely. It is possible that our
collaborators will change their strategic focus, pursue alternative technologies or develop alternative products, either on their own or
in collaboration with others, as a means for developing treatments for the diseases targeted by our collaborative programs. The
effectiveness of our collaborators in marketing our products will also affect our revenues and earnings.
Our collaborators will also be required to comply with the applicable regulatory requirements, and, as such, are subject to the
same risks as we are. If they do not or are not able to comply with these requirements, we may not be able to use the data generated
through their studies to support our future investigational or marketing applications. Collaborator noncompliance may also expose
them and us to regulatory enforcement actions.
No assurance can be given that we will be able to successfully collaborate with our partners as anticipated and that our current
or future collaborations and clinical trials will be completed as contemplated, support the regulatory approval of our current product
candidates, or result in any viable additional product candidates. For instance, to the extent that these collaborators conduct their
studies with manufacturing processes that are different than ours or product that is different than ours, the results generated from their
studies may not be seen in our current or future studies that employ our manufacturing processes and the results generated from their
studies may not support approval of our product candidates.
If we are unable to obtain or maintain suitable collaborators on a timely basis, on acceptable terms, or at all, we may have to
curtail the development of a product candidate, reduce or delay its development program or one or more of our other development
programs, delay its potential commercialization or reduce the scope of any sales or marketing activities, or increase our expenditures
and undertake development or commercialization activities at our own expense.
Development of a product candidate intended for use in combination with an already approved product may present more or
different challenges than development of a product candidate for use as a single agent.
We are currently developing lifileucel and LN-145 for use along with IL-2. We and our collaborators are also studying TIL
therapy along with other products, such as durvalumab, pembrolizumab, ipilimumab and nivolumab. The development of product
candidates for use in combination with another product may present challenges. For example, the FDA may require us to use more
complex clinical trial designs, in order to evaluate the contribution of each product and product candidate to any observed effects. It is
possible that the results of these trials could show that any positive results are attributable to the already approved product. Moreover,
following product approval, the FDA may require that products used in conjunction with each other be cross labeled for combined use.
To the extent that we do not have rights to already approved products, this may require us to work with another company to satisfy
such a requirement. Moreover, developments related to the already approved products may impact our clinical trials for the
combination as well as our commercial prospects should we receive marketing approval. Such developments may include changes to
the approved product’s safety or efficacy profile, changes to the availability of the approved product, and changes to the standard of
care.
50
A Fast Track product designation or other designation to facilitate product candidate development may not lead to faster
development or a faster regulatory review or approval process, and it does not increase the likelihood that our product candidates
will receive marketing approval.
We were granted Fast Track designation by the FDA for lifileucel in advanced melanoma. We may seek Fast Track designation
for other of our current or future product candidates. Receipt of a designation to facilitate product candidate development is within the
discretion of the FDA. Accordingly, even if we believe one of our product candidates meets the criteria for a designation, the FDA
may disagree. In any event, the receipt of such a designation for a product candidate may not result in a faster development process,
review, or approval compared to product candidates considered for approval under conventional the FDA procedures and does not
assure ultimate marketing approval by the FDA. In addition, the FDA may later decide that the products no longer meet the
designation conditions.
While lifileucel has received orphan drug designation for melanoma stages IIB-IV and LN-145 has received orphan drug
designation for cervical cancer patients with tumors greater than 2 cm, there is no guarantee that we will be able to maintain this
designation, receive these designations for any of our other product candidates, or receive or maintain any corresponding benefits,
including periods of exclusivity.
We received orphan drug designation in the United States for lifileucel to treat malignant melanoma stages IIB-IV and LN-145
for cervical cancer patients with tumors greater than 2 cm. We may also seek orphan drug designation for our other product
candidates, as appropriate. Orphan designation, however, may be lost if the indication for which we develop our designated product
candidates do not meet the orphan criteria. Moreover, following product approval, orphan exclusivity may be lost if the FDA
determines, among other reasons, that the request for designation was materially defective or if the manufacturer is unable to assure
sufficient quantity of the product to meet the needs of patients with the rare disease or condition. Even if we obtain orphan exclusivity,
that exclusivity may not effectively protect the product from competition because different products can be approved for the same
condition and the same product can be approved for different conditions. Even after an orphan product is approved, the FDA can
subsequently approve a product containing the same principal molecular features for the same condition if the FDA concludes that the
later product is clinically superior in that it is shown to be safer or more effective or makes a major contribution to patient care.
Moreover, the FDA may grant orphan drug designations to multiple of the same products for the same indication. If another
sponsor receives FDA approval for an orphan drug designated product that is the same as our product candidates and intended for the
same indication before we do, we would be prevented from launching our product in the United States for this indication for a period
of at least 7 years.
In response to a court decision regarding the plain meaning of the exclusivity provision of the Orphan Drug Act, the FDA may
undertake a reevaluation of aspects of its orphan drug regulations and policies. We do not know if, when, or how the FDA may change
the orphan drug regulations and policies, and it is uncertain how any changes might affect our business. Depending on what changes
the FDA may make to its orphan drug regulations and policies, our business, financial condition, results of operations, and prospects
could be harmed.
As a condition of approval, the FDA may require that we implement various post-marketing requirements and conduct post-
marketing studies, any of which would require a substantial investment of time, effort, and money, and which may limit our
commercial prospects.
As a condition of biologic licensing, the FDA is authorized to require that sponsors of approved BLAs implement various post-
market requirements, including REMS and Phase 4 studies. By example, when the FDA approved Novartis’ Kymriah in August 2017,
a CAR-T cell therapy for the treatment of patients up to 25 years of age with B-cell precursor acute lymphoblastic leukemia (ALL)
that is refractory or in second or later relapse, the FDA required significant post-marketing commitments, including a Phase 4 trial,
revalidation of a test method, and a substantial REMS program that included, among other requirements, the certification of hospitals
and their associated clinics that dispense Kymriah, which certification includes a number of requirements, the implementation of a
Kymriah training program, and limited distribution only to certified hospitals and their associated clinics. If we receive approval of
our product candidates, the FDA may determine that similar or additional post-approval requirements are necessary to ensure that our
product candidates are safe, pure, and potent. To the extent that we are required to establish and implement any post-approval
requirements, we will likely need to invest a significant amount of time, effort, and money. Such post-approval requirements may also
limit the commercial prospects of our product candidates.
51
We may be unable to establish effective marketing and sales capabilities or enter into agreements with third parties to
market and sell our product candidates, if they are approved, and as a result, we may be unable to generate product revenues.
We currently do not have a commercial infrastructure for the marketing, sale, and distribution of biopharmaceutical products. If
approved, in order to commercialize our products, we must build our marketing, sales, and distribution capabilities or make
arrangements with third parties to perform these services, which will take time and require significant financial expenditures and we
may not be successful in doing so. Even if we are able to effectively establish a sales force and develop a marketing and sales
infrastructure, our sales force and marketing teams may not be successful in commercializing our current or future product candidates.
To the extent we rely on third parties to commercialize any products for which we obtain regulatory approval, we would have less
control over their sales efforts, and could be held liable if they failed to comply with applicable legal or regulatory requirements.
We have no prior experience in the marketing, sale, and distribution of biopharmaceutical products, and there are significant
risks involved in the building and managing of a commercial infrastructure. The establishment and development of commercial
capabilities, including compliance plans, to market any products we may develop will be expensive and time consuming and could
delay any product launch, and we may not be able to successfully develop this capability. We, or our collaborators, will have to
compete with other pharmaceutical and biotechnology companies to recruit, hire, train, manage, and retain marketing and sales
personnel. In the event we are unable to develop a marketing and sales infrastructure, we may not be able to commercialize our current
or future product candidates, which would limit our ability to generate product revenues. Factors that may inhibit our efforts to
commercialize our current or future product candidates and generate product revenues include:
the inability to recruit, train, manage, and retain adequate numbers of effective sales and marketing personnel;
the inability of sales personnel to obtain access to physicians or persuade adequate numbers of physicians to prescribe our
current or future product candidates;
our inability to effectively oversee a geographically dispersed sales and marketing team;
the costs associated with training sales and marketing personnel on legal and regulatory compliance matters and monitoring
their actions;
an inability to secure adequate coverage and reimbursement by government and private health plans;
the clinical indications for which the products are approved and the claims that we may make for the products;
limitations or warnings, including distribution or use restrictions, contained in the products’ approved labeling;
any distribution and use restrictions imposed by the FDA or to which we agree as part of a mandatory REMS or voluntary
risk management plan;
liability for sales or marketing personnel who fail to comply with the applicable legal and regulatory requirements;
the lack of complementary products to be offered by sales personnel, which may put us at a competitive disadvantage
relative to companies with more extensive product lines; and
unforeseen costs and expenses associated with creating an independent sales and marketing organization or engaging a
contract sales organization.
If our product candidates do not achieve broad market acceptance, the revenues that we generate from their sales will be
limited.
We have never commercialized a product candidate for any indication. Even if our product candidates are approved by the
appropriate regulatory authorities for marketing and sale, they may not gain acceptance among physicians, patients, third-party payors,
and others in the medical community. If any product candidate for which we obtain regulatory approval does not gain an adequate
level of market acceptance, we may not generate significant product revenues or become profitable. Market acceptance of our product
candidates by the medical community, patients, and third-party payors will depend on a number of factors, some of which are beyond
our control. For example, physicians are often reluctant to switch their patients and patients may be reluctant to switch from existing
therapies even when new and potentially more effective or safer treatments enter the market.
Efforts to educate the medical community and third-party payors on the benefits of our product candidates may require
significant resources and may not be successful. If any of our product candidates is approved but does not achieve an adequate level of
market acceptance, we may not generate significant revenues and we may not become profitable. The degree of market acceptance of
any of our product candidates will depend on a number of factors, including:
the efficacy of our product candidates;
the prevalence and severity of adverse events associated with such product candidates;
the clinical indications for which the products are approved and the approved claims that we may make for the products;
limitations or warnings contained in the Product’s FDA-approved labeling, including potential limitations or warnings for
such products that may be more restrictive than other competitive products;
52
changes in the standard of care for the targeted indications for such product candidates;
the relative difficulty of administration of such product candidates;
cost of treatment versus economic and clinical benefit in relation to alternative treatments or therapies;
the availability of adequate coverage or reimbursement by third parties, such as insurance companies and other healthcare
payors, and by government healthcare programs, including Medicare and Medicaid;
the extent and strength of our marketing and distribution of such product candidates;
the safety, efficacy, and other potential advantages over, and availability of, alternative treatments already used or that may
later be approved for any of our intended indications;
distribution and use restrictions imposed by the FDA with respect to such product candidates or to which we agree as part
of a mandatory risk evaluation and mitigation strategy or voluntary risk management plan;
the timing of market introduction of such product candidates, as well as competitive products;
our ability to offer such product candidates for sale at competitive prices;
the willingness of the target patient population to try new therapies and of physicians to prescribe these therapies;
the extent and strength of our third-party manufacturer and supplier support;
the approval of other new products for the same indications;
adverse publicity about the product or favorable publicity about competitive products; and
potential product liability claims.
Our efforts to educate the medical community and third-party payors on the benefits of our product candidates may require
significant resources and may never be successful. Even if the medical community accepts that our product candidates are safe and
effective for their approved indications, physicians and patients may not immediately be receptive to such product candidates and may
be slow to adopt them as an accepted treatment of the approved indications. If our current or future product candidates are approved
but do not achieve an adequate level of acceptance among physicians, patients, and third-party payors, we may not generate
meaningful revenues from our product candidates, and we may not become profitable.
Our product candidates may face competition sooner than anticipated.
The enactment of the Biologics Price Competition and Innovation Act of 2009, or BPCIA, created an abbreviated pathway for
the approval of biosimilar and interchangeable biological products. The abbreviated regulatory pathway establishes legal authority for
the FDA to review and approve biosimilar biologics, including the possible designation of a biosimilar as “interchangeable” based on
its similarity to an existing brand product. Under the BPCIA, the FDA cannot make an approval of an application for a biosimilar
product effective until 12 years after the original branded product was approved under a BLA. Certain changes, however, and
supplements to an approved BLA, and subsequent applications filed by the same sponsor, manufacturer, licensor, predecessor in
interest, or other related entity do not qualify for the 12-year exclusivity period.
Our product candidates may qualify for the BPCIA’s 12-year period of exclusivity. However, there is a risk that the FDA will
not consider our product candidates to be reference products for competing products, potentially creating the opportunity for
biosimilar competition sooner than anticipated. Additionally, this period of regulatory exclusivity does not block companies pursuing
regulatory approval via their own traditional BLA, rather than via the abbreviated pathway. Changes may also be made to this
exclusivity period as a result of future legislation as there has been ongoing efforts to reduce the period of exclusivity. Even if we
receive a period of BPCIA exclusivity for our first licensed product, if subsequent products do not include a modification to the
structure of the product that impacts safety, purity, or potency, we may not receive additional periods of exclusivity for those products.
Moreover, the extent to which a biosimilar, once approved, will be substituted for any one of our reference products in a way that is
similar to traditional generic substitution for non-biological products is not yet clear, and will depend on a number of marketplace and
regulatory factors that are still developing. Medicare Part B encourages use of biosimilars by paying the provider the same percentage
of the reference product, average sale price, or ASP as a mark-up, regardless of which product is reimbursed. It is also possible that
payors will give reimbursement preference to biosimilars even over reference biologics absent a determination of interchangeability.
We will need to obtain FDA approval of any proposed branded product names, and any failure or delay associated with such
approval may adversely affect our business.
Any name we intend to use for our product candidates will require approval from the FDA regardless of whether we have
secured a formal trademark registration from the U.S. Patent and Trademark Office, or USPTO. The FDA typically conducts a review
of proposed product names, including an evaluation of the potential for confusion with other product names. The FDA may also object
to a product name if it believes the name inappropriately implies medical claims or contributes to an overstatement of efficacy. If the
FDA objects to any of our proposed product names, we may be required to adopt alternative names for our product candidates. If we
adopt alternative names, we would lose the benefit of any existing trademark applications for such product candidate and may be
required to expend significant additional resources in an effort to identify a suitable product name that would qualify under applicable
trademark laws, not infringe the existing rights of third parties, and be acceptable to the FDA. We may be unable to build a successful
brand identity for a new trademark in a timely manner or at all, which would limit our ability to commercialize our product candidates.
53
Our internal computer systems, or those used by our contract research organizations or other contractors or consultants,
may fail or suffer security breaches.
Despite the implementation of security measures, our internal computer systems and those of our contract research
organizations and other contractors and consultants are vulnerable to damage from computer viruses, unauthorized access, natural
disasters, terrorism, war and telecommunication and electrical failures. If such an event was to occur and cause interruptions in our
operations, it could result in a disruption of our drug development programs. For example, the loss of clinical trial data from
completed or ongoing clinical trials for a product candidate 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 were to result in a loss of or
damage to our data or applications, or inappropriate disclosure of confidential or proprietary information, we could incur liability and
the further development of any product candidates could be delayed.
We are dependent on information technology, systems, infrastructure and data.
We are dependent upon information technology systems, infrastructure and data. The multitude and complexity of our
computer systems make them inherently vulnerable to service interruption or destruction, malicious intrusion and random attack.
Likewise, data privacy or security breaches by third parties, employees, contractors or others may pose a risk that sensitive data,
including our intellectual property, trade secrets or personal information of our employees, patients, or other business partners may be
exposed to unauthorized persons or to the public. Cyberattacks are increasing in their frequency, sophistication and intensity.
Cyberattacks could include the deployment of harmful malware, denial-of-service, social engineering and other means to affect
service reliability and threaten data confidentiality, integrity and availability. Our business and technology partners face similar risks
and any security breach of their systems could adversely affect our security posture. While we have invested, and continue to invest, in
the protection of our data and information technology infrastructure, there can be no assurance that our efforts, or the efforts of our
partners and vendors, will prevent service interruptions, or identify breaches in our systems, that could adversely affect our business
and operations and/or result in the loss of critical or sensitive information, which could result in financial, legal, business or
reputational harm to us. In addition, our liability insurance may not be sufficient in type or amount to cover us against claims related
to security breaches, cyberattacks and other related breaches.
Our failure to comply with data protection laws and regulations could lead to government enforcement actions and
significant penalties against us, and adversely impact our operating results.
European Union, or EU, member states and other foreign jurisdictions, including Switzerland, have adopted data protection
laws and regulations which impose significant compliance obligations on us. Moreover, the collection and use of personal health data
in the EU, which was formerly governed by the provisions of the EU Data Protection Directive, was replaced with the EU General
Data Protection Regulation, or the GDPR, in May 2018. The GDPR, which is wide-ranging in scope, imposes several requirements
relating to the consent of the individuals to whom the personal data relates, the information provided to the individuals, the security
and confidentiality of the personal data, data breach notification and the use of third party processors in connection with the
processing of personal data. The GDPR also imposes strict rules on the transfer of personal data out of the EU to the U.S., provides an
enforcement authority and imposes large penalties for noncompliance, including the potential for fines of up to €20 million or 4% of
the annual global revenues of the noncompliant company, whichever is greater. The GDPR requirements apply not only to third-party
transactions, but also to transfers of information between us and our subsidiaries, including employee information. The recent
implementation of the GDPR has increased our responsibility and liability in relation to personal data that we process, including in
clinical trials, and we may in the future be required to put in place additional mechanisms to ensure compliance with the GDPR, which
could divert management’s attention and increase our cost of doing business. In addition, new regulation or legislative actions
regarding data privacy and security (together with applicable industry standards) may increase our costs of doing business. In this
regard, we expect that there will continue to be new proposed laws, regulations and industry standards relating to privacy and data
protection in the United States, the EU and other jurisdictions, and we cannot determine the impact such future laws, regulations and
standards may have on our business.
We will need to grow the size and capabilities of our organization, and we may experience difficulties in managing this
growth.
Our operations are dependent upon the services of our executives and our employees who are engaged in research and
development. The loss of the services of our executive officers or senior research personnel could delay our product development
programs and our research and development efforts. In order to develop our business in accordance with our business plan, we will
have to hire additional qualified personnel, including in the areas of research, manufacturing, clinical trials management, regulatory
affairs, and sales and marketing. We are continuing our efforts to recruit and hire the necessary employees to support our planned
operations in the near term. However, competition for qualified employees among companies in the biotechnology and
biopharmaceutical industry is intense, and no assurance can be given that we will be able attract, hire, retain and motivate the highly
skilled employees that we need. Future growth will impose significant added responsibilities on members of management, including:
54
identifying, recruiting, integrating, maintaining, and motivating additional employees;
managing our internal development efforts effectively, including the clinical and FDA review process for our product
candidates, while complying with our contractual obligations to contractors and other third parties; and
improving our operational, financial and management controls, reporting systems, and procedures.
Our future financial performance and our ability to commercialize our product candidates will depend, in part, on our ability to
effectively manage any future growth, and our management may also have to divert a disproportionate amount of its attention away
from day-to-day activities in order to devote a substantial amount of time to managing these growth activities. Our efforts to manage
our growth are complicated by the fact that nearly all of our executive officers have joined us since June 2016. This lack of long-term
experience working together may adversely impact our senior management team’s ability to effectively manage our business and
growth.
We currently rely, and for the foreseeable future will continue to rely, in substantial part on certain independent organizations,
advisors and consultants to provide certain services. There can be no assurance that the services of these independent organizations,
advisors and consultants will continue to be available to us on a timely basis when needed, or that we can find qualified replacements.
In addition, if we are unable to effectively manage our outsourced activities or if the quality, compliance or accuracy of the services
provided by consultants is compromised for any reason, our clinical trials may be extended, delayed, or terminated, and we may not be
able to obtain regulatory approval of our product candidates or otherwise advance our business. There can be no assurance that we will
be able to manage our existing consultants or find other competent outside contractors and consultants on economically reasonable
terms, if at all.
If we are not able to effectively expand our organization by hiring new employees and expanding our groups of consultants and
contractors, we may not be able to successfully implement the tasks necessary to further develop and commercialize our product
candidates and, accordingly, may not achieve our research, development, and commercialization goals on a timely basis, or at all.
If we engage in future acquisitions or strategic partnerships, this may increase our capital requirements, dilute our
stockholders, cause us to incur debt or assume contingent liabilities, and subject us to other risks.
We may evaluate various acquisitions and strategic partnerships, including licensing or acquiring complementary products,
intellectual property rights, technologies, or businesses. Any potential acquisition or strategic partnership may entail numerous risks,
including:
increased operating expenses and cash requirements;
the assumption of additional indebtedness or contingent liabilities;
the issuance of our equity securities;
assimilation of operations, intellectual property and products of an acquired company or product, including difficulties
associated with integrating new personnel;
the diversion of our management’s attention from our existing product programs and initiatives in pursuing such a strategic
merger or acquisition;
retention of key employees, the loss of key personnel, and uncertainties in our ability to maintain key business
relationships;
risks and uncertainties associated with the other party to such a transaction, including the prospects of that party and their
existing products or product candidates and regulatory approvals; and
our inability to generate revenue from acquired technology and/or products sufficient to meet our objectives in undertaking
the acquisition or even to offset the associated acquisition and maintenance costs.
Depending on the size and nature of future strategic acquisitions, we may acquire assets or businesses that require us to raise
additional capital or to operate or manage businesses in which we have limited experience. Making larger acquisitions that require us
to raise additional capital to fund the acquisition will expose us to the risks associated with capital raising activities. Acquiring and
thereafter operating larger new businesses will also increase our management, operating and reporting costs and burdens. In addition,
if we undertake acquisitions, we may issue dilutive securities, assume or incur debt obligations, incur large one-time expenses and
acquire intangible assets that could result in significant future amortization expense. Moreover, we may not be able to locate suitable
acquisition opportunities and this inability could impair our ability to grow or obtain access to technology or products that may be
important to the development of our business.
55
We may rely on third parties to perform many essential services for any products that we commercialize, including services
related to distribution, government price reporting, customer service, accounts receivable management, cash collection, and
adverse event reporting. If these third parties fail to perform as expected or to comply with legal and regulatory requirements, our
ability to commercialize our current or future product candidates will be significantly impacted and we may be subject to
regulatory sanctions.
We may retain third-party service providers to perform a variety of functions related to the sale and distribution of our current
or future product candidates, key aspects of which will be out of our direct control. These service providers may provide key services
related to distribution, customer service, accounts receivable management, and cash collection. If we retain a service provider, we
would substantially rely on it as well as other third-party providers that perform services for us, including entrusting our inventories of
products to their care and handling. If these third-party service providers fail to comply with applicable laws and regulations, fail to
meet expected deadlines, or otherwise do not carry out their contractual duties to us, or encounter physical or natural damage at their
facilities, our ability to deliver product to meet commercial demand would be significantly impaired and we may be subject to
regulatory enforcement action.
In addition, we may engage third parties to perform various other services for us relating to adverse event reporting, safety
database management, fulfillment of requests for medical information regarding our product candidates and related services. If the
quality or accuracy of the data maintained by these service providers is insufficient, or these third parties otherwise fail to comply with
regulatory requirements related to adverse event reporting, we could be subject to regulatory sanctions.
Additionally, we may contract with a third-party to calculate and report pricing information mandated by various government
programs. If a third party fails to timely report or adjust prices as required or errs in calculating government pricing information from
transactional data in our financial records, it could impact our discount and rebate liability, and potentially subject us to regulatory
sanctions or False Claims Act lawsuits.
The SEC has issued an administrative order against us that may make it more difficult for us to raise capital in the future.
On April 10, 2017, the SEC issued an administrative order that requires us to cease and desist from committing or causing any
violations and any future violations of Sections 5(b), 17(a), and 17(b) of the Securities Act of 1933, as amended, or the Securities Act,
and of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. The order was entered into as part of our
settlement with the SEC in the investigation titled In the Matter of Certain Stock Promotions. The SEC’s investigation, in part,
involved the conduct of our former Chief Executive Officer and director, Manish Singh, during the period between September 2013
and April 2014, and the failure by authors of certain articles about our company to disclose that they were compensated by one of our
former investor relations firms. The foregoing order may negatively impact our reputation with current and future investors, will
disqualify us from effecting private placement transactions in reliance upon any of the exemptions from Securities Act registration
afforded by Regulation D, and will limit our ability to make certain communications in future public offerings. As a result, the SEC's
order will make it more difficult for us to raise capital in future private and public offerings. We currently anticipate that we will have
to raise additional capital in the future to fund our future research, development and commercialization efforts.
We are, and in the future may be, subject to Federal or state securities or related legal actions that could adversely affect our
results of operations and our business.
Shortly after the SEC announced settlements with us, with other public companies, and with unrelated parties in the In the
Matter of Certain Stock Promotions investigation, two securities class action complaints were filed in the U.S. District Court for the
Northern District of California against our company, Manish Singh, and two of our other former officers. On July 20, 2017, the
plaintiff in one of the cases filed a notice to voluntarily dismiss that case, and the court entered an order dismissing the complaint on
July 21, 2017. On July 26, 2017, the court appointed a movant as lead plaintiff. On September 8, 2017, the lead plaintiff, individually
and on behalf of all others similarly situated, filed an amended complaint seeking class action status in the United States District Court
for the Northern District of California (Jay Rabkin v. Lion Biotechnologies, Inc., et al., case no. 3:17-cv-0286) against us, two of our
former officers, and the managing member of our former investor relations firm. The amended complaint alleges, among other things,
that the defendants violated various provisions of the Securities Exchange Act of 1934 by making materially false and misleading
statements, or by failing to make certain disclosures, regarding the actions taken by Manish Singh, our former Chief Executive Officer
and a former director, and our former investor relations firm that were the subject of the In the Matter of Certain Stock Promotions
SEC investigation. On February 5, 2018, the court entered an order dismissing two of plaintiff’s six claims. As the result of mediation,
on September 28, 2018, lead plaintiff filed an unopposed motion for settlement, the cost of which, if approved, is expected to be borne
by our insurance carrier and would result in no loss to us. The court gave preliminary approval to the proposed settlement on
November 30, 2018, and the final hearing is currently scheduled for April 12, 2019.
56
On December 15, 2017, a purported stockholder derivative complaint was filed by plaintiff Kevin Fong was filed against us, as
nominal defendant, and certain of our current and former officers and directors, and others, as defendants, in the U.S. District Court
for the District of Delaware (case no. 1:17-cv-1806). The complaint alleges breaches of fiduciary duties, unjust enrichment, and
violations of Section 14(a) of the Securities Exchange Act of 1934 and Rule 14a-9 promulgated thereunder arising from the SEC’s
investigation in the In the Matter of Certain Stock Promotions matter and our April 10, 2017 settlement thereof, and seeks unspecified
damages on behalf of our company and injunctive relief. On March 28, 2018, a purported stockholder derivative complaint was filed
by plaintiff Nazeer Khaleeluddin on behalf of the Company, against the Company, as nominal defendant, and certain of our current
and former officers and directors, and others, as defendants, in the U.S. District Court for the District of Delaware (case no. 1:18-cv-
00469). The complaint alleges, among other things, violations of securities law, breach of fiduciary duty, aiding and abetting, waste of
corporate assets, and unjust enrichment. The complaint is based on claims arising from the SEC’s investigation in the In the Matter of
Certain Stock Promotions investigation and our April 10, 2017 settlement thereof, and seeks unspecified damages on behalf of our
company and injunctive relief.
We intend to vigorously defend against these complaints. However, based on the very early stage of the litigation matters, it is
not possible to estimate the amount or range of possible loss that might result from an adverse judgment or a settlement of these
matters. Furthermore, litigation is inherently uncertain, and there is no assurance as to the outcome of these, or other future cases. We
could incur substantial unreimbursed legal fees, settlements, judgments and other expenses in connection with these, or other legal and
regulatory proceedings that may not qualify for coverage under, or may exceed the limits of, our applicable directors’ and officers’
liability insurance policies and could have a material adverse effect on our financial condition, liquidity and results of operations. The
currently pending cases also may distract the time and attention of our officers and directors or divert our other resources away from
our ongoing commercial and development programs. An unfavorable outcome in these matters could damage our business and
reputation or result in additional claims or proceedings against us.
Risks Related to Government Regulation
The FDA regulatory approval process is lengthy and time-consuming, and we may experience significant delays in the
clinical development and regulatory approval of our product candidates.
We have not previously submitted a BLA to the FDA, or similar approval filings to comparable foreign authorities. A BLA
must include extensive preclinical and clinical data and supporting information to establish the product candidate’s safety and
effectiveness for each desired indication. The BLA must also include significant information regarding the chemistry, manufacturing
and controls for the product. We expect the novel nature of our product candidates to create further challenges in obtaining regulatory
approval. For example, the FDA has limited experience with commercial development of cell therapies for cancer. We may also not
be able to successfully utilize the RMAT designation we have received for advanced melanoma to successfully complete the
development and commercialization of lifileucel. We may not be able to reach agreement with FDA on an interpretation of outcomes
from our meetings, including meetings we have held with FDA in relation to our C-144-01 clinical trial and future meetings.
Accordingly, the regulatory approval pathway for our product candidates may be uncertain, complex, expensive and lengthy, and
approval may not be obtained.
We may also experience delays in completing planned clinical trials for a variety of reasons, including delays related to:
the availability of financial resources to commence and complete the planned trials;
reaching agreement on acceptable terms with prospective CROs and clinical trial sites, the terms of which can be subject to
extensive negotiation and may vary significantly among different CROs and trial sites;
obtaining approval at each clinical trial site by an independent institutional review board, or IRB, or central IRB;
recruiting suitable patients to participate in a trial;
having patients complete a trial or return for post-treatment follow-up;
clinical trial sites deviating from trial protocol or dropping out of a trial;
adding new clinical trial sites; or
manufacturing sufficient quantities of qualified materials under cGMPs and applying them on a subject by subject basis for
use in clinical trials.
We could also encounter delays if physicians encounter unresolved ethical issues associated with enrolling patients in clinical
trials of our product candidates in lieu of prescribing existing treatments that have established safety and efficacy profiles. Further, a
clinical trial may be suspended or terminated by us, the IRBs for the institutions in which such trials are being conducted by the FDA
or other regulatory authorities, or recommended for suspension or termination by DSMBs due to a number of factors, including failure
to conduct the clinical trial in accordance with regulatory requirements or our clinical protocols, inspection of the clinical trial
operations or trial site by the FDA or other regulatory authorities resulting in the imposition of a clinical hold, unforeseen safety issues
or adverse side effects, failure to demonstrate a benefit from using a product candidate, changes in governmental regulations or
administrative actions or lack of adequate funding to continue the clinical trial. If we experience termination of, or delays in the
completion of, any clinical trial of our product candidates, the commercial prospects for our product candidates will be harmed, and
our ability to generate product revenue will be delayed. In addition, any delays in completing our clinical trials will increase our costs,
slow down our product development and approval process and jeopardize our ability to commence product sales and generate revenue.
57
Obtaining and maintaining regulatory approval of our product candidates in one jurisdiction does not mean that we will be
successful in obtaining regulatory approval of our product candidates in other jurisdictions.
In order to market and sell our products outside the United States, we or our third-party collaborators may be required to obtain
separate marketing approvals and comply with numerous and varying regulatory requirements. Obtaining and maintaining regulatory
approval of our product candidates in one jurisdiction does not guarantee that we will be able to obtain or maintain regulatory
approval in any other jurisdiction, while a failure or delay in obtaining regulatory approval in one jurisdiction may have a negative
effect on the regulatory approval process in others. Approval policies and requirements may vary among jurisdictions. For example,
even if the FDA grants marketing approval of a product candidate, comparable regulatory authorities in foreign jurisdictions must also
approve the manufacturing, marketing and promotion of the product candidate in those countries. Approval procedures vary among
jurisdictions and can involve requirements and administrative review periods different from, and greater than, those in the United
States, including additional preclinical studies or clinical trials as clinical studies conducted in one jurisdiction may not be accepted by
regulatory authorities in other jurisdictions. In many jurisdictions outside the United States, a product candidate must be approved for
reimbursement before it can be approved for sale in that jurisdiction. In some cases, the price that we intend to charge for our products
is also subject to approval. We or our collaborators may not be able to file for regulatory approval of our product candidates in
international jurisdictions or obtain approvals from regulatory authorities outside the United States on a timely basis, if at all.
We may also submit marketing applications in other countries. Regulatory authorities in jurisdictions outside of the United
States have requirements for approval of product candidates with which we must comply prior to marketing in those jurisdictions.
Obtaining foreign regulatory approvals and compliance with foreign regulatory requirements could result in significant delays,
difficulties and costs for us and could delay or prevent the introduction of our products in certain countries. If we fail to comply with
the regulatory requirements in international markets and/or receive applicable marketing approvals, our target market will be reduced
and our ability to realize the full market potential of our product candidates will be harmed.
We are, and if we receive regulatory approval of our product candidates, will continue to be subject to ongoing regulatory
obligations and continued regulatory review, which may result in significant additional expense and we may be subject to penalties
if we fail to comply with regulatory requirements or experience unanticipated problems with our product candidates.
Any regulatory approvals that we receive for our product candidates will require surveillance to monitor the safety and efficacy
of the product candidate. The FDA may also require a REMS to approve our product candidates, which could entail requirements for a
medication guide, physician communication plans or additional elements to ensure safe use, such as restricted distribution methods,
patient registries and other risk minimization tools. The FDA may also require post-approval Phase 4 studies. Moreover, the FDA and
comparable foreign regulatory authorities will continue to closely monitor the safety profile of any product even after approval. If the
FDA or comparable foreign regulatory authorities become aware of new safety information after approval of any of our product
candidates, they may withdraw approval, require labeling changes or establishment of a REMS or similar strategy, impose significant
restrictions on a product’s indicated uses or marketing, or impose ongoing requirements for potentially costly post-approval studies or
post-market surveillance. Any such restrictions could limit sales of the product.
In addition, we, our contractors, and our collaborators are and will remain responsible for FDA compliance, including
requirements related to product design, testing, clinical and pre-clinical trials approval, manufacturing processes and quality, labeling,
packaging, distribution, adverse event and deviation reporting, storage, advertising, marketing, promotion, sale, import, export,
submissions of safety and other post-marketing information and reports such as deviation reports, registration, product listing, annual
user fees, and recordkeeping for our product candidates. We and any of our collaborators, including our contract manufacturers, could
be subject to periodic unannounced inspections by the FDA to monitor and ensure compliance with regulatory requirements.
Application holders must further notify the FDA, and depending on the nature of the change, obtain FDA pre-approval for product and
manufacturing changes. The cost of compliance with post-approval regulations may have a negative effect on our operating results
and financial condition.
Later discovery of previously unknown problems with our product candidates, including adverse events of unanticipated
severity or frequency, that the product is less effective than previously thought, problems with our third-party manufacturers or
manufacturing processes, or failure to comply with regulatory requirements, may result in, among other things:
restrictions on the marketing, distribution, or manufacturing of our product candidates, withdrawal of the product from the
market, or voluntary or mandatory product recalls;
restrictions on the labeling of our product candidates, including required additional warnings, such as black box warnings,
contraindications, precautions, and restrictions on the approved indication or use;
modifications to promotional pieces;
changes to product labeling or the way the product is administered;
58
liability for harm caused to patients or subjects;
fines, restitution, disgorgement, warning letters, untitled letters, cyber letters, or holds on or termination of clinical trials;
refusal by the FDA to approve pending applications or supplements to approved applications filed by us or suspension or
revocation of license approvals;
product seizure or detention, or refusal to permit the import or export of our product candidates;
injunctions or the imposition of civil or criminal penalties, including imprisonment;
FDA debarment, debarment from government contracts, and refusal of future orders under existing contracts, exclusion
from federal healthcare programs, consent decrees, or corporate integrity agreements;
regulatory authority issuance of safety alerts, Dear Healthcare Provider letters, press releases, or other communications
containing warnings or other safety information about the biologic;
reputational harm; or
the product becoming less competitive.
Any of these events could further have other material and adverse effects on our operations and business and could adversely
impact our stock price and could significantly harm our business, financial condition, results of operations, and prospects.
The FDA’s and other regulatory authorities’ policies may change, and additional government regulations may be enacted that
could prevent, limit or delay regulatory approval of our product candidates. We cannot predict the likelihood, nature or extent of
government regulation that may arise from future legislation or administrative action, either in the United States or abroad. If we are
slow or unable to adapt to changes in existing requirements or the adoption of new requirements or policies, or if we are not able to
maintain regulatory compliance, we may lose any marketing approval that we may have obtained, be subject to other regulatory
enforcement action, and we may not achieve or sustain profitability.
If we fail to comply with federal and state healthcare and promotional laws, including fraud and abuse and information
privacy and security laws, we could face substantial penalties and our business, financial condition, results of operations, and
prospects could be adversely affected.
As a biopharmaceutical company, we are subject to many federal and state healthcare laws, including the federal AKS, the
federal civil and criminal FCA, the civil monetary penalties statute, the Medicaid Drug Rebate statute and other price reporting
requirements, the Veterans Health Care Act of 1992, the federal Health Insurance Portability and Accountability Act of 1996 (as
amended by the Health Information Technology for Economics and Clinical Health Act), the Foreign Corrupt Practices Act of 1977,
the Patient Protection and Affordable Care Act of 2010, and similar state laws. Even though we do not and will not control referrals of
healthcare services or bill directly to Medicare, Medicaid, or other third-party payors, certain federal and state healthcare laws and
regulations pertaining to fraud and abuse and patients’ rights are and will be applicable to our business. If we do not comply with all
applicable fraud and abuse laws, we may be subject to healthcare fraud and abuse enforcement by both the federal government and the
states in which we conduct our business.
Laws and regulations require calculation and reporting of complex pricing information for prescription drugs, and compliance
will require us to invest in significant resources and develop a price reporting infrastructure, or depend on third parties to compute and
report our drug pricing. Pricing reported to CMS must be certified. Non-compliant activities expose us to FCA risk if they result in
overcharging agencies, underpaying rebates to agencies, or causing agencies to overpay providers.
If we or our operations are found to be in violation of any federal or state healthcare law, or any other governmental regulations
that apply to us, we may be subject to penalties, including civil, criminal, and administrative penalties, damages, fines, disgorgement,
debarment from government contracts, refusal of orders under existing contracts, exclusion from participation in U.S. federal or state
health care programs, corporate integrity agreements, and the curtailment or restructuring of our operations, any of which could
materially adversely affect our ability to operate our business and our financial results. If any of the physicians or other healthcare
providers or entities with whom we expect to do business, including our collaborators, is found not to be in compliance with
applicable laws, they may be subject to criminal, civil, or administrative sanctions, including but not limited to, exclusions from
participation in government healthcare programs, which could also materially affect our business.
In particular, if we are found to have impermissibly promoted any of our product candidates, we may become subject to
significant liability and government fines. We, and any of our collaborators, must comply with requirements concerning advertising
and promotion for any of our product candidates for which we or they obtain marketing approval. Promotional communications with
respect to therapeutics are subject to a variety of legal and regulatory restrictions and continuing review by the FDA, Department of
Justice, Department of Health and Human Services’ Office of Inspector General, state attorneys general, members of Congress, and
the public. When the FDA or comparable foreign regulatory authorities issue regulatory approval for a product candidate, the
regulatory approval is limited to those specific uses and indications for which a product is approved. If we are not able to obtain FDA
approval for desired uses or indications for our products and product candidates, we may not market or promote our products for those
indications and uses, referred to as off-label uses, and our business may be adversely affected. We further must be able to sufficiently
substantiate any claims that we make for our products including claims comparing our products to other companies’ products and
must abide by the FDA's strict requirements regarding the content of promotion and advertising.
59
While physicians may choose to prescribe products for uses that are not described in the product’s labeling and for uses that
differ from those tested in clinical studies and approved by the regulatory authorities, we are prohibited from marketing and promoting
the products for indications and uses that are not specifically approved by the FDA. These off-label uses are common across medical
specialties and may constitute an appropriate treatment for some patients in varied circumstances. Regulatory authorities in the United
States generally do not restrict or regulate the behavior of physicians in their choice of treatment within the practice of medicine.
Regulatory authorities do, however, restrict communications by biopharmaceutical companies concerning off-label use.
The FDA and other agencies actively enforce the laws and regulations regarding product promotion, particularly those
prohibiting the promotion of off-label uses, and a company that is found to have improperly promoted a product may be subject to
significant sanctions. The federal government has levied large civil and criminal fines against companies for alleged improper
promotion and has enjoined several companies from engaging in off-label promotion. The FDA has also requested that companies
enter into consent decrees of permanent injunctions under which specified promotional conduct is changed or curtailed. Thus, we and
any of our collaborators will not be able to promote any products we develop for indications or uses for which they are not approved.
In the United States, engaging in the impermissible promotion of our products, following approval, for off-label uses can also
subject us to false claims and other litigation under federal and state statutes, including fraud and abuse and consumer protection laws,
which can lead to civil and criminal penalties and fines, agreements with governmental authorities that materially restrict the manner
in which we promote or distribute therapeutic products and do business through, for example, corporate integrity agreements,
suspension or exclusion from participation in federal and state healthcare programs, and debarment from government contracts and
refusal of future orders under existing contracts. These false claims statutes include the federal civil False Claims Act, which allows
any individual to bring a lawsuit against a biopharmaceutical company on behalf of the federal government alleging submission of
false or fraudulent claims or causing others to present such false or fraudulent claims, for payment by a federal program such as
Medicare or Medicaid. If the government decides to intervene and prevails in the lawsuit, the individual will share in the proceeds
from any fines or settlement funds. If the government declines to intervene, the individual may pursue the case alone. These False
Claims Act lawsuits against manufacturers of drugs and biologics have increased significantly in volume and breadth, leading to
several substantial civil and criminal settlements, up to $3.0 billion, pertaining to certain sales practices and promoting off-label uses.
In addition, False Claims Act lawsuits may expose manufacturers to follow-on claims by private payors based on fraudulent marketing
practices. This growth in litigation has increased the risk that a biopharmaceutical company will have to defend a false claim action,
pay settlement fines or restitution, as well as criminal and civil penalties, agree to comply with burdensome reporting and compliance
obligations, and be excluded from Medicare, Medicaid, or other federal and state healthcare programs. If we or our future
collaborators do not lawfully promote our approved products, if any, we may become subject to such litigation and, if we do not
successfully defend against such actions, those actions may have a material adverse effect on our business, financial condition, results
of operations and prospects.
Although an effective compliance program can mitigate the risk of investigation and prosecution for violations of these laws,
the risks cannot be entirely eliminated. Moreover, achieving and sustaining compliance with applicable federal and state fraud laws
may prove costly. Any action against us for violation of these laws, even if we successfully defend against it, could cause us to incur
significant legal expenses and divert our management’s attention from the operation of our business.
Coverage and reimbursement may be limited or unavailable in certain market segments for our product candidates, which
could make it difficult for us to sell our product candidates profitably.
In both domestic and foreign markets, sales of our product candidates, if approved, depend on the availability of coverage and
adequate reimbursement from third-party payors. Such third-party payors include government health programs such as Medicare and
Medicaid, managed care providers, private health insurers, and other organizations. In addition, because our product candidates
represent new approaches to the treatment of cancer, we cannot accurately estimate the potential revenue from our product candidates.
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. Obtaining coverage and adequate reimbursement from governmental healthcare programs,
such as Medicare and Medicaid, and commercial payors is critical to new product acceptance.
Government authorities and third-party payors decide which drugs and treatments they will cover and the amount of
reimbursement. Coverage decisions may depend upon clinical and economic standards that disfavor new drug products when more
established or lower cost therapeutic alternatives are already available or subsequently become available. If reimbursement is not
available, or is available only to limited levels, our product candidates may be competitively disadvantaged, and we, or our
collaborators, may not be able to successfully commercialize our product candidates. Even if coverage is provided, the approved
reimbursement amount may not be high enough to allow us, or our collaborators, to establish or maintain a market share sufficient to
realize a sufficient return on our or their investments. Alternatively, securing favorable reimbursement terms may require us to
compromise pricing and prevent us from realizing an adequate margin over cost. Reimbursement by a third-party payor may depend
upon a number of factors, including, but not limited to, the third-party payor’s determination that use of a product is:
60
a covered benefit under its health plan;
safe, effective and medically necessary;
appropriate for the specific patient;
cost-effective; and
neither experimental nor investigational.
Obtaining coverage and reimbursement approval of a product from a government or other third-party payor is a time-
consuming and costly process that could require us to provide to the payor supporting scientific, clinical and cost-effectiveness data
for the use of our products. Even if we obtain coverage for a given product, the resulting reimbursement payment rates might not be
adequate for us to achieve or sustain profitability or may require co-payments that patients find unacceptably high. Moreover, the
factors noted above have continued to be the focus of policy and regulatory debate that has, thus far, shown the potential for
movement towards permanent policy changes; this trend is apt to continue, and may result in more or less favorable impacts on
pricing. Patients are unlikely to use our product candidates unless coverage is provided, and reimbursement is adequate to cover a
significant portion of the cost of our product candidates.
In the United States, no uniform policy of coverage and reimbursement for products exists among third-party payors. Therefore,
coverage and reimbursement 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 will require us to provide scientific and clinical support for the use of our product
candidates to each payor separately, with no assurance that coverage and adequate reimbursement will be obtained.
Prices paid for a drug also vary depending on the class of trade. Prices charged to government customers are subject to price
controls, including ceilings, and private institutions obtain discounts through group purchasing organizations. Net prices for drugs may
be further reduced by mandatory discounts or rebates required by government healthcare programs and demanded by private payors. It
is also not uncommon for market conditions to warrant multiple discounts to different customers on the same unit, such as purchase
discounts to institutional care providers and rebates to the health plans that pay them, which reduces the net realization on the original
sale. On January 31, 2019, the U.S. Department of Health and Human Services issued a proposed rule aimed at eliminating certain
AKS safe harbor protections for drug rebates.
In addition, federal programs impose penalties on manufacturers of drugs marketed under an NDA or BLA, in the form of
mandatory additional rebates and/or discounts if commercial prices increase at a rate greater than the Consumer Price Index-Urban,
and these rebates and/or discounts, which can be substantial, may impact our ability to raise commercial prices. Regulatory authorities
and 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 our collaborators to sell our product candidates profitably. These payors may not
view our products, if any, as cost-effective, and coverage and reimbursement may not be available to our customers, or those of our
collaborators, or may not be sufficient to allow our products, if any, to be marketed on a competitive basis. Cost control initiatives
could cause us, or our collaborators, to decrease, discount, or rebate a portion of the price we, or they, might establish for products,
which could result in lower than anticipated product revenues. If the realized prices for our products, if any, decrease or if
governmental and other third-party payors do not provide adequate coverage or reimbursement, our prospects for revenue and
profitability will suffer. Moreover, the recent and ongoing series of congressional hearings relating to drug pricing has presented
heightened attention to the biopharmaceutical industry, creating the potential for political and public pressure, while the potential for
resulting legislative or policy changes presents uncertainty.
Assuming coverage is approved, the resulting reimbursement payment rates might not be adequate. If payors subject our
product candidates to maximum payment amounts or impose limitations that make it difficult to obtain reimbursement, providers may
choose to use therapies which are less expensive when compared to our product candidates. Additionally, if payors require high
copayments, beneficiaries may decline prescriptions and seek alternative therapies. We may need to conduct post-marketing studies in
order to demonstrate the cost-effectiveness of any future products to the satisfaction of hospitals and other target customers and their
third-party payors. Such studies might require us to commit a significant amount of management time and financial and other
resources. Our future products might not ultimately be considered cost-effective. Adequate third-party coverage and reimbursement
might not be available to enable us to maintain price levels sufficient to realize an appropriate return on investment in product
development.
Third-party payors, whether domestic or foreign, or governmental or commercial, are developing increasingly sophisticated
methods of controlling healthcare costs. 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. We, and our collaborators, cannot be sure that coverage
will be available for any product candidate that we, or they, commercialize and, if available, that the reimbursement rates will be
adequate. 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 any our product
candidates for which we obtain marketing approval could have a material adverse effect on our operating results, our ability to raise
capital needed to commercialize products, and our overall financial condition.
61
There have been, and likely will continue to be, legislative and regulatory proposals at the federal and state levels directed at
broadening the availability of healthcare and containing or lowering the cost of healthcare. We cannot predict the initiatives that may
be adopted in the future. The continuing efforts of the government, insurance companies, managed care organizations and other payors
of healthcare services to contain or reduce costs of healthcare and/or impose price controls may adversely affect:
the demand for our product candidates, if we obtain regulatory approval;
our ability to set a price that we believe is fair for our products;
our ability to generate revenue and achieve or maintain profitability;
the level of taxes that we are required to pay; and
the availability of capital.
Any reduction in reimbursement from Medicare or other government programs may result in a similar reduction in payments
from private payors, which may adversely affect our future profitability. A particular challenge for our product candidates arises from
the fact that they will primarily be used in an inpatient setting. Inpatient reimbursement generally relies on stringent packaging rules
that may mean that there is no separate payment for our product candidates. Additionally, data used to set the payment rates for
inpatient admissions is usually several years old and would not take into account all of the additional therapy costs associated with the
administration of our product candidates. If special rules are not created for reimbursement for immunotherapy treatments such as our
product candidates, hospitals might not receive enough reimbursement to cover their costs of treatment, which will have a negative
effect on their adoption of our product candidates.
We are subject to new legislation, regulatory proposals, and healthcare payor initiatives that may increase our costs of
compliance, and adversely affect our ability to market our products, obtain collaborators, and raise capital.
In the United States and some foreign jurisdictions, there have been a number of legislative and regulatory changes and
proposed changes regarding the healthcare system that could prevent or delay marketing approval of our product candidates, restrict or
regulate post-approval activities, and affect our ability, or the ability of our collaborators, to profitably sell any products for which we
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 our collaborators, may
receive for any approved products.
Since enactment of the ACA in 2010, in both the United States and certain foreign jurisdictions, there have been a number of
legislative and regulatory changes to the health care system that could impact our ability to sell our products profitably. 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. This includes aggregate reductions of Medicare payments to providers up to 2% per fiscal year, which went into effect on
April 1, 2013 and were to remain in effect until 2024. The Bipartisan Budget Act of 2015 extended the 2% sequestration to 2025. In
January 2013, the American Taxpayer Relief Act of 2012, or ATRA, was approved which, among other things, reduced Medicare
payments to several providers, with primary focus on the hospital outpatient setting and ancillary services, including hospitals,
imaging centers and cancer treatment centers, and increased the statute of limitations period for the government to recover
overpayments to providers from three to five years. On January 20, 2017, the new administration signed an Executive Order 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, and, for that reason, some final regulations have
yet to take effect. In December 2017, Congress repealed the individual mandate for health insurance required by the ACA and could
consider further legislation to repeal other elements of the ACA. At the end of 2017, CMS promulgated regulations that reduce the
amount paid to hospitals for outpatient drugs purchased under the 340B program, and some states have enacted transparency laws
requiring manufacturers to report information on drug prices and price increases. More recently, the United States District Court for
the Northern District of Texas struck down the ACA, deeming it unconstitutional given that Congress repealed the individual mandate
in 2017. Although there is no immediate impact on the ACA, we will continue to evaluate the effect that the ACA and its possible
repeal and replacement, or potential total revocation by the Supreme Court of the United States, has on our business.
Additional federal and state healthcare reform measures may be adopted in the future that may result in more rigorous coverage
criteria, increased regulatory burdens and operating costs, decreased net revenue from our pharmaceutical products, decreased
potential returns from our development efforts, and additional downward pressure on the price that we receive for any approved drug.
Any reduction in reimbursement from Medicare or other government healthcare programs may result in a similar reduction in
payments from private payors. The implementation of cost containment measures or other healthcare reforms may prevent us from
being able to generate revenue, attain profitability or commercialize our products.
62
Legislative and regulatory proposals may also be made to expand post-approval requirements and restrict sales and promotional
activities for drugs. We cannot be sure whether additional legislative changes will be enacted, or whether the FDA regulations,
guidance, or interpretations will be changed, or what the impact of such changes on the marketing approvals of our product
candidates, if any, may be. In addition, increased scrutiny by Congress of the FDA’s approval process may significantly delay or
prevent marketing approval, as well as subject us to more stringent product labeling and post-marketing testing and other
requirements.
In addition, there have been a number of other legislative and regulatory proposals aimed at changing the pharmaceutical
industry. For instance, Congress recently introduced a number of bipartisan bills, including the CREATES Act that is intended to
reduce price and increase competitiveness in the pharmaceutical industry, and the FLAT Prices Act that would introduce a prohibition
on “large scale drug price increases.” As a result of these and other new proposals, we may determine to change our current manner of
operation, provide additional benefits, or change our contract arrangements, any of which could have a material adverse effect on our
business, financial condition, and results of operations.
Governments outside the United States tend to impose strict price controls, which may adversely affect our revenues, if any.
In international markets, reimbursement and health care 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 EU, the pricing of
prescription pharmaceuticals is subject to governmental control. In these countries, pricing negotiations with governmental authorities
can take considerable time after the receipt of marketing approval for a product. To obtain coverage and 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. There can be no assurance that our products will be considered cost-effective by third-party
payors, that an adequate level of reimbursement will be available, or that the third-party payors’ reimbursement policies will not
adversely affect our ability to sell our products profitably. 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.
Our employees, independent contractors, consultants, commercial partners and vendors may engage in misconduct or other
improper activities, including noncompliance with regulatory standards and requirements.
We are exposed to the risk of employee fraud or other illegal activity by our employees, independent contractors, consultants,
commercial partners and vendors. Misconduct by these parties could include intentional, reckless and/or negligent conduct that fails
to: comply with the laws of the FDA and other similar foreign regulatory bodies, provide true, complete and accurate information to
the FDA and other similar foreign regulatory bodies, comply with manufacturing standards we have established, comply with
healthcare fraud and abuse laws in the United States and similar foreign fraudulent misconduct laws, or report financial information or
data accurately or to disclose unauthorized activities to us. If we obtain FDA approval of any of our product candidates and begin
commercializing those products in the United States, our potential exposure under such laws will increase significantly, and our costs
associated with compliance with such laws are also likely to increase. These laws may impact, among other things, our current
activities with principal investigators and research patients, as well as proposed and future sales, marketing and education programs.
In particular, the promotion, sales and marketing of healthcare items and services, as well as certain business arrangements in the
healthcare industry, are subject to extensive laws designed to prevent fraud, kickbacks, self-dealing and other abusive practices. These
laws and regulations may restrict or prohibit a wide range of pricing, discounting, marketing and promotion, structuring and
commission(s), certain customer incentive programs and other business arrangements generally. Activities subject to these laws also
involve the improper use of information obtained in the course of patient recruitment for clinical trials.
We have adopted a code of business conduct and ethics, but it is not always possible to identify and deter employee
misconduct, and the precautions we take to detect and prevent inappropriate conduct may not be effective in controlling unknown or
unmanaged risks or losses or in protecting us from governmental investigations or other actions or lawsuits stemming from a failure to
comply with such laws or regulations. Efforts to ensure that our business arrangements will comply with applicable healthcare laws
may involve substantial costs. It is possible that governmental and enforcement authorities will conclude that our, or our employees’,
consultants’, collaborators’, contractors’, or vendors’ business practices may not comply with current or future statutes, regulations or
case law interpreting applicable fraud and abuse or other healthcare laws and regulations. If any such actions are instituted against us,
and we are not successful in defending ourselves or asserting our rights, those actions could have a significant impact on our business,
including the imposition of civil, criminal and administrative penalties, damages, disgorgement, monetary fines, possible exclusion
from participation in Medicare, Medicaid and other federal healthcare programs, contractual damages, reputational harm, diminished
profits and future earnings, compliance agreements, withdrawal of product approvals, and curtailment of our operations, among other
things, any of which could adversely affect our ability to operate our business and our results of operations. In addition, the approval
and commercialization of any of our product candidates outside the United States will also likely subject us to foreign equivalents of
the healthcare laws mentioned above, among other foreign laws.
63
Risks Related to Our Intellectual Property
We may be involved in lawsuits to protect or enforce our patents or the patents of our licensors, or lawsuits accusing our
products of patent infringement, which could be expensive, time-consuming and unsuccessful.
Competitors may infringe the patents of our licensors. To counter infringement or unauthorized use, we may be required to file
infringement claims, which can be expensive and time-consuming. In addition, in an infringement proceeding, a court may decide that
one or more of our patents is not valid or is unenforceable or may refuse to stop the other party from using the technology at issue on
the grounds that our patents do not cover the technology in question. An adverse result in any litigation or defense proceedings could
put one or more of our patents at risk of being invalidated, held unenforceable, or interpreted narrowly and could put our patent
applications at risk of not issuing. Defense of these claims, regardless of their merit, would involve substantial litigation expense and
would be a substantial diversion of employee resources from our business. In the event of a successful claim of infringement against
us, we may be enjoined from manufacturing, use, and marketing our products, or may have to pay substantial damages, including
treble damages and attorneys’ fees for willful infringement, obtain one or more licenses from third parties, pay royalties or redesign
our infringing products, which may be impossible or require substantial time and monetary expenditure.
Periodic maintenance fees on any issued patent are due to be paid to the United States Patent and Trademark Office, or USPTO,
and foreign patent agencies in several stages over the lifetime of the patent. The USPTO and various foreign governmental patent
agencies require compliance with several procedural, documentary, fee payment and other similar provisions during the patent
application process. While an inadvertent lapse can in many cases be cured by payment of a late fee or by other means in accordance
with the applicable rules, there are situations in which noncompliance can result in abandonment or lapse of the patent or patent
application, resulting in partial or complete loss of patent rights in the relevant jurisdiction. Noncompliance events that could result in
abandonment or lapse of a patent or patent application include, but are not limited to, failure to respond to official actions within
prescribed time limits, non-payment of fees and failure to properly legalize and submit formal documents. In such an event, our
competitors might be able to enter the market, which would have a material adverse effect on our business.
We may incur substantial costs as a result of litigation or other proceedings relating to patent and other intellectual property
rights.
The cost to us of any litigation or other proceeding relating to intellectual property rights, even if resolved in our favor, could
be substantial. Some of our competitors may be better able to sustain the costs of complex patent litigation because they have
substantially greater resources. If there is litigation against us, we may not be able to continue our operations.
Should third parties file patent applications, or be issued patents claiming technology also used or claimed by us, we may be
required to participate in interference proceedings in the USPTO to determine priority of invention. We may be required to participate
in interference proceedings involving our issued patents and pending applications. We may be required to cease using the technology
or to license rights from prevailing third parties as a result of an unfavorable outcome in an interference proceeding. A prevailing party
in that case may not offer us a license on commercially acceptable terms.
Issued patents covering our product candidates could be found invalid or unenforceable if challenged in court or the
USPTO.
If we or one of our licensing partners initiate legal proceedings against a third party to enforce a patent covering one of our
product candidates, the defendant could counterclaim that the patent covering our product candidate, as applicable, is invalid and/or
unenforceable. In patent litigation in the United States, defendant counterclaims alleging invalidity and/or unenforceability are
commonplace, and there are numerous grounds upon which a third party can assert invalidity or unenforceability of a patent. Third
parties may also raise similar claims before administrative bodies in the United States or abroad, even outside the context of litigation.
Such mechanisms include re-examination, post grant review, and equivalent proceedings in foreign jurisdictions (e.g., opposition
proceedings). Such proceedings could result in revocation or amendment to our patents in such a way that they no longer cover our
product candidates. The outcome following legal assertions of invalidity and unenforceability is unpredictable. With respect to the
validity question, for example, we cannot be certain that there is no invalidating prior art, of which we, our patent counsel and the
patent examiner were unaware during prosecution. If a defendant were to prevail on a legal assertion of invalidity and/or
unenforceability, we would lose at least part, and perhaps all, of the patent protection on our product candidates. Such a loss of patent
protection could have a material adverse impact on our business.
64
If we are unable to protect our proprietary rights, we may not be able to compete effectively or operate profitably.
Our success is dependent in part on maintaining and enforcing the patents and other proprietary rights that we have licensed
and may develop, and on our ability to avoid infringing the proprietary rights of others. Certain of our intellectual property rights are
licensed from another entity, and as such the preparation and prosecution of these patents and patent applications was not performed
by us or under our control. Furthermore, patent law relating to the scope of claims in the biotechnology field in which we operate is
still evolving and, consequently, patent positions in our industry may not be as strong as in other more well-established fields. The
patent positions of biotechnology companies can be highly uncertain and involve complex legal and factual questions for which
important legal principles remain unresolved. No consistent policy regarding the breadth of claims allowed in biotechnology patents
has emerged to date.
The issuance of a patent is not conclusive as to its validity or enforceability and it is uncertain how much protection, if any, will
be given to the patents we have licensed from the NIH, Moffitt, PolyBioCept, or MDACC if any of these parties, or we, attempt to
enforce the patents and/or if they are challenged in court or in other proceedings, such as oppositions, which may be brought in foreign
jurisdictions to challenge the validity of a patent. A third party may challenge the validity or enforceability of a patent after its
issuance by the Patent Office. It is possible that a competitor may successfully challenge our patents or that a challenge will result in
limiting their coverage. Moreover, the cost of litigation to uphold the validity of patents and to prevent infringement can be
substantial. If the outcome of litigation is adverse to us, third parties may be able to use our patented invention without payment to us.
Moreover, it is possible that competitors may infringe our patents or successfully avoid the patented technology through design
innovation. To stop these activities, we may need to file a lawsuit. These lawsuits are expensive and would consume time and other
resources, even if we were successful in stopping the violation of our patent rights. In addition, there is a risk that a court would decide
that our patents are not valid and that we do not have the right to stop the other party from using the inventions. There is also the risk
that, even if the validity of our patents were upheld, a court would refuse to stop the other party on the grounds that its activities are
not covered by, that is, do not infringe, our patents.
Should third parties file patent applications, or be issued patents claiming technology also used or claimed by our licensor(s) or
by us in any future patent application, we may be required to participate in interference proceedings in the USPTO to determine
priority of invention for those patents or patent applications that are subject to the first-to-invent law in the United States, or may be
required to participate in derivation proceedings in the USPTO for those patents or patent applications that are subject to the first-
inventor-to-file law in the United States. We may be required to participate in such interference or derivation proceedings involving
our issued patents and pending applications. We may be required to cease using the technology or to license rights from prevailing
third parties as a result of an unfavorable outcome in an interference proceeding or derivation proceeding. A prevailing party in that
case may not offer us a license on commercially acceptable terms.
We cannot prevent other companies from licensing most of the same intellectual properties that we have licensed or from
otherwise duplicating our business model and operations.
Certain intellectual properties that we are using to develop TIL-based cancer therapy products were licensed to us by the NIH.
The issued or pending patents that the NIH licensed to us are exclusive, and specific with respect to melanoma, breast, HPV-
associated, bladder and lung cancers. No assurance can be given that the NIH has not previously licensed, or that the NIH hereafter
will not license to other biotechnology companies some or all of the non-exclusive technologies available to us under the NIH License
Agreement. In addition, one pending U.S. patent application in the NIH License Agreement is not owned solely by the NIH. No
assurance can be given that NIH’s co-owner of the certain pending U.S. patent application in the NIH License Agreement has not
previously licensed, or that the co-owner thereafter will not license, to other biotechnology companies some or all of the technologies
available to us. Co-ownership of these intellectual properties will create issues with respect to our ability to enforce the intellectual
property rights in courts, and will create issues with respect to the accountability of one entity with respect to the other.
Since the NCI, Moffitt, MDACC, and others already use TIL therapy for the treatment of metastatic melanoma and other
indications, their methods and data are also available to third parties, who may want to enter into our line of business and compete
against us. Other than the Gen 2 manufacturing process, we currently do not own any exclusive rights on our entire product portfolio
that could be used to prevent third parties from duplicating our business plan or from otherwise directly competing against us. While
additional technologies that may be developed under our CRADA may be licensed to us on an exclusive basis, no assurance can be
given that our existing exclusive rights and will be sufficient to prevent others from competing with us and developing substantially
similar products.
The use of our technologies could potentially conflict with the rights of others.
Our potential competitors or others may have or acquire patent rights that they could enforce against us. If they do so, then we
may be required to alter our products, pay licensing fees or cease activities. If our products conflict with patent rights of others, third
parties could bring legal actions against us or our collaborators, licensees, suppliers or customers, claiming damages and seeking to
enjoin manufacturing, use and marketing of the affected products. If these legal actions are successful, in addition to any potential
liability for damages (including treble damages and attorneys’ fees for willful infringement), we could be required to obtain a license
to continue manufacturing, promoting the use or marketing the affected products. We may not prevail in any legal action and a
required license under the patent may not be available on acceptable terms or at all.
65
We have conducted an extensive freedom-to-operate, or FTO, analyses of the patent landscape with respect to our lead product
candidates. Although we continue to undertake FTO analyses of our manufacturing processes, our lead TIL products, and
contemplated future processes and products, because patent applications do not publish for 18 months, and because the claims of
patent applications can change over time, no FTO analysis can be considered exhaustive. Furthermore, patent and other intellectual
property rights in biotechnology remains an evolving area with many risks and uncertainties. As such, we may not be able to ensure
that we can market our product candidates without conflict with the rights of others.
Changes in U.S. patent law could diminish the value of patents in general, thereby impairing our ability to protect our
products.
As is the case with other biopharmaceutical companies, our success is dependent on intellectual property, particularly patents.
Obtaining and enforcing patents in the biopharmaceutical industry involve both technological and legal complexity, and is therefore
costly, time-consuming and inherently uncertain. In addition, the United States has recently enacted and is currently implementing
wide-ranging patent reform legislation. Recent U.S. Supreme Court rulings have narrowed the scope of patent protection available in
certain circumstances and weakened the rights of patent owners in certain situations. In addition to increasing uncertainty with regard
to our ability to obtain patents in the future, this combination of events has created uncertainty with respect to the value of patents,
once obtained. Depending on decisions by the U.S. Congress, the federal courts, and the USPTO, the laws and regulations governing
patents could change in unpredictable ways that would weaken our ability to obtain new patents or to enforce our existing patents and
patents that we might obtain in the future. While we do not believe that any of the patents owned or licensed by us will be found
invalid based on this decision, we cannot predict how future decisions by the courts, the U.S. Congress or the USPTO may impact the
value of our patents.
We have limited foreign intellectual property rights and may not be able to protect our intellectual property rights
throughout the world.
We have limited intellectual property rights outside the United States. Filing, prosecuting and defending patents on product
candidates in all countries throughout the world would be prohibitively expensive, and our intellectual property rights in some
countries outside the United States can be less extensive than those in the United States. In addition, the laws of some foreign
countries do not protect intellectual property rights to the same extent as federal and state laws in the United States. Consequently, we
may not be able to prevent third parties from practicing our inventions in all countries outside the United States, or from selling or
importing products made using our inventions in and into the United States or other jurisdictions. Competitors may use our
technologies in jurisdictions where we have not obtained patent protection to develop their own products and further, may export
otherwise infringing products to territories where we have patent protection, but enforcement is not as strong as that in the United
States. These products may compete with our products and our patents or other intellectual property rights may not be effective or
sufficient to prevent them from competing.
Many companies have encountered significant problems in protecting and defending intellectual property rights in foreign
jurisdictions. The legal systems of certain countries, particularly certain developing countries, do not favor the enforcement of patents,
trade secrets and other intellectual property protection, particularly those relating to biopharmaceutical products, which could make it
difficult for us to stop the infringement of our patents or marketing of competing products in violation of our proprietary rights
generally. Proceedings to enforce our patent rights in foreign jurisdictions could result in substantial costs and divert our efforts and
attention from other aspects of our business, could put our patents at risk of being invalidated or interpreted narrowly and our patent
applications at risk of not issuing and could provoke third parties to assert claims against us. We may not prevail in any lawsuits that
we initiate, and the damages or other remedies awarded, if any, may not be commercially meaningful. Accordingly, our efforts to
enforce our intellectual property rights around the world may be inadequate to obtain a significant commercial advantage from the
intellectual property that we develop or license.
We may be subject to claims that our employees, consultants or independent contractors have wrongfully used or disclosed
confidential information of third parties.
We have received confidential and proprietary information from third parties and our employees and contractors. In addition,
we employ individuals who were previously employed at other biotechnology or pharmaceutical companies. We may be subject to
claims that we or our employees, consultants or independent contractors have inadvertently or otherwise used or disclosed confidential
information of these third parties or our employees’ former employers. Litigation may be necessary to defend against or pursue these
claims. For example, we are currently engaged in litigation involving counterclaims that we have brought relating to theft of certain of
our trade secrets, breach of confidentiality, and related counterclaims. Even if we are successful in resolving these claims, litigation
could result in substantial cost and be a distraction to our management and employees.
66
Risks Related to Our Securities
Our existing directors and executive officers hold a substantial amount of our common stock and may be able to influence
significant corporate decisions.
As of December 31, 2018, our officers and directors beneficially owned approximately 7.4 % of our outstanding common
stock. These stockholders, if they act together, may be able to materially affect the outcome of matters presented to our stockholders,
including the election of our directors and other corporate actions such as:
a merger with or into another company;
a sale of substantially all of our assets; and
amendments to our certificate of incorporation.
Additionally, the decisions of these stockholders may conflict with our interests or those of our other stockholders and the
market price of our stock may be adversely affected by market volatility.
Our stock price may be volatile, and our stockholders' investment in our stock could decline in value.
The market price of our common stock is likely to be volatile and could fluctuate widely in response to many factors, including
but not limited to:
announcements of the results of clinical trials by us, our collaborators or our competitors;
developments with respect to patents or proprietary rights;
announcements of technological innovations by us or our competitors;
announcements of new products or new contracts by us or our competitors;
actual or anticipated variations in our operating results due to the level of development expenses and other factors;
changes in financial estimates by securities analysts and whether our earnings meet or exceed such estimates;
conditions and trends in the pharmaceutical, biotechnology and other industries;
receipt, or lack of receipt, of funding in support of conducing our business;
regulatory developments within, and outside of, the United States;
litigation or arbitration;
general volatility in the financial markets;
general economic, political and market conditions and other factors; and
the occurrence of any of the risks described in this Annual Report on Form 10-K.
You may experience future dilution as a result of future equity offerings or other equity issuances.
We will have to raise additional capital in the future. To raise additional capital, we may in the future offer additional shares of
our common stock or other securities convertible into or exchangeable for our common stock at prices that may be lower than the
current price per share of our common stock. In addition, investors purchasing shares or other securities in the future could have rights
superior to existing stockholders. The price per share at which we sell additional shares of our common stock, or securities convertible
or exchangeable into common stock, in future transactions may be higher or lower than the price per share paid by investors in prior
offerings. Any such issuance could result in substantial dilution to our existing stockholders.
Future sales of our common stock in the public market could cause our stock price to fall.
Our stock price could decline as a result of sales of a large number of shares of our common stock or the perception that these
sales could occur. These sales, or the possibility that these sales may occur, also might make it more difficult for us to sell equity
securities in the future at a time and at a price that we deem appropriate.
As of February 13, 2019, we had 123,420,091 shares of common stock outstanding. In addition, we had 13,123,236 shares of
common stock equivalents that would increase the number of common stock outstanding if these instruments were exercised or
converted, including stock options and restricted stock units to purchase common stock based on vesting requirements, and common
stock issuable upon the conversion of preferred stock. The issuance and subsequent sale of the shares underlying these common stock
equivalents could depress the trading price of our common stock.
67
In addition, in the future, we may issue additional shares of common stock or other equity or debt securities convertible into
common stock in connection with a financing, acquisition, litigation settlement, employee arrangements or otherwise. For example, in
January 2018 and October 2018, we issued 15,000,000 and 25,300,000 shares of common stock, respectively, in connection with
underwritten public offerings. Such issuances could result in substantial dilution to our existing stockholders and could cause our
stock price to decline.
If securities or industry analysts do not publish research or reports about our company, or if they issue adverse or
misleading opinions regarding us or our stock, our stock price and trading volume could decline.
Although we have research coverage by securities and industry analysts, if coverage is not maintained, the market price for our
stock may be adversely affected. Our stock price also may decline if any analyst who covers us issues an adverse or erroneous opinion
regarding us, our business model, our intellectual property or our stock performance, or if our clinical trials and operating results fail
to meet analysts’ expectations. If one or more analysts cease coverage of us or fail to regularly publish reports on us, we could lose
visibility in the financial markets, which could cause our stock price or trading volume to decline and possibly adversely affect our
ability to engage in future financings
If we fail to maintain an effective system of internal control over financial reporting, we may not be able to accurately report
our financial results. As a result, we could become subject to sanctions or investigations by regulatory authorities and/or
stockholder litigation, which could harm our business and have an adverse effect on our stock price.
As a public reporting company, we are subject to various regulatory requirements, including the Sarbanes-Oxley Act of 2002,
which requires our management to assess and report on our internal controls over financial reporting. Nevertheless, in future years, our
testing, or the subsequent testing by our independent registered public accounting firm, may reveal deficiencies in our internal controls
that we would be required to remediate in a timely manner to be able to comply with the requirements of Section 404 of the Sarbanes-
Oxley Act each year. If we are not able to comply with the requirements of Section 404 of the Sarbanes-Oxley Act each year, we
could be subject to sanctions or investigations by the SEC, Nasdaq or other regulatory authorities which would require additional
financial and management resources and could adversely affect the market price of our common stock. In addition, material
weaknesses in our internal controls could result in a loss of investor confidence in our financial reports.
Our board could issue one or more additional series of preferred stock without stockholder approval with the effect of
diluting existing stockholders and impairing their voting and other rights.
Our certificate of incorporation authorizes the issuance of up to 50,000,000 shares of “blank check” preferred stock (of which
only 17,000 shares were issued as Series A Convertible Preferred Stock and 11,500,000 shares were issued as Series B Convertible
Preferred Stock) with designations, rights and preferences as may be determined from time to time by our board of directors. Our
board is empowered, without stockholder approval, to issue one or more series of preferred stock with dividend, liquidation,
conversion, voting or other rights which could dilute the interest of, or impair the voting power of, our common stockholders. The
issuance of a series of preferred stock could be used as a method of discouraging, delaying or preventing a change in control. For
example, it would be possible for our board of directors to issue preferred stock with voting or other rights or preferences that could
impede the success of any attempt to effect a change in control of our company.
We do not anticipate paying cash dividends for the foreseeable future, and therefore investors should not buy our stock if
they wish to receive cash dividends.
We have never declared or paid any cash dividends or distributions on our common stock. We currently intend to retain our
future earnings to support operations and to finance expansion and, therefore, we do not anticipate paying any cash dividends on our
common stock in the foreseeable future.
Provisions in our corporate charter documents and under Delaware law may prevent or frustrate attempts by our stockholders
to change our management and hinder efforts to acquire a controlling interest in us, and the market price of our common stock may
be lower as a result.
There are provisions in our certificate of incorporation and amended and restated bylaws that may make it difficult for a third
party to acquire, or attempt to acquire, control of our company, even if a change in control was considered favorable by you and other
stockholders. For example, our board of directors will have the authority to issue up to 50,000,000 shares of preferred stock and to fix
the price, rights, preferences, privileges, and restrictions of the preferred stock without any further vote or action by our stockholders.
The issuance of shares of preferred stock may delay or prevent a change in control transaction. As a result, the market price of our
common stock and the voting and other rights of our stockholders may be adversely affected. An issuance of shares of preferred stock
may result in the loss of voting control to other stockholders.
68
In addition, we are subject to the anti-takeover provisions of Section 203 of the Delaware General Corporation Law, which
regulates corporate acquisitions by prohibiting Delaware corporations from engaging in specified business combinations with
particular stockholders of those companies. These provisions could discourage potential acquisition proposals and could delay or
prevent a change in control transaction. They could also have the effect of discouraging others from making tender offers for our
common stock, including transactions that may be in your best interests. These provisions may also prevent changes in our
management or limit the price that investors are willing to pay for our stock.
Our certificate of incorporation designates the state or federal courts located in the State of Delaware as the sole and exclusive
forum for certain types of actions and proceedings that may be initiated by our stockholders, which could limit our stockholders’
ability to obtain a favorable judicial forum for disputes with us or our directors, officers or employees.
Our certificate of incorporation provides that, subject to limited exceptions, the state and federal courts located in the State of
Delaware will be the sole and exclusive forum for (1) any derivative action or proceeding brought on our behalf, (2) any action
asserting a claim of breach of a fiduciary duty owed by any of our directors, officers or other employees to us or our stockholders, (3)
any action asserting a claim against us arising pursuant to any provision of the Delaware General Corporation Law, our certificate of
incorporation or our amended bylaws, or (4) any other action asserting a claim against us that is governed by the internal affairs
doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock shall be deemed to have
notice of and to have consented to the provisions of our certificate of incorporation described above. This choice of forum provision
may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or our directors,
officers, or other employees, which may discourage such lawsuits against us and our directors, officers, and employees. Alternatively,
if a court were to find these provisions of our certificate of incorporation inapplicable to, or unenforceable in respect of, one or more
of the specified types of actions or proceedings, we may incur additional costs associated with resolving such matters in other
jurisdictions, which could adversely affect our business and financial condition.
We may be subject to claims for rescission or damages in connection with certain sales of shares of our common stock in the
open market.
In January 2014, the SEC declared effective a registration statement that we filed to cover the resale of shares issued and sold
(or to be issued and sold) by certain selling stockholders. On March 11, 2016, that registration statement (and the prospectus contained
therein) became ineligible for future use, and selling stockholders could no longer sell any shares of our common stock in open market
transactions by means of that prospectus. We believe that certain stockholders did sell up to 128,500 shares of our common stock in
open market transactions in May 2016 by means of the ineffective registration statement. Accordingly, those sales were not made in
accordance with Sections 5 and 10(a)(3) of the Securities Act, and the purchasers of those shares may have rescission rights (if they
still own the shares) or claims for damages (if they no longer own the shares). In addition, we also may have indemnification
obligations to the selling stockholders. The amount of any such liability is uncertain.
In connection with our reincorporation from Nevada to Delaware in 2017, we (as a Delaware corporation) untimely filed a post-
effective amendment to adopt a Form S-8 registration statement that we filed (as a Nevada corporation) to register the shares
underlying our 2011 Equity Incentive Plan. Before we filed the required post-effective amendment, options to purchase 200,000
shares were exercised under the 2011 Equity Incentive Plan. The effect of the delayed post-effective amendment filing on the 200,000
option shares is uncertain, but the issuance and sale of the shares may not have been in compliance with the Form S-8 registration
statement. The existence of any liability to us, and the amount of any such liability, as a result of the issuance of the 200,000 shares is
uncertain. Accordingly, we have not made any accrual for a potential claim in our consolidated financial statements.
Item 1B.
Unresolved Staff Comments
None.
Item 2.
Properties
San Carlos Lease
Since August 2016, our corporate headquarters consisted of 8,733 square feet of space that we lease in San Carlos, California.
The corporate headquarters lease is for a term of 54 months and will expire in April 2021. Monthly lease payments are approximately
$38,000.
In April 2017, we entered into a sublease agreement with Teradata US, Inc., pursuant to which we agreed to sublease office
space located adjacent to our corporate headquarters in San Carlos, California for approximately $26,000 per month. The space
consists of approximately 11,449 rentable square feet. On October 19, 2018, we entered into an agreement to lease 12,322 square feet
of office space located adjacent to the Company's headquarters in San Carlos, California. This lease replaces the sublease of 11,449
square feet of office space in the same facility that expired on October 31, 2018. The term of the lease is 30 months subsequent to the
commencement date, November 1, 2018, and will expire in April 2021. Monthly lease payments are approximately $59,000, subject to
an annual increase of 3%.
69
New York Lease
We leased office space in New York for a monthly rental of approximately $18,000 a month from January 2017 through July
2017. In June 2017, we entered into an agreement to lease office space in New York, New York from August 1, 2017 to July 31, 2018
for approximately $9,000 a month. On April 20, 2018, we entered into an agreement to extend the lease term to January 31, 2019 for
approximately $7,000 a month. On November 2, 2018, we extended the lease term to July 31, 2019 for approximately $4,000 a month.
Tampa Lease
Our research and development facilities consist of 8,673 square feet in a facility located at the University of South Florida
Research Park in Tampa, Florida. The lease expires in December 2019 and rent payments are approximately $20,000 per month.
We believe that our existing facilities are adequate to meet our current needs, and that suitable additional alternative spaces will
be available in the future on commercially reasonable terms.
Item 3.
Legal Proceedings.
Class Action Lawsuit. On April 10, 2017, the SEC announced settlements with us and with other public companies and
unrelated parties in the In the Matter of Certain Stock Promotion investigation. Our settlement with the SEC is consistent with our
previous disclosures (including in our Annual Report on Form 10-K that we filed with the SEC on March 9, 2017). On April 14, 2017,
a purported shareholder filed a complaint seeking class action status in the United States District Court, Northern District of California
for violations of the federal securities laws (Leonard DeSilvio v. Lion Biotechnologies, Inc., et al., case no. 3:17cv2086) against our
company and three of our former officers and directors. On April 19, 2017, a second class action complaint (Amra Kuc vs. Lion
Biotechnologies, Inc., et al., case no. 3:17-cv-2188) was filed in the same court. Both complaints allege, among other things, that the
defendants violated the federal securities laws by making materially false and misleading statements, or by failing to make certain
disclosures, regarding the actions taken by Manish Singh, our former CEO, and our former investor relations firm that were the
subject of the In the Matter of Certain Stock Promotions investigation. On July 20, 2017, the plaintiff in the Kuc case filed a notice to
voluntarily dismiss that case. The court entered an order dismissing the Kuc complaint on July 21, 2017. On July 26, 2017, the court
appointed a movant as lead plaintiff. On September 8, 2017, the lead plaintiff filed an amended complaint (Jay Rabkin v. Lion
Biotechnologies, Inc., et al., case no. 3:17-cv-2086) seeking class action status that alleges, among other things, that the defendants
violated federal securities laws by making materially false and misleading statements, or by failing to make certain disclosures,
regarding the actions taken by Manish Singh and our former investor relations firm that were the subject of the In the Matter of
Certain Stock Promotions SEC investigation. On February 5, 2018, the court entered an order dismissing two of plaintiff’s six claims.
As the result of mediation, on September 28, 2018, lead plaintiff filed an unopposed motion for settlement, the cost of which, if
approved, is expected to be borne by our insurance carrier and would result in no loss to us. The court gave preliminary approval to
the proposed settlement on November 30, 2018, and the final hearing is currently scheduled for April 12, 2019.
Derivative Lawsuits. On December 15, 2017, a purported stockholder derivative complaint was filed by plaintiff Kevin Fong
against us, as nominal defendant, and certain of our current and former officers and directors, and others, as defendants, in the U.S.
District Court for the District of Delaware (case no. 1:17-cv-1806). The complaint alleges breaches of fiduciary duties, unjust
enrichment, and violations of Section 14(a) of the Securities Exchange Act of 1934 and Rule 14a-9 promulgated thereunder arising
from the SEC’s investigation in the In the Matter of Certain Stock Promotions investigation and our April 10, 2017 settlement thereof,
and seeks unspecified damages on behalf of our company and injunctive relief.
On March 28, 2018, a purported stockholder derivative complaint was filed by plaintiff Nazeer Khaleeluddin on behalf of the
Company, against the Company, as nominal defendant, and certain of the Company’s current and former officers and directors, and
others, as defendants, in the U.S. District Court for the District of Delaware (case no. 1:18-cv-00469). The complaint alleges, among
other things, violations of securities law, breach of fiduciary duty, aiding and abetting, waste of corporate assets, and unjust
enrichment. The complaint is based on claims arising from the SEC’s investigation in the In the Matter of Certain Stock Promotions
investigation and our April 10, 2017 settlement thereof and seeks unspecified damages on behalf of our company and injunctive relief.
On May 1, 2018, the court consolidated this case with the aforementioned purported stockholder derivative case filed by plaintiff
Kevin Fong.
We intend to vigorously defend against the foregoing complaints. Based on the early stage of the litigation, it is not possible to
estimate the amount or range of possible loss that might result from an adverse judgment or a settlement of these matters.
70
Solomon Capital, LLC. On April 8, 2016, a lawsuit titled Solomon Capital, LLC, Solomon Capital 401(K) Trust, Solomon
Sharbat and Shelhav Raff v. Lion Biotechnologies, Inc. was filed by Solomon Capital, LLC, Solomon Capital 401(k) Trust, Solomon
Sharbat and Shelhav Raff against us in the Supreme Court of the State of New York, County of New York (index no. 651881/2016).
The plaintiffs allege that, between June and November 2012 they provided to us $0.1 million and that they advanced and paid on our
behalf an additional $0.2 million. The complaint further alleges that we agreed to (i) provide them with promissory notes totaling $0.2
million, plus interest, (ii) issue a total of 111,425 shares to the plaintiffs (before the 1-for-100 reverse split of our common stock
effected in March 2013), and (iii) allow the plaintiffs to convert the foregoing funds into our securities in the next transaction. The
plaintiffs allege that they should have been able to convert their advances and payments into shares of our common stock in the
restructuring that was affected in May 2013. Based on the foregoing, the plaintiffs allege causes for breach of contract and unjust
enrichment and demand judgment against us in an unspecified amount exceeding $1.5 million, plus interest and attorneys’ fees.
On June 3, 2016, we filed an answer and counterclaims in the lawsuit. In its counterclaims, we allege that the plaintiffs
misrepresented their qualifications to assist us in fundraising and that they failed to disclose that they were under investigation for
securities laws violations. We are seeking damages in an amount exceeding $0.5 million and an order rescinding any and all
agreements that the plaintiffs contend entitled them to obtain stock in our company.
On April 19, 2017, the court granted plaintiffs’ counsel’s motion to withdraw from the case. On May 25, 2017, plaintiffs filed a
notice that they had hired new counsel. On June 7, 2017, the judge presiding over the case recused herself because of a conflict of
interest arising from her relationship with plaintiffs’ new attorneys and the case was subsequently assigned to a new judge. On April
20, 2018, the court held a hearing regarding plaintiff’s motion to dismiss our amended counterclaims and affirmative defense for
fraudulent inducement. On August 15, 2018, the court entered an order granting the plaintiff’s motion and dismissed the Company’s
amended counterclaims and eleventh affirmative defense for fraudulent inducement without leave to amend. On September 14, 2018,
we filed a notice of appeal related to this order, and on November 5, 2018, we filed our memorandum of law in support of our appeal
of the order dismissing our amended counterclaims and affirmative defense for fraudulent inducement. On January 2, 2019, plaintiffs
filed their memorandum of law in opposition to the appeal. On January 18, 2019, we filed our reply brief in support of our appeal of
the order dismissing our amended counterclaims and affirmative defense for fraudulent inducement.
We intend to vigorously defend the complaint and pursue our counterclaims.
Litigation Involving Dr. Steven Fischkoff. On June 13, 2017, in an action titled Steven Fischkoff v. Lion Biotechnologies, Inc.
and Maria Fardis, Dr. Steven Fischkoff, our former Vice President and Chief Medical Officer, filed a lawsuit against us in the
Supreme Court of the State of New York, County of New York. Dr. Fischkoff was dismissed by us on March 28, 2017. Dr. Fischkoff
was terminated “for cause” as that term is defined in his employment agreement. In his complaint, Dr. Fischkoff alleges breaches of
his employment agreement and violation of New York Labor Law for failure to pay monies purportedly owed to him, and seeks to
recover amounts including severance pay and retention bonus (totaling $300,000), a prorated incentive bonus, and amounts relating to
unvested options to 150,000 shares of our common stock, together with prejudgment interest, costs, expenses and attorneys’ fees. On
July 5, 2017, we filed a removal petition and removed the lawsuit to the United States District Court for the Southern District of New
York, where the case has been assigned case no. 1:17-cv-05041. On July 14, 2017, we filed a partial answer and counterclaims against
Dr. Fischkoff, denying his allegations, and alleging breach of contract and related claims, breach of fiduciary duty, and state and
federal trade secret misappropriation and related claims, and sought a temporary restraining order and preliminary injunction against
Dr. Fischkoff. On July 18, 2017, the court issued a temporary restraining order against Dr. Fischkoff requiring him to return our
materials, prohibiting him from disclosing or using our company materials, and granting expedited discovery. On June 25, 2018,
pursuant to a stipulation between the parties, the court entered a permanent injunction prohibiting Dr. Fischkoff from disclosing,
possessing, or using any of the Company’s proprietary materials or trade secrets. On July 5, 2018, the court entered an order
dismissing two of Dr. Fischkoff’s claims against us and Dr. Fardis. On October 18, 2018, Dr. Fischkoff amended his complaint to
assert a new claim for defamation arising from SEC filings in which we provided the information about this litigation.
We intend to vigorously defend against Dr. Fischkoff’s lawsuit and pursue our counterclaims. Based on the early stage of the
litigation, it is not possible to estimate the amount or range of (i) a possible loss that might result from an adverse judgment or
settlement of this action, or (ii) the potential recovery that might result from a favorable judgment or a settlement of this action.
Other Matters. During the second quarter of 2016, warrants representing 128,500 shares were exercised. The 128,500 shares of
common stock had previously been registered for re-sale. However, we believe that these 128,500 warrant shares were sold by the
holders in open market transactions in May 2016 at a time when the registration statement was ineffective. Accordingly, those sales
were not made in accordance with Sections 5 and 10(a)(3) of the Securities Act of 1933, as amended, and the purchasers of those
shares may have rescission rights (if they still own the shares) or claims for damages (if they no longer own the shares). The amount
of any such liability is uncertain and as such, an accrual for any potential loss has not been made. We believe that any claims brought
against it would not result in a material impact to our financial position or results of operations. We have not accrued a loss for a
potential claim associated with this matter as we are unable to estimate any at this time.
71
In connection with our reincorporation from Nevada to Delaware in 2017, we (as a Delaware corporation) untimely filed a post-
effective amendment to adopt a Form S-8 registration statement that the Company filed (as a Nevada corporation) to register the
shares underlying our 2011 Equity Incentive Plan. Before we filed the required post-effective amendment, options to purchase
200,000 shares were exercised under the 2011 Equity Incentive Plan. The effect of the delayed post-effective amendment filing on the
200,000 option shares is uncertain, but the issuance and sale of the shares may not have been in compliance with the Form S-8
registration statement. The existence of any liability to us, and the amount of any such liability as a result of the issuance of the
200,000 shares is uncertain. Accordingly, we have not made any accrual for a potential claim in our consolidated financial statements.
We may be involved, from time to time, in legal proceedings and claims arising in the ordinary course of our business. Such
matters are subject to many uncertainties and outcomes are not predictable with assurance. We accrue amounts, to the extent they can
be reasonably estimated, that we believe are adequate to address any liabilities related to legal proceedings and other loss
contingencies that we believe will result in a probable loss. While there can be no assurances as to the ultimate outcome of any legal
proceeding or other loss contingency involving us, management does not believe any pending matter will be resolved in a manner that
would have a material adverse effect on our financial position, results of operations or cash flows.
Item 4.
Mine Safety Disclosures.
Not Applicable.
PART II
Item 5.
Market for Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Market Information
Our common stock is traded on the Nasdaq Global Market under the symbol “IOVA”.
Stockholders
As of December 31, 2018, there were approximately 30 holders of record of our common stock. In addition, we had one holder
of record who owned shares of our Series A Convertible Preferred Stock and 6 holders of record who owned shares of our Series B
Convertible Preferred Stock.
Dividends
We have never declared or paid any cash dividends on our common stock or any other securities. We anticipate that we will
retain all available funds and any future earnings, if any, for use in the operation of our business and do not anticipate paying cash
dividends in the foreseeable future. Payment of future cash dividends, if any, will be at the discretion of the board of directors after
considering various factors, including our financial condition, operating results, current and anticipated cash needs.
Under the terms of our Series A Convertible Preferred Stock, we may not declare, pay or set aside any dividends on shares of
any class or series of capital stock (other than dividends on shares of common stock payable in shares of common stock) unless the
holders of our Series A Convertible Preferred Stock first receive, or simultaneously receive, an equal dividend on each outstanding
share of Series A Convertible Preferred Stock.
Under the terms of our Series B Convertible Preferred Stock, holders shall be entitled to receive dividends on shares equal (on
an as-if-converted-to-Common-Stock basis) to and in the same form as dividends (other than dividends in the form of common stock)
actually paid on shares of our Series A Convertible Preferred Stock, common stock or other junior securities when, as and if such
dividends (other than dividends in the form of common stock) are paid on shares of our Series A Convertible Preferred Stock,
common stock or other junior securities. No other dividends shall be paid on shares of Series B Convertible Preferred Stock, and we
may not pay dividends (other than dividends in the form of common stock) on shares of our Series A Convertible Preferred Stock,
common stock or other junior securities unless it simultaneously complies with the previous sentence.
Unregistered Sales of Equity Securities
None.
Repurchases of Common Stock
There were no share repurchases during the three months ended December 31, 2018.
72
Stock Performance Graph
The following graph illustrates a comparison of the total cumulative stockholder return on our common stock since December
31, 2013, to two indices: the Russell 3000 and the NASDAQ Biotechnology Index. The stockholder return shown in the graph below
is not necessarily indicative of future performance, and we do not make or endorse any predictions as to future stockholder returns.
Equity Compensation Plan Information
Information regarding our equity compensation plans is incorporated by reference from the information in our Proxy Statement
for our 2019 Annual Meeting of Stockholders, which we will file with the SEC within 120 days after the end of the fiscal year to
which this Annual Report on Form 10-K relates.
Item 6.
Selected Financial Data (in thousands, except per share information)
The statements of operations data for the years ended December 31, 2018, 2017 and 2016 and the balance sheet data as of
December 31, 2018 and 2017 have been derived from our audited financial statements included elsewhere in this Annual Report on
Form 10-K. The statements of operations data for the years ended December 31, 2015 and 2014 and the balance sheet data as of
December 31, 2016, 2015 and 2014 have been derived from our audited financial statements not included in this Annual Report on
Form 10-K. The following selected financial data should be read in conjunction with our “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” and financial statements and related notes to those statements included elsewhere in
this Annual Report on Form 10-K.
2018
2017
2015
2014
Years Ended December 31,
2016
(in thousands)
Revenue
Operating expenses:
Research and development
General and administrative
Other income
Net loss
Net loss Per Common Share
$
$
$
- $
- $
- $
- $
-
99,828
28,430
4,678
(123,580 ) $
(1.27 ) $
71,615
21,262
813
(92,064 ) $
(1.41 ) $
26,941
26,698
745
(52,894 ) $
(1.85 ) $
15,470
12,390
200
(27,660 ) $
(0.62 ) $
3,849
8,192
6
(12,035 )
(0.48 )
2018
2017
As of December 31,
2016
2015
2014
Total assets
Total liabilities
Total stockholders' equity
$
$
$
480,821 $
14,628 $
466,193 $
155,373 $
9,892 $
145,481 $
171,886 $
4,968 $
166,918 $
105,653 $
1,630 $
104,023 $
46,507
1,662
44,845
73
See "Management's Discussion and Analysis of Financial Condition and Results of Operations" below, and the financial
statements and accompanying notes and previously filed Annual Reports on Form 10-K for further information regarding our results
and financial position for periods reported herein and for known factors that will impact comparability of future results.
Item 7.
Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion and analysis of our results of operations and financial condition should be read in conjunction with
our financial statements and the notes to those financial statements that are included elsewhere in this report. Our discussion includes
forward-looking statements based upon current expectations that involve risks and uncertainties, such as our plans, objectives,
expectations and intentions. Actual results and the timing of events could differ materially from those anticipated in these forward-
looking statements as a result of a number of factors, including those set forth under the “Business” section and elsewhere in this
report. We use words such as “anticipate,” “estimate,” “plan,” “project,” “continuing,” “ongoing,” “expect,” “believe,” “intend,”
“may,” “will,” “should,” “could,” and similar expressions to identify forward-looking statements. All forward-looking statements
included in this report are based on information available to us on the date hereof and, except as required by law, we assume no
obligation to update any such forward-looking statements.
Overview
We are a clinical-stage biopharmaceutical company focused on the development and commercialization of novel cancer
immunotherapy products designed to harness the power of a patient’s own immune system to eradicate cancer cells. Tumor infiltrating
lymphocyte, or TIL, therapy is a platform technology that has already been studied for the treatment of metastatic melanoma and
metastatic cervical cancer and other solid tumors by the National Cancer Institute, or NCI. Our lead product candidate, lifileucel for
metastatic melanoma, previously known as LN-144, is an autologous adoptive cell therapy utilizing TIL, which are T cells derived
from patients’ tumors. We are also developing a second product candidate, an autologous adoptive cell therapy utilizing TIL for the
treatment of cancers other than metastatic melanoma, which is known as LN-145. We are investigating the effectiveness and safety of
TIL therapy for the treatment of metastatic melanoma, squamous cell carcinoma of the head and neck, cervical cancer and metastatic
non-small cell lung cancer through company sponsored trials, as well as for other oncology indications in investigator-sponsored
trials. Our sponsored clinical trials and our investigator-sponsor clinical trials are described in more detail below.
We have an on-going Phase 2 clinical trial, C-144-01, of our lead product candidate, lifileucel, for the treatment of metastatic
melanoma. This multicenter trial is enrolling patients with melanoma whose disease has progressed following treatment with at least
one systemic therapy, including a PD-1 inhibitor and if BRAF mutated, a BRAF, or BRAF/MEK inhibitor (National Clinical Trial
identification number NCT02360579). The purpose of the trial is to evaluate the efficacy and safety of lifileucel. The C-144-01 trial
uses our proprietary Generation 2, or Gen 2, manufacturing process. We completed and closed Cohort 2 in this trial in 2018, and a
new single-arm registrational cohort, Cohort 4, of this trial began enrollment in early 2019.
In addition to our ongoing trial in metastatic melanoma, we have initiated clinical trials of LN-145, TIL therapy in cervical,
head and neck cancers, and other cancers. C-145-04 is an ongoing Phase 2, multicenter trial that will assess the safety and efficacy of
LN-145 for the treatment of patients with recurrent, metastatic or persistent cervical cancer (NCT03108495). C-145-03 is an ongoing
Phase 2, multicenter trial that will enroll up to 47 patients and will assess the safety and efficacy of LN-145 for the treatment of
patients with recurrent metastatic squamous cell carcinoma of the head and neck (NCT03083873).
We are investigating the potential of our TIL therapies in earlier lines of treatment. IOV-COM-202 is a Phase 2, multicenter
trial that is composed of three cohorts to enroll up to a total of 36 patients. In Cohort 1, we intend to enroll advanced unresectable or
metastatic melanoma patients who have not received prior immunotherapy including checkpoint inhibitors such as anti-PD-1/anti-PD-
L1 therapy. The patients will receive lifileucel in combination with pembrolizumab. In Cohort 2, we intend to enroll advanced head
and neck squamous cell carcinoma patients who are also naïve to prior immunotherapy including anti-PD-1/anti-PD-L1 therapy. The
patients will receive LN-145 in combination with pembrolizumab. In Cohort 3, we intend to enroll non-small cell lung cancer patients
who have previously received systemic therapy which could include checkpoint inhibitors. This trial is open for patient enrollment
(NCT03645928).
We are also investigating TIL therapy in non-small cell lung cancer, or NSCLC, in combination with anti-PD-L1 therapy. We
have initiated a trial, IOV-LUN-201, in anti-PD-1/ PD-L1 naïve patients for the treatment of patients with a combination of LN-145
and durvalumab (NCT03419559). This trial was initiated in the first half of 2018 and is a collaboration with MedImmune, the global
biologics research and development arm of AstraZeneca. In addition to this trial, we have financially sponsored an investigator-
sponsored trial in NSCLC in collaboration with the H. Lee Moffitt Cancer Center and Research Institute, or Moffitt, Stand Up To
Cancer, and others evaluating the combination of TIL therapy and nivolumab (NCT03215810). Patients who are treatment naïve to
prior anti-PD-1/ PD-L1 therapy with stage IV or recurrent NSCLC are being enrolled in this trial. Patients receive the TIL product if
they do not respond to treatment with nivolumab. The TIL product is manufactured by Moffitt for this trial. Patient dosing began in
the fourth quarter of 2017, and preliminary results from the Moffitt trial were presented at the World Conference on Lung Cancer in
September 2018.
74
As part of our collaboration program with the MD Anderson Cancer Center, or MDACC, two new Phase 2 trials were initiated
in 2018. The first trial, 2017-0672 (NCT03449108), is intended to allow for investigation of LN-145 manufactured by us using our
Gen 2 manufacturing process to treat patients with soft tissue sarcoma, osteosarcoma and platinum resistant ovarian cancer. A second
trial under the collaboration with MDACC is now active as well (NCT03610490). This trial will use TIL manufactured by MDACC
using urelumab as part of the manufacturing process. Both trials are sponsored by MDACC.
Our current product candidate pipeline and selected investigator-sponsored proof-of-concept studies are summarized in the
graph below:
For the two investigator-sponsored trials listed in our pipeline graph above, MDACC is the sponsor. For one of the studies,
NCT03610490, MDACC uses its own manufacturing process, referred to here as MDACC TIL. The data obtained using this
manufacturing process may not be representative of our data.
In January 2018, we closed an underwritten public offering of 15,000,000 shares of our common stock at a public offering price
of $11.50 per share, before underwriting discounts, which included 1,956,521 shares issued upon the exercise in full by the
underwriter of its option to purchase additional shares at the public offering price less the underwriting discount. The gross proceeds
from the offering, before deducting the underwriting discounts and commissions and other offering expenses payable by the
Company, were $172.5 million, with net proceeds to the Company of $162.0 million.
In October 2018, we closed an underwritten public offering of 25,300,000 shares of the Company’s common stock at a public
offering price of $9.97 per share, before underwriting discounts, which included 3,300,000 shares issued upon the exercise in full by
the underwriter of its option to purchase additional shares at the public offering price less the underwriting discount. The net proceeds
from the offering, after deducting the underwriting discounts and commissions and other offering expenses payable by the Company
were $236.7 million.
Financial Overview
Research and development activities are central to our business model. Product candidates in later stage of clinical development
generally have higher development costs than those in earlier stages of clinical development, primarily due to the increased size and
duration of later-stage clinical trials. As a clinical stage company that is currently engaged in the development of novel cancer
immunotherapy products, we have not yet generated any revenues from our biotechnology business or otherwise since our formation.
Our ability to generate revenues in the future will depend on our ability to complete the development of our product candidates and to
obtain regulatory approval for them. Our major sources of funding to date have been proceeds from various public and private
offerings of our equity securities (both common stock and preferred stock), option and warrant exercises, and interest income.
Results of Operations for the Years Ended December 31, 2018 and 2017
Revenues
We have not generated any revenues during the years ended December 31, 2018 and 2017, respectively, and we currently do
not anticipate that we will generate any revenues during 2019 from the sale or licensing of our product candidates. Our ability to
generate revenues in the future will depend on our ability to complete the development of our product candidates and to obtain
regulatory approval for them.
75
Costs and expenses
Research and Development Expense (in thousands)
Research and development expenses
Stock-based compensation expense included in research and
development expense
Years Ended December 31,
2018
2017
$
99,828 $
71,615 $
Increase (Decrease)
$
%
28,213
9,305
5,270
4,035
39 %
77 %
Research and development expense for the year ended December 31, 2018 increased by $28.2 million, or 39%, compared to the
year ended December 31, 2017. The increase was primarily attributable to a $14.0 million increase in payroll and related expenses,
including stock-based compensation expenses, due to a higher number of full-time employees and dedicated consultants as we
expanded our internal research efforts and clinical development programs. Further, clinical trial costs increased by $12.9 million due
to: higher patient enrollment and an increase in the number of clinical sites in the clinical trial of lifileucel for the treatment of
melanoma, LN-145 for the treatment of cervical and head and neck cancers, and the initiation of clinical trials in 2018 for new
indications. In addition, research and alliance costs increased by $0.8 million for clinical trials run by our alliance partners and new
research initiatives. These increases were partially offset by a $0.5 million decrease in manufacturing costs due to a termination of a
contract manufacturing organization early in 2018.
We expect our research and development expenses to increase over the next several years as we continue to conduct our
clinical trials for our products and as we increase our research and development efforts in other cancer indications. However, it is
difficult to determine with certainty the duration and completion costs of our current or future preclinical programs and clinical trials
of our product candidates.
The duration, costs and timing of our clinical trials and development of our product candidates will depend on a number of
factors that include, but are not limited to, the number of patients that enroll in the trial, per patient trial costs, number of sites included
in the trial, discontinuation rates of patients, duration of patient follow-up, efficacy and safety profile of the product candidate, and the
length of time required to enroll eligible patients. Additionally, the probability of success for our product candidate will depend on a
number of factors, including competition, manufacturing capability and cost efficiency, and commercial viability.
General and Administrative Expense (in thousands)
General and administrative expenses
Stock-based compensation expense included in general and
administrative expense
Years Ended December 31,
2018
2017
Increase (Decrease)
%
$
$
28,430 $
21,262 $
7,168
10,722
6,698
4,024
34 %
60 %
General and administrative expense for the year ended December 31, 2018 increased by $7.2 million, or 34%, compared to the
year ended December 31, 2017. The change was primarily attributable to a $4.2 million increase in stock-based compensation
expenses, $1.7 million increase in payroll and related expenses, driven by a higher number of full-time employees and higher stock
prices during 2018, and a $0.2 million increase in professional service fees.
General and administrative expenses include personnel costs for our employees engaged in general and administrative
activities, legal fees, audit and tax fees, consultants and professional services, and general corporate expenses. We anticipate general
and administrative expenses will increase in 2019 as we continue to support our expanded research and development efforts.
Interest Income (in thousands)
Interest income, net
Years Ended December 31,
2018
2017
Increase (Decrease)
%
$
$
4,678 $
813 $
3,685
475 %
Interest income results from our interest-bearing cash and investment balances. Net interest income increased by $3.7 million or
475%, due to the higher average cash balances as a result of the proceeds received from our equity financings in January 2018 and
October 2018, and higher interest rates in 2018.
76
Net Loss
Net loss
Years Ended December 31,
2018
(123,580 ) $
$
2017
(92,064 ) $
(Increase) Decrease
$
%
(31,516 )
34 %
Net loss for the year ended December 31, 2018 increased by $31.5 million or 34%, compared to the year ended December 31,
2017. The increase in our net loss was due to the continued expansion of our research and development activities, increased clinical
trials and manufacturing activities, and the overall growth of our corporate infrastructure. We anticipate that we will continue to incur
net losses in the future as we further invest in our research and development activities, including our clinical development.
Results of Operations for the Years Ended December 31, 2017 and 2016
Revenues
We did not generate any revenues during the years ended December 31, 2017 and 2016, respectively.
Costs and expenses
Research and Development Expense (in thousands)
Research and development expenses
Stock-based compensation expense included in research and
development expense
Years Ended December 31,
2017
2016
$
71,615 $
26,941
Increase (Decrease)
$
%
44,674
5,270
3,267
2,003
166 %
61 %
Research and development expense for the year ended December 31, 2017 increased by $44.7 million, or 166%, compared to
the year ended December 31, 2016. The increase was primarily attributable to a $22.1 million increase in drug manufacturing costs
due to an increase in the number of manufacturing facilities, development and technology transfer related to the Gen 2 manufacturing
process, and a $9.2 million increase in costs related to our clinical trials as a result of the initiation of two clinical trials of LN-145 for
the treatment of cervical and head and neck cancers in 2017. Further, payroll and related expenses increased by $10.5 million,
including stock-based compensation expenses, due to a higher number of full-time employees and dedicated consultants to support
internal research efforts and clinical development programs. In addition, research and alliance costs increased by $1.7 million for
clinical trials run by our alliance partners and internal research programs.
General and Administrative Expense (in thousands)
General and administrative expenses
Stock-based compensation expense included in general and
administrative expense
Years Ended December 31,
2017
2016
Increase (Decrease)
%
$
$
21,262 $
26,698 $
(5,436 )
6,698
15,637
(8,939 )
-20 %
-57 %
General and administrative expense for the year ended December 31, 2017 decreased by $5.4 million, or 20%, compared to the
year ended December 31, 2016. The change was primarily attributable to a $8.9 million decrease in stock-based compensation
expense, driven by expense incurred in connection with the separation of our former Chief Executive Officer and Chief Financial
Officer from our company in June and August of 2016, respectively, which was partially offset by a $2.4 million increase in legal fees
in consulting and legal-related expenses.
Interest Income (in thousands)
Interest income, net
Years Ended December 31,
2017
2016
Increase (Decrease)
%
$
$
813 $
745 $
68
9 %
Interest income results from our interest-bearing cash and investment balances. Interest income for the year ended December
31, 2017 increased due to the higher average cash balances as a result of the proceeds received from our equity financings in
September 2017 and June 2016, and higher interest rates in 2017.
77
Net Loss
Net loss
Years Ended December 31,
2017
2016
$
(92,064 ) $
(52,894 ) $
(Increase) Decrease
$
%
(39,170 )
74 %
Net loss for the year ended December 31, 2017 increased by $39.2 million or 74%, compared to the year ended December 31,
2016. The increase in our net loss was due to the continued expansion of our research and development activities, increased clinical
trials and manufacturing activities, and the overall growth of our corporate infrastructure. We anticipate that we will continue to incur
net losses in the future as we further invest in our research and development activities, including our clinical development.
Liquidity and Capital Resources
We have incurred losses and generated negative cash flows from operations since inception. We expect to continue to incur
significant losses in 2019 and may incur significant losses and negative cash flows from operations for the foreseeable future. We
have funded our operations from various public and private offerings of our equity securities (both common stock and preferred
stock), from option and warrant exercises, and from interest income.
Corporate Capitalization. As of December 31, 2018, we had outstanding 123,415,576 shares of our $0.000041666 par value
common stock, 194 shares of our $0.001 par value Series A Convertible Preferred Stock, and 5,854,845 shares of our $0.001 par value
Series B Convertible Preferred Stock. The outstanding shares of Series A Convertible Preferred Stock are currently convertible into
97,000 shares of our common stock, and the outstanding shares of Series B Convertible Preferred Stock are currently convertible into
5,854,845 shares of our common stock. The shares of Series A Convertible Preferred Stock and Series B Convertible Preferred Stock
do not have voting rights or accrue dividends.
On December 28, 2017, we filed a shelf registration statement with the SEC for the issuance of common stock, preferred stock,
warrants, rights, debt securities and units up to an aggregate amount of $250 million, which we refer to as the 2017 Shelf Registration
Statement. The 2017 Shelf Registration Statement was declared effective on January 19, 2018. On January 29, 2018, we sold
15,000,000 shares of our common stock at a public offering price of $11.50 per share pursuant to the 2017 Shelf Registration
Statement. We received gross proceeds of approximately $172.5 million and net proceeds of approximately $162.0 million, after
deducting underwriting discounts and offering expenses. The 2017 Shelf Registration Statement was terminated upon effectiveness of
the 2018 Shelf Registration Statement (as discussed below).
On September 7, 2018, we filed a shelf registration statement with the SEC for the issuance of common stock, preferred stock,
warrants, rights, debt securities and units up to an aggregate amount of $250 million, which we refer to as the 2018 Shelf Registration
Statement. The 2018 Shelf Registration Statement was declared effective on October 3, 2018 and the aggregate amount of securities
we could issue thereunder was subsequently increased by $50 million through a post-effective amendment that we filed on October
11, 2018, pursuant to Rule 462(b) of the Securities Act. On October 17, 2018, we sold 25,300,000 shares of our common stock at a
public offering price of $9.97 per share pursuant to the 2018 Shelf Registration Statement. We received gross proceeds of
approximately $252.2 million and net proceeds of $236.7 million, after deducting underwriting discounts and offering expenses.
In the future, we may periodically offer one or more of these securities in amounts, prices and terms to be announced when and
if the securities are offered. If any of the securities covered by the 2018 Shelf Registration Statement are offered for sale, a prospectus
supplement will be prepared and filed with the SEC containing specific information about the terms of such offering at that time.
We are currently engaged in the development of therapeutics to fight cancer. We do not have any commercial products and
have not yet generated any revenues from our biopharmaceutical business. We currently do not anticipate that we will generate any
revenues during 2019 from the sale or licensing of any products. We have incurred a net loss of $123.6 million for the year ended
December 31, 2018 and used $101.2 million of cash in our operating activities for the year ended December 31, 2018. As of
December 31, 2018, we had $82.2 million of cash and cash equivalents, $386.4 million of short-term investments, $466.2 million of
stockholders’ equity and had working capital of $461.0 million.
We expect to further increase our research and development activities, which will increase the amount of cash we will use
during 2019 and beyond. Specifically, we expect increased spending on clinical trials, research and development activities, higher
payroll expenses as we increase our professional and scientific staff and continue our expansion of manufacturing activities. Based on
the funds we have available as of the date of the filing of this Annual Report on Form 10-K, we believe that we have sufficient capital
to fund our anticipated operating expenses for at least 12 months from the date of filing this report.
78
Cash Flows
Cash Flows from Operating, Investing and Financing Activities (in thousands):
Years Ended December 31,
2017
2016
2018
Net cash (used in) provided by:
Operating activities
Investing activities
Financing activities
Net increase (decrease) in cash and cash equivalents
Operating Activities
$
$
(101,249 ) $
(386,280 )
424,308
(63,221 ) $
(78,709 ) $
58,677
58,688
38,656 $
(32,668 )
8,894
96,904
73,130
Net cash used in operating activities of $101.2 million for the year ended December 31, 2018, resulted primarily from our net
loss of $123.6 million, adjusted by a non-cash charge of $20.0 million for stock-based compensation expense, $1.0 million in non-cash
depreciation expenses, and $1.3 million in non-cash accretion of premium on short-term investments. Further, it was adjusted for a
$4.7 million increase in accounts payable and accrued liabilities primarily due to increases in activities by our company and a $2.0
million increase in prepaid expenses and other assets due to timing of certain upfront payments associated with our research
agreements.
Net cash used in operating activities of $78.7 million for the year ended December 31, 2017, resulted primarily from our net
loss of $92.1 million, adjusted by a non-cash charge of $12.0 million for stock-based compensation expense, $1.0 million in non-cash
depreciation expenses, a $4.9 million increase in accounts payable and accrued liabilities primarily due to increases in activities by our
company, and a $4.5 million increase in prepaid expenses and other assets due to timing of certain upfront payments associated with
our research agreements.
Net cash used in operating activities of $32.7 million for the year ended December 31, 2016, resulted primarily from our net
loss of $52.9 million, adjusted by $18.9 million for stock-based compensation expense, $1.0 million in non-cash depreciation
expenses, a $3.2 million increase in accounts payable and accrued liabilities primarily due to increases in activities by our company,
and a $2.8 million increase in prepaid expenses and other assets due to timing of certain upfront payments associated with our research
agreements.
Investing Activities
Net cash provided by investing activities of $386.3 million for the year ended December 31, 2018, consisted primarily
of $426.1 million used for the purchases of short-term investments, $1.2 million used for the purchase of property and equipment,
which was partially offset by $41.0 million of proceeds from the maturities of short-term investments
Net cash provided by investing activities of $58.7 million for the year ended December 31, 2017, consisted primarily of $59.7
million of proceeds from the maturities of short-term investments, offset by $1.0 million used for the purchase of property and
equipment.
Net cash provided by investing activities of $8.9 million for the year ended December 31, 2016, consisted primarily of $1.5
million used for the purchase of property and equipment, and $110.2 million used for purchases of short-term investments, offset
by $120.7 million of proceeds from the maturities of short-term investments.
Financing Activities
Net cash provided by financing activities of $424.3 million for the year ended December 31, 2018, consisted primarily of net
proceeds of $162.0 million from the issuance of shares in January 2018 public offering at $11.50 per share after deducting expenses of
the offering and $236.7 million from the issuance of shares in October 2018 public offering at $9.97 per share after deducting
expenses of the offering, $15.8 million of proceeds from the exercise of warrants, and $10.0 million from the exercise of options.
Net cash provided by financing activities of $58.7 million for the year ended December 31, 2017, consisted primarily of net
proceeds of $53.7 million from the issuance of shares in a private offering at $6.50 per share after deducting expenses of the offering,
$5.6 million from the exercise of options, $0.7 million of proceeds exercise of warrants, offset by $1.3 million in connection with tax
payments made by our company in connection with vested restricted stock.
79
Net cash provided by financing activities of $96.9 million for the year ended December 31, 2016, consisted primarily of net
proceeds of $95.7 million from the issuance of shares in a private offering at $4.75 per share after deducting expenses of the offering,
$1.2 million of proceeds from the exercise of warrants, $0.6 million from the exercise of options offset by $0.6 million in connection
with tax payments made by our company in connection with vested restricted stock awards.
Significant Accounting Policies and Recent Accounting Standards
See Note 2 of the financial statements for a discussion of our significant accounting policies, including the discussion of
recently issued and adopted accounting standards.
Contractual Obligations
We acquire assets still in development and enter into research and development arrangements with third parties that often
require milestone and royalty payments to the third-party contingent upon the occurrence of certain future events linked to the success
of the asset in development. Milestone payments may be required, contingent upon the successful achievement of an important point
in the development life-cycle of the pharmaceutical product (e.g., approval of the product for marketing by a regulatory agency). If
required by the arrangement, we may have to make royalty payments based upon a percentage of the sales of the pharmaceutical
product in the event that regulatory approval for marketing is obtained. Because of the contingent nature of these milestone payments,
they are not included in the table of contractual obligations.
These arrangements may be material individually, and in the event that milestones for multiple products covered by these
arrangements were reached in the same period, the aggregate charge to expense could be material to the results of operations in any
one period. In addition, these arrangements often give us the discretion to unilaterally terminate development of the product, which
would allow us to avoid making the contingent payments.
Our current non-cancelable contractual obligations as of December 31, 2018 that will require future cash payments are as
follows (in thousands):
Contractual Obligations
Total
2019
Payments due by period
2021
2022
2020
Operating lease obligations
CMO contractual obligations
$
3,014 $
28,587
1,373 $
17,992
1,223 $
7,690
418 $
2,324
- $
581
Total
$ 31,601 $ 19,365 $
8,913 $
2,742 $
581 $
2023
Thereafter
- $
-
- $
-
-
-
Operating lease obligations consist of obligations under non-cancelable operating leases for our facilities in San Carlos, CA,
Tampa, FL, and New York, NY.
Contract Manufacturing Organization (CMO) contractual obligations consist of embedded lease obligations for the
manufacturing facilities and minimum fixed commitment fees included in our manufacturing contracts, such as personnel, general
support fee, and minimum production or material fees. See Note 11 in the notes to the consolidated financial statements.
Off-Balance Sheet Arrangements
At December 31, 2018, we had no obligations that would require disclosure as off-balance sheet arrangements.
Item 7A.
Quantitative and Qualitative Disclosures About Market Risk
Interest Rate Risk
Our exposure to market risk is limited primarily to interest income sensitivity, which is affected by changes in the general level
of U.S. interest rates, particularly because a significant portion of our investments are in interest bearing cash accounts and a mutual
fund consisting of short-term debt securities issued by the U.S. government. The primary objective of our investment activities is to
preserve principal. We adhere to an investment policy that requires us to limit amounts invested in securities based on credit rating,
maturity, industry group and investment type and issuer, except for securities issued by the U.S. government. At December 31, 2018,
we had $386.4 million invested in short-term marketable securities with a maturity date of less than one year. We adhere to an
investment policy that requires us to limit amounts invested in securities based on credit rating, maturity, industry group and
investment type and issuer, except for securities issued by the U.S. government. As such we believe that we are not exposed to any
material market risk. We do not have any derivative financial instruments or foreign currency instruments. If interest rates had varied
by 10% in the year ended December 31, 2018, it would not have had a material effect on our results of operations or cash flows for
that period.
80
Inflation Risk
Inflation has not had a material effect on our business, financial condition or results of operations during the years ended
December 31, 2018, 2017 or 2016.
Item 8.
Financial Statements and Supplementary Data
Financial Statements are referred to in Item 15, listed in the Index to Financial Statements as a part of this Annual Report on
Form 10-K, and are incorporated herein by this reference.
Item 9.
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
Item 9A.
Controls and Procedures
(a) Evaluation of Disclosure Controls and Procedures:
We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our
Exchange Act reports is recorded, processed, summarized and reported within the time periods specified in the Securities and
Exchange Commission’s rules and forms and that such information is accumulated and communicated to our management, including
our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow for timely decisions regarding required disclosure. In
designing and evaluating the disclosure controls and procedures, management recognizes that any controls and procedures, no matter
how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and in reaching a
reasonable level of assurance, management is required to apply its judgment in evaluating the cost-benefit relationship of possible
controls and procedures.
As of the end of the period covered by this Annual Report on Form 10-K, we carried out an evaluation, under the supervision
and with the participation of our management, including our Chief Executive Officer and our Chief Financial Officer, of the
effectiveness of the design and operation of our disclosure controls and procedures. Based on the foregoing, our Chief Executive
Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective at the reasonable assurance
level.
(b) Management’s Annual Report on Internal Control Over Financial Reporting:
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term
is defined in Exchange Act Rules 13a-15(f) and 15d-15(f). Under the supervision and with the participation of our management,
including our Chief Executive Officer and Chief Financial Officer, we conducted an evaluation of the effectiveness of our internal
control over financial reporting as of December 31, 2018 based on the framework in Internal Control—Integrated Framework
2013 issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on that evaluation, our
management concluded that our internal control over financial reporting was effective as of December 31, 2018.
The independent registered public accounting firm, Marcum LLP, has issued an attestation report on our internal control over
financial reporting. The report on the audit of internal control over financial reporting is included in this Annual Report on Form 10-
K.
(c) Changes in Internal Control Over Financial Reporting:
There has been no change in our internal control over financial reporting during our most recent fiscal quarter that has
materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Item 9B.
Other Information
None.
81
PART III
Certain information required by Part III is omitted from this Annual Report on Form 10-K because we will file a definitive
Proxy Statement for the Annual Meeting of Stockholders pursuant to Regulation 14A of the Securities Exchange Act of 1934 (the
Proxy Statement), not later than 120 days after the end of the fiscal year covered by this Annual Report on Form 10-K, and the
applicable information included in the Proxy Statement is incorporated herein by reference.
Item 10.
Directors, Executive Officers, and Corporate Governance
Information required by this Item 10 will be presented in the Proxy Statement “Election of Directors,” “Management Executive
Officers,” “Section 16(a) Beneficial Ownership Reporting Compliance” and “Board of Directors and Corporate Governance,” and is
incorporated herein by reference.
Item 11.
Executive Compensation
The information required by this Item is incorporated herein by reference to the sections entitled “Executive Compensation,”
“Executive Compensation—Compensation Discussion and Analysis” and “Directors’ Compensation” in the Proxy Statement.
Item 12.
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required by this Item is incorporated herein by reference to the sections entitled “Security Ownership of
Certain Beneficial Owners and Management” and “Equity Compensation Plan Information” in the Proxy Statement.
Item 13.
Certain Relationships and Related Transactions, and Director Independence
The information required by this Item is incorporated herein by reference to the section entitled “Certain Relationships and
Related Transactions” in the Proxy Statement.
Item 14.
Principal Accountant’s Fees and Services
Information required by this Item is incorporated herein by reference to the section of the Proxy Statement entitled “Principal
Accountant Fees and Services.”
Item 15.
Exhibits, Financial Statements Schedules
PART IV
The Company’s financial statements and related notes thereto are listed and included in this Annual Report on Form 10-K
beginning on page F-1. The following exhibits are filed with, or are incorporated by reference into, this Annual Report on Form 10-K.
Exhibit
2.1
3.1
3.2
3.3
3.4
EXHIBIT INDEX
Description
Plan of Conversion (incorporated herein by reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed
with the Commission on June 2, 2017).
Articles of Conversion (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K
filed with the Commission on June 2, 2017).
Certificate of Conversion (incorporated herein by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-
K filed with the Commission on June 2, 2017).
Certificate of Incorporation (incorporated herein by reference to Exhibit 3.3 to the Registrant’s Current Report on Form
8-K filed with the Commission on June 2, 2017).
Certificate of Designations of Rights, Preferences and Privileges of Series A Convertible Preferred Stock (incorporated
herein by reference to Exhibit 3.4 to the Registrant’s Post-Effective Amendment No. 1 to the Registration Statement on
Form S-3 (file no. 333-214073) filed with the Commission on July 31, 2017).
3.5
Certificate of Designations of Rights, Preferences and Privileges of Series B Preferred Stock (incorporated herein by
reference to Exhibit 3.5 to the Registrant’s Post-Effective Amendment No. 1 to the Registration Statement on Form S-3
(file no. 333-214073 incorporated by reference into file no. 333-212373) filed with the Commission on July 31, 2017).
3.6
Certificate of Amendment of Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K filed with the Commission on June 27, 2017).
82
3.7
3.8
4.1
4.2
Bylaws (incorporated herein by reference to Exhibit 3.4 to the Registrant’s Current Report on Form 8-K filed with the
Commission on June 2, 2017).
Amendment to the Bylaws (incorporated herein by reference to Exhibit 3.2 to the Registrant’s Current Report on Form
8-K filed with the Commission on June 27, 2017).
Form of Warrant (incorporated herein by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed
with the Commission on October 31, 2013).
Specimen of Stock Certificate. (incorporated herein by reference to Exhibit 4.2 to the Registrant’s Annual Report on
Form 10-K filed with the Commission on March 12, 2018).
10.1
Genesis Biopharma, Inc. 2010 Equity Compensation Plan (incorporated herein by reference to Exhibit 4.1 to the
Registrant’s Annual Report on Form 10-K filed with the Commission on March 31, 2010).#
10.2
Form of Stock Option Agreement under the Genesis Biopharma Inc. 2010 Equity Compensation Plan (incorporated
herein by reference to Exhibit 10.5 to the Registrant’s Annual Report on Form 10-K filed with the Commission on
March 31, 2010).#
10.3
Genesis Biopharma, Inc. 2011 Equity Incentive Plan (incorporated herein by reference to Exhibit 10.3 to the Registrant’s
Current Report on Form 8-K filed with the Commission on October 20, 2011).#
10.4
Form of Incentive Stock Option Agreement under the Genesis Biopharma Inc. 2011 Equity Incentive Plan (incorporated
herein by reference to Exhibit 10.4 of the Registrant’s Current Report on Form 8-K filed with the Commission on
October 20, 2011).#
10.5
Form of Non-Qualified Stock Option Agreement under the Genesis Biopharma Inc. 2011 Equity Incentive Plan
(incorporated herein by reference to the Registrant’s Current Report on Form 8-K filed with the Commission on October
20, 2011).#
10.6
Lion Biotechnologies, Inc. 2014 Equity Incentive Plan, as amended (incorporated herein by reference to Appendix A to
the Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Commission on July 7, 2016).#
10.7
Form Incentive Stock Option Agreement under the Lion Biotechnologies, Inc. 2014 Equity Incentive Plan (incorporated
herein by reference to Exhibit 4.9 to the Registrant’s Registration Statement on Form S-8 filed with the Commission on
June 18, 2015).#
10.8
Form Non-Qualified Stock Option Agreement under the Lion Biotechnologies, Inc. 2014 Equity Incentive Plan
(incorporated herein by reference to Exhibit 4.10 to the Registrant’s Registration Statement on Form S-8 filed with the
Commission on June 18, 2015).#
10.9
Iovance Biotherapeutics, Inc. 2018 Equity Incentive Plan (incorporated herein by reference to Appendix A to the
10.10
10.11
10.12
Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Commission on April 25, 2018).#
Form of Incentive Stock Option Agreement under the Iovance Biotherapeutics, Inc. 2018 Equity Incentive Plan
(incorporated herein by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed with the
Commission on August 7, 2018).#
Form of Non-Qualified Stock Option Agreement under the Iovance Biotherapeutics, Inc. 2018 Equity Incentive Plan
(incorporated herein by reference to Exhibit 10.3 the Registrant’s Quarterly Report on Form 10-Q filed with the
Commission on August 7, 2018).#
Patent License Agreement by and between Genesis Biopharma, Inc. and the National Institutes of Health effective
October 5, 2011 (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-
K/A filed with the Commission on December 13, 2011).*
10.13
Cooperative Research and Development Agreement for Intramural-PHS Clinical Research, dated August 5, 2011, by and
between the U.S. Department of Health and Human Services, as represented by the National Cancer Institute, and
Genesis Biopharma, Inc. (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-
K/A (Amendment No. 2) filed with the Commission on November 29, 2011).
10.14
Form of Director Stock Award Agreement (incorporated herein by reference to Exhibit 10.2 to the Registrant’s Current
Report on Form 8-K filed with the Commission on July 25, 2013).#
10.15
Form of Registration Rights Agreement by and among Lion Biotechnologies, Inc. and the Investors thereunder
(incorporated herein by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed with the
Commission on October 31, 2013).
10.16
Cooperative Research and Development Agreement for the Development and Evaluation of the NCI Proprietary
Adoptive Cell Transfer Immunotherapy Using Tumor Infiltrating Lymphocytes in Patients with Metastatic Melanoma,
Bladder, Lung, Triple-negative Breast, and HPV-associated Cancers, Utilizing Lion Biotechnologies, Inc.’s Business
Development Expertise in Adoptive Cell Transfer Immunotherapy, executed by Lion Biotechnologies, Inc. on January
22, 2015 (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with the
Commission on January 27, 2015).*
10.17
Patent License Agreement, dated February 9, 2015, by and between the Company and the National Institutes of Health.
(incorporated herein by reference to Exhibit 10.47 to the Registrant’s Annual Report on Form 10-K filed with the
Commission on March 16, 2015).*
83
10.18
Patent License Agreement, dated February 10, 2015, by and between Lion Biotechnologies, Inc. and the National
10.19
10.20
10.21
Institutes of Health (incorporated herein by reference to Exhibit 10.46 to the Registrant’s Annual Report on Form 10-K
filed with the Commission on March 16, 2015).*
First Amendment to Patent License Agreement, effective October 2, 2015, by and between Lion Biotechnologies, Inc.
and the National Institutes of Health (incorporated herein by reference to Exhibit 10.47 to the Registrant’s Quarterly
Report on Form 10-Q filed with the Commission on November 6, 2015).*
Form of Securities Purchase Agreement, dated June 2, 2016, by and among Lion Biotechnologies, Inc. and the Investors
thereunder (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with
the Commission on June 3, 2016).
Form of Registration Rights Agreement, dated June 2, 2016, by and among Lion Biotechnologies, Inc. and the Investors
thereunder (incorporated herein by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed with
the Commission on June 3, 2016).
10.22
Form of Retention Bonus Agreement (incorporated herein by reference to Exhibit 10.5 of the Registrant’s Current
Report on Form 8-K filed with the Commission on June 3, 2016).#
10.23
Amendment #2 to the Cooperative Research and Development Agreement # 02734, dated August 18, 2016, by and
between the National Cancer Institute and Lion Biotechnologies, Inc. (incorporated herein by reference to Exhibit 10.3
to Amendment No. 2 to Registrant’s Amendment No. 2 to Registration Statement on Form S-1 filed with the
Commission on August 31, 2016).
10.24
Exclusive and Co-Exclusive License Agreement, dated September 14, 2016, by and between Lion Biotechnologies, Inc.
and PolyBioCept AB (incorporated herein by reference to Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-
Q filed with the Commission on November 4, 2016).*
10.25
Manufacturing Services Agreement, dated November 23, 2015, by and between WuXi AppTec, Inc. and Lion
Biotechnologies, Inc. (incorporated herein by reference to Exhibit 10.36 to the Registrant’s Annual Report on Form 10-
K filed with the Commission on March 9, 2017).*
10.26
Description of 2018 Corporate Goals and Cash Bonus Plan (incorporated herein by reference to the Registrant’s Current
Report on Form 8-K filed with the Commission on February 12, 2018).#
10.27
Strategic Alliance Agreement, effective as of April 17, 2017, between Lion Biotechnologies, Inc. and The University of
Texas M.D. Anderson Cancer Center, (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Quarterly
Report on Form 10-Q filed with the Commission on August 3, 2017).*
10.28
Executive Employment Agreement, effective June 1, 2016, by and between Maria Fardis and Lion Biotechnologies, Inc.
(incorporated herein by reference to Exhibit 10.3 of the Registrant’s Quarterly Report on Form 10-Q filed with the
Commission on August 9, 2016).*,#
10.29
Executive Employment Agreement, effective as of August 14, 2017, by and between Timothy E. Morris and Iovance
Biotherapeutics, Inc. (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-
Q filed with the Commission on November 2, 2017).#
10.30
Consulting Agreement, dated as of September 8, 2017, by and between Iovance Biotherapeutics, Inc. and Iain Dukes
(incorporated herein by reference to Exhibit 10.1 to the Registrant's Current Report on Form 8-K filed with the
Commission on September 15, 2017).#
10.31
Executive Employment Agreement, effective September 30, 2016, by and between Frederick G. Vogt and Lion
10.32
Biotechnologies, Inc. (incorporated herein by reference to Exhibit 10.32 to the Registrant’s Annual Report on Form 10-
K filed with the Commission on March 12, 2018).#
First Amendment to the Strategic Alliance Agreement by and between Iovance Biotherapeutics, Inc. and The University
of Texas M.D. Anderson Cancer Center, effective as of August 2, 2017 (incorporated herein by reference to Exhibit
10.34 to the Registrant’s Annual Report on Form 10-K filed with the Commission on March 12, 2018).
10.33
Second Amendment to the Strategic Alliance Agreement by and between Iovance Biotherapeutics, Inc. and The
University of Texas M.D. Anderson Cancer Center, effective February 16, 2018 (incorporated herein by reference to
Exhibit 10.35 to the Registrant’s Annual Report on Form 10-K filed with the Commission on March 12, 2018).
10.34
Office Lease dated as of August 4, 2016, by and between Lion Biotechnologies, Inc. and Hudson Skyway Landing, LLC
(incorporated herein by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed with the
Commission on August 8, 2016).
10.35
Office Lease dated as of October 19, 2018, by and between Iovance Biotechnologies, Inc. and Hudson Skyway Landing,
LLC (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with the
Commission on October 25, 2018).
21.1
Subsidiaries of the Company (incorporated herein by reference to Exhibit 21.1 of the Registrant’s Annual Report on
23.1
Form 10-K filed with the Commission on March 9, 2017).
Consent of Independent Registered Public Accounting Firm.
84
24.1
31.1
31.2
32.1
32.2
101
Power of Attorney (included on the signature page of this Annual Report).
Rule 13a-14(a)/15d-14(a) Certification of Chief Executive Officer.
Rule 13a-14(a)/15d-14(a) Certification of Chief Financial Officer.
Section 1350 Certification of Chief Executive Officer (furnished herewith).
Section 1350 Certification of Chief Financial Officer (furnished herewith).
The following financial information from the Annual Report on Form 10-K of Iovance Biotherapeutics, Inc. for the year
ended December 31, 2018, formatted in XBRL (eXtensible Business Reporting Language): (1) Balance Sheets as of
December 31, 2018 and 2017; (2) Statements of Income for the years ended December 31, 2018 and 2017;
(3) Statements of Shareholders’ Equity for the years ended December 31, 2018 and 2017; (4) Statements of Cash Flows
for the years ended December 31, 2018 and 2017; and (5) Notes to Financial Statements.
* Certain portions of the Exhibit have been omitted based upon a request for confidential treatment filed by us with the Commission.
The omitted portions of the Exhibit have been separately filed by us with the Commission.
# Indicates a management contract or compensatory plan or arrangement.
Item 16.
Form 10-K Summary
We may voluntarily include a summary of information required by Form 10-K under this Item 16. We have elected not to
include such summary information.
85
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this
report to be signed on its behalf by the undersigned, thereunto duly authorized.
SIGNATURES
Date: February 27, 2019
IOVANCE BIOTHERAPEUTICS, INC.
By: /s/ Maria Fardis
Name: Maria Fardis
Title: Chief Executive Officer
POWER OF ATTORNEY
Know all persons by these presents, that each person whose signature appears below constitutes and appoints Maria Fardis and
Timothy E. Morris, and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments to this
Annual Report, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming that all said attorneys-in-fact and agents, or any of them or their or his or
her substitute or substituted, may lawfully do or cause to be done by virtue thereof.
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
/s/ Maria Fardis
Maria Fardis
/s/ Timothy E. Morris
Timothy E. Morris
/s/ Merrill A. McPeak
Merrill A. McPeak
/s/ Michael Weiser
Michael Weiser
/s/ Ryan D. Maynard
Ryan D. Maynard
/s/ Iain Dukes
Iain Dukes
/s/ Wayne Rothbaum
Wayne Rothbaum
Title
Chief Executive Officer (Principal
Executive Officer) and Director
Date
February 27, 2019
Chief Financial Officer and Treasurer
(Principal Financial Officer and Accounting Officer)
February 27, 2019
Director
Director
Director
Director
Director
February 27, 2019
February 27, 2019
February 27, 2019
February 27, 2019
February 27, 2019
86
IOVANCE BIOTHERAPEUTICS, INC.
Index to Financial Statements
Contents
Report of Independent Registered Public Accounting Firm
Report of Independent Registered Public Accounting Firm on Internal Control over Financial Reporting
Financial Statements
Consolidated Balance Sheets
Consolidated Statements of Operations
Consolidated Statements of Comprehensive Loss
Consolidated Statements of Stockholders’ Equity
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
Page
F-1
F-2
F-3
F-4
F-5
F-6
F-7
F-8
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Shareholders and Board of Directors of
Iovance Biotherapeutics, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Iovance Biotherapeutics, Inc. (the “Company”) as of December 31,
2018 and 2017, and the related consolidated statements of operations, comprehensive loss, stockholders’ equity and cash flows for
each of the three years in the period ended December 31, 2018, and the related notes (collectively referred to as the “financial
statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as
of December 31, 2018 and 2017, and the results of its operations and its cash flows for each of the three years in the period ended
December 31, 2018, in conformity with accounting principles generally accepted in the United States of America.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States)
("PCAOB"), the Company's internal control over financial reporting as of December 31, 2018, based on the criteria established in
Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO)
in 2013 and our report dated February 27, 2019, expressed an unqualified opinion on the effectiveness of the Company’s internal
control over financial reporting.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the
Company's financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to
be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and
regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits
to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to
error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence
regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used
and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe
that our audits provide a reasonable basis for our opinion.
/s/ Marcum LLP
Marcum LLP
We have served as the Company’s auditor since 2016.
New York, NY
February 27, 2019
F-1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM ON INTERNAL CONTROL OVER FINANCIAL
REPORTING
To the Shareholders and Board of Directors of
Iovance Biotherapeutics, Inc.
Opinion on Internal Control over Financial Reporting
We have audited Iovance Biotherapeutics, Inc.'s (the “Company”) internal control over financial reporting as of December 31, 2018
based on criteria established in Internal Control-Integrated Framework (2013) issued by the Committee of Sponsoring Organizations
of the Treadway Commission. In our opinion, the Company maintained, in all material respects, effective internal control over
financial reporting as of December 31, 2018, based on criteria established in Internal Control-Integrated Framework (2013) issued by
the Committee of Sponsoring Organizations of the Treadway Commission.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States)
(“PCAOB”), the consolidated balance sheets as of December 31, 2018 and 2017 and related consolidated statements of operations,
comprehensive loss, stockholders’ equity and cash flows for each of the three years in the period ended December 31, 2018, and the
related notes of the Company and our report dated February 27, 2019 expressed an unqualified opinion on those financial statements.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting, and for its assessment
of the effectiveness of internal control over financial reporting, included in the accompanying Management Annual Report on Internal
Control over Financial Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial
reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with
respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities
and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects.
Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting,
assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control
based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances.
We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting
principles. A company's internal control over financial reporting includes those policies and procedures that (1) pertain to the
maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the
company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in
accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect
on the financial statements.
Because of the inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections
of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in
conditions, or that degree of compliance with the policies or procedures may deteriorate.
/s/ Marcum LLP
Marcum LLP
New York, NY
February 27, 2019
F-2
IOVANCE BIOTHERAPEUTICS, INC.
Consolidated Balance Sheets
(In thousands, except share and per share information)
ASSETS
Current Assets
Cash and cash equivalents
Short-term investments
Prepaid expenses and other assets
Total Current Assets
Property and equipment, net
Long-term assets
Total Assets
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current Liabilities
Accounts payable
Accrued expenses
Total Current Liabilities
Non-Current Liabilities
Deferred rent
Total Non-Current Liabilities
Total Liabilities
Commitments and contingencies (Note 11)
Stockholders’ Equity
December 31, December 31,
2018
2017
$
$
$
82,152 $
386,371
6,851
475,374
2,683
2,764
480,821
145,373
-
3,917
149,290
2,450
3,633
155,373
2,739 $
11,659
14,398
230
230
14,628
1,232
8,363
9,595
297
297
9,892
Series A Convertible Preferred Stock, $0.001 par value; 17,000 shares authorized, 194 shares
issued and outstanding as of December 31, 2018; 1,694 shares issued and outstanding December
31, 2017 (aggregate liquidation value of $194)
Series B Convertible Preferred Stock, $0.001 par value; 11,500,000 shares authorized; 5,854,845
shares issued and outstanding as of December 31, 2018; 7,378,241 shares issued and outstanding
December 31, 2017 (aggregate liquidation value of $27,811);
Common stock, $0.000041666 par value; 150,000,000 shares authorized, 123,415,576 and
73,164,914 shares issued and outstanding as of December 31, 2018 and December 31, 2017,
respectively
Accumulated other comprehensive loss
Additional paid-in capital
Accumulated deficit
Total Stockholders’ Equity
Total Liabilities and Stockholders’ Equity
$
-
6
-
7
5
(42 )
838,984
(372,760 )
466,193
480,821 $
3
-
394,651
(249,180 )
145,481
155,373
The accompanying notes are an integral part of these consolidated financial statements.
F-3
IOVANCE BIOTHERAPEUTICS, INC.
Consolidated Statements of Operations
(In thousands, except per share information)
Years Ended December 31,
2017
2016
2018
Revenues
$
- $
- $
-
Costs and expenses
Research and development expenses
General and administrative expenses
Total costs and expenses
Loss from operations
Other income
Interest income, net
Net Loss
Deemed dividend related to beneficial conversion feature of convertible preferred
stock
Net Loss Attributable to Common Stockholders
Net Loss Per Common Share, Basic and Diluted
Weighted-Average Common Share Outstanding, Basic and Diluted
99,828
28,430
128,258
71,615
21,262
92,877
26,941
26,698
53,639
(128,258 )
(92,877 )
(53,639 )
4,678
(123,580 )
813
(92,064 )
745
(52,894 )
$
$
-
(123,580 ) $
(1.27 ) $
97,277
-
(92,064 ) $
(1.41 ) $
65,242
(49,454 )
(102,348 )
(1.85 )
55,268
The accompanying notes are an integral part of these consolidated financial statements.
F-4
IOVANCE BIOTHERAPEUTICS, INC.
Consolidated Statements of Comprehensive Loss
(in thousands)
Years Ended December 31,
2017
2016
2018
Net Loss
Other comprehensive loss:
Net unrealized loss on short-term investments
Comprehensive Loss
$
(123,580 ) $
(92,064 ) $
(52,894 )
(42 )
(123,622 ) $
(29 )
(92,093 ) $
(19 )
(52,913 )
$
The accompanying notes are an integral part of these consolidated financial statements.
F-5
IOVANCE BIOTHERAPEUTICS, INC.
Consolidated Statements of Stockholders' Equity
(In thousands, except share information)
Series A Convertible Series B Convertible
Preferred Stock
Shares Amount Shares
1,694 $
Preferred Stock
- $
-
Common Stock
Amount Shares
- 48,547,720 $
Amount Capital
2 $ 208,195 $
Additional Accumulated other
Paid-In Comprehensive
Income (Loss)
Total
Accumulated Stockholders’
Deficit
Equity
48 $
(104,222 ) $
104,023
Balance - January 1, 2016
Stock-based compensation
expense
Vesting of restricted shares
issued for services
Tax payments related to shares
witheld for vested restricted
stock awards
Common stock issued upon
exercise of warrants
Common stock issued upon
exercise of stock options
Common stock sold in private
placement, net of offering costs
Preferred stock sold in private
placement, net of offering costs
Conversion of convertible
preferred stock into common
stock
Cancellation of restricted
shares, net
Beneficial conversion feature
of preferred stock
Deemed dividend on beneficial
conversion feature of preferred
stock
Unrealized loss on short- term
investments
Net loss
Balance - December 31, 2016
Stock-based compensation
expense
Tax payments related to shares
witheld for vested restricted
stock awards
Common stock issued upon
exercise of warrants
Common stock issued upon
exercise of stock options
Conversion of convertible
preferred stock into common
stock
Common stock sold in public
offering, net of offering costs
Vesting of restricted shares
issued for services
Unrealized loss on short- term
investments
Net loss
Balance - December 31, 2017
Stock-based compensation
expense
Tax payments related to shares
witheld for vested restricted
stock awards
Common stock issued upon
exercise of warrants
Common stock issued upon
exercise of stock options
Common stock sold in public
offering, net of offering costs
Vesting of restricted shares
issued for services
Conversion of convertible
preferred stock into common
stock
Cancellation of resticted shares
Unrealized loss on short- term
investments
Net loss
18,904
0
(642 )
592,132
-
1,235
100,480
626
9,684,000
1
44,008
11,368,633
11
51,665
(3,421,960 )
(3 )
3,421,960
3
(98,218 )
-
(49,454 )
49,454
1,694
- 7,946,673
8 62,248,074
3 323,994
11,968
-
(1,252 )
-
-
662
5,616
265,000
1,011,284
(19 )
29
(52,894 )
(157,116 )
(568,432 )
(1 )
568,432
1
8,846,154
-
53,662
225,970
-
-
- 7,378,241
7 73,164,914
3 394,651
(29 )
-
(92,064 )
(249,180 )
1,694
20,027
(223 )
6,301,216
1
15,753
1,336,514
9,959
40,300,000
1 398,816
45,833
-
- (1,523,396 )
(1 )
2,273,396
(6,297 )
-
-
1
(42 )
(1,500 )
18,904
-
(642 )
1,235
626
44,009
51,676
-
-
(49,454 )
49,454
(19 )
(52,894 )
166,918
11,968
(1,252 )
662
5,616
-
53,662
-
(29 )
(92,064 )
145,481
20,027
(223 )
15,754
9,959
398,817
-
-
-
Balance - December 31, 2018
194 $
(42 ) $
The accompanying notes are an integral part of these consolidated financial statements.
- 5,854,845 $
5 $ 838,984 $
6 123,415,576 $
F-6
(123,580 )
(372,760 ) $
(42 )
(123,580 )
466,193
IOVANCE BIOTHERAPEUTICS, INC.
Consolidated Statements of Cash Flows
(In thousands)
Cash Flows from Operating Activities
Net loss
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation and amortization
Loss on disposal of assets
Accretion (amortization) of discounts and premiums on investments
Stock-based compensation expense
Changes in assets and liabilities:
Prepaid expenses and other assets
Accounts payable
Accrued expenses
Net cash used in operating activities
Cash Flows from Investing Activities
Maturities of short-term investments
Purchase of short-term investments
Purchase of property and equipment
Net cash (used in) provided by investing activities
Cash Flows from Financing Activities
Tax payments related to shares withheld for vested restricted stock awards
Proceeds from the issuance of common stock upon exercise of warrants
Proceeds from the issuance of common stock upon exercise of options
Proceeds from the issuance of preferred stock and common stock, net
Net cash provided by financing activities
Net (decrease) increase in cash and cash equivalents
Cash and Cash Equivalents, Beginning of Period
Cash and Cash Equivalents, End of Period
Supplemental disclosure of cash flow information:
Cash paid for income taxes
Interest paid
Supplemental disclosure of non-cash investing and financing activities:
Net unrealized loss on short-term investments
Acquisitions of property and equipment included in accounts payable
Offering costs under accounts payable and accrued expenses
Conversion of convertible preferred stock to common stock
$
$
Years Ended December 31,
2017
2016
2018
$
(123,580 ) $
(92,064 )
(52,894 )
956
9
(1,332 )
20,027
(2,065 )
1,507
3,229
(101,249 )
952
-
19
11,968
(4,508 )
369
4,555
(78,709 )
978
-
(74 )
18,904
(2,765 )
(250 )
3,433
(32,668 )
41,000
(426,081 )
(1,198 )
(386,279 )
59,705
-
(1,028 )
58,677
120,664
(110,249 )
(1,521 )
8,894
(223 )
15,754
9,959
398,817
424,307
(63,221 )
145,373
82,152 $
(1,252 )
662
5,616
53,662
58,688
38,656
106,717
145,373
-
-
(42 ) $
-
-
1
-
-
(29 )
-
-
1
(642 )
1,235
626
95,685
96,904
73,130
33,587
106,717
-
-
(19 )
155
49,454
3
The accompanying notes are an integral part of these consolidated financial statements.
F-7
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. GENERAL ORGANIZATION, BUSINESS AND LIQUIDITY
General Organization and Business
Iovance Biotherapeutics, Inc. (the “Company”) is a clinical-stage biopharmaceutical company focused on the development and
commercialization of novel cancer immunotherapy products designed to harness the power of a patient’s own immune system to
eradicate cancer cells. Tumor infiltrating lymphocyte or TIL therapy is a platform technology that has already been studied for the
treatment of metastatic melanoma and metastatic cervical cancer by the National Cancer Institute, or NCI. The Company’s lead
product candidate, lifileucel (formerly known as LN144) for metastatic melanoma, is an autologous adoptive cell therapy utilizing
TIL, which are T cells derived from patients’ tumors. The Company is also developing a second product candidate, an autologous
adoptive cell therapy utilizing TIL for the treatment of cancers other than metastatic melanoma, which is known as LN-145. The
Company is investigating the effectiveness and safety of TIL therapy for the treatment of metastatic melanoma, squamous cell
carcinoma of the head and neck, cervical cancer, and metastatic non-small cell lung cancer through company sponsored trials, as well
as other oncology indications. On June 1, 2017, the Company reincorporated to become a company governed by Delaware corporation
laws.
Liquidity
The Company is currently engaged in the development of therapeutics to fight cancer, specifically solid tumors. The Company
currently does not have any commercial products and has not yet generated any revenues from its business. The Company currently
does not anticipate that it will generate any revenues from the sale or licensing of any of its product candidates during the 12 months
from the date these financial statements are issued. The Company has incurred a net loss of $123.6 million for the year ended
December 31, 2018 and used $101.2 million of cash in its operating activities during the year ended December 31, 2018. In January
2018, the Company closed an underwritten public offering of 15,000,000 shares of the Company’s common stock at a public offering
price of $11.50 per share, before underwriting discounts, which included 1,956,521 shares issued upon the exercise in full by the
underwriter of its option to purchase additional shares at the public offering price less the underwriting discount. The net proceeds
from the offering, after deducting the underwriting discounts and commissions and other offering expenses payable by the Company,
were $162.0 million. On October 17, 2018, the Company completed an underwritten public offering of 25,300,000 shares of the
Company’s common stock at a public offering price of $9.97 per share, before underwriting discounts, which included 3,300,000
shares issued upon the exercise in full by the underwriter of its option to purchase additional shares at the public offering price less the
underwriting discount. The net proceeds from the offering, after deducting the underwriting discounts and commissions and other
offering expenses payable by the Company, were $236.7 million. As of December 31, 2018, the Company had $82.2 million of cash
and cash equivalents and $386.4 million in short-term investments.
The Company expects to further increase its research and development activities, which will increase the amount of cash used
during 2019 and beyond. Specifically, the Company expects continued spending on its current and planned clinical trials, continued
expansion of manufacturing activities, including construction of a manufacturing facility, higher payroll expenses as the Company
increases its professional and scientific staff, increased research and development activities and initiation of pre-commercial activities.
Based on the funds the Company has available as of the date these financial statements are issued, the Company believes that it has
sufficient capital to fund its anticipated operating expenses for at least next twelve months from the date these financial statements are
issued.
Concentrations of Risk
The Company is subject to credit risk from our portfolio of cash equivalents and short-term investments. Under its investment
policy, the Company limits amounts invested in such securities by credit rating, maturity, industry group, investment type and issuer,
except for securities issued by the U.S. government. The Company does not believe it is exposed to any significant concentrations of
credit risk from these financial instruments. The goals of its investment policy, in order of priority, are as follows: safety and
preservation of principal and diversification of risk; liquidity of investments sufficient to meet cash flow requirements; and a
competitive after-tax rate of return.
F-8
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING PRACTICES
Cash, Cash Equivalents, and Short-term Investments
The Company’s cash and cash equivalents include short-term investments with original maturities of three months or less when
purchased. The Company's short-term investments are classified as “available-for-sale”. The Company includes these investments in
current assets and carries them at fair value. Unrealized gains and losses on available-for-sale securities are included in accumulated
other comprehensive loss. The cost of debt securities is adjusted for the amortization of premiums and accretion of discounts to
maturity. Such amortization and accretion are included in net interest income in the consolidated statements operations. Gains and
losses on securities sold are recorded based on the specific identification method and are included in net interest income in the
consolidated statement of operations. The Company has not incurred any realized gains or losses from sales of securities to date. The
Company’s investment policy limits investments to certain types of instruments such as certificates of deposit, money market
instruments, obligations issued by the U.S. government and U.S. government agencies as well as corporate debt securities, and places
restrictions on maturities and concentration by type and issuer.
Property and Equipment, net
Property and equipment is stated at cost, net of accumulated depreciation and amortization. The cost of property and equipment
is depreciated or amortized on the straight-line method over the following estimated useful lives:
Computer equipment
Office furniture and equipment
Lab equipment
Leasehold improvements
2 years
5 years
5 years
Lesser of the remaining economic life of the asset or the lease-term
Expenditures for maintenance and repairs are charged to operations as incurred while renewals and betterments are capitalized.
Gains and losses on disposals are included within operating expenses in the statements of operations.
Management assesses the carrying value of property and equipment whenever events or changes in circumstances indicate that
the carrying value may not be recoverable. If there is indication of impairment, management prepares an estimate of future
undiscounted cash flows expected to result from the use of the asset and its eventual disposition. If these cash flows are less than the
carrying amount of the asset, an impairment loss is recognized to write down the asset to its estimated fair value. For the years ended
December 31, 2018, 2017 and 2016, the Company did not recognize any impairments for its property and equipment.
Loss per Share
Basic net loss per share is computed by dividing the net loss by the weighted average number of common shares outstanding
during the period.
Diluted net loss per share is computed by dividing the net loss by the sum of the weighted average number of shares of
common stock outstanding and the dilutive common stock equivalent shares outstanding during the period. The Company’s
potentially dilutive common stock equivalent shares, which include incremental common shares issuable upon (i) the exercise of
outstanding stock options and warrants (ii) vesting of restricted stock units and restricted stock awards, and (iii) conversion of
preferred stock, are only included in the calculation of diluted net loss per share when their effect is dilutive.
At December 31, 2018, 2017 and 2016, the following outstanding common stock equivalents have been excluded from the
calculation of net loss per share because their impact would be anti-dilutive.
Stock options
Warrants
Series A Convertible Preferred*
Series B Convertible Preferred*
Restricted stock awards
Restricted stock units
*on an as-converted basis
F-9
2018
2016
As of December 31,
2017
6,889,287 6,072,368 6,233,150
- 6,301,216 6,566,216
847,000
5,854,845 7,378,241 7,946,673
7,084
550,000
12,909,874 20,713,407 22,150,123
-
114,582
-
68,742
847,000
97,000
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The dilutive effect of potentially dilutive securities would be reflected in diluted earnings per common share by application of
the treasury stock method. Under the treasury stock method, an increase in the fair market value of the Company's common stock could
result in a greater dilutive effect from potentially dilutive securities.
Fair Value Measurements
Under Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 820, Fair Value
Measurements and Disclosures, fair value is defined as the price at which an asset could be exchanged, or a liability transferred in a
transaction between knowledgeable, willing parties in the principal or most advantageous market for the asset or liability. Where
available, fair value is based on observable market prices or parameters or derived from such prices or parameters. Where observable
prices or parameters are not available, valuation models are applied.
Assets and liabilities recorded at fair value in the Company’s financial statements are categorized based upon the level of
judgment associated with the inputs used to measure their fair value. Hierarchical levels directly related to the amount of subjectivity
associated with the inputs to fair valuation of these assets and liabilities, are as follows:
Level 1—Inputs are unadjusted, quoted prices in active markets for identical assets at the reporting date. Active markets are
those in which transactions for the asset or liability occur in sufficient frequency and volume to provide pricing information on an
ongoing basis.
Level 2—Are inputs, other than quoted prices included in Level 1, that are either directly or indirectly observable for the asset
or liability through correlation with market data at the reporting date and for the duration of the instrument’s anticipated life.
The fair valued assets the Company holds that are generally assessed under Level 2 are corporate bonds and commercial paper.
The Company utilizes third party pricing services in developing fair value measurements where fair value is based on valuation
methodologies such as models using observable market inputs, including benchmark yields, reported trades, broker/dealer quotes,
bids, offers and other reference data. The Company uses quotes from external pricing service providers and other on-line quotation
systems to verify the fair value of investments provided by its third-party pricing service providers. The Company reviews
independent service auditor’s reports from its third-party pricing service providers particularly regarding the controls over pricing and
valuation of financial instruments and ensure that its internal controls address certain control deficiencies, if any, and complementary
user entity controls are in place.
The Company does not have fair valued assets classified under Level 2 as of December 31, 2018 and 2017.
Level 3—Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the
assets or liabilities and which reflect management’s best estimate of what market participants would use in pricing the asset or liability
at the reporting date. Consideration is given to the risk inherent in the valuation technique and the risk inherent in the inputs to the
model.
The Company’s financial instruments consist of cash and cash equivalents, short-term investments, and accounts payable, all of
which are reported at their respective fair value on its consolidated balance sheets.
The Company does not have fair valued assets classified under Level 3 as of December 31, 2018 and 2017.
As of December 31, 2018, financial assets measured at fair value on a recurring basis are categorized in the table below based
upon the lowest level of significant input to the valuations (in thousands):
US treasury securities
US government agency securities
Total
Assets at Fair Value as of December 31, 2018
Level 1
Level 2
Level 3
Total
$
$
265,393 $
120,978
386,371 $
- $
-
- $
- $
-
- $
265,393
120,978
368,371
As of December 31, 2017, the Company had no financial assets measured at fair value on a recurring basis.
F-10
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of
America (“GAAP”) requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities
and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and
expenses during the reporting period. Actual results could differ from those estimates. Significant estimates include valuation of short-
term investments, the useful lives of property and equipment, accounting for potential liabilities, the valuation allowance associated
with the Company’s deferred tax assets, and the assumptions made in valuing stock instruments issued for services.
Principles of Consolidation
The accompanying consolidated financial statements include the accounts of Iovance Biotherapeutics, Inc. and its wholly-
owned subsidiary, Iovance Biotherapeutics GmbH (formerly Lion Biotechnologies GmbH). All intercompany accounts and
transactions have been eliminated. The U.S. dollar is the functional currency for all the Company's consolidated operations.
Stock-Based Compensation
The Company periodically grants stock options and warrants to employees and non-employees in non-capital raising
transactions as compensation for services rendered. The Company accounts for stock option grants to employees based on the
authoritative guidance provided by the FASB where the value of the award is measured on the date of grant and recognized over the
vesting period. The Company accounts for stock option grants to non-employees in accordance with the authoritative guidance of the
FASB where the value of the stock compensation is determined based upon the measurement date at either a) the date at which a
performance commitment is reached, or b) at the date at which the necessary performance to earn the equity instruments is complete.
Non-employee stock-based compensation charges generally are amortized over the vesting period on a straight-line basis. In certain
circumstances where there are no future performance requirements by the non-employee, option grants are immediately vested, and
the total stock-based compensation charge is recorded in the period of the measurement date.
The fair value of the Company's common stock option grants is estimated using a Black-Scholes option pricing model, which
uses certain assumptions related to risk-free interest rates, expected volatility, expected life of the common stock options, and future
dividends. Compensation expense is recorded based upon the value derived from the Black-Scholes option pricing model. The
assumptions used in the Black-Scholes option pricing model could materially affect compensation expense recorded in future periods.
The Company has in the past issued restricted shares of its common stock for share-based compensation programs. The
Company measures the compensation cost with respect to restricted shares issued to employees based upon the estimated fair value of
the equity instruments at the date of the grant, which is recognized as an expense over the period during which an employee is
required to provide services in exchange for the award.
The fair value of restricted stock units is based on the closing price of the Company’s common stock on the grant date.
Total stock-based compensation expense related to all of the Company’s stock-based awards was recorded on the statements of
operations as follows (in thousands):
Years Ended December 31,
2017
2016
2018
Research and development
General and administrative
Total stock-based compensation expenses
$
$
9,305 $
10,722
20,027 $
5,270 $
6,698
11,968 $
3,267
15,637
18,904
Total stock-based compensation broken down based on each individual instrument was as follows (in thousands):
Years Ended December 31,
2017
2016
2018
Stock option expense
Restricted stock award expense
Restricted stock unit expense
Total stock-based compensation expenses
$
$
19,758 $
-
269
20,027 $
10,862 $
34
1,072
11,968 $
16,453
989
1,462
18,904
F-11
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Research and Development Expenses
Research and development expenses include personnel and facility-related expenses, outside contracted services including
clinical trial costs, manufacturing and process development costs, research costs and other consulting services. Research and
development costs are expensed as incurred. Nonrefundable advance payments for goods or services that will be used or rendered for
future research and development activities are deferred and amortized over the period that the goods are delivered, or the related
services are performed, subject to an assessment of recoverability.
Clinical development costs are a significant component of research and development expenses. The Company has a history of
contracting with third parties that perform various clinical trial activities on its behalf in connection with the ongoing development of
its product candidates. The financial terms of these contracts are subject to negotiations and may vary from contract to contract and
may result in uneven payment flow. The Company accrues and expenses costs for clinical trial activities performed by third parties
based upon estimates of the percentage of work completed over the life of the individual trial in accordance with agreements
established with contract research organizations and clinical trial sites. The Company determines its estimates through discussions
with internal clinical personnel and outside service providers as to the progress or stage of completion of trials or services and the
agreed upon fee to be paid for such services.
General and Administrative Expenses
General and administrative expenses consist primarily of salaries and other related costs, including stock-based compensation,
for personnel in executive, finance, accounting, legal, investor relations, facilities, business development and human resources
functions. Other significant costs include facility costs not otherwise included in research and development expenses, sublicense
royalty expenses, legal fees relating to corporate matters, insurance, public company expenses relating to maintaining compliance with
Nasdaq listing rules and Securities and Exchange Commission (“SEC”) requirements, investor relations costs, and fees for accounting
and consulting services. General and administrative costs are expensed as incurred, and the Company accrues for services provided by
third parties related to the above expenses by monitoring the status of services provided and receiving estimates from its service
providers and adjusting its accruals as actual costs become known.
Income Taxes
The Company accounts for income taxes using the asset and liability method whereby deferred tax assets are recognized for
deductible temporary differences, and deferred tax liabilities are recognized for taxable temporary differences. Temporary differences
are the differences between the reported amounts of assets and liabilities and their tax bases. Deferred tax assets are reduced by a
valuation allowance when, in the opinion of management, it is more likely than not that some portion or all of the deferred tax assets
will be realized. Deferred tax assets and liabilities are adjusted for the effects of changes in tax laws and rates on the date of
enactment.
ASC Topic 740-10-30, Income Taxes, clarifies the accounting for uncertainty in income taxes recognized in an enterprise’s
financial statements and prescribes a recognition threshold and measurement attribute for the financial statement recognition and
measurement of a tax position taken or expected to be taken in a tax return. ASC Topic 740-10-40 provides guidance on de-
recognition, classification, interest and penalties, accounting in interim periods, disclosure, and transition. The Company will classify
as income tax expense any interest and penalties. The Company has no material uncertain tax positions for any of the reporting periods
presented.
Concentrations
The Company is subject to credit risk from its portfolio of cash equivalents and short-term investments. Under its investment
policy, it limits amounts invested in such securities by credit rating, maturity, industry group, investment type and issuer, except for
securities issued by the U.S. government. The Company is not exposed to any significant concentrations of credit risk from these
financial instruments. The goals of its investment policy, in order of priority, are as follows: safety and preservation of principal and
diversification of risk; liquidity of investments sufficient to meet cash flow requirements; and a competitive after-tax rate of return.
The Company maintains cash, cash equivalents and short-term investment balances at three financial institutions. At times, the
amounts on deposit may exceed the federally insured limits. Management believes that the financial institutions which hold its cash
are financially sound and, accordingly, minimal credit risk exists. As of December 31, 2018 and 2017, respectively, the Company’s
cash balances were in excess of insured limits maintained at the financial institutions.
F-12
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Preferred Stock
The Company applies the accounting standards for distinguishing liabilities from equity when determining the classification
and measurement of its preferred stock. Preferred shares subject to mandatory redemption are classified as liability instruments and
are measured at fair value. Conditionally redeemable preferred shares (including preferred shares that feature redemption rights that
are either within the control of the holder or subject to redemption upon the occurrence of uncertain events not solely within the
Company’s control) are classified as temporary equity. At all other times, preferred shares are classified as stockholders’ equity.
Convertible Instruments
The Company applies the accounting standards for derivatives and hedging and for distinguishing liabilities from equity when
accounting for hybrid contracts that feature conversion options. The accounting standards require companies to bifurcate conversion
options from their host instruments and account for them as free-standing derivative financial instruments according to certain criteria.
The criteria include circumstances in which (i) the economic characteristics and risks of the embedded derivative instrument are not
clearly and closely related to the economic characteristics and risks of the host contract, (ii) the hybrid instrument that embodies both
the embedded derivative instrument and the host contract is not re-measured at fair value under otherwise applicable generally
accepted accounting principles with changes in fair value reported in earnings as they occur and (iii) a separate instrument with the
same terms as the embedded derivative instrument would be considered a derivative instrument. The derivative is subsequently
marked to market at each reporting date based on current fair value, with the changes in fair value reported in results of operations.
Conversion options that contain variable settlement features such as provisions to adjust the conversion price upon subsequent
issuances of equity or equity linked securities at exercise prices more favorable than that featured in the hybrid contract generally
result in their bifurcation from the host instrument.
The Company also records, when necessary, deemed dividends for the intrinsic value of the conversion options embedded in
preferred stock based upon the difference between the fair value of the underlying common stock at the commitment date of the
transaction and the effective conversion price embedded in the preferred stock.
Recently Issued Accounting Standards Not Yet Adopted
In February 2016, the FASB issued Accounting Standard Update (ASU) No. 2016-02, Leases (Topic 842), which establishes a
new lease accounting model for lessees. The updated guidance requires an entity to recognize assets and liabilities arising from a lease
for both financing and operating leases, along with additional qualitative and quantitative disclosures. In June 2018, the FASB issued
ASU No. 2018-10, Codification Improvements to Topic 842, Leases, which further clarifies how to apply certain aspects of the new
lease standard. Topic 842 is effective for fiscal years, and interim periods within those years, beginning after December 15, 2018, with
early adoption permitted. The Company adopted Topic 842 on January 1, 2019, using a modified retrospective approach as applied to
lease existing as of or entered into after the adoption date. Topic 842 provides a number of optional practical expedients and
accounting policy elections. The Company elected the package of practical expedients requiring no reassessment of whether any
expired or existing contracts are or contain leases, the lease classification of any expired or existing leases, or initial direct costs for
any existing leases. The Company is in the final process of implementing a new lease accounting policy and updating its controls and
procedures for maintaining and accounting for its lease portfolio under the new guidance. Upon adoption of Topic 842, the Company
expects recognition of additional assets and corresponding liabilities pertaining to its operating leases on its consolidated balance
sheets. The Company does not expect the adoption of the new standard to have a significant impact on its consolidated statements of
operations and cash flows.
In June 2018, the FASB issued ASU No. 2018-07, Compensation- Stock Compensation (Topic 718): Improvements to
Nonemployee Share-Based Payment Accounting, which eliminates the separate accounting model for nonemployee share-based
payment awards and generally requires companies to account for share-based payment transactions with nonemployees in the same
way as share-based payment transactions with employees. Under the new guidance, nonemployee share-based payment transactions
are measured at the grant-date fair value and are no longer remeasured at the then-current fair values at each reporting date until the
share options have vested. The amended guidance is effective for fiscal years beginning after December 15, 2018, with early adoption
permitted. The Company plans to adopt this ASU on January 1, 2019. The guidance requires a modified-retrospective approach in
transition. The Company compared the cumulative amounts that were recorded for its nonemployee share-based payments through
December 31, 2018 immediately preceding the date of adoption to the cumulative amounts that should be recognized at the adoption
date and will record a cumulative effect of the transition adjustment of $0.3 million as an adjustment to retained earnings as of the date
of adoption, January 1, 2019.
F-13
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
In August 2018, the FASB issued ASU No. 2018-13, Fair Value Measurement (Topic 820): Disclosure Framework- Changes to
the Disclosure Requirements for Fair Value Measurement, which eliminates disclosure requirement regarding transfers between level
1 and level 2 of the fair value of hierarchy, however, adds disclosure requirements on the range and weighted average used to develop
significant unobservable inputs for level 3 fair value measurements. The guidance is effective for fiscal years beginning after
December 15, 2019 and for interim periods within those fiscal years, with early adoption permitted. The Company plans to adopt this
ASU on January 1, 2020. The Company expects the impact of the adoption of this standard on its financial statements to be
immaterial.
In August 2018, the Security Exchange Commission (SEC) adopted the final rule under SEC Release No. 33-10532,
“Disclosure Update and Simplification,” amending certain disclosure requirements that were redundant, duplicative, overlapping,
outdated or superseded. In addition, the amendments expanded the disclosure requirements on the analysis of stockholders’ equity for
interim financial statements. Under the amendments, an analysis of changes in each caption of stockholders’ equity presented in the
balance sheet must be provided in a note or separate statement. The analysis should present a reconciliation of the beginning balance
to the ending balance of each period for which a statement of comprehensive income is required to be filed. This final rule is effective
on November 5, 2018. The Company is evaluating the impact of this guidance on its consolidated financial statements. The Company
anticipates its first presentation of changes in stockholders’ equity will be included in its Form 10-Q for the quarter ended March 31,
2019.
Segment reporting
The Company operates in one segment, focused on developing and commercializing ACT using autologous TIL for the
treatment of metastatic melanoma and other solid cancers.
Subsequent Events
Management of the Company evaluates events that have occurred after the balance sheet date but before the financial
statements are issued. Based upon the review, management did not identify any recognized or non-recognized subsequent events
which would have required an adjustment or disclosure in the financial statements.
Reclassifications
Certain amounts within the balance sheets for the prior period have been reclassified to conform with the current period
presentation. These reclassifications had no impact on the Company's previously reported financial position or cash flows for any of
the periods presented. The long-term portion of deferred rent liability as of December 31, 2017 was separately presented as long-term
in the 2017 consolidated balance sheet included in this annual report filed on Form10-K.
NOTE 3. CASH AND CASH EQUIVALENTS, AND SHORT-TERM INVESTMENTS
Cash equivalents, and short-term investments consist of the following (in thousands):
Cash equivalents - Money market funds
Cash equivalents total
December 31, December 31,
2018
2017
$
$
25,968 $
25,968 $
91,281
91,281
Cash equivalents in the tables above exclude cash demand deposits of $56.2 million and $54.1 million as of December 31, 2018
and December 31, 2017, respectively (in thousands).
Short-term Investments
US treasury securities
US government agency securities
Short-term investments total
December 31, December 31,
2018
2017
$
$
265,393 $
120,978
386,371 $
-
-
-
F-14
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The cost and fair value of cash equivalents and short-term investments at December 31, 2018 were as follows (in thousands):
Gross
Gross
Unrealized Unrealized
As of December 31, 2018
US treasury securities
US government agency securities
Total
Cost
Accretion
Gains
Losses
$
$
264,619 $
120,653
385,272 $
813 $
328
1,141 $
19 $
21
40 $
Fair Value
265,393
120,978
386,371
(58 ) $
(24 )
(82 ) $
As of December 31, 2017, the Company had no short-term investments. Unrealized gains and losses are included in accumulated
other comprehensive loss. All short-term investments held by the Company as of December 31, 2018 have a maturity of less than one
year.
NOTE 4. BALANCE SHEET COMPONENTS
Property and equipment, net consists of the following (in thousands):
Lab equipment
Leasehold improvements
Computer equipment
Office furniture and equipment
Construction in progress
Total Property and equipment, cost
Less: Accumulated depreciation and amortization
property and equipment, net
December 31, December 31,
2018
2017
$
$
4,160 $
1,776
337
263
107
6,643
(3,960 )
2,683 $
3,207
1,726
349
188
13
5,483
(3,033 )
2,450
Depreciation expense for the years ended December 31, 2018, 2017 and 2016 was approximately $1.0 million, $1.0 million and
$1.0 million, respectively.
Accrued liabilities consist of the following (in thousands):
Accrued payroll and employee related expenses
Legal and related services
Clinical related
Manufacturing related
Deferred rent - current
Accrued other
NOTE 5. STOCKHOLDERS’ EQUITY
Public Offerings
December 31, December 31,
2018
2017
$
$
4,113 $
825
3,424
2,684
124
489
11,659 $
2,613
935
3,310
876
133
496
8,363
In September 2017, the Company closed an underwritten public offering of 8,846,154 shares of the Company’s common stock
at a public offering price of $6.50 per share, before underwriting discounts, which included 1,153,846 shares issued upon the exercise
in full by the underwriter of its option to purchase additional shares at the public offering price less the underwriting discounts. The
gross proceeds from the offering, before deducting the underwriting discounts and commissions and other offering expenses payable
by the Company, were $57.5 million, with net proceeds to the Company of $53.7 million.
F-15
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
In January 2018, the Company closed an underwritten public offering of 15,000,000 shares of the Company’s common stock at
a public offering price of $11.50 per share, before underwriting discounts, which included 1,956,521 shares issued upon the exercise
in full by the underwriter of its option to purchase additional shares at the public offering price less the underwriting discount. The
gross proceeds from the offering, before deducting the underwriting discounts and commissions and other offering expenses payable
by the Company, were $172.5 million, with net proceeds to the Company of $162.0 million.
On October 17, 2018, the Company completed an underwritten public offering of 25,300,000 shares of the Company’s common
stock at a public offering price of $9.97 per share, before underwriting discounts, which included 3,300,000 shares issued upon the
exercise in full by the underwriter of its option to purchase additional shares at the public offering price less the underwriting discount.
The gross proceeds from the offering, before deducting the underwriting discounts and commissions and other estimated offering
expenses payable by the Company, were $252.2 million, with net proceeds to the Company of $236.7 million.
Preferred Stock
The Company’s certificate of incorporation authorizes the issuance of up to 50,000,000 shares of “blank check” preferred stock.
At December 31, 2018, 17,000 shares were designated as Series A Convertible Preferred Stock and 11,500,000 shares were designated
as Series B Convertible Preferred Stock (“Series B Convertible Preferred Stock”).
Series A Convertible Preferred Stock
A total of 17,000 shares of Series A Convertible Preferred Stock have been authorized for issuance under the Company’s
Certificate of Designation of Preferences and Rights of Series A Convertible Preferred Stock. The shares of Series A Convertible
Preferred Stock have a stated value of $1,000 per share and are initially convertible into shares of common stock at a price of $2.00
per share, subject to adjustment.
The Series A Convertible Preferred Stock may, at the option of each investor, be converted into fully paid and non-assessable
shares of common stock. The holders of shares of Series A Convertible Preferred Stock do not have the right to vote on matters that
come before the Company’s stockholders. In the event of any dissolution or winding up of the Company, proceeds shall be paid pari
passu among the holders of common stock and preferred stock, pro rata based on the number of shares held by each holder. The
Company may not declare, pay or set aside any dividends on shares of capital stock of the Company (other than dividends on shares of
common stock payable in shares of common stock) unless the holders of the Series A Convertible Preferred Stock shall first receive an
equal dividend on each outstanding share of Series A Convertible Preferred Stock. The common shares issued were determined on a
formula basis of 500 common shares for each share of Series A Convertible Preferred Stock converted.
During the year ended December 31, 2018, 1,500 shares of Series A Convertible Preferred Stock were converted into 750,000
shares of common stock, respectively. No Shares of Series A Convertible Preferred Stock were converted in fiscal year 2017 or 2016.
The common shares issued were determined on a formula basis of 500 common shares for each share of Series A Convertible
Preferred Stock converted. At December 31, 2018, 194 shares of Series A Convertible Preferred Stock (that are convertible into
97,000 shares of common stock) remained outstanding.
Series B Convertible Preferred Stock
A total of 11,500,000 shares of Series B Convertible Preferred Stock are authorized for issuance under the Company’s Series B
Certificate of Designation of Rights, Preferences and Privileges of Series B Convertible Preferred Stock. The shares of Series B
Convertible Preferred Stock have a stated value of $4.75 per share and are convertible into shares of the Company’s common stock at
an initial conversion price of $4.75 per share.
Holders of Series B Convertible Preferred Stock are entitled to dividends on an as-if-converted basis in the same form as any
dividends actually paid on shares of the Series A Convertible Preferred Stock or the Company’s common stock. So long as any Series
B Convertible Preferred Stock remains outstanding, the Company may not redeem, purchase or otherwise acquire any material amount
of the Series A Convertible Preferred Stock or any securities junior to the Series B Convertible Preferred Stock.
During the year ended December 31, 2018, 2017 and 2016, 1,523,396, 568,432, and 3,421,960 shares of Series B Convertible
Preferred Stock were converted into 1,523,396, 568,432, and 3,421,960 shares of common stock, respectively. At December 31, 2018,
5,854,845 shares of Series B Preferred Stock (that are convertible into 5,854,845 shares of common stock) remained outstanding.
F-16
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2016 Private Placement
On June 2, 2016, the Company entered into a securities purchase agreement with various institutional and individual accredited
investors to raise gross proceeds of $100 million in a private placement (the “2016 Private Placement”). On June 7, 2016, the
Company completed the 2016 Private Placement. In the 2016 Private Placement, the Company issued (i) 9,684,000 shares of its
common stock and (ii) 11,368,633 shares of its newly created Series B Preferred Stock. The shares of common stock and Series B
Preferred Stock were sold for $4.75 per share. The shares of Series B Preferred initially were not convertible into common stock and,
except as required by law, are non-voting. On July 7, 2016, the Company filed a proxy statement with the SEC with respect to a
stockholders meeting that was held on August 16, 2016 at which the stockholders were asked to vote on a proposal to permit the
Series B Preferred Stock to become convertible into shares of the Company’s common stock and to permit the issuance of shares of
common stock upon such conversion. The requisite stockholder approval was obtained and, as a result, on August 16, 2016 the
Series B Preferred Stock became convertible into shares of common stock at an initial conversion price of $4.75 per share.
The Company has also evaluated its convertible preferred stock in accordance with the provisions of ASC 815, Derivatives and
Hedging, including consideration of embedded derivatives requiring bifurcation. The issuance of the convertible preferred stock could
generate a beneficial conversion feature (“BCF”), which arises when a debt or equity security is issued with an embedded conversion
option that is beneficial to the investor or in the money at inception because the conversion option has an effective strike price that is
less than the market price of the underlying stock at the commitment date. The Company recognized the BCF by allocating the
intrinsic value of the conversion option, which is the number of shares of common stock available upon conversion multiplied by the
difference between the effective conversion price per share and the fair value of common stock per share on the commitment date, to
additional paid-in capital, resulting in a discount on the convertible preferred stock. As the convertible preferred stock may be
converted immediately, the Company recognized a BCF of $49.5 million as a deemed dividend in the statements of operations. This
one-time, non-cash charge impacted net loss attributable to common stockholders and loss per share for the year ended December 31,
2016.
The Company received net proceeds of approximately $95.7 million from the 2016 Private Placement, after paying placement
agent fees and estimated offering expenses.
Warrants
There were no remaining outstanding warrants as of December 31, 2018. A summary of the status of stock warrants at
December 31, 2018 and the changes during the three years then ended, is presented in the following table.
Shares
Under
Weighted
Average
Exercise
Warrants
Price
Weighted
Average
Remaining
Life
Aggregate
Intrinsic
Value
(in thousands)
Outstanding at January 1, 2016
Issued
Exercised
Expired/Cancelled
Outstanding at December 31, 2016
Issued
Exercised
Expired/Cancelled
Outstanding at December 31, 2017
Issued
Exercised
Expired/Cancelled
Outstanding at December 31, 2018
7,202,216 $
-
(592,132 )
(43,868 )
6,566,216 $
-
(265,000 )
-
6,301,216 $
-
(6,301,216 )
-
- $
2.51
-
2.50
2.51
2.51
-
2.50
-
2.51
-
2.51
-
-
F-17
- $
-
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 6. STOCK BASED COMPENSATION
Stock Plans
As of October 14, 2011, the Company adopted the 2011 Equity Incentive Plan (the “2011 Plan”). Employees, directors,
consultants and advisors of the Company are eligible to participate in the 2011 Plan. The 2011 Plan initially had 180,000 shares of
common stock reserved for issuance in the form of incentive stock options, non-qualified options, common stock, and grant
appreciation rights. The 2011 Plan was not approved by the Company’s stockholders within the required one-year period following its
adoption and, accordingly, no incentive stock options can be granted under that plan. In August 2013, the Company’s Board of
Directors and a majority of the Company’s stockholders approved an amendment to increase the number of shares available under the
2011 Plan from 180,000 shares to 1,700,000 shares, and an amendment to increase the number options or other awards that can be
granted to any one person during a twelve (12) month period from 50,000 shares to 300,000 shares. The foregoing amendment to the
2011 Plan became effective in September 2013. On August 20, 2014, the Company’s Board of Directors amended the 2011 Plan to
increase the number of shares available for issuance upon the exercise of stock options under the 2011 Plan from 1,700,000 to
1,900,000 shares, effective immediately. As of December 31, 2018, 376,240 shares were available for future grant under the 2011
Plan.
On September 19, 2014, the Company’s Board of Directors (the “Board”) adopted the Iovance Biotherapeutics, Inc. 2014
Equity Incentive Plan (the “2014 Plan”). The 2014 Plan was approved by the Company’s stockholders at the Company’s 2014 Annual
Meeting of Stockholders held in November 2014. The 2014 Plan, as approved by the stockholders, authorized the issuance up to an
aggregate of 2,350,000 shares of the Company’s common stock. On April 10, 2015, the Board amended the 2014 Plan to increase the
total number of shares that can be issued under the 2014 Plan to 4,000,000 shares of the Company’s common stock. The increase in
shares available for issuance under the 2014 Plan was approved by the Company’s stockholders at the Company’s 2015 Annual
Meeting of Stockholders in June 2015.
On August 16, 2016, the Company’s stockholders approved an increase in the total number of shares that can be issued under
the 2014 Plan to 9,000,000 shares of the Company’s common stock. At December 31, 2018, 579,809 shares were available for grant
under the Company’s 2014 Plan.
On April 22, 2018, the Board adopted the Iovance Biotherapeutics, Inc. 2018 Equity Incentive Plan (the “2018 Plan”). The
2018 Plan was approved by the Company’s stockholders at the annual meeting of stockholders held in June 2018. The 2018 Plan as
approved by the stockholders authorized the issuance up to an aggregate of 6,000,000 shares of common stock reserved for issuance in
the form of incentive (qualified) stock options, non-qualified options, common stock, stock appreciation rights, restricted stock
awards, restricted stock units, other stock-based awards, other cash-based awards or any combination of the foregoing. At December
31, 2018, 6,000,000 shares of common stock were available for grant under the Company’s 2018 Plan. The Company anticipates
granting the remaining shares under the 2011 and 2014 Plans prior to granting shares from the 2018 Plan.
Restricted Stock Units
On June 1, 2016, the Company entered into a restricted stock unit agreement with the Company’s new Chief Executive Officer,
Maria Fardis, Ph.D., pursuant to which the Company granted Dr. Fardis 550,000 non-transferrable restricted stock units at fair market
value of $5.87 per share as an inducement of employment pursuant to the exception to The Nasdaq Global Market rules that generally
require stockholder approval of equity incentive plans. The 550,000 restricted stock units vest in installments as follows: (i) 137,500
restricted stock units vested upon the first anniversary of the effective date of Dr. Fardis’ employment agreement; (ii) 275,000
restricted stock units vest upon the satisfaction of certain clinical trial milestones; and (iii) 137,500 restricted stock units vest in equal
monthly installments over the 36-month period following the first anniversary of the effective date of Dr. Fardis’ employment,
provided that Dr. Fardis has been continuously employed with the Company as of such vesting dates. As of December 31, 2018,
68,749 restricted stock units remained unvested.
Stock-based compensation expense for restricted stock units are measured based on the closing fair market value of the
Company's common stock on the date of grant. The stock-based compensation expenses relating to restricted stock units were $0.3
million, $1.1 million and $1.5 million for the years ended December 31, 2018, 2017 and 2016, respectively, recorded as part of
general and administrative expenses.
As of December 31, 2018, $0.4 million of total unrecognized compensation costs related to non-vested restricted stock units to
be recognized over a weighted average period of 1.42 years.
F-18
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Stock Options
A summary of the status of stock options at December 31, 2018, and the changes during the three years then ended, is presented
in the following table:
Weighted
Weighted Average
Average
Exercise
Remaining
Contractual
Life
Aggregate
Intrinsic
Value
(in thousands)
Number
of
Options
Price
Outstanding at January 1, 2016
Issued
Exercised
Expired/Cancelled
Outstanding at December 31, 2016
Issued
Exercised
Expired/Cancelled
Outstanding at December 31, 2017
Issued
Exercised
Expired/Cancelled
Outstanding at December 31, 2018
Exercisable at December 31, 2018
2,693,237 $
4,407,983
(100,480 )
(767,590 )
6,233,150 $
2,188,800
(1,011,284 )
(1,338,298 )
6,072,368 $
2,960,620
(1,336,514 )
(807,187 )
6,889,287 $
3,118,910 $
8.12
6.86
6.23
8.12
7.24
6.68
5.55
6.79
7.42
14.73
7.45
10.04
10.25
7.88
8.30 years $
7.56 years $
7,186
4,745
The Company recorded stock-based compensation expenses related to stock options of $19.8 million, $10.9 million and $16.5
million for the years ended December 31, 2018, 2017 and 2016, respectively. As of December 31, 2018, there was $35.0 million of
total unrecognized compensation expenses related to non-vested employee options to be recognized over a weighted average period
of 1.82 years.
The weighted average grant date fair value for employee options granted under the Company's stock option plans during the
years ended December 31, 2018, 2017 and 2016 was $14.44, $6.58, and $6.78 per option respectively.
The aggregate intrinsic value in the table above reflects the total pre-tax intrinsic value (the difference between the Company’s
closing stock price on the last trading day of the year ended December 31, 2018 and the exercise price of the options, multiplied by the
number of in-the-money stock options) that would have been received by the option holders had all option holders exercised their
options on December 31, 2018. The intrinsic value of the Company’s stock options changes based on the closing price of the
Company’s common stock.
The total pre-tax intrinsic value of stock options exercised during the year ended December 31, 2018, 2017 and 2016 were $2.3
million, $2.6 million, and $0.2 million, respectively.
The following table summarizes the assumptions relating to options granted pursuant to the Company’s equity incentive plans
for the years ended December 31, 2018, 2017, and 2016:
Expected dividend yield
Risk-free interest rate
Expected term (in years)
Expected volatility
Years Ended December 31,
2017
0%
2018
0%
2016
0%
2.97% - 2.27%
2.34% - 1.72%
2.16% - 1.18%
6.50 - 5.13
6.50 - 5.13
200.28% - 167.54% 209.69% - 190.46% 213.60% - 189.40%
6.50 - 5.07
Expected Dividend Yield —The Company has never paid dividends and does not expect to pay dividends in the foreseeable
future.
Risk-Free Interest Rate —The risk-free interest rate was based on the market yield currently available on United States
Treasury securities with maturities approximately equal to the option’s expected term.
F-19
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Expected Term —The expected term of the stock option grants was calculated based on historical exercises, cancellations, and
forfeitures of stock options and outstanding option shares
Expected Volatility —The expected volatility is based on the historical volatility for the Company's stock over a period equal to
the expected terms of the options.
Forfeiture Rate —The Company recognizes forfeitures as they occur.
Each of the inputs discussed above is subjective and generally requires significant management judgment.
A summary of outstanding and exercisable stock options as of December 31, 2018 is as follows:
Options Outstanding
Weighted
Average
Remaining
Contractual
Life
Weighted
Average
Exercise
Price Per
Share
Options Exercisable
Weighted
Average
Remaining
Contractual
Life
Number of
Shares
Range of Exercise Prices
$5.05 - $5.87
$5.87 - $7.45
$7.46 - $7.55
$7.56 - $8.17
$8.18 - $9.15
$9.16 - $13.85
$13.86 - $16.25
$16.26 - $16.80
$16.81 - $115.00
$115.01 - 117.00
Number of
Shares
1,123,800
758,109
897,625
804,283
712,500
732,850
690,700
961,420
206,000
2,000
6,889,287
7.79 $
7.67
7.87
7.75
7.69
9.17
9.43
9.10
8.96
2.32
8.30 $
743,376
5.55
473,398
6.92
662,832
7.55
522,596
7.86
502,708
8.99
123,750
11.66
81,250
15.13
-
16.66
7,000
21.24
2,000
117.00
10.25 3,118,910
Weighted
Average
Exercise
Price
Per Share
5.56
6.94
7.55
7.84
9.10
11.05
15.26
-
94.01
117.00
7.88
7.69 $
7.18
7.87
7.26
7.66
6.45
9.38
-
2.84
2.32
7.56 $
Restricted Common Stock Awards
The following table summarizes restricted common stock awards activity:
Non-vested shares, January 1, 2016
Granted
Vested
Forfeited
Non-vested shares, December 31, 2016
Granted
Vested
Forfeited
Non-vested shares, December 31, 2017
Granted
Vested
Forfeited
Non-vested shares, December 31, 2018
Number of Share
Weighted Average
Grant Date
Fair Value
321,252 $
-
(274,167 )
(40,001 )
7,084 $
-
(7,084 )
-
-
- $
-
-
- $
6.96
-
6.90
7.02
6.48
-
(6.48 )
-
-
-
-
-
-
There were no unvested restricted common stock awards as of December 31, 2018 and 2017. During the year ended December
31, 2018 and 2017, no expense was recognized in connection with these awards. During the year ended December 31, 2016, the
Company recorded compensation expenses of $1.0 million in connection with these awards.
F-20
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE.7 EMPLOYEE BENEFIT PLAN
The Company maintains a defined contribution plan covering substantially all U.S. employees under Section 401(k) of the
Internal Revenue Code of 1986, as amended (the “IRC”). The Company's matching contribution to the plan were $0.5 million, $0.3
million, and $0.1 million for the years ended December 31, 2018, 2017 and 2016, respectively.
NOTE 8. SEPARATION AGREEMENTS
In June 2016, the Company entered into a separation agreement with Dr. Elma Hawkins, its former Chief Executive
Officer. Under the terms of the agreement, Dr. Hawkins vesting was accelerated on certain outstanding options and she was entitled to
receive a severance payment of approximately $0.5 million. The Company recorded approximately $5.0 million in additional share-
based compensation expense related to this acceleration of the equity awards during the year ended December 31, 2016.
In July 2016, Molly Henderson, the former Chief Financial Officer provided the Board with written notice under her
Employment Agreement, dated June 5, 2015, that she would terminate her employment with the Company for “good reason” effective
August 16, 2016. In connection with this event all unvested options were accelerated, and she received a severance payment of
approximately $0.4 million, representing one year’s salary. The Company recorded approximately $4.5 million in additional share-
based compensation expense related to the acceleration of the equity awards during the year ended December 31, 2016.
NOTE 9. INCOME TAXES
Net deferred tax assets (liabilities) are summarized as follows (in thousands):
Deferred income tax asset:
Net operating loss carry forward
Stock-based compensation
Tax credit carry forwards
Reserves and accruals
Deferred tax assets before valuation allowance
Less: valuation allowance
Net deferred income tax assets
Deferred tax liabilities:
Depreciation and amortization
Net deferred tax assets (liabilities)
As of December 31,
2017
2018
$
56,971 $
5,823
14,356
1,049
78,199
(78,146 )
53
33,300
4,568
9,323
733
47,924
(47,849 )
75
$
(53 )
- $
(75 )
-
Reconciliation of the effective income tax rate to the U.S. statutory rate is as follows:
Federal statutory tax rate
Orphan Drug & Research credits
Permanent and other differences
Tax rate change
State tax, net of federal benefit
Valuation allowance
Effective tax rate
Years ended December 31,
2017
2018
2016
(21 )%
(3 )
1
-
(1 )
(24 )%
24 %
- %
(34 )%
0
4
23
-
(7 )%
7 %
- %
(34 )%
(8 )
4
-
(4 )
(42 )%
42 %
- %
F-21
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The components of income tax expense (benefit) are as follows (in thousands):
Years Ended December 31,
2017
2016
2018
Federal:
Current
Deferred
State and Local
Current
Deferred
Change in Valuation Allowance
Total income tax expense (benefit)
$
- $
(28,277 )
- $
(7,391 )
-
(19,050 )
-
(2,020 )
30,297
- $
-
944
6,447
- $
-
(3,007 )
22,057
-
$
The Company had net operating loss carryovers (“NOLs”) for federal and state income tax purposes of approximately $251.5
million and $88.9 million, respectively, as of December 31, 2018. $142.4 million of federal NOLs will expire beginning in 2027,
while $109 million generated after Tax Reform will have an indefinite life. The state NOLs will expire if unused in years 2031
through 2038.
The Company’s utilization of NOLs is subject to an annual limitation due to ownership changes that have occurred previously
or that could occur in the future as provided in Section 382 of the IRC (“Section 382”), as well as similar state provisions. Section 382
limits the utilization of NOLs when there is a greater than 50% change of ownership as determined under the regulations. Since its
formation, the Company has raised capital through the issuance of capital stock and various convertible instruments which, combined
with the purchasing shareholders’ subsequent disposition of these shares, has resulted in an ownership change as defined by Section
382, and could result in an ownership change in the future upon subsequent disposition.
On December 22, 2017, the Tax Cuts and Jobs Act of 2017 (“the Act”) was signed into law making significant changes to the
Internal Revenue Code. Changes include, but are not limited to, a corporate tax rate decrease from 35% to 21% effective for tax years
beginning after December 31, 2017, the transition of U.S international taxation from a worldwide tax system to a territorial system,
and a one-time transition tax on the mandatory deemed repatriation of cumulative foreign earnings as of December 31, 2017. In
accordance with the Act, the Company recorded a reduction of $20.8 million to the Company’s deferred tax assets, and a
corresponding decrease of the same amount in the valuation allowance against these deferred tax assets in the fourth quarter of 2017.
The Company concluded the tax accounting consideration associated with the Act and no material adjustments were recorded in 2018.
In assessing the realization of deferred tax assets, management considers whether it is more likely than not that some portion or
all the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon future generation for
taxable income during the periods in which temporary differences representing net future deductible amounts become deductible.
Management considers the scheduled reversal of deferred tax liabilities, projected future taxable income and tax planning strategies in
making this assessment. After consideration of all the information available, management believes that significant uncertainty exists
with respect to future realization of the deferred tax assets and has therefore established a full valuation allowance. For the years ended
December 31, 2018, 2017 and 2016, the change in the valuation allowance was approximately $30.3 million, 6.4 million, and $22.1
million, respectively.
The Company evaluated the provisions of ASC 740 related to the accounting for uncertainty in income taxes recognized in an
enterprise’s financial statements. ASC 740 prescribes a comprehensive model for how a company should recognize, present, and
disclose uncertain positions that the company has taken or expects to take in its tax return. For those benefits to be recognized, a tax
position must be more-likely-than-not to be sustained upon examination by taxing authorities. Differences between tax positions taken
or expected to be taken in a tax return and the net benefit recognized and measured pursuant to the interpretation are referred to as
“unrecognized benefits.” A liability is recognized (or amount of net operating loss carry forward or amount of tax refundable is
reduced) for unrecognized tax benefit because it represents an enterprise’s potential future obligation to the taxing authority for a tax
position that was not recognized as a result of applying the provisions of ASC 740.
If applicable, interest costs related to the unrecognized tax benefits are required to be calculated and would be classified as
income tax expenses in the consolidated statement of operations. Penalties would be recognized as a component of “General and
Administrative Expenses” in the consolidated statement of operations.
F-22
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
A reconciliation of the beginning and ending balances of the unrecognized tax benefits during the years ended December 31,
2018, 2017 and 2016 is as follows (in thousands):
Years Ended December 31,
2017
2016
2018
Unrecognized benefit - beginning of period
Gross decreases - prior period tax positions
Gross increase current period tax positions
Unrecognized benefit - end of period
$
$
4,111 $
118
2,115
6,344 $
- $
2,780
1,331
4,111 $
-
-
-
-
No interest or penalties on unpaid tax were recorded during the years ended December 31, 2018, 2017 and 2016, respectively.
The Company does not anticipate any significant changes within 12 months of this reporting date of its uncertain tax positions.
The Company files tax returns in the U.S. federal and state jurisdictions. The U.S. federal and U.S. state taxing authorities may
choose to audit tax returns for tax years beyond the statute of limitation period due to significant tax attribute carryforwards from prior
years, making adjustments only to carryforward attributes. The Company is not currently under examination by income tax authorities
in federal, state or other foreign jurisdictions.
NOTE 10. LICENSES AND AGREEMENTS
National Institutes of Health (NIH) and the National Cancer Institute (NCI)
Cooperative Research and Development Agreement (CRADA)
In August 2011, the Company signed a five-year CRADA with the NCI to work with Dr. Steven Rosenberg on developing
adoptive cell immunotherapies that are designed to destroy metastatic melanoma cells using a patient’s tumor infiltrating lymphocytes.
In January 2015, the Company executed an amendment (the “Amendment”) to the CRADA to include four new indications. As
amended, in addition to metastatic melanoma, the CRADA included the development of TIL therapy for the treatment of patients with
bladder, lung, triple-negative breast, and Human Papilloma Virus (“HPV”)-associated cancers.
In August 2016, the NCI and the Company entered a second amendment to the CRADA. The principal changes effected by the
second amendment included (i) extending the term of the CRADA by another five years to August 2021, and (ii) modifying the focus
on the development of unmodified TIL as a stand-alone therapy or in combination with U.S. Food and Drug Administration (“FDA”)
licensed products and commercially available reagents routinely used for adoptive cell therapy. The parties will continue the
development of improved methods for the generation and selection of TIL with anti-tumor reactivity in metastatic melanoma, bladder,
lung, breast, and HPV-associated cancers.
Pursuant to the terms of the CRADA, as amended, the Company is required to make quarterly payments of $0.5 million to the
NCI for support of research activities. To the extent the Company licenses patent rights relating to a TIL-based product candidate
under this agreement, the Company will be responsible for all patent-related expenses and fees, past and future, relating to the TIL-
based product candidate. In addition, the Company may be required to supply certain test articles, including TIL, grown and processed
under cGMP conditions, suitable for use in clinical trials, where the Company holds the investigational new drug application for such
clinical trial. The extended CRADA has a five-year term expiring in August 2021. The Company or the NCI may unilaterally
terminate the CRADA for any reason or for no reason at any time by providing written notice at least 60 days before the desired
termination date. The Company recorded costs associated with the CRADA of $2.0 million, $2.0 million, and $1.8 million for the
years ended December 31, 2018, 2017 and 2016, respectively, as research and development expenses.
Patent License Agreement Related to the Development and Manufacture of TIL
Effective October 5, 2011, the Company entered into an Exclusive Patent License Agreement (the “Exclusive Patent License
Agreement”) with the NIH, an agency of the United States Public Health Service within the Department of Health and Human
Services (NIH), which was subsequently amended on February 9, 2015 and October 2, 2015. Pursuant to the Patent License
Agreement, as amended, the NIH granted the Company licenses, including exclusive, co-exclusive, and non-exclusive licenses, to
certain technologies relating to autologous tumor infiltrating lymphocyte adoptive cell therapy products for the treatment of metastatic
melanoma, lung, breast, bladder and HPV-positive cancers. Unless terminated sooner, the license shall remain in effect until the last
licensed patent right expires. The Patent License Agreement requires the Company to pay royalties based on a percentage of net sales
(which percentage is in the mid-single digits), a percentage of revenues from sublicensing arrangements, and lump sum benchmark
royalty payments on the achievement of certain clinical and regulatory milestones for each of the various indications and other direct
costs incurred by the NIH pursuant to the agreement.
F-23
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Exclusive Patent License Agreement Related to TIL Selection
On February 10, 2015, the Company entered into an Exclusive Patent License Agreement (the “Exclusive Patent License
Agreement”) with the NIH under which the Company received an exclusive license to the NIH’s rights to patent-pending technologies
related to methods for improving adoptive cell therapy through more potent and efficient production of TIL from melanoma tumors by
selecting for T-cell populations that express various inhibitory receptors. Unless terminated sooner, the license shall remain in effect
until the last licensed patent right expires.
Under the Exclusive Patent License Agreement, the Company agreed to pay customary royalties based on a percentage of net
sales of a licensed product (which percentage is in the mid-single digits), a percentage of revenues from sublicensing arrangements,
and lump sum benchmark payments upon the successful completion of clinical studies involving licensed technologies, the receipt of
the first FDA approval or foreign equivalent for a licensed product or process resulting from the licensed technologies, the first
commercial sale of a licensed product or process in the United States, and the first commercial sale of a licensed product or process in
any foreign country.
H. Lee Moffitt Cancer Center
Research Collaboration and Clinical Grant Agreements with Moffitt
In December 2016, the Company entered into a new three-year Sponsored Research Agreement with H. Lee Moffitt Cancer
Center (“Moffitt”). At the same time, the Company entered into a clinical grant agreement with Moffitt to support an ongoing clinical
trial at Moffitt that combines TIL therapy with nivolumab for the treatment of patients with metastatic melanoma. In June 2017, the
Company entered into a second clinical grant agreement with Moffitt to support a new clinical trial at Moffitt that combines TIL
therapy with nivolumab for the treatment of patients with non-small cell lung cancer, under which the Company obtained a non-
exclusive, royalty-free license to any new Moffitt inventions made in the performance of the agreement. Under both clinical grant
agreements with Moffit, the Company has non-exclusive rights to clinical data arising from the respective clinical trials. In the years
ended December 31, 2018, 2017 and 2016, the Company recorded research and development costs of $1.2 million, $1.2 million, and
$0.7 million, respectively, in connection with the research collaboration and clinical grant agreements with Moffitt.
Exclusive License Agreements with Moffitt
The Company entered into a license agreement with Moffitt (the “First Moffitt License”), effective as of June 28, 2014, under
which the Company received a world-wide license to Moffitt’s rights to patent-pending technologies related to methods for improving
TIL for adoptive cell therapy using toll-like receptor agonists. Unless earlier terminated, the term of the license extends until the
earlier of the expiration of the last issued patent related to the licensed technology or 20 years after the effective date of the license
agreement.
Pursuant to the First Moffitt License, the Company paid an upfront licensing fee in the amount of $0.1 million. A patent
issuance fee will also be payable under the First Moffitt License, upon the issuance of the first U.S. patent covering the subject
technology. In addition, the Company agreed to pay milestone license fees upon completion of specified milestones, customary
royalties based on a specified percentage of net sales (which percentage is in the low single digits) and sublicensing payments, as
applicable, and annual minimum royalties beginning with the first sale of products based on the licensed technologies, which
minimum royalties will be credited against the percentage royalty payments otherwise payable in that year. The Company will also be
responsible for all costs associated with the preparation, filing, maintenance and prosecution of the patent applications and patents
covered by the First Moffitt License related to the treatment of any cancers in the United States, Europe and Japan and in other
countries designated by the Company in agreement with Moffitt.
The Company entered into a license agreement with Moffitt effective as of May 7, 2018 (the “Second Moffitt License”), under
which the Company received a license to Moffitt’s rights to patent-pending technologies related to the use of 4-1BB agonists in
conjunction with TIL manufacturing processes and therapies.
Pursuant to the Second Moffitt License, the Company paid an upfront licensing fee in the amount of $0.1 million for the year
ended December 31, 2018. An annual license maintenance fee will be also payable commencing on the first anniversary of the
effective date. In addition, the Company agreed to pay an annual commercial use payment for each indication for which a first sale has
occurred, which in the aggregate amounts to up to $0.4 million a year.
F-24
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
PolyBioCept and Karolinska University Hospital
PolyBioCept Exclusive and Co-Exclusive License Agreement
On September 14, 2016, the Company entered into an exclusive and co-exclusive license agreement (the “PolyBioCept
Agreement”) with PolyBioCept AB, a corporation organized under the laws of Sweden (“PolyBioCept”). PolyBioCept has filed two
patent applications with claims related to a cytokine cocktail for use in expansion of lymphocytes, one of which has been abandoned.
Under the PolyBioCept Agreement, the Company received the exclusive right and license to PolyBioCept’s intellectual property to
develop, manufacture, market and genetically engineer TIL produced by expansion, selection and enrichment using a proprietary
cytokine cocktail. The Company also received a co-exclusive license (with PolyBioCept) to develop, manufacture and market
genetically engineered TIL under the same intellectual property. The licenses are for the use in all cancers and are worldwide in scope,
with the exception that the uses in melanoma are not included for certain countries of the former Soviet Union.
The Company paid PolyBioCept a total of $2.5 million as an up-front exclusive license payment. The Company will also have
to make additional milestone payments to PolyBioCept under the PolyBioCept Agreement if, and when, (i) certain product
development milestones are
achieved, (ii) certain regulatory approvals have been obtained from the FDA and/or the European Medicines Agency, and (iii) certain
product sales targets are achieved. The milestone payments will be payable both in cash (U.S. dollars) and in shares of the Company’s
common stock.
If all of the foregoing product development, regulatory approval and sales milestone payments are met, the Company will have
to pay PolyBioCept an additional $8.7 million and will have to issue to PolyBioCept a total 2,219,376 shares of unregistered common
stock. In addition to these potential payments, the Company reimbursed PolyBioCept up to $0.2 million in expenses related to the
transfer of know-how and paid PolyBioCept $0.1 million as a clinical trials management fee. The PolyBioCept Agreement has an
initial term of 30 years and may be extended for additional five-year periods. No expense in connection with this agreement was
recorded for the year ended December 31, 2018. The Company recognized $0.2 and $2.7 million in connection with this agreement for
the years ended December 31, 2017 and 2016, respectively, as research and development expense.
Karolinska University Hospital and Karolinska Institute Agreements
In connection with the execution of the PolyBioCept Agreement, the Company also (i) entered into a clinical trials agreement
with the Karolinska University Hospital to conduct clinical trials in glioblastoma and pancreatic cancer at the Karolinska University
Hospital, and (ii) agreed to enter into a sponsored research agreement with the Karolinska Institute for the research of the cytokine
cocktail in additional indications. In the years ended December 31, 2016, the Company paid Karolinska University Hospital $1.6
million under the clinical trials agreement to conduct the clinical trials. As of April 9, 2018, the Company terminated the clinical trials
agreement with the Karolinska University Hospital. In June 2018, the Company received a refund of $1.6 million from Karolinska,
which was recorded to offset to research and development expenses for the year ended December 31, 2018. The Company recorded a
credit of $0.4 million to research and development expenses in the year ended December 31, 2018, and $0.3 million and $0.1 million
as research and development expenses in connection with this agreement in the years ended December 31, 2017 and 2016,
respectively.
M.D. Anderson Cancer Center
Strategic Alliance Agreement
In April 2017, the Company entered into a Strategic Alliance Agreement (the “SAA”) with M.D. Anderson Cancer Center
(“MDACC”) under which the Company and MDACC agreed to conduct clinical and preclinical research studies. The Company
agreed in the SAA to provide total funding not to exceed approximately $14.2 million for the performance of the multi-year studies
under the SAA. In return, the Company will acquire all rights to inventions resulting from the studies and has been granted a non-
exclusive, sub-licensable, royalty-free, and perpetual license to specified background intellectual property of MDACC reasonably
necessary to exploit, including the commercialization thereof. The Company has also been granted certain rights in clinical data
generated by MDACC outside of the clinical trials to be performed under the SAA. The SAA’s term shall continue in effect until the
later of the fourth anniversary of the SAA or the completion or termination of the research and receipt by the Company of all
deliverables due from MDACC thereunder. In May 2017, the Company made a prepayment of $1.4 million under this agreement. The
Company recorded $0.8 million associated with the MDACC SAA for the year ended December 31, 2018 as research and
development expenses. No expense was recognized in 2017.
F-25
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MedImmune
In December 2015, the Company entered into a collaboration agreement (the “MedImmune Agreement”) with MedImmune, the
global biologics research and development arm of AstraZeneca (“MedImmune”), to conduct clinical and preclinical research immuno-
oncology. Under the MedImmune Agreement, the Company will fund and conduct at least one clinical trial combining MedImmune's
PD-L1 inhibitor, durvalumab, which will be supplied by MedImmune, with TIL for the treatment of patients. MedImmune will supply
durvalumab for the clinical trials. The purpose of the studies is to establish a dosing regimen for this combination therapy and assess
its safety and efficacy.
WuXi
In November 2016, the Company entered into a three-year manufacturing and services agreement (“MSA”) with WuXi
AppTech, Inc. (“Wuxi”) pursuant to which WuXi agreed to provide manufacturing and other services. Under the agreement, the
Company entered into two statements of work for two cGMP manufacturing suites to be established and operated by WuXi for the
Company, one of the suites is expected to be capable of being used for the commercial manufacture of our products. The statements of
work for each facility include a fixed component to reserve a dedicated suite and a variable component, mainly labor and materials
used during the manufacturing process. The fee payable under the first statement of work for the use of one of the manufacturing
suites during the first year of the agreement, including the fees for the necessary personnel, was $2.5 million. The second statement of
work, under which WuXi agreed to establish and operate a second, dedicated facility for a late stage/commercial manufacturing cGMP
suite requires the Company to pay approximately $5.85 million during the first year of the agreement. The Company and WuXi have
extended the term of the related statements of work until May 2020. The Company and WuXi have extended the term of the related
statements of work until May 2020. The Company recorded costs associated with agreements with WuXi of $15.1 million, $13.9
million, and $1.3 million for the years ended December 31, 2018, 2017, and 2016 respectively, as research and development expenses.
NOTE 11. COMMITMENTS AND CONTINGENCIES
Facilities Leases
Tampa Lease
In December 2014, the Company commenced a five-year non-cancellable operating lease with the University of South Florida
Research Foundation for a 5,115 square foot facility located in Tampa, Florida. The facility is part of the University of South Florida
research park and is used as the Company’s research and development facilities. The Company has the option to extend the lease term
of this facility for an additional five-year period on the same terms and conditions, except that the base rent for the renewal term will
be increased in accordance with the applicable consumer price index.
In April 2015, the Company amended the original lease agreement to increase the rentable space to 6,043 square feet. In
September 2016, the Company further increased the rentable space to 8,673 square feet. The per square foot cost and term of the lease
were unchanged, and rent payments are approximately $20,000 per month. The lease expires in December 2019.
San Carlos Lease
On August 4, 2016, the Company entered into an agreement to lease 8,733 square feet in San Carlos, California. The term of
the lease is 54 months subsequent to the commencement date and will expire in April 2021. Monthly lease payments are
approximately $38,000.
On April 28, 2017, the Company entered into a sublease agreement with Teradata US, Inc., pursuant to which the Company
agreed to sublease certain office space located adjacent to the Company's headquarters for approximately $26,000 per month. The
space consists of approximately 11,449 rentable square feet in the building located in San Carlos, California. The sublease for this
space expired on October 31, 2018. Monthly lease payments were approximately $26,000.
On October 19, 2018, the Company entered into an agreement to lease 12,322 square feet of office space located adjacent to the
Company's headquarters in San Carlos, California. This lease replaces the sublease of 11,449 square feet of office space in the same
facility that expired on October 31, 2018. The term of the lease is 30 months subsequent to the commencement date, November 1,
2018, and will expire in April 2021. Monthly lease payments are approximately $59,000, subject to an annual increase of 3%.
F-26
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
New York Lease
The Company leased office space in New York for a monthly rental of approximately $18,000 a month from January 2017
through July 2017. On June 5, 2017, the Company entered into an agreement whereby the Company will lease office space from
August 1, 2017 to July 31, 2018, for approximately $9,000 a month. On April 20, 2018, the Company entered into an agreement to
extend the lease term to January 31, 2019 for approximately $7,000 a month. On November 2, 2018, the Company entered into an
agreement to extend the lease term to July 31, 2019 for approximately $4,000 a month.
The Company recognizes rental expense on the facilities on a straight-line basis over the lease term. Differences between the
straight-line rent expense and rent payments are classified as deferred rent liability on the balance sheet.
Rent expense for the years ended December 31, 2018, 2017 and 2016 was $1.0 million, $1.0 million, and $0.7 million,
respectively.
Contract Manufacturing Organizations
The Company uses contract manufacturing organizations (CMOs) for its clinical production and manufacturing activities. In
conjunction with the adoption of Topic 842 on January 1, 2019, the Company reevaluated all of its material contracts it has, to
determine whether they contain a lease under the current lease guidance ASC 840. An arrangement is considered a lease or contains a
lease if an underlying asset is explicitly or implicitly identified and use of the asset is controlled by the customer. Based on the
evaluation, the Company concluded that all of its contracts with CMOs contained embedded operating leases, in addition to other
CMO fixed contractual obligations, because the facilities used for its production are implicitly identified, only used by the Company
exclusively during the contractual term of the arrangements, and the CMOs have no substantive contractual rights to substitute the
facilities used by the Company. Further, the Company controls the use of the facilities by obtaining all of the economic benefits from
the use of the facilities and directing the use of the facilities throughout the period of use. Under the current lease guidance, embedded
leases are off-balance sheet operating leases and, as such, application of lease accounting did not have any impact on the balance sheet
as of December 31, 2018 and 2017. However, they are reflected in the commitments tables below.
As of December 31, 2018, the Company's future minimum lease payments under non-cancelable operating leases are as follows
(in thousands):
Contractual Obligations
Total
2019
2020
2021
2022
Thereafter
Payments due by period
Facility leases
CMO contractual
obligations
$
3,014 $
1,373 $
1,223 $
418 $
- $
28,587
17,992
7,690
2,324
581
Total
$
31,601 $
19,365 $
8,913 $
2,742 $
581 $
-
-
-
Operating lease obligations consist of obligations under non-cancelable operating leases for our facilities in San Carlos, CA,
Tampa, FL, and New York, NY.
CMO contractual obligations consist of embedded lease obligations for the manufacturing facilities and minimum fixed
commitment fees included in the Company’s manufacturing contracts, such as personnel, general support fee, and minimum
production or material fees.
F-27
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 12. LEGAL PROCEEDINGS
Class Action Lawsuit. On April 10, 2017, the SEC announced settlements with the Company and with other public companies
and unrelated parties in the In the Matter of Certain Stock Promotion investigation. The Company’s settlement with the SEC is
consistent with its previous disclosures (including in our Annual Report on Form 10-K that the Company filed with the SEC on March
9, 2017). On April 14, 2017, a purported shareholder filed a complaint seeking class action status in the United States District Court,
Northern District of California for violations of the federal securities laws (Leonard DeSilvio v. Lion Biotechnologies, Inc., et al., case
no. 3:17cv2086) against the Company and three of its former officers and directors. On April 19, 2017, a second class action
complaint (Amra Kuc vs. Lion Biotechnologies, Inc., et al., case no. 3:17-cv-2188) was filed in the same court. Both complaints allege,
among other things, that the defendants violated the federal securities laws by making materially false and misleading statements, or
by failing to make certain disclosures, regarding the actions taken by Manish Singh, our former CEO, and its former investor relations
firm that were the subject of the In the Matter of Certain Stock Promotions investigation. On July 20, 2017, the plaintiff in
the Kuc case filed a notice to voluntarily dismiss that case. The court entered an order dismissing the Kuc complaint on July 21, 2017.
On July 26, 2017, the court appointed a movant as lead plaintiff. On September 8, 2017, the lead plaintiff filed an amended complaint
(Jay Rabkin v. Lion Biotechnologies, Inc., et al., case no. 3:17-cv-2086) seeking class action status that alleges, among other things,
that the defendants violated federal securities laws by making materially false and misleading statements, or by failing to make certain
disclosures, regarding the actions taken by Manish Singh and its former investor relations firm that were the subject of the In the
Matter of Certain Stock Promotions SEC investigation. On February 5, 2018, the court entered an order dismissing two of plaintiff’s
six claims. As the result of mediation, on September 28, 2018, lead plaintiff filed an unopposed motion for settlement, the cost of
which, if approved, is expected to be borne by our insurance carrier and would result in no loss to the Company. The court gave
preliminary approval to the proposed settlement on November 30, 2018, and the final hearing is currently scheduled for April 12,
2019.
Derivative Lawsuits. On December 15, 2017, a purported stockholder derivative complaint was filed by plaintiff Kevin Fong
against the Company, as nominal defendant, and certain of its current and former officers and directors, and others, as defendants, in
the U.S. District Court for the District of Delaware (case no. 1:17-cv-1806). The complaint alleges breaches of fiduciary duties, unjust
enrichment, and violations of Section 14(a) of the Securities Exchange Act of 1934 and Rule 14a-9 promulgated thereunder arising
from the SEC’s investigation in the In the Matter of Certain Stock Promotions investigation and our April 10, 2017 settlement thereof,
and seeks unspecified damages on behalf of the Company and injunctive relief.
On March 28, 2018, a purported stockholder derivative complaint was filed by plaintiff Nazeer Khaleeluddin on behalf of the
Company, against the Company, as nominal defendant, and certain of the Company’s current and former officers and directors, and
others, as defendants, in the U.S. District Court for the District of Delaware (case no. 1:18-cv-00469). The complaint alleges, among
other things, violations of securities law, breach of fiduciary duty, aiding and abetting, waste of corporate assets, and unjust
enrichment. The complaint is based on claims arising from the SEC’s investigation in the In the Matter of Certain Stock Promotions
investigation and the Company’s April 10, 2017 settlement thereof, and seeks unspecified damages on behalf of the Company and
injunctive relief. On May 1, 2018, the court consolidated this case with the aforementioned purported stockholder derivative case filed
by plaintiff Kevin Fong.
The Company intends to vigorously defend against the foregoing complaints. Based on the early stage of the litigation, it is not
possible to estimate the amount or range of possible loss that might result from an adverse judgment or a settlement of these matters.
Solomon Capital, LLC. On April 8, 2016, a lawsuit titled Solomon Capital, LLC, Solomon Capital 401(K) Trust, Solomon
Sharbat and Shelhav Raff v. Lion Biotechnologies, Inc. was filed by Solomon Capital, LLC, Solomon Capital 401(k) Trust, Solomon
Sharbat and Shelhav Raff against the Company in the Supreme Court of the State of New York, County of New York (index no.
651881/2016). The plaintiffs allege that, between June and November 2012 they provided to the Company $0.1 million and that they
advanced and paid on the Company’s behalf an additional $0.2 million. The complaint further alleges that the Company agreed to (i)
provide them with promissory notes totaling $0.2 million, plus interest, (ii) issue a total of 111,425 shares to the plaintiffs (before the
1-for-100 reverse split of the Company’s common stock effected in March 2013), and (iii) allow the plaintiffs to convert the foregoing
funds into its securities in the next transaction. The plaintiffs allege that they should have been able to convert their advances and
payments into shares of its common stock in the restructuring that was affected in May 2013. Based on the foregoing, the plaintiffs
allege causes for breach of contract and unjust enrichment and demand judgment against the Company in an unspecified amount
exceeding $1.5 million, plus interest and attorneys’ fees.
F-28
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
On June 3, 2016, the Company filed an answer and counterclaims in the lawsuit. In its counterclaims, the Company alleges that
the plaintiffs misrepresented their qualifications to assist the Company in fundraising and that they failed to disclose that they were
under investigation for securities laws violations. The Company is seeking damages in an amount exceeding $0.5 million and an order
rescinding any and all agreements that the plaintiffs contend entitled them to obtain stock in the Company.
On April 19, 2017, the court granted plaintiffs’ counsel’s motion to withdraw from the case. On May 25, 2017, plaintiffs filed a
notice that they had hired new counsel. On June 7, 2017, the judge presiding over the case recused herself because of a conflict of
interest arising from her relationship with plaintiffs’ new attorneys and the case was subsequently assigned to a new judge. On April
20, 2018, the court held a hearing regarding plaintiff’s motion to dismiss the Company’s amended counterclaims and affirmative
defense for fraudulent inducement. On August 15, 2018, the court entered an order granting the plaintiffs’ motion and dismissed the
Company’s amended counterclaims and eleventh affirmative defense for fraudulent inducement without leave to amend. On
September 14, 2018, the Company filed a notice of appeal related to this order, and on November 5, 2018, the Company filed its
memorandum of law in support of its appeal of the order dismissing the Company’s amended counterclaims and affirmative defense
for fraudulent inducement. On January 2, 2019, plaintiffs filed their memorandum of law in opposition to the appeal. On January 18,
2019, the Company filed its reply brief in support of its appeal of the order dismissing its amended counterclaims and affirmative
defense for fraudulent inducement.
The Company intends to vigorously defend the complaint and pursue its counterclaims.
Litigation Involving Dr. Steven Fischkoff. On June 13, 2017, in an action titled Steven Fischkoff v. Lion Biotechnologies, Inc.
and Maria Fardis, Dr. Steven Fischkoff, our former Vice President and Chief Medical Officer, filed a lawsuit against the Company in
the Supreme Court of the State of New York, County of New York. Dr. Fischkoff was dismissed by the Company on March 28, 2017.
Dr. Fischkoff was terminated “for cause” as that term is defined in his employment agreement. In his complaint, Dr. Fischkoff alleges
breaches of his employment agreement and violation of New York Labor Law for failure to pay monies purportedly owed to him, and
seeks to recover amounts including severance pay and retention bonus (totaling $300,000), a prorated incentive bonus, and amounts
relating to unvested options to 150,000 shares of our common stock, together with prejudgment interest, costs, expenses and attorneys’
fees. On July 5, 2017, we filed a removal petition and removed the lawsuit to the United States District Court for the Southern District
of New York, where the case has been assigned case no. 1:17-cv-05041. On July 14, 2017, the Company filed a partial answer and
counterclaims against Dr. Fischkoff, denying his allegations, and alleging breach of contract and related claims, breach of fiduciary
duty, and state and federal trade secret misappropriation and related claims, and sought a temporary restraining order and preliminary
injunction against Dr. Fischkoff. On July 18, 2017, the court issued a temporary restraining order against Dr. Fischkoff requiring him
to return our materials, prohibiting him from disclosing or using the Company’s materials, and granting expedited discovery. On June
25, 2018, pursuant to a stipulation between the parties, the court entered a permanent injunction prohibiting Dr. Fischkoff from
disclosing, possessing, or using any of the Company’s proprietary materials or trade secrets. On July 5, 2018, the court entered an
order dismissing two of Dr. Fischkoff’s claims against the Company and Dr. Fardis. On October 18, 2018, Dr. Fischkoff amended his
complaint to assert a new claim for defamation arising from SEC filings in which the Company provided the information about this
litigation.
The Company intends to vigorously defend against Dr. Fischkoff’s lawsuit and pursue the Company’s counterclaims. Based on
the early stage of the litigation, it is not possible to estimate the amount or range of (i) a possible loss that might result from an adverse
judgment or settlement of this action, or (ii) the potential recovery that might result from a favorable judgment or a settlement of this
action.
Other Matters. During the second quarter of 2016, warrants representing 128,500 shares were exercised. The 128,500 shares of
common stock had previously been registered for re-sale. However, the Company believes that these 128,500 warrant shares were sold
by the holders in open market transactions in May 2016 at a time when the registration statement was ineffective. Accordingly, those
sales were not made in accordance with Sections 5 and 10(a)(3) of the Securities Act of 1933, as amended, and the purchasers of those
shares may have rescission rights (if they still own the shares) or claims for damages (if they no longer own the shares). The amount
of any such liability is uncertain and as such, an accrual for any potential loss has not been made. The Company believes that any
claims brought against it would not result in a material impact to the Company’s financial position or results of operations. The
Company has not accrued a loss for a potential claim associated with this matter as it is unable to estimate any at this time.
F-29
IOVANCE BIOTHERAPEUTICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
In connection with the Company’s reincorporation from Nevada to Delaware in 2017, the Company (as a Delaware
corporation) untimely filed a post-effective amendment to adopt a Form S-8 registration statement that the Company filed (as a
Nevada corporation) to register the shares underlying the Company’s 2011 Equity Incentive Plan. Before the Company filed the
required post-effective amendment, options to purchase 200,000 shares were exercised under the 2011 Equity Incentive Plan. The
effect of the delayed post-effective amendment filing on the 200,000 option shares is uncertain, but the issuance and sale of the shares
may not have been in compliance with the Form S-8 registration statement. The existence of any liability to the Company, and the
amount of any such liability to the Company, as a result of the issuance of the 200,000 shares is uncertain. Accordingly, no accrual for
a potential claim has been made by the Company in its financial statements.
The Company may be involved, from time to time, in legal proceedings and claims arising in the ordinary course of our
business. Such matters are subject to many uncertainties and outcomes are not predictable with assurance. The Company accrues
amounts, to the extent they can be reasonably estimated, that it believes are adequate to address any liabilities related to legal
proceedings and other loss contingencies that it believes will result in a probable loss. While there can be no assurances as to the
ultimate outcome of any legal proceeding or other loss contingency involving the Company, management does not believe any
pending matter will be resolved in a manner that would have a material adverse effect on our financial position, results of operations
or cash flows.
NOTE 13. QUARTERLY UNAUDITED RESULTS
The results of operations by quarter for the years ended December 31, 2018 and 2017 are as follow:
2018
2017
(in thousands, except per share information)
Revenue
Net loss attributable to common stockholder
Net loss per share, basic and diluted
Weighted average share used in computing net loss per
share, basic and diluted
Q2
- $
Q1
Q1
$
-
-
$ (26,515 ) $ (30,660 ) $ (33,830 ) $ (32,575 ) (20,684 ) $ (23,377 ) $ (22,149 ) $ (25,854 )
(0.36 )
$
Q2
- $
Q3
- $
Q3
- $
Q4
- $
Q4
- $
(0.33 ) $
(0.34 ) $
(0.35 ) $
(0.31 ) $
(0.37 ) $
(0.36 ) $
(0.27 )
84,350 90,236 95,077 119,085 62,286 62,457 63,332 72,794
NOTE 14. RELATED PARTY TRANSACTIONS
A former member of the Company’s board of directors was an attorney at a law firm, TroyGould PC, that rendered legal
services to the Company during the period of his directorship until June 6, 2018, but did not provide legal services to the Company
himself during that period. The Company paid TroyGould PC $0.5 million, $0.7 million, and $0.8 million, during the years ended
December 31, 2018, 2017 and 2016, respectively.
On September 14, 2017, the Company entered into a three-year consulting agreement with Iain Dukes, D. Phil, the Chairman of
the Board. As compensation for his consulting services, the Company granted Dr. Dukes a stock option to purchase up to 150,000
shares of the Company’s common stock, at an exercise price of $7.30 per share. Under the consulting agreement, Dr. Dukes agreed to
provide the Company with services regarding business development opportunities, licensing transactions and technology acquisitions
by the Company, and any such strategic initiatives appropriate for the Company that Dr. Dukes may identify. The granted stock
options vest in 12 quarterly installments (with 1/12th of the option shares having vested on the date of grant). The vesting of the
granted stock options will accelerate, and the entire award will become fully vested upon the closing of a significant licensing
transaction, a material product acquisition, a material strategic transaction, or upon a change of control transaction. The Company
recognized $0.7 million and $0.2 million in stock-based compensation expense related to this consulting agreement during the years
ended December 31, 2018 and 2017, respectively.
F-30
“2018 was an outstanding year for Iovance.
We made signifi cant progress in forwarding our
Tumor Infi ltrating Lymphocyte product, lifi leucel,
for metastatic melanoma toward registration,
while fi nancially strengthening the company to
support the development program.”
BOARD OF DIRECTORS
OFFICERS
Iain Dukes, D.Phil.
Maria Fardis, Ph.D.
VENTURE PARTNER, ORBIMED ADVISORS LLC
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Maria Fardis, Ph.D.
Timothy E. Morris
PRESIDENT AND CHIEF EXECUTIVE OFFICER,
CHIEF FINANCIAL OFFICER
IOVANCE BIOTHERAPEUTICS, INC.
Ryan Maynard
CHIEF FINANCIAL OFFICER, BLADE THERAPEUTICS, INC.
Frederick G. Vogt, Ph.D., Esq.
GENERAL COUNSEL
General Merrill A. McPeak
CHIEF OF STAFF, U.S. AIR FORCE (RET.)
Wayne Rothbaum
PRESIDENT, QUOGUE CAPITAL, LLC
Michael Weiser, M.D., Ph.D.
PRINCIPAL, ACTIN BIOMED, LLC
2018 AUDITORS
Marcum LLP
SECURITIES COUNSEL
DLA Piper LLP
NEW YORK, NEW YORK
SHORT HILLS,
NEW JERSEY
SECURITIES LISTING
The Nasdaq
Global Market
COMMON STOCK: IOVA
REGISTRAR &
TRANSFER AGENT
Continental
Stock Transfer
1 STATE STREET,
30TH FLOOR
CORPORATE
HEADQUARTERS
999 SKYWAY ROAD
SUITE 150
SAN CARLOS, CA 94070
TEL: (650) 260–7120
NEW YORK, NY 10004
INFO@IOVANCE.COM
TEL: (212) 845–3215
WEBSITE
WWW.IOVANCE.COM
2018 ANNUAL REPORT
CORPORATE
HEADQUARTERS
999 SKYWAY ROAD
SUITE 150
SAN CARLOS, CA 94070
TEL: (650) 260–7120
INFO@IOVANCE.COM
WEBSITE
WWW.IOVANCE.COM