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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10‑‑K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2017
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 001‑‑36576
☑
☐
Marinus Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
20‑‑0198082
(I.R.S. Employer
Identification No.)
170 N Radnor Chester Rd, Suite 250
Radnor, PA 19087
(Address of principal executive offices including zip code)
(484) 801-4670
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class
Common Stock, par value $0.001 per share
Name of Each Exchange on Which Registered
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 Exchange 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 and posted on its corporate Web site, if any, every Interactive Data File required to be
submitted and posted 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 and post such
files). Yes ☑ No ☐
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S‑K is not contained herein, and will not be contained, to the best of the
registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10‑K or any amendment to this Form 10‑K. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non‑accelerated filer or a smaller reporting company. (Check one):
Large accelerated filer ☐
Emerging growth company ☒
Accelerated filer ☐
Non‑accelerated filer ☐
Smaller reporting 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 (the only common equity of the registrant) held by non-affiliates for the last business day of the
Registrant’s most recent completed second fiscal quarter: $23,807,194
The number of shares of the issuer’s Common Stock outstanding as of March 5, 2018, was 40,520,705.
Documents Incorporated by Reference
Certain portions, as expressly described in this report, of the registrant’s proxy statement for the 2018 Annual Meeting of the Stockholders to be held April 19, 2018
are incorporated by reference into Part III, Items 10‑14.
TABLE OF CONTENTS
Table of Contents
Note Regarding Forward-Looking Statements.
Part I .
Item 1.
Business.
Item1A.
Risk Factors.
Item1B.
Unresolved Staff Comments.
Item 2.
Properties.
Item 3.
Legal Proceedings.
Item 4.
Mine Safety Disclosures.
Part II .
Item 5.
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity
Securities.
Item 6.
Selected Financial Data.
Item 7.
Management’s Discussion and Analysis of Financial Condition and Results of Operations.
Item 7A.
Quantitative and Qualitative Disclosures About Market Risk.
Item 8.
Consolidated Financial Statements and Supplementary Data.
Item 9.
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.
Item 9A.
Controls and Procedures.
Item 9B.
Other Information.
Part III.
Item 10.
Directors, Executive Officers and Corporate Governance.
Item 11.
Executive Compensation.
Item 12.
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
Item 13.
Certain Relationships and Related Transactions, and Director Independence.
Item 14.
Principal Accountants Fees and Services.
Part IV.
Item 15.
Exhibits, Financial Statement Schedules.
Signatures.
Index to Financial Statements.
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Cautionary Note Regarding Forward-Looking Statements .
This Annual Report on Form 10-K contains forwa rd-looking statements, within the meaning of the U.S. Private Securities
Litigation Reform Act of 1995, that involve substantial risks and uncertainties. In some cases, you can identify forward-looking
statements by the words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “objective,”
“ongoing,” “plan,” “predict,” “project,” “potential,” “should,” “will,” or “would,” and or the negative of these terms, or other
comparable terminology intended to identify statements about the future. These statements involve known and unknown risks,
uncertainties and other factors that may cause our 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 Annual Report on Form 10-K, we caution you that these
statements are based on a combination of facts and factors currently known by us and our expectations of the future, about which
we cannot be certain.
The forward-looking statements in this Annual Report on Form 10-K include, among other things, statements about:
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our ability to develop and commercialize ganaxolone;
status, timing and results of preclinical studies and clinical trials;
the potential benefits of ganaxolone;
the timing of seeking regulatory approval of ganaxolone;
our ability to obtain and maintain regulatory approval;
our estimates of expenses and future revenue and profitability;
our estimates regarding our capital requirements and our needs for additional financing;
our plans to develop and market ganaxolone and the timing of our development programs;
our estimates of the size of the potential markets for ganaxolone;
our selection and licensing of ganaxolone;
our ability to attract collaborators with acceptable development, regulatory and commercial expertise;
the benefits to be derived from corporate collaborations, license agreements, and other collaborative or acquisition
efforts, including those relating to the development and commercialization of ganaxolone;
sources of revenue, including contributions from corporate collaborations, license agreements, and other collaborative
efforts for the development and commercialization of products;
our ability to create an effective sales and marketing infrastructure if we elect to market and sell ganaxolone directly;
the rate and degree of market acceptance of ganaxolone;
the timing and amount or reimbursement for ganaxolone;
the success of other competing therapies that may become available;
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·
·
·
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the manufacturing capacity for ganaxolone;
our intellectual property position;
our ability to maintain and protect our intellectual property rights;
our results of operations, financial condition, liquidity, prospects, and growth strategies;
the industry in which we operate; and
the trends that may affect the industry or us.
You should refer to Part I, Item 1A “Risk Factors” of this Annual Report on this Form 10-K for a discussion of important
factors that may cause our actual results to differ materially from those expressed or implied by our forward-looking statements.
As a result of these factors, we cannot assure you that the forward-looking statements in this Annual Report on Form 10-K will
prove to be accurate. Furthermore, if our forward-looking statements prove to be inaccurate, the inaccuracy may be material. In
light of the significant uncertainties in these forward-looking statements, you should not regard these statements as a
representation or warranty by us or any other person that we will achieve our objectives and plans in any specified time frame or
at all. We undertake no obligation to publicly update any forward-looking statements, whether as a result of new information,
future events or otherwise, except as required by law.
You should read this Annual Report on Form 10-K and the documents that we reference in this Annual Report on Form 10-
K and have filed as exhibits to this Annual Report on Form 10-K completely and with the understanding that our actual future
results may be materially different from what we expect. We qualify all of our forward-looking statements by these cautionary
statements.
Item 1. Business.
Overview
PART I
We are a clinical stage biopharmaceutical company focused on developing and commercializing innovative therapeutics
to treat epilepsy and neuropsychiatric disorders. Our clinical stage product candidate, ganaxolone, is a positive allosteric
modulator of GABA A being developed in three different dose forms: intravenous (IV), capsule and liquid. The multiple dose
forms are intended to maximize the therapeutic range of ganaxolone for adult and pediatric patient populations, in acute and
chronic care, and both in-patient and self-administered settings. Ganaxolone exhibits anti-seizure, anti-anxiety and anti-depressive
actions via its effects on synaptic and extrasynaptic GABA A receptors.
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Our Pipeline
We are developing ganaxolone to treat children suffering from rare epilepsies and both adults and children suffering
from other neuropsychiatric conditions where there is a mechanistic rationale for ganaxolone to provide a benefit, including the
following indications:
CDKL5 deficiency disorder (CDD)
CDD is a serious and rare genetic disorder that is caused by a mutation of the cyclin-dependent kinase-like 5 (CDKL5)
gene, located on the X chromosome. It predominantly affects girls and is characterized by early-onset, difficult-to-control seizures
and severe neuro‑developmental impairment. The CDKL5 gene encodes proteins essential for normal brain function. Most
children affected by CDD cannot walk normally, talk, or care for themselves. Many also suffer from scoliosis, visual impairment,
gastrointestinal difficulties, and sleeping disorders. Currently, there are no approved therapies for CDD. We believe that no
previous late-stage clinical trials have been conducted in this patient population.
In September 2017, we announced Phase 2 results in patients suffering from CDD. Patients in the CDD cohort of the
Phase 2 open-label study in orphan pediatric epilepsies showed a median decrease of 43% (n=7) in 28-day seizure frequency from
baseline in the ITT (intent-to-treat) population (primary endpoint). The median change from baseline in seizure-free days in the
ITT population (key secondary endpoint) was an increase of 78% (n=5; two subjects cannot be calculated due to 0 baseline
seizure-free days). The majority of patients continue to receive ganaxolone and have entered the one-year extension of the
study. Ganaxolone was generally safe and well-tolerated with no serious adverse events.
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To date, there have been no adverse event reports of somnolence or dizziness and two children discontinued prior to completing
the 26-week treatment due to lack of efficacy. We have met with The United States Food and Drug Administration (FDA) and
plan to meet with foreign regulators with the goal of commencing the Phase 3 clinical study in mid-2018.
The FDA granted Orphan Drug Designation to ganaxolone for the treatment of CDD. Orphan Drug Designation is
granted by the FDA Office of Orphan Products Development (OOPD) to novel drugs or biologics that treat a rare disease or
condition affecting fewer than 200,000 patients in the U.S. The designation provides the drug developer with a seven-year period
of U.S. marketing exclusivity, as well as tax credits for clinical research costs, the ability to apply for annual grant funding,
clinical research trial design assistance and waiver of Prescription Drug User Fee Act (PDUFA) filing fees.
Postpartum Depression (PPD)
PPD is a mood disorder that affects about 15% of women within the first year following childbirth. Common symptoms
include feelings of extreme sadness, hopelessness, suicidal ideation, anxiety, and fatigue. PPD is thought to be linked to the rapid
fluctuations in the levels of reproductive hormones and allopregnanolone (allo) after childbirth. Allo has been shown in clinical
studies to be effective in treating patients with severe PPD. PPD can affect a mother’s ability to care for her child and may
negatively affect a child’s cognitive development. There are no approved treatments for PPD, but the most common treatments
are psychotherapy and antidepressants. We believe that treatment with ganaxolone may provide benefit to women suffering from
PPD.
In June 2017, we initiated a Phase 2 double-blind, placebo-controlled clinical trial to evaluate the safety, efficacy and
pharmacokinetics (PK) of ganaxolone IV in women diagnosed with severe PPD (Magnolia study). Patients randomized in the
initial cohort(s) will undergo an infusion of either ganaxolone or placebo and will be followed for 30 days. Subsequent Magnolia
study cohorts could include intravenous regimens of various durations alone or in sequential administration with oral ganaxolone.
In December 2017, we initiated a Phase 2 study to evaluate the safety, tolerability and efficacy of ganaxolone oral capsules in
moderate PPD patients (Amaryllis study). Preliminary data from Magnolia and Amaryllis studies are expected in 2018 and will
be used to inform later stage development of ganaxolone in PPD.
Status Epilepticus (SE)
SE is a life-threatening occurrence of continuous or intermittent seizures lasting more than five minutes in duration
without full recovery. If SE is not treated immediately, permanent neuronal damage may occur, which contributes to high rates of
morbidity and mortality. In refractory status epilepticus (RSE), certain synaptic GABA A receptors are internalized, and thereby
unavailable to drugs that target these receptors, such as benzodiazepines. According to LexisNexis, there are approximately
45,000 cases of hospitalized RSE treated in the United States annually. RSE patients who do not respond to additional
antiepileptic drugs (AEDs), referred to as having super refractory status epilepticus (SRSE), are generally placed under IV
anesthesia as a last resort to attempt to stop the seizures and prevent further damage to the brain and death.
Ganaxolone modulates both synaptic and extrasynaptic GABA A receptors, allowing a therapeutic pathway in situations
where synaptic GABA A receptors are unavailable. Ganaxolone has shown activity at least comparable to allo in preclinical rat
models of benzodiazepine-resistant SE. Another preclinical rat model of benzodiazepine refractory SE showed anti-epileptic
synergy with the combination of ganaxolone and diazepam in blocking pilocarpine-induced seizures in rats. Ganaxolone and
diazepam plasma levels were identical when measured both alone and in combination, indicating that neither drug affected the
pharmacokinetic disposition of the other. These data may have clinical implications on the treatment and dosing of ganaxolone in
patients with SE who are or have been treated with benzodiazepines.
We have initiated a Phase 2 feasibility study with ganaxolone IV in patients with RSE. The Phase 2 trial is designed to
treat patients in the SE treatment paradigm as second line when they have active brain function and potential for better outcomes.
Preliminary data from this feasibility study are expected in 2018.
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In April 2016, the FDA granted Orphan Drug Designation to the IV formulation of ganaxolone for the treatment of SE.
Other Indications
We have also conducted proof-of-concept studies in Lennox Gastaut Syndrome (LGS), PCDH19 pediatric epilepsy (PCDH19-PE)
and Fragile X Syndrome (FXS). Data from these studies showed that ganaxolone was safe and well-tolerated and effective in
either reducing seizures or improving anxiety. Children with LGS, PCDH19-PE and FXS often suffer from cognitive and
developmental impairment, behavioral challenges, sleep disorders and seizures. Ganaxolone could be helpful to these patients
across a range of these co-morbidities. We may study these and/or other indications in future clinical trials.
Ganaxolone Mechanism of Action
Ganaxolone is a synthetic analog of a naturally occurring neurosteroid, allo, which exhibits potent anxiolytic,
antidepressant, antiepileptic and sedative activity by virtue of its GABA A receptor modulating properties. While allo’s activities
are well documented, allo has the potential to convert back to its metabolic precursor progesterone, which could lead to hormonal
side effects. Ganaxolone has been designed with an added methyl group that prevents back conversion to an active steroid, which
we believe unlocks ganaxolone’s potential for chronic use. This engineering also enables ganaxolone to be dosed orally. In
preclinical studies, ganaxolone has exhibited potency and efficacy comparable to allo.
GABA (gamma-aminobutyric acid) is the chief inhibitory neurotransmitter in the brain. One of the subclasses of
receptors that respond to GABA is the GABA A receptor. When activated, these receptors selectively conduct chloride ions
through a pore that results in the inhibitory effect of hyperpolarization of the neuron. Synaptic GABA A receptors respond quickly
to inhibit neurotransmission, while extrasynaptic GABA A receptors provide ambient tonic inhibition.
Ganaxolone and allo interact with both synaptic and extrasynaptic GABA A receptors and at binding sites distinct from
the benzodiazepines. Activity with extrasynaptic GABA A receptors may be of particular importance for treating patients who
developed tolerance to benzodiazepines and barbiturates. Ganaxolone binds to the GABA A receptors, which opens the pore to
allow chloride ions to move into the postsynaptic neuron, leading to the inhibition of neurotransmission.
Safety Overview
Oral Safety
More than 1,600 subjects have received oral treatment with ganaxolone ranging in duration from one day to more than
two years using doses from 50 to 2,000 mg/day. Ganaxolone was administered in Phase 2 studies to pediatric subjects at doses up
to 63 mg/kg and to adult subjects at doses up to 1,875 mg/day. No drug-related deaths occurred in any of these clinical trials, and
the majority of adverse events were not medically serious and resolved upon discontinuation of therapy. The most common side
effects are related to sedation. In the ganaxolone safety database there are no trends of medically important changes in blood
chemistry, vital signs, liver function, renal function or cardiovascular parameters in the adult or pediatric populations.
IV Safety
In 2016, we completed a Phase 1 dose-escalation study in ganaxolone IV. In this study, we achieved dose levels
targeted for efficacy in patients with postpartum depression (PPD), status epilepticus (SE) and other indications. The Phase 1
clinical study enrolled 36 subjects and was designed to determine the pharmacokinetics (PK), pharmacodynamics (PD), and
safety of ganaxolone IV administered as an ascending bolus dose (Stage 1) or continuous infusion (Stage 2). Four cohorts of
subjects were enrolled in Stage 1 and received escalating doses of ganaxolone, and one cohort of subjects was enrolled in Stage
2.
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In the study, every dose regimen of ganaxolone IV administered, either bolus or continuous infusion, was generally safe
and well tolerated, and reached targeted dose levels in a short period of time. Following treatment, six treatment-emergent
adverse events were reported, all of which were mild in severity and resolved without intervention. Only headache was
considered possibly related to treatment with ganaxolone IV. No subject discontinued due to an adverse event and no serious
adverse events were reported. Ganaxolone IV plasma concentrations were generally proportional to the administered dose.
Additionally, the continuous infusion of ganaxolone IV achieved the targeted exposure levels. Plasma exposures associated with
anticonvulsant and anti-anxiety activity were reached in this study.
Preclinical Pharmacology and Toxicology
We have completed preclinical safety pharmacology and toxicology testing, including reproductive toxicology. Animal
pharmacokinetic and in vitro studies show that ganaxolone is primarily metabolized by the CYP3A family of liver enzymes, a
common route of drug metabolism. All in vitro studies have shown ganaxolone has low potential for interaction with other drugs
at several multiples of observed human ganaxolone levels. Furthermore, neither ganaxolone nor its metabolites have a ketone ring
at the 3-position, a requirement for hormonal activity. In binding studies, ganaxolone has no appreciable affinity for estrogen or
progesterone receptors. We found no evidence of changes in blood, liver, kidney or the gastrointestinal systems indicating
functional or anatomical adverse effects associated with either single- or multiple-dose treatment with ganaxolone in preclinical
safety pharmacology studies, nor have we seen evidence of any end organ toxicity from human clinical studies. We have not
detected potential for ganaxolone to cause cellular mutations or carcinogenicity in studies to date.
In reproductive toxicology studies, ganaxolone did not cause any malformations of the embryo or fetus in rats or mice
and did not significantly affect the development of offspring. No changes in sperm parameters were found. We believe these
findings are important as all currently marketed AEDs have shown developmental toxicities in animal studies such as fetal death
or skeletal abnormalities that indicates a finding of developmental toxicities in animal studies. Valproate, carbamazepine,
phenytoin and topiramate have been linked with birth defects in humans (e.g. head and facial malformations and lowered birth
weight) at a rate higher than observed in women who did not take these drugs. This association has resulted in labeling for these
drugs indicating positive evidence of human fetal risk based on scientific data. Based on ganaxolone’s mechanism and preclinical
and clinical findings to date, we intend to seek differentiated labeling for ganaxolone, indicating that animal reproduction studies
have failed to demonstrate a risk to the fetus, which we believe would be an important safety differentiator for women of
childbearing age.
Our Strategy
Our goal is to maximize the value of ganaxolone as a best‑in‑class innovative neuropsychiatric therapy with a portfolio
of diversified indications and formulations. The key elements of our strategy to achieve this goal include the following:
·
Pursuing
orphan,
genetic
epilepsy
indications
for
ganaxolone.
Within epilepsy, there are several smaller patient
populations, such as CDD, where a genetic marker associated with the syndrome has been linked to deficits in
GABAergic signaling. Based on clinical data, we believe that increasing GABAergic tone with ganaxolone could
provide benefit and that treatments for these small populations have the potential for more efficient paths to
regulatory approval and commercialization. In addition to CDD, we may also explore development of ganaxolone
in other rare epilepsy indications.
· Broadening
dose
forms
to
acute
care
setting.
To date, our clinical trials in patients have utilized our patented
nanoparticulate composition administered in oral capsule and liquid suspension dose forms. As a complement to
these orally administered dose forms, we have developed an IV dose form for the acute care setting and in-patient
populations, such as SE and PPD, that may benefit from inpatient ganaxolone IV before transitioning to an
outpatient oral dose form.
· Expanding
non‑‑epilepsy
indications
for
ganaxolone.
Due to its mechanism of action, we believe ganaxolone has
potential for therapeutic benefit in a variety of neuropsychiatric disorders in addition to epilepsy. Evidence from
preclinical and clinical studies demonstrates that treatment with an agent similar to
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naturally occurring allo could be of benefit in patients with anxiety, mood, sleep and other neuropsychiatric
disorders. We believe our top-line results from the Phase 2 proof‑of‑concept clinical trials in Fragile X Syndrome
(FXS) patients and anecdotal reports from investigators who treated CDD, PCDH19-PE and LGS patients support
this hypothesis. We are also exploring development of ganaxolone in PPD, and we may explore development of
ganaxolone in other depression-related, neuropsychiatric disorders and rare neurological diseases.
· Build
on
our
product
pipeline.
We intend to expand and diversify our product pipeline through development
and/or acquisition of additional drug candidates that fit our business strategy. In addition, we may expand the
targeted indication footprint for our ganaxolone franchise into other epilepsy, neuropsychiatric or other indications .
Intellectual Property
The proprietary nature of and protection for our product candidates, discovery programs and know-how are important to
our business. We have sought patent protection in the United States and internationally for ganaxolone synthetic methods and
ganaxolone nanoparticles, which are used in oral solid, oral liquid, and intravenous dose formulations, other injectable
ganaxolone formulations, and methods of treatment using ganaxolone formulations. Our policy is to pursue, maintain and defend
patent rights whether developed internally or licensed from third parties and to protect the technology, inventions and
improvements that are commercially important to the development of our business.
The basis of our intellectual property for ganaxolone nanoparticle formulations was the discovery of a novel
composition of ganaxolone nanoparticles and complexing agents that deliver consistent exposure and improved stability of
ganaxolone. This discovery resulted in the issuance of our United States and foreign patents, which cover ganaxolone
nanoparticle formulations and the use of these formulations for treating seizure disorders. Our patent portfolio for ganaxolone
nanoparticle formulations contains eight United States patents, one pending United States patent application, and corresponding
foreign patents and patent applications directed to solid and liquid ganaxolone formulations and methods for the making and use
thereof. These patents expire in 2026, excluding accounting for possible patent term extension under the Drug Price Competition
and Patent Term Restoration Act of 1984, or the Hatch-Waxman Act, or for possible pediatric exclusivity. Corresponding foreign
patents have been granted in Australia, Canada, China, Eurasia, India, Israel, Japan, Mexico, South Africa, New Zealand,
Singapore and South Korea. Corresponding foreign patent applications are pending in China, Europe and India. We have not
licensed any rights to practice these patents in any of these territories. Pursuant to our agreement with Domain Russia Investments
Limited, or DRI, we assigned DRI patent rights, which rights were subsequently assigned to NovaMedica LLC, along with the
rights to develop and commercialize ganaxolone in Russia and certain other eastern European nations.
Our patent portfolio also contains patents issued in Australia, United States, Europe, Japan, Mexico, New Zealand,
China, Hong Kong and Israel covering our novel and cost effective ganaxolone synthesis process, which expire in 2030,
excluding accounting for possible patent term extension under the Hatch-Waxman Act, or for possible pediatric exclusivity.
Corresponding foreign patent applications are pending in Brazil, Canada, India, and South Korea.
We filed two provisional applications in 2015 directed to intravenous ganaxolone formulations and methods of using
these formulations to treat refractory epileptic seizures and other disorders. Both of these patents have been converted to US non-
provisional applications with corresponding Patent Cooperation Treaty (PCT) applications. One of these PCT applications has
entered the national stage in Australia, Canada, China, Europe, India, Israel, Japan, and South Africa. We expect to file national
stage applications for the other of these PCT applications in 2018. If granted, these patents will expire in 2036, excluding
accounting for possible patent term extension under the Drug Price Competition and Patent Term Restoration Act of 1984 or the
Hatch-Waxman Act. We filed two provisional applications in 2016 directed to additional methods of treatment using our
nanoparticulate and IV formulations. In 2017 we converted one of these applications to a US non-provisional application and
converted the other to both a US non-provisional and a PCT application. If subsequently granted, the patents from these
applications will expire in 2037. We filed a provisional application directed to sustained release injectable ganaxolone
formulations in 2017. If converted to a non-provisional application and subsequently granted, the patent from this application
will expire in 2038.
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We filed a provisional patent application in 2017 directed to the use of our formulations in the treatment of genetic
epileptic disorders. We also filed a provisional patent application in 2017 directed to compositions for the treatment of central
nervous system (CNS) disorders. Both patents may be converted to US non-provisional applications with corresponding Patent
Cooperation Treaty (PCT) applications in 2018. If converted to non-provisional applications and subsequently granted, the
patents from these applications will expire in 2038.
In addition to patents, we rely upon unpatented trade secrets, know-how and continuing technological innovation to
develop and maintain a competitive position. We seek to protect our proprietary information, in part, through confidentiality
agreements with our employees, collaborators, contractors and consultants, and invention assignment agreements with our
employees and some of our collaborators. The confidentiality agreements are designed to protect our proprietary information and,
in the case of agreements or clauses requiring invention assignment, to grant us ownership of technologies that are developed
through a relationship with a third party.
General considerations
As with other biotechnology and pharmaceutical companies, our ability to maintain and solidify a proprietary position
for our ganaxolone synthesis and formulations will depend upon our success in obtaining effective patent claims and enforcing
those claims once granted. Our commercial success will depend in part upon not infringing upon the proprietary rights of third
parties. It is uncertain whether the issuance of any third-party patent could require us to alter our development or commercial
strategies, obtain licenses, or cease certain activities. The biotechnology and pharmaceutical industries are characterized by
extensive litigation regarding patents and other intellectual property rights.
The term of a patent that covers a FDA-approved drug may be eligible for patent term extension, which provides patent
term restoration as compensation for the patent term lost during the FDA regulatory review process. The Hatch-Waxman Act
permits a patent term extension of up to five years beyond the expiration of the patent. The length of the patent term extension is
related to the length of time the drug is under regulatory review. Patent extension cannot extend the remaining term of a patent
beyond a total of 14 years from the date of product approval and only one patent applicable to an approved drug may be extended.
Similar provisions are available in Europe and other foreign jurisdictions to extend the term of a patent that covers an approved
drug. In the future, if and when our pharmaceutical products receive FDA approval, we expect to apply for patent term extensions
on patents covering those products.
Many pharmaceutical companies, biotechnology companies and academic institutions are competing with us in the field
of neuropsychiatric disorders and filing patent applications potentially relevant to our business. Even if a particular third-party
patent is identified as possibly being relevant to our product candidates or technology, we may conclude upon a thorough
analysis, that we do not infringe upon the patent or that the patent is invalid. If the third-party patent owner disagrees with our
conclusion and we continue with the business activity in question, we may be subject to patent litigation. Alternatively, we might
decide to initiate litigation in an attempt to have a court declare the third-party patent invalid or non-infringed by our activity. In
either scenario, patent litigation typically is costly and time-consuming, and the outcome can be favorable or unfavorable.
Collaborations
NovaMedica
In connection with our Series C convertible preferred stock financing, in December 2012 we entered into a Technology
Transfer Agreement, or the Transfer Agreement, with DRI, a significant stockholder of our company. Pursuant to the Transfer
Agreement, in exchange for a payment of $100,000, we assigned to DRI certain patents and patents applications in Armenia,
Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine and Uzbekistan, or
the Covered Territory, and granted to DRI an exclusive, royalty-free, irrevocable and assignable license under our know-how to
develop and commercialize ganaxolone and other products that would infringe our patent rights or use our know-how, or the
Covered Products, in the Covered Territory, in the field of uses for any human or animal disease or condition excluding the
treatment of unpleasant sensory or emotional
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experience associated with actual or potential tissue damage or described in terms of such damage, or the Field. Immediately
thereafter, we, together with DRI, executed an Assignment and Assumption Agreement, pursuant to which all of DRI’s rights and
obligations under the Transfer Agreement were transferred to NovaMedica, LLC, or NovaMedica. We agreed to take all action
required to register or record the patent transfers to DRI in each country in the Covered Territory and to ensure the assignment of
DRI’s rights under the Transfer Agreement to NovaMedica. NovaMedica is jointly owned by Rusnano Medinvest LLC, or
Rusnano Medinvest, and DRI. RMI Investments, S.á.r.l, a stockholder of ours, is a wholly-owned subsidiary of Rusnano
Medinvest.
Under the terms of the Transfer Agreement, NovaMedica, or its permitted transferees or assignees, has the exclusive
right within the Covered Territory to manufacture the Covered Products solely for development and commercialization in the
Covered Territory in the Field. Until the first commercial sale of a Covered Product within the Covered Territory, NovaMedica
will have the right to purchase supplies of the Covered Product from us as are reasonably available to us and as are reasonable
and necessary to conduct clinical trials of Covered Product in the Covered Territory, provided that any such purchase does not
reasonably interfere with our having sufficient supplies of Covered Products on hand for use in development (including the
conduct of clinical trials) or commercialization outside of the Covered Territory. Such purchases will be made on a cost-plus
basis. The Transfer Agreement provides that the parties shall enter into the Supply Agreement to supply ganaxolone and/or
Covered Product for development in the Covered Territory within 60 calendar days from NovaMedica’s request, which we have
not yet received.
In accordance with the terms of the Transfer Agreement, on June 25, 2013 we entered into a Clinical Development and
Collaboration Agreement, or the Collaboration Agreement, with NovaMedica, pursuant to which we agreed to assist NovaMedica
in the development and commercialization of Covered Products in the Covered Territory in the Field. The Collaboration
Agreement requires the formation of committees consisting of our representatives and NovaMedica representatives to oversee the
general development, day-to-day development work and commercialization of Covered Products in the Field in the Covered
Territory. All decisions of these committees must be made by unanimous vote, subject to a dispute resolution process. Under the
terms of the Collaboration Agreement, the joint committees will determine a development plan for ganaxolone in clinical trials
and a plan for commercialization of ganaxolone. NovaMedica will have sole responsibility for the costs and expenses of obtaining
regulatory approval for Covered Products and for commercializing any approved products in the Covered Territory, and
NovaMedica will have the right to conduct its own clinical studies in the Covered Territory at its sole expense. NovaMedica also
has the right to file applications for approval of Covered Products in the Covered Territory, subject to committee oversight. We
have agreed, among other things, to provide NovaMedica with data and regulatory files necessary for it to obtain necessary
approvals in the Covered Territory, information relating to applications for regulatory approval of Covered Products, certain
commercialization information and to assist NovaMedica in conducting any clinical trials necessary for regulatory approval of
Covered Products in the Covered Territory. We also have agreed to provide NovaMedica with certain development know-how
and support, including making our clinical development personnel available to provide scientific and technical explanations,
consultation and support that may be reasonably requested by NovaMedica.
NovaMedica is required to reimburse us for any out-of-pocket expenses incurred by us in providing this assistance,
except for expenses incurred in our participation on the joint committees. Pursuant to the Collaboration Agreement and the
Transfer Agreement, we have agreed to use commercially reasonable efforts to include sites in the Russian Federation in our
clinical trial programs for the first indications of the Covered Products at our sole expense. Under the Transfer Agreement, at least
36 months prior to the first commercial sale of a product candidate in the Covered Territory, the parties have agreed to negotiate
in good faith a supply agreement pursuant to which we or a third party contract manufacturer authorized by us to manufacture and
supply the Covered Products, will supply needed quantities of Covered Product to NovaMedica solely for commercialization of
Covered Products in the Covered Territory, on commercially fair and reasonable terms. Such purchases will be made on a cost-
plus basis. In the event the parties are unable to agree on pricing under the supply agreement, they have agreed to engage an
internationally recognized consulting firm reasonably acceptable to both parties to perform an analysis to determine final pricing
under the supply agreement, which decision will be binding upon the parties. In the event that the parties are unable to reach a
reasonably acceptable supply agreement or we are unable to supply Covered Products to NovaMedica under such supply
agreement for a period of at least 60 calendar days after the specified delivery date and we thereafter fail to cure such failure
within 60 days after written notice from NovaMedica, we have agreed to cooperate with NovaMedica to identify a mutually
acceptable alternative source of supply and will provide the necessary consents to allow such alternative
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source of supply to provide the needed quantities of the Covered Products to NovaMedica. The terms of the alternative source of
supply would be negotiated directly by NovaMedica with the supplier.
The Collaboration Agreement expires on the earlier of three years following the first commercial sale of a product
candidate in the Covered Territory or the termination of the Transfer Agreement. NovaMedica also has the right to terminate the
Collaboration Agreement at any time at its convenience upon 90 days’ prior written notice.
Purdue Neuroscience Company (Purdue)
In September 2004, we entered into a license agreement with Purdue, which was most recently amended and restated in
May 2008, that granted us exclusive rights to certain know-how and technology relating to ganaxolone, excluding the field of
treatment of unpleasant sensory or emotional experience associated with actual or potential tissue damage or described in terms of
such damage. The agreement contains a right by us to sublicense subject to prior written approval by Purdue and we have
sublicensed our licensed rights to NovaMedica for the Covered Territory. We are obligated to pay royalties as a percentage in the
range of high single digits up to 10% of net product sales for direct licensed products, such as ganaxolone. The obligation to pay
royalties expires, on a country-by-country basis, ten years from the first commercial sale of a licensed product in each country.
Upon commercialization, we estimate the in‑licensed technology would result in our paying royalties to Purdue in the low single
digits as a percentage of sales. Other payment obligations may be triggered if we successfully partner our product candidates with
third parties. In addition, the agreement also requires that we pay Purdue a percentage in the mid-single digits of the non-royalty
consideration that we receive from a sublicensee and a percentage in the twenties of milestone payments received from
sublicensees for indications other than seizure disorders and vascular migraine headaches not associated with mood disorders.
Under the license agreement, we are committed to use commercially reasonable efforts to develop and commercialize at least one
licensed product.
Competition
The pharmaceutical industry is highly competitive and subject to rapid and significant technological change. While we
believe that our development experience and scientific knowledge provide us with competitive advantages, we face competition
from both large and small pharmaceutical and biotechnology companies, specifically from companies that treat epilepsy and
neuropsychiatric disorders.
There are a variety of available therapies marketed for epilepsy and neuropsychiatric disorders. In many cases, these
products are administered in combination to enhance efficacy or to reduce side effects. Some of these drugs are branded and
subject to patent protection, some are in clinical development and not yet approved, and others are available on a generic basis.
Many of these approved drugs are well established therapies or products and are widely accepted by physicians, patients and
third-party payers. Insurers and other third-party payers may also encourage the use of generic products. More established
companies have a competitive advantage over us due to their greater size, cash flows and institutional experience. Compared to
us, many of our competitors have significantly greater financial, technical and human resources.
Our competitors may also develop drugs that are safer, more effective, more widely used and less costly than ours, and
may also be more successful than us in manufacturing and marketing their products. These appreciable advantages could render
ganaxolone obsolete or non-competitive before we can recover the expenses of ganaxolone’s development and
commercialization.
Mergers and acquisitions in the pharmaceutical and biotechnology industries may result in even more resources being
concentrated among a smaller number of our competitors. Smaller and other 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, management and commercial personnel, establishing clinical trial
sites and subject registration for clinical trials, as well as in acquiring technologies complementary to, or necessary for, our
programs.
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Competitive
Landscape
We primarily compete with pharmaceutical and biotechnology companies that are developing therapies or marketing
drugs to treat indications that we are targeting.
CDD
There are no drugs approved for the treatment of CDD. CDD patients are typically prescribed drugs approved for
epileptic seizures, which often fail to control seizures in this patient population. To our knowledge, there is one other company
currently conducting a Phase 2 clinical trial in CDD patients.
PPD
Approximately 500,000-750,000 mothers suffer from postpartum depression annually in the US. The majority of
women suffering from depression do not seek treatment. There are no approved treatments for PPD, however the most common
treatments are psychotherapy and prescription antidepressants. Many women who take antidepressants discontinue them prior to
and after parturition due to concern for the child. Sage Therapeutics is developing an intravenous formulation of allo and a new
orally-administered chemical entity for PPD.
SE
SE patients generally are treated with benzodiazepine as first-line treatment. When benzodiazepines are not effective,
several AEDs are used. When second-line AEDs are not effective, the patient is generally placed under IV anesthesia as a last
resort to attempt to stop the seizures and prevent further damage to the brain and death. Morbidity and mortality rates increase for
patients that progress to SRSE. To our knowledge, there are no other companies currently conducting clinical studies in SE
patients.
Manufacturing
Manufacturing of drugs and product candidates, including ganaxolone, must comply with FDA current good
manufacturing practice, or cGMP, regulations. Ganaxolone is a synthetic small molecule made through a series of organic
chemistry steps starting with commercially available organic chemical raw materials. We conduct manufacturing activities under
individual purchase orders with independent contract manufacturing organizations, or CMOs, to supply our clinical trials. We
have an internal quality program and have qualified and signed quality agreements with our major CMOs. We conduct periodic
quality audits of their facilities. We believe that our existing suppliers of ganaxolone’s active pharmaceutical ingredient and
finished product will be capable of providing sufficient quantities of each to meet our clinical trial supply needs. Other CMOs
may be used in the future for clinical supplies and, subject to approval, commercial manufacturing.
Ganaxolone Formulations
The therapeutic possibilities of ganaxolone have been understood for some time, however, because ganaxolone is a high-
dose water insoluble compound, developing a formulation that could provide consistent drug exposure and could be manufactured
at a commercially feasible cost had proven challenging. We believe our patented nanoparticulate formulation and novel
manufacturing process for ganaxolone can successfully address the cost of manufacturing and pharmacokinetic challenges that
previously encumbered the clinical and commercial feasibility of ganaxolone.
Ganaxolone is currently formulated as an IV, liquid suspension and as a capsule.
Commercial Operations
If we obtain FDA approval for ganaxolone, we intend to build a sales and marketing infrastructure to reach high
prescribing neurologist, critical care, epilepsy specialists and other target physician populations in the United States. We believe a
focused sales and marketing organization could be leveraged to market ganaxolone across multiple epilepsy, neurology or
psychiatry indications if we are able to obtain regulatory approval for those other indications. We may seek co-promotion partners
for our sales efforts to reach other United States physician groups, such as primary care physicians. We believe that there could
also be significant market opportunities for ganaxolone in epilepsy and other
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neurological and psychiatric conditions outside of the United States. In order to capitalize on such opportunities, we plan to seek
collaborations with pharmaceutical companies that have greater reach and resources by virtue of their size and experience in the
field.
Government Regulation
As a clinical stage biopharmaceutical company that operates in the United States, we are subject to extensive regulation
by the FDA, and other federal, state, and local regulatory agencies. The Federal Food, Drug, and Cosmetic Act, or the FDC Act,
and its implementing regulations set forth, among other things, requirements for the research, testing, development, manufacture,
quality control, safety, effectiveness, approval, packaging, labeling, storage, record keeping, reporting, distribution, import,
export, advertising and promotion of our products. Although the discussion below focuses on regulation in the United States, we
anticipate seeking approval for, and marketing of, our product candidates in other countries. Generally, our activities in other
countries will be subject to regulation that is similar in nature and scope as that imposed in the United States, although there can
be important differences. Additionally, some significant aspects of regulation in Europe are addressed in a centralized way
through the EMA, but country-specific regulation also remains in many essential respects. The process of obtaining regulatory
marketing approvals and the subsequent compliance with appropriate federal, state, local and foreign statutes and regulations will
require the expenditure of substantial time and financial resources and may not be successful.
United States Government Regulation
The FDA is the main regulatory body that controls pharmaceuticals in the United States, and its regulatory authority is
based in the FDC Act. Pharmaceutical products are also subject to other federal, state and local statutes. A failure to comply
explicitly with any requirements during the product development, approval, or post-approval periods, may lead to administrative
or judicial sanctions. These sanctions could include the imposition by the FDA or an institutional review board, or IRB, of a hold
on clinical trials, refusal to approve pending marketing applications or supplements, withdrawal of approval, warning letters,
product recalls, product seizures, total or partial suspension of production or distribution, injunctions, fines, civil penalties or
criminal prosecution.
The steps required before a new drug may be marketed in the United States generally include:
·
completion of non-clinical, or preclinical, studies, animal studies and formulation studies in compliance with the
FDA’s good laboratory practice, or GLP, regulations;
·
submission to the FDA of an IND to support human clinical testing;
·
approval by an IRB at each clinical site before each trial may be initiated;
·
performance of adequate and well-controlled clinical trials in accordance with federal regulations, including
requirements for good clinical practices, or GCPs, to establish the safety and efficacy of the investigational product
candidate for each targeted indication;
·
submission of a new drug application, or NDA, to the FDA;
·
satisfactory completion of an FDA Advisory Committee review, if applicable;
·
satisfactory completion of an FDA inspection of clinical trial sites to ensure compliance with GCPs;
·
satisfactory completion of an FDA inspection of the manufacturing facilities at which the investigational product
candidate is produced to assess compliance with cGMP, and to assure that the facilities, methods and controls are
adequate; and
·
FDA review and approval of the NDA.
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Clinical Trials
An IND is a request for authorization from the FDA to administer an investigational product candidate to humans. This
authorization is required before interstate shipping and administration of any new drug product to humans that is not the subject
of an approved NDA. A 30-day waiting period after the submission of each IND is required prior to the commencement of
clinical testing in humans. If the FDA has neither commented on nor questioned the IND within this 30-day period, the clinical
trial proposed in the IND may begin. The FDA may submit questions after the 30-day period and after the trial was allowed to
begin. Clinical trials involve the administration of the investigational product candidate to subjects under the supervision of
qualified investigators following GCPs, requirements meant to protect the rights and health of subjects and to define the roles of
clinical trial sponsors, administrators and monitors. Clinical trials are conducted under protocols that detail the subject inclusion
and exclusion criteria, the dosing regimen, the parameters to be used in monitoring safety, and the efficacy criteria to be
evaluated. Each protocol involving testing on United States subjects and subsequent protocol amendments must be submitted to
the FDA as part of the IND. The informed written consent of each participating subject is required. The clinical investigation of
an investigational product candidate is generally divided into three phases. Although the phases are usually conducted
sequentially, they may overlap or be combined. The three phases of an investigation are as follows:
·
Phase 1. Phase 1 includes the initial introduction of an investigational product candidate into humans. Phase 1
studies may be conducted in subjects with the target disease or condition or healthy volunteers. These studies are
designed to evaluate the safety, metabolism, pharmacokinetic properties, or PKs, and pharmacologic actions of the
investigational product candidate in humans, the side effects associated with increasing doses, and if possible, to
gain early evidence on effectiveness. During Phase 1 studies, sufficient information about the investigational
product candidate’s PKs and pharmacological effects may be obtained to permit the design of Phase 2 studies. The
total number of participants included in Phase 1 studies varies, but is generally in the range of 20 to 80.
·
Phase 2. Phase 2 includes the controlled clinical trials conducted to evaluate the effectiveness of the investigational
product candidate for a particular indication(s) in subjects with the disease or condition under study, to determine
dosage tolerance and optimal dosage, and to identify possible adverse side effects and safety risks associated with
the product candidate. Phase 2 studies are typically well-controlled, closely monitored, and conducted in a limited
subject population, usually involving no more than several hundred participants.
·
Phase 3. Phase 3 studies are controlled clinical trials conducted in an expanded subject population at
geographically dispersed clinical trial sites. They are performed after preliminary evidence suggesting effectiveness
of the investigational product candidate has been obtained, and are intended to further evaluate dosage, clinical
effectiveness and safety, to establish the overall benefit-risk relationship of the product candidate, and to provide an
adequate basis for drug approval. Phase 3 studies usually involve several hundred to several thousand participants.
In most cases, the FDA requires two adequate and well controlled Phase 3 studies to demonstrate the efficacy of the
drug. A single Phase 3 study with other confirmatory evidence may be sufficient in rare instances where the study is
a large multicenter trial demonstrating internal consistency and a statistically very persuasive finding of a clinically
meaningful effect on mortality, irreversible morbidity or prevention of a disease with a potentially serious outcome
and confirmation of the result in a second trial would be practically or ethically impossible.
The decision to terminate development of an investigational product candidate may be made by either a health authority
body, such as the FDA or IRB/ethics committees, or by a company for various reasons. The FDA may order the temporary, or
permanent, discontinuation of a clinical trial, which is referred to as a clinical hold, at any time, or impose other sanctions, if it
believes that the clinical trial either is not being conducted in accordance with FDA requirements or presents an unacceptable risk
to the clinical trial subjects. In some cases, clinical trials are overseen by an independent group of qualified experts organized by
the trial sponsor, or the clinical monitoring board or data safety monitoring board. This group provides authorization for whether
or not a trial may move forward at designated check points. These decisions are based on the limited access to data from the
ongoing trial. The suspension or termination of development can occur during any phase of clinical trials if it is determined that
the participants or subjects are being
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exposed to an unacceptable health risk. In addition, there are requirements for the registration of ongoing clinical trials of product
candidates on public registries and the disclosure of certain information pertaining to the trials as well as clinical trial results after
completion.
A sponsor may be able to request a special protocol assessment, or SPA, the purpose of which is to reach agreement with
the FDA on the Phase 3 study protocol design and analysis that will form the primary basis of an efficacy claim. A sponsor
meeting the regulatory criteria may make a specific request for an SPA and provide information regarding the design and size of
the proposed clinical trial. An SPA request must be made before the proposed trial begins, and all open issues must be resolved
before the trial begins. If a written agreement is reached, it will be documented and made part of the record. The agreement will
be binding on the FDA and may not be changed by the sponsor or the FDA after the trial begins except with the written
agreement of the sponsor and the FDA or if the FDA determines that a substantial scientific issue essential to determining the
safety or efficacy of the product candidate was identified after the testing began. An SPA is not binding if new circumstances
arise, and there is no guarantee that a study will ultimately be adequate to support an approval even if the study is subject to an
SPA.
Although the goal of an SPA is to reach concurrence on the adequacy of protocol elements intended to support a
statutory finding of safety and efficacy, an SPA agreement with FDA does not imply that FDA has reviewed or concurs with each
detail of the protocol. Absence of an FDA comment on a particular aspect of the trial does not necessarily indicate agreement on
that aspect if the sponsor did not specifically ask about it, especially if the context of a certain protocol element has not been
highlighted or explained.
Assuming successful completion of all required testing in accordance with all applicable regulatory requirements,
detailed investigational product candidate information is submitted to the FDA in the form of an NDA to request market approval
for the product in specified indications.
New
Drug
Applications
In order to obtain approval to market a drug in the United States, a marketing application must be submitted to the FDA
that provides data establishing the safety and effectiveness of the product candidate for the proposed indication. The application
includes all relevant data available from pertinent preclinical studies and clinical trials, including negative or ambiguous results as
well as positive findings, together with detailed information relating to the product’s chemistry, manufacturing, controls and
proposed labeling, among other things. Data can come from company-sponsored clinical trials intended to test the safety and
effectiveness of a product, or from a number of alternative sources, including studies initiated by investigators. To support
marketing approval, the data submitted must be sufficient in quality and quantity to establish the safety and effectiveness of the
investigational product candidate to the satisfaction of the FDA.
In most cases, the NDA must be accompanied by a substantial user fee; there may be some instances in which the user
fee is waived. The FDA will initially review the NDA for completeness before it accepts the NDA for filing. The FDA has
60 days from its receipt of an NDA to determine whether the application will be accepted for filing based on the agency’s
threshold determination that it is sufficiently complete to permit substantive review. After the NDA submission is accepted for
filing, the FDA begins an in-depth review. The FDA has agreed to certain performance goals in the review of NDAs. Applications
for standard review product candidates are reviewed within twelve months of FDA’s acceptance for filing. An accelerated six
month review can be given to applications that meet certain criteria. The FDA can extend this review by three months to consider
certain late-submitted information or information intended to clarify information already provided in the submission. The FDA
reviews the NDA to determine, among other things, whether the proposed product is safe and effective for its intended use, and
whether the product is being manufactured in accordance with cGMP. FDA Advisory Committee meetings are typically held for
New Chemical Entities (NCEs), novel indications, or for applications in which there is a specific safety/efficacy risk that the FDA
is looking for advice on. However, the FDA can decide to hold advisory committee meeting for any application. An advisory
committee meeting includes a panel of FDA members and clinicians and other experts who 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 an NDA, the FDA will inspect the facilities at which the product is manufactured. The FDA will not
approve the product unless it determines that the manufacturing processes and facilities are in compliance with cGMP
requirements and adequate to assure consistent production of the product within required specifications.
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Additionally, before approving an NDA, the FDA will typically inspect one or more clinical sites to assure compliance with GCP.
After the FDA evaluates the NDA and the manufacturing facilities, it issues either an approval letter or a complete response letter.
A complete response letter generally outlines the deficiencies in the submission and may require substantial additional testing or
information in order for the FDA to reconsider the application. If, or when, those deficiencies have been addressed to the FDA’s
satisfaction in a resubmission of the NDA, the FDA will issue an approval letter. The FDA has committed to reviewing such
resubmissions in two or six months depending on the type of information included. Notwithstanding the submission of any
requested additional information, the FDA ultimately may decide that the application does not satisfy the regulatory criteria for
approval.
An approval letter authorizes commercial marketing of the drug with specific prescribing information for specific
indications. As a condition of NDA approval, the FDA may require a risk evaluation and mitigation strategy, or REMS, to help
ensure that the benefits of the drug outweigh the potential risks. REMS can include medication guides, communication plans for
healthcare professionals, and elements to assure safe use, or ETASU. ETASU can include, but are not limited to, special training
or certification for prescribing or dispensing, dispensing only under certain circumstances, special monitoring, and the use of
patient registries. The requirement for a REMS can materially affect the potential market and profitability of the drug. Moreover,
product approval may require substantial post-approval testing and surveillance to monitor the drug’s safety or efficacy. Once
granted, product approvals may be withdrawn if compliance with regulatory requirements is not maintained or problems are
identified following initial marketing.
Changes to some of the conditions established in an approved application, including changes in indications, labeling, or
manufacturing processes or facilities, require submission and FDA approval of a new NDA or NDA supplement before the
change can be implemented. An NDA supplement for a new indication typically requires clinical data similar to that in the
original application, and the FDA uses the same procedures and actions in reviewing NDA supplements as it does in reviewing
NDAs.
Breakthrough
designation
In the United States, Breakthrough therapy designation allows the FDA to grant priority review to drug candidates if
preliminary clinical trials indicate that the therapy may offer substantial treatment advantages over existing options for patients
with serious or life-threatening diseases. Breakthrough designation provides increased communication with FDA during drug
development and review, FDA guidance to ensure that the design of clinical trials are as efficient as practicable, and cross-
disciplinary project lead assigned to the FDA review team and increased involvement of senior managers and experienced review
staff. Breakthrough designation can be requested with the IND or ideally any time prior to the end-of-phase 2 meeting.
Fast
Track
designation
Fast Track is a designation by the FDA of an investigational drug for expedited review to facilitate development of drugs which
treat a serious or life-threatening condition and fill an unmet medical need. The request can be initiated at any time during the
drug development process but prior to the pre-NDA/BLA meeting. Fast track designation provides more frequent meetings and
interactions with FDA to discuss the drug’s development plan and ensure collection of appropriate data needed to support drug
approval, potential for accelerated approval or priority review if the requisite criteria are met, and a rolling review of the
NDA/BLA.
Advertising
and
Promotion
The FDA and other federal regulatory agencies closely regulate the marketing and promotion of drugs through, among
other things, standards and regulations for direct-to-consumer advertising, communications regarding unapproved uses, industry-
sponsored scientific and educational activities, and promotional activities involving the Internet. A product cannot be
commercially promoted before it is approved. After approval, product promotion can include only those claims relating to safety
and effectiveness that are consistent with the labeling approved by the FDA. Healthcare providers are permitted to prescribe drugs
for “off-label” uses—that is, uses not approved by the FDA and therefore not described in the drug’s labeling—because the FDA
does not regulate the practice of medicine. However, FDA regulations impose stringent restrictions on manufacturers’
communications regarding off-label uses. Broadly speaking, a manufacturer may not promote a drug for off-label use, but may
engage in non-promotional, balanced communication regarding off-label
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use under specified conditions. Failure to comply with applicable FDA requirements and restrictions in this area may subject a
company to adverse publicity and enforcement action by the FDA, the United States Department of Justice, or DOJ, or the Office
of the Inspector General of the United States Department of Health and Human Services, or HHS, as well as state authorities. This
could subject a company to a range of penalties that could have a significant commercial impact, including civil and criminal
fines and agreements that materially restrict the manner in which a company promotes or distributes drug products.
Post-Approval
Regulations
After regulatory approval of a drug is obtained, a company is required to comply with a number of post-approval
requirements. For example, as a condition of approval of an NDA, the FDA may require post-marketing testing, including Phase 4
clinical trials, and surveillance to further assess and monitor the product’s safety and effectiveness after commercialization. In
addition, as a holder of an approved NDA, a company would be required to report adverse reactions and production problems to
the FDA, to provide updated safety and efficacy information, and to comply with requirements concerning advertising and
promotional labeling for any of its products. Also, quality control and manufacturing procedures must continue to conform to
cGMP after approval to assure and preserve the long term stability of the drug product. The FDA periodically inspects
manufacturing facilities to assess compliance with cGMP, which imposes extensive procedural and substantive record keeping
requirements. In addition, changes to the manufacturing process are strictly regulated, and, depending on the significance of the
change, may require prior FDA approval before being implemented. FDA regulations also require investigation and correction of
any deviations from cGMP and impose documentation requirements upon a company and any third-party manufacturers that a
company may decide to use. Accordingly, manufacturers must continue to expend time, money and effort in the area of
production and quality control to maintain compliance with cGMP and other aspects of regulatory compliance.
We rely, and expect to continue to rely, on third parties for the production of clinical and commercial quantities of
ganaxolone. Future FDA and state inspections may identify compliance issues at our facilities or at the facilities of our contract
manufacturers that may disrupt production or distribution, or require substantial resources to correct. In addition, discovery of
previously unknown problems with a product or the failure to comply with applicable requirements may result in restrictions on a
product, manufacturer or holder of an approved NDA, including withdrawal or recall of the product from the market or other
voluntary, FDA-initiated or judicial action that could delay or prohibit further marketing.
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 also 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.
The Hatch-Waxman Amendments to the FDC Act
Orange
Book
Listing
In seeking approval for a drug through an NDA, applicants are required to list with the FDA each patent whose claims
cover the applicant’s product or a method of using the product. Upon approval of a drug, each of the patents listed in the
application for the drug is then published in the FDA’s Approved Drug Products with Therapeutic Equivalence Evaluations,
commonly known as the Orange Book. Drugs listed in the Orange Book can, in turn, be cited by potential generic competitors in
support of approval of an abbreviated new drug application, or ANDA, or 505(b)(2) application. An ANDA provides for
marketing of a drug product that has the same active ingredients, generally in the same strengths and dosage form, as the listed
drug and has been shown through PK testing to be bioequivalent to the listed drug. Other than the requirement for bioequivalence
testing, ANDA applicants are generally not required to conduct, or submit results of, preclinical studies or clinical tests to prove
the safety or effectiveness of their drug product. 505(b)(2) applications provide for marketing of a drug product that may have the
same active ingredients as the listed drug and contains full safety and effectiveness data as an NDA, but at least some of this
information comes from studies
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not conducted by or for the applicant. Drugs approved in this way are commonly referred to as “generic equivalents” to the listed
drug, and can often be substituted by pharmacists under prescriptions written for the original listed drug.
The ANDA or 505(b)(2) applicant is required to certify to the FDA concerning any patents listed for the approved
product in the FDA’s Orange Book. Specifically, the applicant must certify that: (i) the required patent information has not been
filed; (ii) the listed patent has expired; (iii) the listed patent has not expired, but will expire on a particular date and approval is
sought after patent expiration; or (iv) the listed patent is invalid or will not be infringed by the new product. The ANDA or 505(b)
(2) applicant may also elect to submit a statement certifying that its proposed ANDA label does not contain (or carves out) any
language regarding a patented method of use rather than certify to such listed method of use patent. If the applicant does not
challenge the listed patents by filing a certification that the listed patent is invalid or will not be infringed by the new product, the
ANDA or 505(b)(2) application will not be approved until all the listed patents claiming the referenced product have expired.
A certification that the new product will not infringe the already approved product’s listed patents, or that such patents
are invalid, is called a Paragraph IV certification. If the ANDA or 505(b)(2) applicant has provided a Paragraph IV certification to
the FDA, the applicant must also send notice of the Paragraph IV certification to the NDA and patent holders once the ANDA or
505(b)(2) application has been accepted for filing by the FDA. The NDA and patent holders may then initiate a patent
infringement lawsuit in response to the notice of the Paragraph IV certification. The filing of a patent infringement lawsuit within
45 days of the receipt of a Paragraph IV certification automatically prevents the FDA from approving the ANDA or 505(b)
(2) application until the earliest of 30 months, expiration of the patent, settlement of the lawsuit, and a decision in the
infringement case that is favorable to the ANDA or 505(b)(2) applicant.
The ANDA or 505(b)(2) application also will not be approved until any applicable non-patent exclusivity listed in the
Orange Book for the referenced product has expired.
Marketing
Exclusivity
Upon NDA approval of a new chemical entity, which is a drug that contains no active moiety that has been approved by
the FDA in any other NDA, that drug receives five years of marketing exclusivity during which the FDA cannot approve any
ANDA seeking approval of a generic version of that drug. Certain changes to a drug, such as the addition of a new indication to
the package insert, are associated with a three-year period of exclusivity during which the FDA cannot approve an ANDA for a
generic drug that includes the change.
An ANDA may be submitted one year before marketing exclusivity expires if a Paragraph IV certification is filed. In
this case, the 30 months stay, if applicable, runs from the end of the five years marketing exclusivity period. If there is no listed
patent in the Orange Book, there may not be a Paragraph IV certification, and, thus, no ANDA may be filed before the expiration
of the exclusivity period.
Patent
Term
Extension
After NDA approval, owners of relevant drug patents may apply for up to a five year patent extension. The allowable
patent term extension is calculated as half of the drug’s testing phase—the time between an effective IND and NDA submission
—and all of the review phase—the time between NDA submission and approval up to a maximum of five years. The time can be
shortened if the FDA determines that the applicant did not pursue approval with due diligence. The total patent term after the
extension may not exceed 14 years.
Many other countries also provide for patent term extensions or similar extensions of patent protection for
pharmaceutical products. For example, in Japan, it may be possible to extend the patent term for up to five years and in Europe, it
may be possible to obtain a supplementary patent certificate that would effectively extend patent protection for up to five years.
The
Foreign
Corrupt
Practices
Act
The Foreign Corrupt Practices Act, or FCPA, prohibits any United States individual or business from paying,
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offering, or authorizing payment or offering of anything of value, directly or indirectly, to any foreign official, political party or
candidate for the purpose of influencing any act or decision of the foreign entity in order to assist the individual or business in
obtaining or retaining business. The FCPA also obligates companies whose securities are listed in the United States to comply
with accounting provisions requiring such companies 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.
European
and
Other
International
Government
Regulation
In addition to regulations in the United States, we will be subject to a variety of regulations in other jurisdictions
governing, among other things, clinical trials and any commercial sales and distribution of our products. Whether or not we obtain
FDA approval for a product, we must obtain the requisite approvals from regulatory authorities in foreign countries prior to the
commencement of clinical trials or marketing of the product in those countries. Some countries outside of the United States have
a similar process that requires the submission of a request for a clinical trial authorization, or CTA, much like the IND prior to the
commencement of human clinical trials. In Europe, for example, a request for a CTA must be submitted to each country’s
national health authority and an independent ethics committee, much like the FDA and IRB, respectively. Once the CTA request
is approved in accordance with a country’s requirements, clinical trial development may proceed.
To obtain regulatory approval to commercialize a new drug under European Union (EU) regulatory systems, we must
submit a marketing authorization application, or MAA. The MAA is similar to the NDA, with the exception of, among other
things, country-specific document requirements.
For other countries outside of the European Union, such as countries in Eastern Europe, Russia, Latin America or Asia,
the requirements governing the conduct of clinical trials, product licensing, pricing and reimbursement vary from country to
country. Internationally, clinical trials are generally required to be conducted in accordance with GCP, applicable regulatory
requirements of each jurisdiction and the medical ethics principles that have their origin in the Declaration of Helsinki.
Small Medium Enterprise (SME) designation
In the EU, small medium enterprise designation (SME) can be granted to non-subsidiary, independent firms which
employ fewer than 250 employees to promote innovation and the development of new medicinal products by smaller companies.
The criteria for designation is dependent on staff headcount, either turnover or balance sheet total and the ownership structure,
including any partnership or linkage. Benefits of SME designation include direct assistance on regulatory aspects of the
pharmaceutical legislation, help navigating the array of services available, fee exemptions and reductions for pre- and post-
authorization regulatory procedures, assistance with translations of product information into all official EU languages, guidance
on clinical data publication and a free redaction tool license, liaison with academic investigators in pediatric-medicine research
through the European Network of Pediatric Research at the European Medicines Agency and workshops and training sessions. In
October 2017, we received SME designation in the EU.
Compliance
During all phases of development (pre- and post-marketing), failure to comply with applicable regulatory requirements
may result in administrative or judicial sanctions. These sanctions could include the FDA’s imposition of a clinical hold on trials,
refusal to approve pending applications, withdrawal of an approval, warning letters, product recalls, product seizures, total or
partial suspension of production or distribution, product detention or refusal to permit the import or export of products,
injunctions, fines, civil penalties or criminal prosecution. Any agency or judicial enforcement action could have a material
adverse effect on us.
Other
Special
Regulatory
Procedures
Orphan Drug Designation
The FDA may grant Orphan Drug Designation to drugs intended to treat a rare disease or condition that affects fewer
than 200,000 individuals in the United States, or, if the disease or condition affects more than 200,000 individuals
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in the United States, there is no reasonable expectation that the cost of developing and making the drug would be recovered from
sales in the United States. In the European Union, the EMA’s Committee for Orphan Medicinal Products grants Orphan Drug
Designation to promote the development of products that are intended for the diagnosis, prevention or treatment of life-
threatening or chronically debilitating conditions affecting not more than five in 10,000 persons in the European Union
community. Additionally, designation is granted for products intended for the diagnosis, prevention or treatment of a life-
threatening, seriously debilitating or serious and chronic condition and when, without incentives, it is unlikely that sales of the
drug in the European Union would be sufficient to justify the necessary investment in developing the drug.
In the United States, Orphan Drug Designation entitles a party to financial incentives, such as opportunities for grant
funding towards clinical trial costs, tax credits for certain research and user fee waivers under certain circumstances. In addition,
if a product receives the first FDA approval for the indication for which it has orphan designation, the product is entitled to seven
years of market exclusivity, which means the FDA may not approve any other application for the same drug for the same
indication for a period of seven years, except in limited circumstances, such as a showing of clinical superiority over the product
with orphan exclusivity. Orphan drug exclusivity does not prevent the FDA from approving a different drug for the same disease
or condition, or the same drug for a different disease or condition.
In the European Union, Orphan Drug Designation also entitles a party to financial incentives such as reduction of fees or
fee waivers, protocol assistance, a type of scientific advice specific for designated orphan medicine and ten years of market
exclusivity is granted following drug approval. This period may be reduced to six years if the Orphan Drug Designation criteria
are no longer met, including where it is shown that the product is sufficiently profitable not to justify maintenance of market
exclusivity.
Orphan drug designation must be requested before submission of an application for marketing approval. Orphan drug
designation does not convey any advantage in, or shorten the duration of the regulatory review and approval process.
Priority Review (United States) and Accelerated Review (European Union)
Based on results of the Phase 3 study(ies) submitted in an NDA, upon the request of an applicant, a priority review
designation may be granted to a product by the FDA, which sets the target date for FDA action on the application at six months
from FDA filing. Priority review is given where preliminary estimates indicate that a product, if approved, has the potential to
provide a safe and effective therapy where no satisfactory alternative therapy exists, or a significant improvement compared to
marketed products is possible. If criteria are not met for priority review, the standard FDA review period is ten months from FDA
filing. Priority review designation does not change the scientific/medical standard for approval or the quality of evidence
necessary to support approval.
Under the Centralized Procedure in the European Union, the maximum timeframe for the evaluation of a MAA is
210 days (excluding “clock stops,” when additional written or oral information is to be provided by the applicant in response to
questions asked by the Committee for Medicinal Products for Human Use, or CHMP). Accelerated evaluation might be granted
by the CHMP in exceptional cases, when a medicinal product is expected to be of a major public health interest, defined by three
cumulative criteria: the seriousness of the disease (e.g., heavy disabling or life-threatening diseases) to be treated; the absence or
insufficiency of an appropriate alternative therapeutic approach; and anticipation of high therapeutic benefit. In this circumstance,
EMA ensures that the opinion of the CHMP is given within 150 days.
Healthcare Reform
In March 2010, President Obama signed one of the most significant healthcare reform measures in decades. The Patient
Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, or Affordable Care Act,
substantially changes the way healthcare will be financed by both governmental and private insurers, and significantly impacts the
pharmaceutical industry. The Affordable Care Act will impact existing government healthcare programs and will result in the
development of new programs. For example, the Affordable Care Act provides for Medicare payment for performance initiatives
and improvements to the physician quality reporting system and feedback program.
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Among the Affordable Care Act’s provisions of importance to the pharmaceutical industry are the following:
·
an annual, nondeductible fee on any covered entity engaged in manufacturing or importing certain branded
prescription drugs and biological products, apportioned among such entities in accordance with their respective
market share in certain government healthcare programs;
·
an increase in the statutory minimum rebates a manufacturer must pay under the Medicaid Drug Rebate Program,
retroactive to January 1, 2010, to 23.0% and 13.0% of the average manufacturer price, or AMP, for most branded
and generic drugs, respectively;
·
expansion of healthcare fraud and abuse laws, including the False Claims Act and the Anti-Kickback Statute, new
government investigative powers, and enhanced penalties for noncompliance;
·
a new partial prescription drug benefit for Medicare recipients, or Medicare Part D, coverage gap discount program,
in which manufacturers must agree to offer 50.0% point-of-sale discounts off negotiated prices of applicable brand
drugs to eligible beneficiaries during their coverage gap period, as a condition for the manufacturers’ outpatient
drugs to be covered under Medicare Part D;
·
extension of manufacturers’ Medicaid rebate liability to covered drugs dispensed to individuals who are enrolled in
Medicaid managed care organizations;
·
expansion of eligibility criteria for Medicaid programs by, among other things, allowing states to offer Medicaid
coverage to additional individuals beginning in 2014 and by adding new mandatory eligibility categories for
individuals with income at or below 133.0% of the Federal Poverty Level, thereby potentially increasing
manufacturers’ Medicaid rebate liability;
·
expansion of the entities eligible for discounts under the Public Health Service pharmaceutical pricing program;
·
new requirements to report annually specified financial arrangements with physicians and teaching hospitals, as
defined in the Affordable Care Act and its implementing regulations, including reporting any “payments or transfers
of value” made or distributed to physicians and teaching hospitals,and reporting any ownership and investment
interests held by physicians and their immediate family members and applicable group purchasing organizations
during the preceding calendar year, with data collection to be required beginning August 1, 2013 and reporting to
the Centers for Medicare and Medicaid Services, or CMS, to be required by March 31, 2014 and by the 90th day of
each subsequent calendar year;
·
a new requirement to annually report drug samples that manufacturers and distributors provide to physicians;
·
a new Patient-Centered Outcomes Research Institute to oversee, identify priorities in, and conduct comparative
clinical effectiveness research, along with funding for such research; and
·
a mandatory nondeductible payment for employers with 50 or more full-time employees (or equivalents) who fail to
provide certain minimum health insurance coverage for such employees and their dependents, beginning in 2015
(pursuant to relief enacted by the Treasury Department).
The Affordable Care Act also establishes an Independent Payment Advisory Board, or IPAB, to reduce the per capita
rate of growth in Medicare spending. Beginning in 2014, IPAB is mandated to propose changes in Medicare payments if it
determines that the rate of growth of Medicare expenditures exceeds target growth rates. The IPAB has broad discretion to
propose policies to reduce expenditures, which may have a negative impact on payment rates for pharmaceutical products. A
proposal made by the IPAB is required to be implemented by CMS unless Congress adopts a proposal with savings greater than
those proposed by the IPAB. IPAB proposals may impact payments for physician and free-standing services beginning in 2015
and for hospital services beginning in 2020.
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In addition, other legislative changes have been proposed and adopted since the Affordable Care Act was enacted. In
August 2011, President Obama signed into law the Budget Control Act of 2011, which, among other things, created the Joint
Select Committee on Deficit Reduction to recommend proposals in spending reductions to Congress. The Joint Select Committee
did not achieve its targeted deficit reduction of an amount greater than $1.2 trillion for the years 2013 through 2021, triggering the
legislation’s automatic reductions to several government programs. These reductions include aggregate reductions to Medicare
payments to healthcare providers of up to 2.0% per fiscal year, starting in 2013. In January 2013, President Obama signed into
law the American Taxpayer Relief Act of 2012, which, among other things, reduced Medicare payments to several categories of
healthcare providers and increased the statute of limitations period for the government to recover overpayments to providers from
three to five years. These new laws may result in additional reductions in Medicare and other healthcare funding, which could
have a material adverse effect on our customers and accordingly, our financial operations.
We anticipate that the Affordable Care Act will result in additional downward pressure on coverage and the price that
we receive for any approved product, and could seriously harm our business. Any reduction in reimbursement from Medicare and
other government programs may result in a similar reduction in payments from private payers. 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. In addition, it is possible that there will be further legislation or regulation that could harm our
business, financial condition and results of operations.
Coverage and Reimbursement
Significant uncertainty exists as to the coverage and reimbursement status of any drug products for which we obtain
regulatory approval. In the United States and markets in other countries, sales of any products for which we receive regulatory
approval for commercial sale will depend in part on the availability of reimbursement from third-party payers. Third-party payers
include government health administrative authorities, managed care providers, private health insurers and other organizations.
The process for determining whether a payer will provide coverage for a drug product may be separate from the process for
setting the price or reimbursement rate that the payer will pay for the drug product. Third-party payers may limit coverage to
specific drug products on an approved list, or formulary, which might not include all of the FDA-approved drugs for a particular
indication. Third-party payers 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. 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. Ganaxolone may not be considered by payers to be medically necessary or cost-effective for particular
diseases or conditions. A payer’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 enable us to maintain price levels sufficient to
realize an appropriate return on our investment in product development.
In 2003, the United States Congress enacted legislation providing Medicare Part D, which became effective at the
beginning of 2006. Government payment for some of the costs of prescription drugs may increase demand for any products for
which we receive marketing approval. However, to obtain payments under this program, we would be required to sell products to
Medicare recipients through prescription drug plans operating pursuant to this legislation. These plans will likely negotiate
discounted prices for our products. Federal, state and local governments in the United States continue to consider legislation to
limit the growth of healthcare costs, including the cost of prescription drugs. Future legislation could limit payments for
pharmaceuticals such as the product candidates that we are developing.
Different pricing and reimbursement schemes exist in other countries. In the European Union, governments influence the
price of pharmaceutical products through their pricing and reimbursement rules and control of national healthcare systems that
fund a large part of the cost of those products to consumers. Some jurisdictions operate positive and negative list systems under
which products may only be marketed once a reimbursement price has been agreed upon. To obtain reimbursement or pricing
approval, some of these countries may require the completion of clinical trials that compare the cost-effectiveness of a particular
product candidate to currently available therapies. Other member states allow companies to fix their own prices for medicines, but
monitor and control company profits. The downward pressure on healthcare costs in general, particularly prescription drugs, has
become more intense. As a result, increasingly high barriers are being erected to the entry of new products. The European Union
provides options for its member states to
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restrict the range of medicinal products for which their national health insurance systems provide reimbursement and to control
the prices of medicinal products for human use. A member state may approve a specific price for the medicinal product or it may
instead adopt a system of direct or indirect controls on the profitability of the company placing the medicinal product on the
market. We may face competition for ganaxolone from lower-priced products in foreign countries that have placed price controls
on pharmaceutical products. In addition, in some countries, cross-border imports from low-priced markets exert a commercial
pressure on pricing within a country.
The marketability of any products for which we receive regulatory approval for commercial sale may suffer if the
government and third-party payers fail to provide adequate coverage and reimbursement. In addition, an increasing emphasis on
managed care in the United States has increased and will continue to increase the pressure on pharmaceutical pricing. Coverage
policies and third-party reimbursement rates may change at any time.
Even if favorable coverage and reimbursement status is attained for one or more products for which we receive
regulatory approval, less favorable coverage policies and reimbursement rates may be implemented in the future.
Other Healthcare Laws and Compliance Requirements
The federal Anti-Kickback Statute prohibits, among other things, knowingly and willfully offering, paying, soliciting or
receiving remuneration to induce or in return for purchasing, leasing, ordering or arranging for the purchase, lease or order of any
healthcare item or service reimbursable under Medicare, Medicaid or other federally financed healthcare programs. This statute
has been interpreted to apply to arrangements between pharmaceutical manufacturers on one hand and prescribers, purchasers,
and formulary managers on the other. Although there are a number of statutory exemptions and regulatory safe harbors protecting
some business arrangements from prosecution, the exemptions and safe harbors are drawn narrowly and practices that involve
remuneration intended to induce prescribing, purchasing or recommending may be subject to scrutiny if they do not qualify for an
exemption or safe harbor. Our practices may not in all cases meet all of the criteria for safe harbor protection from federal Anti-
Kickback Statute liability. The reach of the Anti-Kickback Statute was broadened by the Affordable Care Act, which, among
other things, amends the intent requirement of the federal Anti-Kickback Statute. Pursuant to the statutory amendment, a person
or entity no longer needs to have actual knowledge of this statute or specific intent to violate it in order to have committed a
violation. In addition, the Affordable Care Act provides that the government may assert that a claim including items or services
resulting from a violation of the federal Anti-Kickback Statute constitutes a false or fraudulent claim for purposes of the civil
False Claims Act (discussed below) or the civil monetary penalties statute, which imposes penalties against any person who is
determined to have presented or caused to be presented a claim to a federal health 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.
The federal False Claims Act prohibits any person from knowingly presenting, or causing to be presented, a false claim
for payment to the federal government or knowingly making, using, or causing to be made or used a false record or statement
material to a false or fraudulent claim to the federal government. As a result of a modification made by the Fraud Enforcement
and Recovery Act of 2009, a claim includes “any request or demand” for money or property presented to the United States
government. Recently, several pharmaceutical and other healthcare companies have been prosecuted under these laws for
allegedly providing free product to customers with the expectation that the customers would bill federal programs for the product.
Other companies have been prosecuted for causing false claims to be submitted because of the companies’ marketing of the
product for unapproved, and thus non-reimbursable, uses. The Health Insurance Portability and Accountability Act of 1996, or
HIPAA, created new federal criminal statutes that prohibit knowingly and willfully executing a scheme to defraud any healthcare
benefit program, including private third-party payers and knowingly and willfully falsifying, concealing or covering up a material
fact or making any materially false, fictitious or fraudulent statement in connection with the delivery of or payment for healthcare
benefits, items or services. Also, many states have similar fraud and abuse statutes or regulations that apply to items and services
reimbursed under Medicaid and other state programs, or, in several states, apply regardless of the payer.
In addition, we may 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 for Economic and Clinical Health
Act, or HITECH, and its implementing regulations, imposes requirements relating to the privacy, security and transmission of
individually identifiable health information. Among other things, HITECH makes HIPAA’s privacy and security standards
directly applicable to “business associates”—independent contractors or agents of covered
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entities that receive or obtain protected health information in connection with providing a service on behalf of a covered entity.
HITECH also increased the civil and criminal penalties that may be imposed against covered entities, business associates and
possibly other persons, and gave state attorneys general new authority to file civil actions for damages or injunctions in federal
courts to enforce the federal HIPAA laws and seek attorney’s fees and costs associated with pursuing federal civil actions. In
addition, state laws govern the privacy and security of health information in specified circumstances, many of which differ from
each other in significant ways and may not have the same effect, thus complicating compliance efforts.
In the United States our activities are potentially subject to additional regulation by various federal, state and local
authorities in addition to the FDA, including CMS, other divisions of HHS (for example, the Office of Inspector General), the
DOJ and individual United States Attorney offices within the DOJ, and state and local governments. If a drug product is
reimbursed by Medicare or Medicaid, pricing and rebate programs must comply with, as applicable, The Medicare Prescription
Drug, Improvement, and Modernization Act of 2003, or Medicare Modernization Act, as well as the Medicaid rebate
requirements of the Omnibus Budget Reconciliation Act of 1990, or the OBRA, and the Veterans Health Care Act of 1992, or the
VHCA, each as amended. Among other things, the OBRA requires drug manufacturers to pay rebates on prescription drugs to
state Medicaid programs and empowers states to negotiate rebates on pharmaceutical prices, which may result in prices for our
future products that will likely be lower than the prices we might otherwise obtain. If products are made available to authorized
users of the Federal Supply Schedule of the General Services Administration, additional laws and requirements apply. Under the
VHCA, drug companies are required to offer some drugs at a reduced price to a number of federal agencies including the United
States Department of Veterans Affairs and the DoD, the Public Health Service and some private Public Health Service designated
entities in order to participate in other federal funding programs including Medicaid. Recent legislative changes require that
discounted prices be offered for specified DoD purchases for its TRICARE program via a rebate system. Participation under the
VHCA requires submission of pricing data and calculation of discounts and rebates pursuant to complex statutory formulas, as
well as the entry into government procurement contracts governed by the Federal Acquisition Regulation.
Because of the breadth of these laws and the narrowness of available statutory and regulatory exemptions, it is possible
that some of our business activities could be subject to challenge under one or more of such laws. If our operations are found to
be in violation of any of the federal and state laws described above or any other governmental regulations that apply to us, we
may be subject to penalties, including criminal and significant civil monetary penalties, damages, fines, imprisonment, exclusion
from participation in government programs, injunctions, recall or seizure of products, total or partial suspension of production,
denial or withdrawal of pre-marketing product approvals, private “qui tam” actions brought by individual whistleblowers in the
name of the government or refusal to allow us to enter into supply contracts, including government contracts, and the curtailment
or restructuring of our operations, any of which could adversely affect our ability to operate our business and our results of
operations. 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.
In order to distribute products commercially, we must comply with state laws that require the registration of
manufacturers and wholesale distributors of pharmaceutical products in a state, including, in some states, manufacturers and
distributors who ship products into the state even if such manufacturers or distributors have no place of business within the state.
Some states also impose requirements on manufacturers and distributors to establish the pedigree of product in the chain of
distribution, including some states that require manufacturers and others to adopt new technology capable of tracking and tracing
product as it moves through the distribution chain. In addition, in November 2013, the Drug Quality and Security Act became law
and establishes requirements to facilitate the tracing of prescription drug products through the pharmaceutical supply distribution
chain. This law includes a number of new requirements that will be implemented over time and will require us to devote
additional resources to satisfy these requirements. Several states have enacted legislation requiring pharmaceutical companies to,
among other things, establish marketing compliance programs, file periodic reports with the state, make periodic public
disclosures on sales, marketing, pricing, clinical trials and other activities, and/or register their sales representatives, as well as to
prohibit pharmacies and other healthcare entities from providing specified physician prescribing data to pharmaceutical
companies for use in sales and marketing, and to prohibit other specified sales and marketing practices. All of our activities are
potentially subject to federal and state consumer protection and unfair competition laws.
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Research and Development
Conducting research and development is central to our business model. We have invested and expect to continue to
invest significant time and capital in our research and development operations. Our research and development expenses were
$12.4 million, $22.0 million and $18.9 million in 2017, 2016 and 2015, respectively.
Employees
As of December 31, 2017, we had 15 full-time employees and one part time employee. In addition to our employees, we
contract with third-parties for the conduct of certain clinical development, manufacturing, accounting and administrative
activities. We anticipate increasing the number of our employees. We have no collective bargaining agreements with our
employees and none are represented by labor unions.
Corporate Information
We were incorporated in Delaware in August 2003. Our principal executive offices are located at 170 N Radnor Chester
Rd, Suite 250, Radnor, Pennsylvania 19087 and our telephone number is (484) 801-4670. Our website address is
www.marinuspharma.com . The inclusion of our website address is, in each case, intended to be an inactive textual reference only
and not an active hyperlink to our website. The information contained in, or that can be accessed through, our website is not part
of this Annual Report on Form 10-K.
Item 1A. Risk Factors.
We
have
incurred
significant
losses
since
our
inception
and
anticipate
that
we
will
continue
to
incur
losses
in
the
future.
We commenced operations in 2003 and our operations to date have been limited to conducting product development
activities for ganaxolone and performing research and development with respect to our clinical and preclinical programs. In
addition, as a clinical stage biopharmaceutical company, we have not yet demonstrated an ability to successfully overcome many
of the risks and uncertainties frequently encountered by companies in new and rapidly evolving fields, particularly in the
biopharmaceutical area. Nor have we demonstrated an ability to obtain regulatory approval to commercialize any of our product
candidates. Consequently, any predictions about our future performance may not be as accurate as they would be if we had a
history of successfully developing and commercializing biopharmaceutical products.
We have incurred significant operating losses since our inception, including a net loss of $18.9 million for the year
ended December 31, 2017. As of December 31, 2017, we had an accumulated deficit of $144.7 million. Our prior losses,
combined with expected future losses, have had and will continue to have an adverse effect on our stockholders’ equity and
working capital. Our losses have resulted principally from costs incurred in our research and development activities. We
anticipate that our operating losses will substantially increase over the next several years as we execute our plan to expand our
research, development and commercialization activities, including the clinical development and planned commercialization of our
product candidate, ganaxolone. In addition, if we obtain regulatory approval of ganaxolone, we may incur significant sales and
marketing expenses. Because of the numerous risks and uncertainties associated with developing biopharmaceutical products, we
are unable to predict the extent of any future losses or whether or when we will become profitable, if ever.
We
have
not
generated
any
revenue
to
date
from
product
sales.
We
may
never
achieve
or
sustain
profitability,
which
could
depress
the
market
price
of
our
common
stock,
and
could
cause
you
to
lose
all
or
a
part
of
your
investment.
To date, we have no products approved for commercial sale and have not generated any revenue from sales of any of our
product candidates, and we do not know when, or if, we will generate revenues in the future. Our ability to generate revenue from
product sales and achieve profitability will depend upon our ability to successfully gain regulatory approval and commercialize
ganaxolone or other product candidates that we may develop, in-license or acquire in the future. Even if we obtain regulatory
approval for ganaxolone, we do not know when we will generate revenue from
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product sales, if at all. Our ability to generate revenue from product sales from ganaxolone or any other future product candidates
also depends on a number of additional factors, including our ability to:
·
successfully complete development activities, including enrollment of study participants, completion of the
necessary clinical trials and attainment of clinical trial results that will support regulatory approvals;
·
complete and submit NDAs to the FDA and obtain regulatory approval for indications for which there is a
commercial market;
·
complete and submit applications to, and obtain regulatory approval from, foreign regulatory authorities;
·
make or have made commercial quantities of our products at acceptable cost levels;
·
develop a commercial organization capable of manufacturing, selling, marketing and distributing any products we
intend to sell ourselves in the markets in which we choose to commercialize on our own;
·
find suitable partners to help us market, sell and distribute our approved products in other markets; and
·
obtain adequate pricing, coverage and reimbursement from third parties, including government and private payers.
In addition, because of the numerous risks and uncertainties associated with product development, including that
ganaxolone may not advance through development or achieve the endpoints of applicable clinical trials, we are unable to predict
the timing or amount of increased expenses, or if or when we will be able to achieve or maintain profitability. Even if we are able
to complete the development and regulatory process for ganaxolone, we anticipate incurring significant costs associated with
commercializing ganaxolone.
Even if we are able to generate revenue from the sale of ganaxolone or any future commercial products, we may not
become profitable and will need to obtain additional funding to continue operations. If we fail to become profitable or are unable
to sustain profitability on a continuing basis, and we are not successful in obtaining additional funding, then we may be unable to
continue our operations at planned levels, or at all, which would likely materially and adversely affect the market price of our
common stock.
We
will
require
additional
capital
to
fund
our
operations
and
if
we
fail
to
obtain
necessary
financing,
we
may
be
unable
to
complete
the
development
and
commercialization
of
ganaxolone.
Our operations have consumed substantial amounts of cash since inception. We expect to continue to spend substantial
amounts to advance the clinical and regulatory development of ganaxolone, if approved, and commercialize ganaxolone. We will
require additional capital for the further development and potential commercialization of ganaxolone and may also need to raise
additional funds sooner should we choose to accelerate development of ganaxolone. If we are unable to raise capital when needed
or on attractive terms, we could be forced to delay, reduce or eliminate our research and development programs or any future
commercialization efforts.
We believe that our cash, cash equivalents and investments as of December 31, 2017, will enable us to fund our
operating expenses and capital expenditure requirements into 2020. We have based this estimate on assumptions that may prove
to be wrong, and we could exhaust our available capital resources sooner than we currently expect. Our future funding
requirements, both near and long-term, will depend on many factors, including, but not limited to the:
·
initiation, progress, timing, costs and results of preclinical studies and clinical trials, including patient enrollment in
such trials, for ganaxolone or any other future product candidates;
·
clinical development plans we establish for ganaxolone and any other future product candidates;
·
obligation to make royalty and non-royalty sublicense receipt payments to third-party licensors, if any,
26
Table of Contents
under our licensing agreements;
·
number and characteristics of product candidates that we discover or in-license and develop;
·
outcome, timing and cost of regulatory review by the FDA and comparable foreign regulatory authorities, including
the potential for the FDA or comparable foreign regulatory authorities to require that we perform more studies than
those that we currently expect;
·
costs of filing, prosecuting, defending and enforcing any patent claims and maintaining and enforcing other
intellectual property rights;
·
effects of competing technological and market developments;
·
costs and timing of the implementation of commercial-scale manufacturing activities; and
·
costs and timing of establishing sales, marketing and distribution capabilities for any product candidates for which
we may receive regulatory approval.
If we are unable to expand our operations or otherwise capitalize on our business opportunities due to a lack of capital,
our ability to become profitable will be compromised. Failure to progress our product development or commercialization of
ganaxolone as anticipated will have a negative effect on our business, future prospects and ability to obtain further financing on
acceptable terms, if at all, and the value of the enterprise.
Raising
additional
capital
could
dilute
our
stockholders,
restrict
our
operations
or
require
us
to
relinquish
rights
to
ganaxolone
or
any
other
future
product
candidates.
Until we can generate substantial revenue from product sales, if ever, we expect to seek additional capital through a
combination of private and public equity offerings, debt financings, strategic collaborations and alliances and licensing
arrangements. To the extent that we raise additional capital through the sale of equity or convertible debt securities, the ownership
interests of stockholders will be diluted, and the terms may include liquidation or other preferences that adversely affect the rights
of stockholders. Debt financing, if available, may involve agreements that include liens or restrictive covenants limiting our
ability to take important actions, such as incurring additional debt, making capital expenditures or declaring dividends. If we raise
additional funds through strategic collaborations and alliances or licensing arrangements with third parties, we may have to
relinquish valuable rights to ganaxolone or any other future product candidates in particular countries, or grant licenses on terms
that are not favorable to us. If we are unable to raise additional funds through equity or debt financing when needed, we may be
required to delay, limit, reduce or terminate our product development or commercialization efforts or grant rights to develop and
market ganaxolone or any other future product candidates that we would otherwise prefer to develop and market ourselves.
We
intend
to
expend
our
limited
resources
to
pursue
our
sole
clinical
stage
product
candidate,
ganaxolone,
and
may
fail
to
capitalize
on
other
indications,
technologies
or
product
candidates
that
may
be
more
profitable
or
for
which
there
may
be
a
greater
likelihood
of
success.
Because we have limited financial and managerial resources, we are focusing on research programs relating to
ganaxolone, which concentrates the risk of product failure in the event ganaxolone proves to be ineffective or inadequate for
clinical development or commercialization in this indication. As a result, we may forego or delay pursuit of opportunities for
other technologies or product candidates that later could prove to have greater commercial potential. We may be unable to
capitalize on viable commercial products or profitable market opportunities as a result of our resource allocation decisions. Our
spending on proprietary research and development programs relating to ganaxolone may not yield any commercially viable
products. If we do not accurately evaluate the commercial potential or target market for ganaxolone, we may relinquish valuable
rights to ganaxolone through collaboration, licensing or other royalty arrangements in cases in which it would have been more
advantageous for us to retain sole development and commercialization rights to ganaxolone.
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Table of Contents
Risks Related to Our Business and Development of Our Product
Our
future
success
is
dependent
on
the
successful
clinical
development,
regulatory
approval
and
commercialization
of
ganaxolone,
which
is
currently
undergoing
two
clinical
trials
and
will
require
significant
capital
resources
and
years
of
additional
clinical
development
effort.
We do not have any products that have gained regulatory approval. Currently, our only clinical stage product candidate
is ganaxolone. As a result, our business is dependent on our ability to successfully complete clinical development of, obtain
regulatory approval for, and, if approved, successfully commercialize ganaxolone in a timely manner. We cannot commercialize
ganaxolone in the United States without first obtaining regulatory approval from the FDA; similarly, we cannot commercialize
ganaxolone outside of the United States without obtaining regulatory approval from comparable foreign regulatory authorities.
Before obtaining regulatory approvals for the commercial sale of ganaxolone for a target indication, we must demonstrate with
substantial evidence gathered in preclinical studies and clinical trials, generally including two adequate and well-controlled
clinical trials, and, with respect to approval in the United States, to the satisfaction of the FDA, that ganaxolone is safe and
effective for use for that target indication and that the manufacturing facilities, processes and controls are adequate. Even if
ganaxolone were to obtain approval from the FDA and comparable foreign regulatory authorities, any approval might contain
significant limitations, such as restrictions as to specified age groups, warnings, precautions or contraindications, or may be
subject to burdensome post-approval study or risk management requirements. If we are unable to obtain regulatory approval for
ganaxolone in one or more jurisdictions, or any approval contains significant limitations, we may not be able to obtain sufficient
funding or generate sufficient revenue to continue the development of any other product candidate that we may in-license,
develop or acquire in the future. Furthermore, even if we obtain regulatory approval for ganaxolone, we will still need to develop
a commercial organization, establish commercially viable pricing and obtain approval for adequate reimbursement from third-
party and government payers. If we are unable to successfully commercialize ganaxolone, we may not be able to earn sufficient
revenue to continue our business.
Because
the
results
of
preclinical
studies
or
earlier
clinical
trials
are
not
necessarily
predictive
of
future
results,
ganaxolone
may
not
have
favorable
results
in
later
preclinical
studies
or
clinical
trials
or
receive
regulatory
approval.
Success in preclinical studies and early clinical trials does not ensure that later trials will generate adequate data to
demonstrate the efficacy and safety of ganaxolone. A number of companies in the pharmaceutical and biotechnology industries,
including those with greater resources and experience, have suffered significant setbacks in preclinical studies and clinical trials,
even after seeing promising results in earlier studies and trials. For example, while ganaxolone showed statistical separation from
placebo in a Phase 2 study in adjunctive treatment of adults with focal onset seizures, ganaxolone failed to show a similar
statistical separation in a Phase 3 study for the same indication. As a result, we discontinued our program in adult focal onset
seizures and to focus our efforts on advancing ganaxolone in postpartum depression, status epilepticus, and pediatric orphan
indications. We do not know whether the clinical trials we may conduct will demonstrate adequate efficacy and safety to result in
regulatory approval to market ganaxolone in any particular jurisdiction or indication. If clinical trials underway or conducted in
the future do not produce favorable results, our ability to achieve regulatory approval for ganaxolone may be adversely impacted.
The
therapeutic
efficacy
and
safety
of
ganaxolone
are
unproven,
and
we
may
not
be
able
to
successfully
develop
and
commercialize
ganaxolone
in
the
future.
Ganaxolone is a novel compound and its potential therapeutic benefit is unproven. Our ability to generate revenue from
ganaxolone, which we do not expect will occur for at least the next several years, if ever, will depend heavily on our successful
development and commercialization after regulatory approval, which is subject to many potential risks and may not occur.
Ganaxolone may interact with human biological systems in unforeseen, ineffective or harmful ways. If ganaxolone is associated
with undesirable side effects or has characteristics that are unexpected, we may need to abandon its development or limit
development to certain uses or subpopulations in which the undesirable side effects or other characteristics are less prevalent, less
severe or more acceptable from a risk-benefit perspective. Many compounds that initially showed promise in early stage testing
for treating the target indications for ganaxolone have later been found to cause side effects that prevented further development of
the compound. As a result of these and other risks described herein that are inherent in the development of novel therapeutic
agents, we may never successfully
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Table of Contents
develop, enter into or maintain third-party licensing or collaboration transactions with respect to, or successfully commercialize,
ganaxolone, in which case we will not achieve profitability and the value of our stock may decline.
Clinical
development
of
product
candidates
involves
a
lengthy
and
expensive
process
with
an
uncertain
outcome.
Clinical testing is expensive, can take many years to complete, and is inherently uncertain as to outcome. Failure can
occur at any time during the clinical trial process.
We may experience delays in our ongoing or future clinical trials and we do not know whether planned clinical trials
will begin or enroll subjects on time, need to be redesigned or be completed on schedule, if at all. There can be no assurance that
the FDA or other foreign regulatory authorities will not put clinical trials of ganaxolone on clinical hold now or in the future.
Clinical trials may be delayed, suspended or prematurely terminated for a variety of reasons, such as:
·
delay or failure in reaching agreement with the FDA or a comparable foreign regulatory authority on a trial design
that we are able to execute;
·
delay or failure in obtaining authorization to commence a trial or inability to comply with conditions imposed by a
regulatory authority regarding the scope or design of a clinical trial;
·
delay or failure in 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;
·
delay or failure in obtaining institutional review board (IRB) approval or the approval of other reviewing entities,
including comparable foreign regulatory authorities, to conduct a clinical trial at each site;
·
withdrawal of clinical trial sites from our clinical trials as a result of changing standards of care or the ineligibility
of a site to participate in our clinical trials;
·
delay or failure in recruiting and enrolling suitable study subjects to participate in a trial;
·
delay or failure in study subjects completing a trial or returning for post-treatment follow-up;
·
clinical sites and investigators deviating from a trial protocol, failing to conduct the trial in accordance with
regulatory requirements, or dropping out of a trial;
·
inability to identify and maintain a sufficient number of trial sites, many of which may already be engaged in other
clinical trial programs, including some that may be for competing product candidates with the same indication;
·
failure of our third-party clinical trial managers to satisfy their contractual duties or meet expected deadlines;
·
delay or failure in adding new clinical trial sites;
·
ambiguous or negative interim results or results that are inconsistent with earlier results;
·
feedback from the FDA, IRBs, data safety monitoring boards, or a comparable foreign regulatory authority, or
results from earlier stage or concurrent preclinical studies and clinical trials, that might require modification to the
protocol for the trial;
·
decision by the FDA, an IRB, a comparable foreign regulatory authority, or us, or recommendation by a
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Table of Contents
data safety monitoring board or comparable foreign regulatory authority, to suspend or terminate clinical trials at
any time for safety issues or for any other reason;
·
unacceptable risk-benefit profile, unforeseen safety issues or adverse side effects or adverse events;
·
failure of a product candidate to demonstrate any benefit;
·
difficulties in manufacturing or obtaining from third parties sufficient quantities of a product candidate for use in
clinical trials;
·
lack of adequate funding to continue the clinical trial, including the incurrence of unforeseen costs due to
enrollment delays, requirements to conduct additional clinical trials or increased expenses associated with the
services of our CROs and other third parties;
·
political developments that affect our ability to develop and obtain approval for ganaxolone, or license rights to
develop and obtain approval for ganaxolone, in a foreign country; or
·
changes in governmental regulations or administrative actions.
Study subject enrollment, a significant factor in the timing of clinical trials, is affected by many factors including the
size and nature of the subject population, the proximity of subjects to clinical sites, the eligibility criteria for the trial, the design
of the clinical trial, ability to obtain and maintain subject consents, risk that enrolled subjects will drop out before completion,
competing clinical trials and clinicians’ and subjects’ perceptions as to the potential advantages of the product candidate being
studied in relation to other available therapies, including any new drugs that may be approved or product candidates that may be
studied in competing clinical trials for the indications we are investigating. Some of our clinical trials are directed at small patient
populations. Patient enrollment in these studies could be particularly challenging. In the past, we have experienced delays in
enrolling patients in studies directed at small patient populations. We rely on CROs and clinical trial sites to ensure the proper and
timely conduct of our clinical trials, and while we have agreements governing their committed activities, we have limited
influence over their actual performance.
If we experience delays in the completion of any clinical trial of ganaxolone, the commercial prospects of ganaxolone
may be harmed, and our ability to generate product revenue from ganaxolone, if approved, will be delayed. In addition, any
delays in completing our clinical trials will increase our costs, slow down our development and approval process for ganaxolone
and jeopardize our ability to commence product sales and generate revenues. In addition, many of the factors that could cause a
delay in the commencement or completion of clinical trials may also ultimately lead to the denial of regulatory approval of
ganaxolone.
Ganaxolone
may
cause
undesirable
side
effects
or
have
other
properties
that
could
delay
or
prevent
its
regulatory
approval,
limit
the
commercial
profile
of
an
approved
label,
or
result
in
significant
negative
consequences
following
any
marketing
approval.
Undesirable side effects caused by ganaxolone could cause us or regulatory authorities to interrupt, delay or halt clinical
trials and could result in a restrictive label or the delay or denial of regulatory approval by the FDA or other comparable foreign
regulatory authority. Although ganaxolone has generally been well tolerated by subjects in our earlier-stage clinical trials, in some
cases there were side effects, and some of the side effects were severe. Specifically, in our most recently completed clinical trial,
where ganaxolone was administered as an adjunctive to standard therapy in adult subjects with focal onset seizures, the most
frequent side effects (those reported in greater than 5% of ganaxolone subjects) were dizziness, fatigue and somnolence (or
drowsiness). More side effects of the Central Nervous System (CNS) were categorized as severe as compared to side effects of
other body systems.
If these side effects are reported in future clinical trials, or if other safety or toxicity issues are reported in our future
clinical trials, we may not receive approval to market ganaxolone, which could prevent us from ever generating revenue or
achieving profitability. Furthermore, although we are currently developing ganaxolone for three indications,
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Table of Contents
negative safety findings in any one indication could force us to delay or discontinue development in other indications. Results of
our clinical trials could reveal an unacceptably high severity and prevalence of side effects. In such an event, our clinical trials
could be suspended or terminated and the FDA or comparable foreign regulatory authorities could order us to cease further
development, or deny approval, of ganaxolone for any or all targeted indications. Drug-related side effects could affect study
subject recruitment or the ability of enrolled subjects to complete our future clinical trials and may result in potential product
liability claims.
Additionally, if ganaxolone receives marketing approval, and we or others later identify undesirable side effects caused
by ganaxolone, a number of potentially significant negative consequences could result, including:
·
we may be forced to suspend marketing of ganaxolone;
·
regulatory authorities may withdraw their approvals of ganaxolone;
·
regulatory authorities may require additional warnings on the label that could diminish the usage or otherwise limit
the commercial success of ganaxolone;
·
we may be required to conduct post-marketing studies;
·
we could be sued and held liable for harm caused to subjects or patients; and
·
our reputation may suffer.
Any of these events could prevent us from achieving or maintaining market acceptance of ganaxolone, if approved.
Even
if
ganaxolone
receives
regulatory
approval,
we
may
still
face
regulatory
difficulties.
Even if we obtain regulatory approval for ganaxolone, it would be subject to ongoing requirements by the FDA and
comparable foreign regulatory authorities governing the manufacture, quality control, further development, labeling, packaging,
storage, distribution, safety surveillance, import, export, advertising, promotion, recordkeeping and reporting of safety and other
post-market information. The safety profile of ganaxolone will continue to be closely monitored by the FDA and comparable
foreign regulatory authorities after approval. If new safety information becomes available after approval of ganaxolone, the FDA
or comparable foreign regulatory authorities may require labeling changes or establishment of a Risk Evaluation and Mitigation
Strategy (REMS) or similar strategy, impose significant restrictions on ganaxolone’s indicated uses or marketing, or impose
ongoing requirements for potentially costly post-approval studies or post-market surveillance. For example, the label ultimately
approved for ganaxolone, if it achieves marketing approval, may include restrictions on use.
In addition, manufacturers of drug products and their facilities are subject to continual review and periodic inspections
by the FDA and other regulatory authorities for compliance with current good manufacturing practices (cGMP) and other
regulations. If we or a regulatory authority discover previously unknown problems with a product, such as adverse events of
unanticipated severity or frequency, or problems with the facility where the product is manufactured, a regulatory authority may
impose restrictions on that product, the manufacturing facility or us, including requiring recall or withdrawal of the product from
the market or suspension of manufacturing. If we, ganaxolone or the manufacturing facilities for ganaxolone fail to comply with
applicable regulatory requirements, a regulatory authority may:
·
issue warning letters or untitled letters;
·
mandate modifications to promotional materials or require us to provide corrective information to healthcare
practitioners;
·
require us to enter into a consent decree, which can include imposition of various fines, reimbursements for
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inspection costs, required due dates for specific actions and penalties for noncompliance;
·
seek an injunction or impose civil or criminal penalties or monetary fines;
·
suspend or withdraw regulatory approval;
·
suspend any ongoing clinical trials;
·
refuse to approve pending applications or supplements to applications filed by us;
·
suspend or impose restrictions on operations, including costly new manufacturing requirements; or
·
seize or detain products, refuse to permit the import or export of products, or require us to initiate a product recall.
The occurrence of any event or penalty described above may inhibit or preclude our ability to commercialize ganaxolone
and generate revenue.
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 ganaxolone. 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, and we may not achieve
or sustain profitability, which would adversely affect our business, prospects, financial condition and results of operations.
Advertising and promotion of any product candidate that obtains approval in the United States will be heavily
scrutinized by, among others, the FDA, the Department of Justice (DOJ), the Office of Inspector General of the Department of
Health and Human Services (HHS), state attorneys general, members of Congress and the public. Violations, including promotion
of our products for unapproved or off-label uses, are subject to enforcement letters, inquiries and investigations, and civil and
criminal sanctions by the FDA or other government agencies. Additionally, advertising and promotion of any product candidate
that obtains approval outside of the United States will be heavily scrutinized by comparable foreign regulatory authorities.
In the United States, promoting ganaxolone for unapproved indications can also subject us to false claims litigation
under federal and state statutes, and other litigation and/or investigation, which can lead to civil and criminal penalties and fines
and agreements that materially restrict the manner in which we promote or distribute our drug products. These false claims
statutes include the federal False Claims Act, which allows any individual to bring a lawsuit against a pharmaceutical company on
behalf of the federal government alleging submission of false or fraudulent claims, or causing to present such false or fraudulent
claims, for payment by a federal program such as Medicare or Medicaid. If the government prevails in the lawsuit, the individual
will share in any fines or settlement funds. Since 2004, these False Claims Act lawsuits against pharmaceutical companies have
increased significantly in volume and breadth, leading to several substantial civil and criminal settlements based on certain sales
practices promoting off-label drug uses. This increasing focus and scrutiny has increased the risk that a pharmaceutical company
will have to defend a false claim action, pay settlement fines or restitution, agree to comply with burdensome reporting and
compliance obligations, and be excluded from the Medicare, Medicaid and other federal and state healthcare programs. If we do
not lawfully promote our approved products, we may become subject to such litigation and/or investigation and, if we are not
successful in defending against such actions, those actions could compromise our ability to become profitable.
Failure
to
obtain
regulatory
approval
in
international
jurisdictions
would
prevent
ganaxolone
from
being
marketed
in
these
jurisdictions.
In order to market and sell our products in the European Union and many other jurisdictions, we must obtain separate
marketing approvals and comply with numerous and varying regulatory requirements. The approval procedure
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varies among countries and can involve additional testing. The time required to obtain approval may differ substantially from that
required to obtain FDA approval. The regulatory approval process outside the United States generally includes all of the risks
associated with obtaining FDA approval. In addition, many countries outside the United States require that a product be approved
for reimbursement before the product can be approved for sale in that country. We may not obtain approvals from regulatory
authorities outside the United States on a timely basis, if at all. Approval by the FDA does not ensure approval by regulatory
authorities in other countries or jurisdictions, and approval by one regulatory authority outside the United States does not ensure
approval by regulatory authorities in other countries or jurisdictions or by the FDA. We may not be able to file for marketing
approvals and may not receive necessary approvals to commercialize our products in any market. If we are unable to obtain
approval of ganaxolone by regulatory authorities in the European Union or another country or jurisdiction, the commercial
prospects of ganaxolone may be significantly diminished and our business prospects could decline.
We
may
not
be
able
to
obtain
orphan
drug
exclusivity
for
ganaxolone
or
any
other
product
candidates
for
which
we
seek
it,
which
could
limit
the
potential
profitability
of
ganaxolone
or
such
other
product
candidates.
Regulatory authorities in some jurisdictions, including the United States and Europe, may designate drugs for relatively
small patient populations as orphan drugs. Under the Orphan Drug Act, the FDA may designate a product as an orphan drug if it
is a drug intended to treat a rare disease or condition, which is generally defined as a patient population of fewer than 200,000
individuals in the United States. Generally, if a product with an orphan drug designation subsequently receives the first marketing
approval for an indication for which it receives the designation, then the product is entitled to a period of marketing exclusivity
that precludes the applicable regulatory authority from approving another marketing application for the same drug for the same
indication for the exclusivity period except in limited situations. For purposes of small molecule drugs, the FDA defines “same
drug” as a drug that contains the same active moiety and is intended for the same use as the drug in question. 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.
We have received orphan drug designation for treating CDD, PCDH19-PE, FXS and SE with ganaxolone and expect
that we may in the future pursue orphan drug designations for ganaxolone for one or more additional indications. However,
obtaining an orphan drug designation can be difficult and we may not be successful in doing so for additional ganaxolone
indications or any future product candidates. Even if we were to obtain orphan drug exclusivity for a product candidate, that
exclusivity may not effectively protect the product from the competition of different drugs for the same condition, which could be
approved during the exclusivity period. Additionally, after an orphan drug is approved, the FDA could subsequently approve
another application for the same drug for the same indication if the FDA concludes that the later drug is shown to be safer, more
effective or makes a major contribution to patient care. Orphan drug exclusive marketing rights in the United States also 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 quantity of the drug to meet the needs of patients with the rare disease or condition. The failure to obtain an orphan drug
designation for any product candidates we may develop, the inability to maintain that designation for the duration of the
applicable period, or the inability to obtain or maintain orphan drug exclusivity could reduce our ability to make sufficient sales
of the applicable product candidate to balance our expenses incurred to develop it, which would have a negative impact on our
operational results and financial condition.
Our
business
and
operations
would
suffer
in
the
event
of
computer
system
failures.
Despite the implementation of security measures, our internal computer systems, and those of our CROs and other third
parties on which we rely, are vulnerable to damage from computer viruses, unauthorized access, natural disasters, fire, terrorism,
war and telecommunication and electrical failures. In addition, our systems safeguard important confidential personal data
regarding subjects enrolled in our clinical trials. If a disruption event were to occur and cause interruptions in our operations, it
could result in a material disruption of our drug development programs. For example, the loss of data relating to completed,
ongoing or planned clinical trials could result in delays in our regulatory approval efforts and cause us to incur significant
additional costs to recover or reproduce the data. To the extent that any disruption or security breach results in a loss of or damage
to our data or applications, or inappropriate disclosure of confidential or proprietary information, we could incur liability and the
further development of ganaxolone could be delayed.
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Business
disruptions
could
seriously
harm
our
future
revenue
and
financial
condition
and
increase
our
costs
and
expenses.
Our operations could be subject to earthquakes, power shortages, telecommunications failures, water shortages, floods,
hurricanes, typhoons, fires, extreme weather conditions, medical epidemics and other natural or man-made disasters or business
interruptions, for which we are predominantly self-insured. The occurrence of any of these business disruptions could seriously
harm our operations and financial condition and increase our costs and expenses. We rely on third-party manufacturers to produce
ganaxolone. Our ability to obtain clinical supplies of ganaxolone could be disrupted if the operations of these suppliers are
affected by a man-made or natural disaster or other business interruption. The ultimate impact on us, our significant suppliers and
our general infrastructure of being in certain geographical areas is unknown, but our operations and financial condition could
suffer in the event of a major earthquake, fire or other natural disaster.
Risks Related to the Commercialization of Our Product
Our
commercial
success
depends
upon
attaining
significant
market
acceptance
of
ganaxolone,
if
approved,
among
physicians,
patients,
government
and
private
payers
and
others
in
the
medical
community.
Even if ganaxolone receives regulatory approval, it may not gain market acceptance among physicians, patients,
government and private payers, or others in the medical community. Market acceptance of ganaxolone, if we receive approval,
depends on a number of factors, including the:
·
efficacy and safety of ganaxolone, or ganaxolone administered with other drugs, each as demonstrated in clinical
trials and post-marketing experience;
·
clinical indications for which ganaxolone is approved;
·
acceptance by physicians and patients of ganaxolone as a safe and effective treatment;
·
potential and perceived advantages of ganaxolone over alternative treatments;
·
safety of ganaxolone seen in a broader patient group, including its use outside the approved indications should
physicians choose to prescribe for such uses;
·
prevalence and severity of any side effects;
·
product labeling or product insert requirements of the FDA or other regulatory authorities;
·
timing of market introduction of ganaxolone as well as competitive products;
·
cost of treatment in relation to alternative treatments;
·
availability of coverage and adequate reimbursement and pricing by government and private payers;
·
relative convenience and ease of administration; and
·
effectiveness of our sales and marketing efforts.
If ganaxolone is approved but fails to achieve market acceptance among physicians, patients, government or private
payers or others in the medical community, or the products or product candidates that are being administered with ganaxolone are
restricted, withdrawn or recalled, or fail to be approved, as the case may be, we may not be able to generate significant revenues,
which would compromise our ability to become profitable.
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If
we
are
unable
to
establish
sales
and
marketing
capabilities
or
enter
into
agreements
with
third
parties
to
market
and
sell
ganaxolone,
we
may
be
unable
to
generate
any
revenue.
We do not currently have an organization for the sale, marketing and distribution of pharmaceutical products and the
cost of establishing and maintaining such an organization may exceed the cost-effectiveness of doing so. In order to market any
products that may be approved by the FDA and comparable foreign regulatory authorities, we must build our sales, marketing,
managerial and other non-technical capabilities or make arrangements with third parties to perform these services. If we are
unable to establish adequate sales, marketing and distribution capabilities, whether independently or with third parties, we may
not be able to generate product revenue and may not become profitable. We will be competing with many companies that
currently have extensive and well-funded sales and marketing operations. Without an internal commercial organization or the
support of a third party to perform sales and marketing functions, we may be unable to compete successfully against these more
established companies. To the extent we rely on third parties to commercialize ganaxolone, if approved, we may have little or no
control over the marketing and sales efforts of such third parties, and our revenues from product sales may be lower than if we
had commercialized ganaxolone ourselves.
A
variety
of
risks
associated
with
marketing
ganaxolone
internationally
could
materially
adversely
affect
our
business.
We plan to seek regulatory approval for ganaxolone outside of the United States, and, accordingly, we expect that we
will be subject to additional risks related to operating in foreign countries if we obtain the necessary approvals, including:
·
differing regulatory requirements in foreign countries;
·
the potential for so-called parallel importing, which is what happens when a local seller, faced with high or higher
local prices, opts to import goods from a foreign market (with low or lower prices) rather than buying them locally;
·
unexpected changes in tariffs, trade barriers, price and exchange controls and other regulatory requirements;
·
economic weakness, including inflation, or political instability in particular foreign economies and markets;
·
compliance with tax, employment, immigration and labor laws for employees living or traveling abroad;
·
foreign taxes, including withholding of payroll taxes;
·
foreign currency fluctuations, which could result in increased operating expenses and reduced revenues, and other
obligations incident to doing business in another country;
·
difficulties staffing and managing foreign operations;
·
workforce uncertainty in countries where labor unrest is more common than in the United States;
·
challenges enforcing our contractual and intellectual property rights, especially in those foreign countries that do
not respect and protect intellectual property rights to the same extent as the United States;
·
production shortages resulting from any events affecting raw material supply or manufacturing capabilities abroad;
and
·
business interruptions resulting from geo-political actions, including war and terrorism.
These and other risks associated with our international operations may materially adversely affect our ability to attain or
maintain profitable operations.
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Even
if
we
are
able
to
commercialize
ganaxolone,
it
may
not
receive
coverage
and
adequate
reimbursement
from
third-party
payers,
which
could
harm
our
business.
Our ability to commercialize ganaxolone successfully will depend, in part, on the extent to which coverage and adequate
reimbursement for ganaxolone and related treatments will be available from government health administration authorities, private
health insurers and other organizations. Government authorities and third-party payers, such as private health insurers and health
maintenance organizations, determine which medications they will cover and establish reimbursement levels. A primary trend in
the United States healthcare industry and elsewhere is cost containment. Government authorities and third-party payers have
attempted to control costs by limiting coverage and the amount of reimbursement for particular medications. Increasingly, third-
party payers are requiring that drug companies provide them with predetermined discounts from list prices and are challenging the
prices charged for drugs. Third-party payers may also seek additional clinical evidence, beyond the data required to obtain
marketing approval, demonstrating clinical benefits and value in specific patient populations before covering ganaxolone for
those patients. We cannot be sure that coverage and adequate reimbursement will be available for ganaxolone and, if
reimbursement is available, what the level of reimbursement will be. Coverage and reimbursement may impact the demand for, or
the price of, ganaxolone, if we obtain marketing approval. If reimbursement is not available or is available only at limited levels,
we may not be able to successfully commercialize ganaxolone even if we obtain marketing approval.
There may be significant delays in obtaining coverage and reimbursement for newly approved drugs, and coverage may
be more limited than the purposes for which the drug is approved by the FDA or comparable foreign regulatory authorities.
Moreover, eligibility for coverage and reimbursement does not imply that any drug will be paid for in all cases or at a rate that
covers our costs, including research, development, manufacture, sale and distribution. Interim reimbursement levels for new
drugs, if applicable, may also not be sufficient to cover our costs and may only be temporary. Reimbursement rates may vary
according to the use of the drug and the clinical setting in which it is used, may be based on reimbursement levels already set for
lower cost drugs and may be incorporated into existing payments for other services. Net prices for drugs may be reduced by
mandatory discounts or rebates required by government healthcare programs or private payers and by any future relaxation of
laws that presently restrict imports of drugs from countries where they may be sold at lower prices than in the United States.
Third-party payers often rely upon Medicare coverage policy and payment limitations in setting their own reimbursement
policies. Our inability to obtain coverage and profitable reimbursement rates from both government-funded and private payers for
any approved products that we develop could have a material adverse effect on our operating results, our ability to raise capital
needed to commercialize products and our overall financial condition.
We
face
substantial
competition,
which
may
result
in
others
discovering,
developing
or
commercializing
products
before
or
more
successfully
than
we
do.
The development and commercialization of new drug products is highly competitive. We face competition with respect
to ganaxolone, and will face competition with respect to any other product candidates that we may seek to develop or
commercialize in the future, from major pharmaceutical companies, specialty pharmaceutical companies and biotechnology
companies worldwide. There are a number of large pharmaceutical and biotechnology companies that currently market and sell
products or are pursuing the development of products for the treatment of the disease indications for which we are developing
ganaxolone. Some of these competitive products and therapies are based on scientific approaches that are the same as, or similar
to, our approach, and others are based on entirely different approaches. For example, there are several companies developing
product candidates that target the same GABA A , neuroreceptor that we are targeting or that are testing product candidates in the
same indications that we are testing. Potential competitors also include academic institutions, government agencies and other
public and private research organizations that conduct research, seek patent protection and establish collaborative arrangements
for research, development, manufacturing and commercialization.
Ganaxolone is presently being developed primarily as a neuropsychiatric therapeutic. There are a variety of marketed
therapies available for these patients.
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Specifically, there are more than 15 approved AEDs available in the United States and worldwide, including the generic
products levetiracetam, lamotrigine, carbamazepine, oxcarbazepine, valproic acid and topiramate. Recent market entrants include
branded products developed by Lundbeck, UCB, Eisai, and Sunovion Pharmaceuticals. Additionally, there are several drugs in
development for the treatment of pediatric genetic epilepsies and behavioral and mental health conditions associated with FXS,
including compounds being developed by GW Pharmaceuticals, Zogenix, Sunovion Pharmaceuticals, Zynerba, Alcobra and
Neuren Pharmaceuticals. Sage Therapeutics is developing molecules with a similar mechanism of action as ganaxolone for
treatment of SE and PPD.
Many of the approved drugs are well established therapies or products and are widely accepted by physicians, patients
and third-party payers. Insurers and other third-party payers may also encourage the use of generic products. These factors may
make it difficult for us to achieve market acceptance at desired levels or in a timely manner to ensure viability of our business.
More established companies may have a competitive advantage over us due to their greater size, cash flows and
institutional experience. Compared to us, many of our competitors may have significantly greater financial, technical and human
resources.
As a result of these factors, our competitors may obtain regulatory approval of their products before we are able to,
which may limit our ability to develop or commercialize ganaxolone. Our competitors may also develop drugs that are safer,
more effective, more widely used and cheaper than ours, and may also be more successful than us in manufacturing and
marketing their products. These appreciable advantages could render ganaxolone obsolete or non-competitive before we can
recover the expenses of ganaxolone’s development and commercialization.
Mergers and acquisitions in the pharmaceutical and biotechnology industries may result in even more resources being
concentrated among a smaller number of our competitors. Smaller and other 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, management and commercial personnel, establishing clinical trial
sites and subject registration for clinical trials, as well as in acquiring technologies complementary to, or necessary for, our
programs.
Product
liability
lawsuits
against
us
could
cause
us
to
incur
substantial
liabilities
and
to
limit
commercialization
of
ganaxolone
or
other
product
candidates
that
we
may
develop.
We face an inherent risk of product liability exposure related to the testing of ganaxolone by us or our investigators in
human clinical trials and will face an even greater risk if ganaxolone receives regulatory approval and we subsequently
commercialize it. Product liability claims may be brought against us by study subjects enrolled in our clinical trials, patients,
healthcare providers or others using, administering or selling ganaxolone. If we cannot successfully defend ourselves against
claims that ganaxolone caused injuries, we could incur substantial liabilities. Regardless of merit or eventual outcome, liability
claims may result in, for example:
·
decreased demand for ganaxolone;
·
termination of clinical trial sites or entire trial programs;
·
injury to our reputation and significant negative media attention;
·
withdrawal of clinical trial subjects;
·
significant costs to defend the related litigation;
·
substantial monetary awards to clinical trial subjects or patients;
·
loss of revenue;
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·
diversion of management and scientific resources from our business operations;
·
the inability to commercialize ganaxolone; and
·
increased scrutiny and potential investigation by, among others, the FDA, the DOJ, the Office of Inspector General
of the HHS, state attorneys general, members of Congress and the public.
We currently have product liability insurance coverage, which may not be adequate to cover all liabilities that we may
incur. Insurance coverage is increasingly expensive. We may not be able to maintain insurance coverage at a reasonable cost or in
an amount adequate to satisfy any liability that may arise. We intend to expand our product liability insurance coverage to include
the sale of commercial products if we obtain marketing approval for ganaxolone, but we may be unable to obtain commercially
reasonable product liability insurance for ganaxolone, if approved for marketing. Large judgments have been awarded in class
action lawsuits based on drugs that had unanticipated side effects. A successful product liability claim or series of claims brought
against us, particularly if judgments exceed our insurance coverage, could decrease our cash and adversely affect our business.
Risks Related to Our Dependence on Third Parties
We
rely
on
third
parties
to
conduct
our
preclinical
studies
and
clinical
trials.
If
these
third
parties
do
not
successfully
carry
out
their
contractual
duties
or
meet
expected
deadlines,
we
may
not
be
able
to
obtain
regulatory
approval
for
or
commercialize
ganaxolone.
We rely on third-party CROs to monitor and manage data for our ongoing preclinical and clinical programs. We rely on
these parties for execution of our preclinical studies and clinical trials, and we control only some aspects of their activities.
Nevertheless, we are responsible for ensuring that each of our preclinical studies and clinical trials are conducted in accordance
with the applicable protocol and legal, regulatory and scientific requirements and standards, and our reliance on the CROs does
not relieve us of our regulatory responsibilities. We also rely on third parties to assist in conducting our preclinical studies in
accordance with Good Laboratory Practices (GLP) and the Animal Welfare Act requirements. We and our CROs are required to
comply with federal regulations and Good Clinical Practices (GCP), which are international requirements meant to protect the
rights and health of subjects that are enforced by the FDA, the Competent Authorities of the Member States of the European
Economic Area and comparable foreign regulatory authorities for ganaxolone and any future product candidates in clinical
development. Regulatory authorities enforce GCP through periodic inspections of trial sponsors, principal investigators and trial
sites. If we or any of our CROs fail to comply with applicable GCP, 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
before approving our marketing applications. We cannot assure you that upon inspection by a given regulatory authority, such
regulatory authority will determine that any of our clinical trials comply with GCP requirements. In addition, our clinical trials
must be conducted with product produced under cGMP requirements. Failure to comply with these regulations may require us to
repeat preclinical studies and clinical trials, which would delay the regulatory approval process.
Our CROs are not our employees, and except for remedies available to us under our agreements with such CROs, we
cannot control whether or not they devote sufficient time and resources to our ongoing clinical, nonclinical and preclinical
programs. If CROs do not successfully carry out their contractual duties or obligations or meet expected deadlines 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 preclinical studies and clinical trials may be extended, delayed or terminated and we may not be able to obtain
regulatory approval for or successfully commercialize ganaxolone. As a result, our results of operations and the commercial
prospects for ganaxolone would be harmed, our costs could increase and our ability to generate revenue could be delayed.
Because we have relied on third parties, our internal capacity to perform these functions is limited. Outsourcing these
functions involves risk that third parties may not perform to our standards, may not produce results in a timely manner or may fail
to perform at all. In addition, the use of third-party service providers requires us to disclose our proprietary information to these
parties, which could increase the risk that this information will be misappropriated. We currently have a small number of
employees, which limits the internal resources we have available to identify and
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monitor our third-party providers. To the extent we are unable to identify and successfully manage the performance of third-party
service providers in the future, our business may be adversely affected. Though we carefully manage our relationships with our
CROs, there can be no assurance that we will not encounter challenges or delays in the future or that these delays or challenges
will not have a material adverse impact on our business, financial condition and prospects.
If
we
lose
our
relationships
with
CROs,
our
drug
development
efforts
could
be
delayed.
We rely on third-party vendors and CROs for preclinical studies and clinical trials related to our drug development
efforts. Switching or adding additional CROs would involve additional cost and requires management time and focus. Our CROs
generally have the right to terminate their agreements with us in the event of an uncured material breach. In addition, some of our
CROs have an ability to terminate their respective agreements with us, or research projects pursuant to such agreements, if, in the
reasonable opinion of the relevant CRO, the safety of the subjects participating in our clinical trials warrants such termination.
These agreements or research projects may also be terminated if we make a general assignment for the benefit of our creditors or
if we are liquidated. Identifying, qualifying and managing performance of third-party service providers can be difficult, time
consuming and cause delays in our development programs. In addition, there is a natural transition period when a new CRO
commences work and the new CRO may not provide the same type or level of services as the original provider. If any of our
relationships with our third-party CROs terminate, we may not be able to enter into arrangements with alternative CROs or to do
so on commercially reasonable terms.
Our
experience
manufacturing
ganaxolone
is
limited
to
the
needs
of
our
preclinical
studies
and
clinical
trials.
We
have
no
experience
manufacturing
ganaxolone
on
a
commercial
scale
and
have
no
manufacturing
facility.
We
are
dependent
on
third-
party
manufacturers
for
the
manufacture
of
ganaxolone
as
well
as
on
third
parties
for
our
supply
chain,
and
if
we
experience
problems
with
any
such
third
parties,
the
manufacturing
of
ganaxolone
could
be
delayed.
We do not own or operate facilities for the manufacture of ganaxolone. We currently have no plans to build our own
clinical or commercial scale manufacturing capabilities. We currently rely on contract manufacturing organizations (CMOs) for
the chemical manufacture of active pharmaceutical ingredients for ganaxolone and other CMOs for the production of the
ganaxolone nanoparticulate formulation into capsules, liquid suspension and IV. To meet our projected needs for preclinical and
clinical supplies to support our activities through regulatory approval and commercial manufacturing, the CMOs with whom we
currently work will need to increase the scale of production. We may need to identify additional CMOs for continued production
of supply for ganaxolone. Although alternative third-party suppliers with the necessary manufacturing and regulatory expertise
and facilities exist, it could be expensive and take a significant amount of time to arrange for alternative suppliers. If we are
unable to arrange for alternative third-party manufacturing sources on commercially reasonable terms, in a timely manner or at
all, we may not be able to complete development of ganaxolone, or market or distribute ganaxolone.
Reliance on third-party manufacturers entails risks to which we would not be subject if we manufactured ganaxolone
ourselves, including reliance on the third party for regulatory compliance and quality assurance, the possibility of breach of the
manufacturing agreement by the third party because of factors beyond our control, including a failure to synthesize and
manufacture ganaxolone or any products we may eventually commercialize in accordance with our specifications, and the
possibility of termination or nonrenewal of the agreement by the third party, based on its own business priorities, at a time that is
costly or damaging to us. In addition, the FDA and other regulatory authorities would require that ganaxolone and any products
that we may eventually commercialize be manufactured according to cGMP and similar foreign standards. Any failure by our
third-party manufacturers to comply with cGMP or failure to scale up manufacturing processes, including any failure to deliver
sufficient quantities of ganaxolone in a timely manner, could lead to a delay in, or failure to obtain, regulatory approval of
ganaxolone. In addition, such failure could be the basis for the FDA to issue a warning letter, withdraw approvals for ganaxolone
previously granted to us, or take other regulatory or legal action, including recall or seizure of outside supplies of ganaxolone,
total or partial suspension of production, suspension of ongoing clinical trials, refusal to approve pending applications or
supplemental applications, detention of product, refusal to permit the import or export of products, injunction, or imposing civil
and criminal penalties.
Any significant disruption in our supplier relationships could harm our business. Any significant delay in the
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supply of ganaxolone or its key materials for an ongoing preclinical study or clinical trial could considerably delay completion of
our preclinical study or clinical trial, product testing and potential regulatory approval of ganaxolone. If our manufacturers or we
are unable to purchase these key materials after regulatory approval has been obtained for ganaxolone, the commercial launch of
ganaxolone would be delayed or there would be a shortage in supply, which would impair our ability to generate revenues from
the sale of ganaxolone.
We
may
elect
to
enter
into
licensing
or
collaboration
agreements
to
partner
ganaxolone
in
territories
currently
retained
by
us.
Our
dependence
on
such
relationships
may
adversely
affect
our
business.
Because we have limited resources, we may seek to enter into collaboration agreements with other pharmaceutical or
biotechnology companies. Any failure by our partners to perform their obligations or any decision by our partners to terminate
these agreements could negatively impact our ability to successfully develop, obtain regulatory approvals for and commercialize
ganaxolone. In the event we grant exclusive rights to such partners, we would be precluded from potential commercialization of
ganaxolone within the territories in which we have a partner. In addition, any termination of our collaboration agreements will
terminate the funding we may receive under the relevant collaboration agreement and may impair our ability to fund further
development efforts and our progress in our development programs.
Our commercialization strategy for ganaxolone may depend on our ability to enter into agreements with collaborators to
obtain assistance and funding for the development and potential commercialization of ganaxolone in the territories in which we
seek to partner. Despite our efforts, we may be unable to secure additional collaborative licensing or other arrangements that are
necessary for us to further develop and commercialize ganaxolone. Supporting diligence activities conducted by potential
collaborators and negotiating the financial and other terms of a collaboration agreement are long and complex processes with
uncertain results. Even if we are successful in entering into one or more collaboration agreements, collaborations may involve
greater uncertainty for us, as we have less control over certain aspects of our collaborative programs than we do over our
proprietary development and commercialization programs. We may determine that continuing a collaboration under the terms
provided is not in our best interest, and we may terminate the collaboration. Our potential future collaborators could delay or
terminate their agreements, and as a result ganaxolone may never be successfully commercialized.
Further, our potential future collaborators may develop alternative products or pursue alternative technologies either on
their own or in collaboration with others, including our competitors, and the priorities or focus of our collaborators may shift such
that ganaxolone receives less attention or resources than we would like, or they may be terminated altogether. Any such actions
by our potential future collaborators may adversely affect our business prospects and ability to earn revenue. In addition, we
could have disputes with our potential future collaborators, such as the interpretation of terms in our agreements. Any such
disagreements could lead to delays in the development or commercialization of ganaxolone or could result in time-consuming and
expensive litigation or arbitration, which may not be resolved in our favor.
Government
funding
for
certain
of
our
programs
adds
uncertainty
to
our
research
efforts
with
respect
to
those
programs
and
may
impose
requirements
that
increase
the
costs
of
commercialization
and
production
of
product
candidates
developed
under
those
government-funded
programs.
Our preclinical studies and clinical trials to evaluate ganaxolone in FXS patients have been conducted with the MIND
Institute at the University of California, Davis which receives funding from the United States Department of Defense (DoD) for
such studies and trials. In addition, our preclinical studies and clinical trials to evaluate ganaxolone in patients suffering from
posttraumatic stress disorder (PTSD) have been primarily conducted by the United States Department of Veterans Affairs, which
also receives funding from the DoD. Programs funded by the United States government and its agencies, including the DoD,
include provisions that confer on the government substantial rights and remedies, many of which are not typically found in
commercial contracts, including powers of the government to:
·
terminate agreements, in whole or in part, for any reason or no reason;
·
reduce or modify the government’s obligations under such agreements without the consent of the other
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party;
·
claim rights, including intellectual property rights, in products and data developed under such agreements;
·
audit contract-related costs and fees, including allocated indirect costs;
·
suspend the contractor from receiving new contracts pending resolution of alleged violations of procurement laws
or regulations;
·
impose United States manufacturing requirements for products that embody inventions conceived or first reduced to
practice under such agreements;
·
suspend or debar the contractor from doing future business with the government; and
·
control and potentially prohibit the export of products.
We may not have the right to prohibit the United States government from using or allowing others to use certain
technologies developed by us, and we may not be able to prohibit third-party companies, including our competitors, from using
those technologies in providing products and services to the United States government. The United States government generally
obtains the right to royalty-free use of technologies that are developed under United States government contracts.
In addition, government contracts normally contain additional requirements that may increase our costs of doing
business, reduce our profits, and expose us to liability for failure to comply with these terms and conditions. These requirements
include, for example:
·
specialized accounting systems unique to government contracts;
·
mandatory financial audits and potential liability for price adjustments or recoupment of government funds after
such funds have been spent;
·
public disclosures of certain contract information, which may enable competitors to gain insights into our research
program; and
·
mandatory socioeconomic compliance requirements, including labor standards, non-discrimination and affirmative
action programs and environmental compliance requirements.
If we fail to maintain compliance with these requirements, we may be subject to potential contract liability and to
termination of our contracts.
Changes in government budgets and agendas may result in a decreased and de-prioritized emphasis on supporting the
development of ganaxolone in patients suffering from certain FXS-associated behavioral symptoms. Although we intend to fund a
portion of our development programs for ganaxolone in patients with FXS, any reduction or delay in DoD funding to our
collaborators may force us to suspend or terminate these programs or seek alternative funding, which may not be available on
non-dilutive terms, terms favorable to us or at all.
If
our
third-party
manufacturers
use
hazardous
and
biological
materials
in
a
manner
that
causes
injury
or
violates
applicable
law,
we
may
be
liable
for
damages.
Our research and development activities involve the controlled use of potentially hazardous substances, including
chemical and biological materials by our third-party manufacturers. Our manufacturers are subject to federal, state and local laws
and regulations in the United States governing the use, manufacture, storage, handling and disposal of medical, radioactive and
hazardous materials. We cannot completely eliminate the risk of contamination or injury resulting from medical, radioactive or
hazardous materials. As a result of any such contamination or injury we may incur
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liability or local, city, state or federal authorities may curtail the use of these materials and interrupt our business operations. In
the event of an accident, we could be held liable for damages or penalized with fines, and the liability could exceed our resources.
We do not have any insurance for liabilities arising from medical radioactive or hazardous materials. Compliance with applicable
environmental laws and regulations is expensive, and current or future environmental regulations may impair our research,
development and production efforts, which could harm our business, prospects, financial condition or results of operations.
Risks Related to Regulatory Compliance
Recently
enacted
and
future
legislation,
including
potentially
unfavorable
pricing
regulations
or
other
healthcare
reform
initiatives,
may
increase
the
difficulty
and
cost
for
us
to
obtain
marketing
approval
of
and
commercialize
ganaxolone
and
affect
the
prices
we
may
obtain.
The regulations that govern, among other things, marketing approvals, coverage, pricing and reimbursement for new
drug products vary widely from country to country. 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 ganaxolone, restrict or regulate post-approval activities and affect our ability to successfully sell ganaxolone, if we
obtain marketing approval.
In the United States, the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, or Medicare
Modernization Act, changed the way Medicare covers and pays for pharmaceutical products. The legislation expanded Medicare
coverage for drug purchases by the elderly and introduced a new reimbursement methodology based on average sales prices for
physician administered drugs. In recent years, Congress has considered further reductions in Medicare reimbursement for drugs
administered by physicians. The Centers for Medicare and Medicaid Services, the agency that runs the Medicare program, also
has the authority to revise reimbursement rates and to implement coverage restrictions for some drugs. Cost reduction initiatives
and changes in coverage implemented through legislation or regulation could decrease utilization of and reimbursement for any
approved products, which in turn would affect the price we can receive for those products. While the Medicare Modernization Act
and Medicare regulations apply only to drug benefits for Medicare beneficiaries, private payers often follow Medicare coverage
policy and payment limitations in setting their own reimbursement rates. Therefore, any reduction in reimbursement that results
from federal legislation or regulation may result in a similar reduction in payments from private payers.
In March 2010, the Patient Protection and Affordable Care Act and the Health Care and Education Affordability
Reconciliation Act of 2010 (Affordable Care Act), a sweeping law intended to broaden access to health insurance, reduce or
constrain the growth of healthcare spending, enhance remedies against fraud and abuse, add new transparency requirements for
healthcare and health insurance industries, impose new taxes and fees on pharmaceutical and medical device manufacturers and
impose additional health policy reforms was signed into law. The Affordable Care Act expanded manufacturers’ rebate liability to
include covered drugs dispensed to individuals who are enrolled in Medicaid managed care organizations, increased the minimum
rebate due for innovator drugs from 15.1% of average manufacturer price (AMP) to 23.1% of AMP and capped the total rebate
amount for innovator drugs at 100.0% of AMP. The Affordable Care Act and subsequent legislation also changed the definition
of AMP. Furthermore, the Affordable Care Act imposes a significant annual, nondeductible fee on companies that manufacture or
import certain branded prescription drug products. Substantial new provisions affecting compliance have also been enacted,
which may affect our business practices with healthcare practitioners, and a significant number of provisions are not yet, or have
only recently become, effective. Although it is too early to determine the effect of the Affordable Care Act, it appears likely to
continue the pressure on pharmaceutical pricing, especially under the Medicare program, and may also increase our regulatory
burdens and operating costs.
In addition, other legislative changes have been proposed and adopted since the Affordable Care Act was enacted. In
August 2011, the Budget Control Act of 2011 was signed into law, which, among other things, creates the Joint Select Committee
on Deficit Reduction to recommend to Congress proposals in spending reductions. The Joint Select Committee did not achieve a
targeted deficit reduction of an amount greater than $1.2 trillion for the years 2013 through 2021, triggering the legislation’s
automatic reduction to several government programs. This includes aggregate reductions to Medicare payments to healthcare
providers of up to 2.0% per fiscal year, starting in 2013. In January 2013,
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the American Taxpayer Relief Act of 2012 was signed into law, which, among other things, reduced Medicare payments to
several categories of healthcare providers and increased the statute of limitations period for the government to recover
overpayments to providers from three to five years. If we ever obtain regulatory approval and commercialization of ganaxolone,
these new laws may result in additional reductions in Medicare and other healthcare funding, which could have a material adverse
effect on our customers and accordingly, our financial operations. Legislative and regulatory proposals have been made to expand
post-approval requirements and restrict sales and promotional activities for pharmaceutical products. We cannot be sure whether
additional legislative changes will be enacted, or whether FDA regulations, guidance or interpretations will be changed, or what
the impact of such changes on the marketing approvals of ganaxolone may be.
In the United States, the European Union and other potentially significant markets for ganaxolone, government
authorities and third-party payers are increasingly attempting to limit or regulate the price of medical products and services,
particularly for new and innovative products and therapies, which has resulted in lower average selling prices. Furthermore, the
increased emphasis on managed healthcare in the United States and on country and regional pricing and reimbursement controls
in the European Union will put additional pressure on product pricing, reimbursement and usage, which may adversely affect our
future product sales and results of operations. These pressures can arise from rules and practices of managed care groups, judicial
decisions and governmental laws and regulations related to Medicare, Medicaid and healthcare reform, pharmaceutical
reimbursement policies and pricing in general.
Some countries require approval of the sale price of a drug before it can be marketed. In many countries, the pricing
review period begins after marketing or product licensing approval is granted. In some foreign markets, prescription
pharmaceutical pricing remains subject to continuing governmental control even after initial approval is granted. As a result, we
might obtain marketing approval for ganaxolone in a particular country, but then be subject to price regulations that delay our
commercial launch of the product, possibly for lengthy time periods, which could negatively impact the revenue we are able to
generate from the sale of the product in that particular country. Adverse pricing limitations may hinder our ability to recoup our
investment in ganaxolone even if ganaxolone obtains marketing approval.
Laws
and
regulations
governing
international
operations
may
preclude
us
from
developing,
manufacturing
and
selling
product
candidates
outside
of
the
United
States
and
require
us
to
develop
and
implement
costly
compliance
programs.
As we seek to expand our operations outside of the United States, we must comply with numerous laws and regulations
in each jurisdiction in which we plan to operate. The creation and implementation of international business practices compliance
programs is costly and such programs are difficult to enforce, particularly where reliance on third parties is required.
The Foreign Corrupt Practices Act (FCPA) prohibits any United States individual or business from paying, offering,
authorizing payment or offering of anything of value, directly or indirectly, to any foreign official, political party or candidate for
the purpose of influencing any act or decision of the foreign entity in order to assist the individual or business in obtaining or
retaining business. The FCPA also obligates companies whose securities are listed in the United States to comply with certain
accounting provisions requiring such companies 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. The anti-bribery provisions of the FCPA are enforced primarily by the DOJ. The SEC is
involved with enforcement of the books and records provisions of the FCPA.
Compliance with the FCPA is expensive and difficult, particularly in countries in which corruption is a recognized
problem. In addition, the FCPA presents particular challenges in the pharmaceutical industry, because, in many countries,
hospitals are operated by the government, and doctors and other hospital employees are considered foreign officials. Certain
payments to hospitals in connection with clinical trials and other work have been deemed to be improper payments to government
officials and have led to FCPA enforcement actions.
Various laws, regulations and executive orders also restrict the use and dissemination outside of the United
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States, or the sharing with certain foreign nationals, of information classified for national security purposes, as well as certain
products and technical data relating to those products. Our expanding presence outside of the United States will require us to
dedicate additional resources to comply with these laws, and these laws may preclude us from developing, manufacturing, or
selling ganaxolone outside of the United States, which could limit our growth potential and increase our development costs.
The failure to comply with laws governing international business practices may result in substantial penalties, including
suspension or debarment from government contracting. Violation of the FCPA can result in significant civil and criminal
penalties. Indictment alone under the FCPA can lead to suspension of the right to do business with the United States government
until the pending claims are resolved. Conviction of a violation of the FCPA can result in long-term disqualification as a
government contractor. The termination of a government contract or relationship as a result of our failure to satisfy any of our
obligations under laws governing international business practices would have a negative impact on our operations and harm our
reputation and ability to procure government contracts. The SEC also may suspend or bar issuers from trading securities on
United States exchanges for violations of the FCPA’s accounting provisions.
Our
relationships
with
customers
and
third-party
payers
will
be
subject
to
applicable
anti-kickback,
fraud
and
abuse
and
other
healthcare
laws
and
regulations,
which
could
expose
us
to
criminal
sanctions,
civil
penalties,
contractual
damages,
reputational
harm
and
diminished
profits
and
future
earnings.
Healthcare providers, physicians and third-party payers will play a primary role in the recommendation and prescription
of any product candidates for which we obtain marketing approval. Our future arrangements with third-party payers and
customers may expose us to broadly applicable fraud and abuse and other healthcare laws and regulations that may affect the
business or financial arrangements and relationships through which we would market, sell and distribute our products. Even
though we do not and will not control referrals of healthcare services or bill directly to Medicare, Medicaid or other third-party
payers, federal and state healthcare laws and regulations pertaining to fraud and abuse and patients’ rights are and will be
applicable to our business. Restrictions under applicable federal and state healthcare laws and regulations that may affect our
operations (including our marketing, promotion, educational programs, pricing, and relationships with healthcare providers or
other entities, among other things) and expose us to areas of risk including the following:
·
the federal Anti-Kickback Statute prohibits, among other things, persons from knowingly and willfully soliciting,
offering, receiving or providing remuneration, directly or indirectly, in cash or in kind, to induce or reward, or in
return for, either the referral of an individual for, or the purchase, order or recommendation of, any good or service,
for which payment may be made under a federal healthcare program such as Medicare and Medicaid;
·
federal civil and criminal false claims laws and civil monetary penalty laws impose criminal and civil penalties,
including through civil whistleblower or qui tam actions, against individuals or entities for knowingly presenting, or
causing to be presented, to the federal government, including the Medicare and Medicaid programs, claims for
payment that are false or fraudulent or making a false statement to avoid, decrease or conceal an obligation to pay
money to the federal government;
·
the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) imposes criminal and civil
liability for executing a scheme to defraud any healthcare benefit program and also created federal criminal laws
that prohibit knowingly and willfully falsifying, concealing or covering up a material fact or making any materially
false statements in connection with the delivery of or payment for healthcare benefits, items or services;
·
HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act (HITECH) also
imposes obligations, including mandatory contractual terms, with respect to safeguarding the privacy, security and
transmission of individually identifiable health information;
·
the Affordable Care Act requires manufacturers of drugs, devices, biologics and medical supplies that are
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reimbursable under Medicare, Medicaid, or Children’s Health Insurance Program, to report annually to HHS
information related to payments and other transfers of value to physicians and teaching hospitals, and ownership
and investment interests held by physicians and their immediate family members and applicable group purchasing
organizations; and
·
analogous state and foreign laws and regulations, such as state anti-kickback and false claims laws, may apply to
sales or marketing arrangements and claims involving healthcare items or services reimbursed by non-governmental
third-party payers, including private insurers; some state laws require pharmaceutical companies to comply with the
pharmaceutical industry’s voluntary compliance guidelines and the relevant compliance guidance promulgated by
the federal government and may require drug manufacturers to report information related to payments and other
transfers of value to physicians and other healthcare providers or marketing expenditures; and state and foreign laws
govern the privacy and security of health information in specified circumstances, many of which differ from each
other in significant ways and often are not preempted by HIPAA, thus complicating compliance efforts.
Efforts to ensure that our business arrangements with third parties are compliant with applicable healthcare laws and
regulations will involve the expenditure of appropriate, and possibly significant, resources. Nonetheless, it is possible that
governmental authorities will conclude that our business practices may not comply with current or future statutes, regulations or
case law involving applicable fraud and abuse or other healthcare laws and regulations. If our operations are found to be in
violation of any of these laws or any other governmental regulations that may apply to us, we may be subject to significant civil,
criminal and administrative penalties, damages, fines, imprisonment, exclusion from government funded healthcare programs,
such as Medicare and Medicaid, and the curtailment or restructuring of our operations. If any physicians or other healthcare
providers or entities with whom we expect to do business are found to not be in compliance with applicable laws, they may be
subject to criminal, civil or administrative sanctions, including exclusions from government funded healthcare programs.
Risks Related to Our Intellectual Property
If
we
are
unable
to
protect
our
intellectual
property
rights
or
if
our
intellectual
property
rights
are
inadequate
for
our
technology
and
product
candidates,
our
competitive
position
could
be
harmed.
Our commercial success will depend in large part on our ability to obtain and maintain patent and other intellectual
property protection in the United States and other countries with respect to our technology and products. We rely on trade secret,
patent, copyright and trademark laws, and confidentiality, licensing and other agreements with employees and third parties, all of
which offer only limited protection. We seek to protect our proprietary position by filing and prosecuting patent applications in
the United States and abroad related to our novel technologies and products that are important to our business.
The patent positions of biotechnology and pharmaceutical companies generally are highly uncertain, involve complex
legal and factual questions and have in recent years been the subject of much litigation. As a result, the issuance, scope, validity,
enforceability and commercial value of our patents, including those patent rights licensed to us by third parties, are highly
uncertain. The steps we or our licensors have taken to protect our proprietary rights may not be adequate to preclude
misappropriation of our proprietary information or infringement of our intellectual property rights, both inside and outside the
United States. Further, the examination process may require us or our licensors to narrow the claims for our pending patent
applications, which may limit the scope of patent protection that may be obtained if these applications issue. The rights already
granted under any of our currently issued patents or those licensed to us and those that may be granted under future issued patents
may not provide us with the protection or competitive advantages we are seeking. If we or our licensors are unable to obtain and
maintain patent protection for our technology and products, or if the scope of the patent protection obtained is not sufficient, our
competitors could develop and commercialize technology and products similar or superior to ours, and our ability to successfully
commercialize our technology and products may be adversely affected. It is also possible that we or our licensors will fail to
identify patentable aspects of inventions made in the course of our development and commercialization activities before it is too
late to obtain patent protection on them.
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With respect to patent rights, we do not know whether any of our granted or issued patents will effectively prevent
others from commercializing competitive technologies and products. Publications of discoveries in the scientific literature often
lag behind the actual discoveries, and patent applications in the United States and other jurisdictions are typically not published
until 18 months after filing or in some cases not at all, until they are issued as a patent. Therefore we cannot be certain that we or
our licensors were the first to make the inventions claimed in our owned or licensed patents or pending patent applications, or that
we or our licensors were the first to file for patent protection of such inventions.
Our pending applications cannot be enforced against third parties practicing the technology claimed in such applications
unless and until a patent issues from such applications. Because the issuance of a patent is not conclusive as to its inventorship,
scope, validity or enforceability, issued patents that we own or have licensed from third parties may be challenged in the courts or
patent offices in the United States and abroad. Such challenges may result in the loss of patent protection, the narrowing of claims
in such patents or the invalidity or unenforceability of such patents, which could limit our ability to stop others from using or
commercializing similar or identical technology and products, or limit the duration of the patent protection for our technology and
products. Protecting against the unauthorized use of our or our licensors’ patented technology, trademarks and other intellectual
property rights is expensive, difficult and may in some cases not be possible. In some cases, it may be difficult or impossible to
detect third-party infringement or misappropriation of our intellectual property rights, even in relation to issued patent claims, and
proving any such infringement may be even more difficult.
Competitors may infringe our patents or misappropriate or otherwise violate our intellectual property rights. To counter
infringement or unauthorized use, litigation may be necessary in the future to enforce or defend our intellectual property rights, to
protect our trade secrets or to determine the validity and scope of our own intellectual property rights or the proprietary rights of
others. Also, third parties may initiate legal proceedings against us to challenge the validity or scope of intellectual property rights
we own or control. These proceedings can be expensive and time consuming. Many of our current and potential competitors have
the ability to dedicate substantially greater resources to defend their intellectual property rights than we can. Accordingly, despite
our efforts, we may not be able to prevent third parties from infringing upon or misappropriating our intellectual property.
Litigation could result in substantial costs and diversion of management resources, which could harm our business and financial
results. In addition, in an infringement proceeding, a court may decide that a patent owned or controlled by us is invalid or
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 proceeding could put one or more of our patents at risk of
being invalidated, held unenforceable or interpreted narrowly. Furthermore, because of the substantial amount of discovery
required in connection with intellectual property litigation, there is a risk that some of our confidential information could be
compromised by disclosure during this type of litigation. There could also be public announcements of the results of hearings,
motions or other interim proceedings or developments. If securities analysts or investors perceive these results to be negative, it
could have a material adverse effect on the price of shares of our common stock.
Third
parties
may
initiate
legal
proceedings
alleging
that
we
are
infringing
their
intellectual
property
rights,
the
outcome
of
which
would
be
uncertain
and
could
harm
our
business.
Our commercial success depends upon our ability to develop, manufacture, market and sell ganaxolone, and to use our
related technologies. We may become party to, or threatened with, adversarial proceedings or litigation regarding intellectual
property rights with respect to ganaxolone, including interference or derivation proceedings before the United States Patent and
Trademark Office (USPTO). Third parties may assert infringement claims against us based on existing patents or patents that may
be granted in the future. If we are found to infringe a third party’s intellectual property rights, we could be required to obtain a
license from such third party to continue commercializing ganaxolone. However, we may not be able to obtain any required
license on commercially reasonable terms or at all. Under certain circumstances, we could be forced, including by court order, to
cease commercializing ganaxolone. In addition, in any such proceeding or litigation, we could be found liable for monetary
damages. A finding of infringement could prevent us from commercializing ganaxolone or force us to cease some of our business
operations, which could materially harm our business. Any claims by third parties that we have misappropriated their confidential
information or trade secrets could have a similar negative impact on our business.
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While ganaxolone is in preclinical studies and clinical trials, we believe that the use of ganaxolone in these preclinical
studies and clinical trials falls within the scope of the exemptions provided by 35 U.S.C. Section 271(e) in the United States,
which exempts from patent infringement liability activities reasonably related to the development and submission of information
to the FDA. As ganaxolone progresses toward commercialization, the possibility of a patent infringement claim against us
increases. While ganaxolone itself is off patent, we attempt to ensure that our solid and liquid nanoparticulate formulation of
ganaxolone and the methods we employ to manufacture ganaxolone do not infringe other parties’ patents and other proprietary
rights. There can be no assurance they do not, however, and competitors or other parties may assert that we infringe their
proprietary rights in any event.
We
may
not
be
able
to
protect
our
intellectual
property
rights
throughout
the
world.
Filing, prosecuting and defending patents on ganaxolone and any future product candidates throughout the world would
be prohibitively expensive, and our or our licensors’ intellectual property rights in some countries outside the United States can be
less extensive than those in the United States. In addition, the laws and practices of some foreign countries, particularly those
relating to biopharmaceuticals, do not protect intellectual property rights to the same extent as federal and state laws in the United
States. For example, novel formulations and manufacturing processes may not be patentable in certain jurisdictions, and the
requirements for patentability may differ in certain countries, particularly developing countries. Furthermore, generic drug
manufacturers or other competitors may challenge the scope, validity or enforceability of our patents, requiring us to engage in
complex, lengthy and costly litigation or other proceedings. Generic drug manufacturers may develop, seek approval for, and
launch generic versions of our products. Many countries, including European Union countries, India, Japan and China, have
compulsory licensing laws under which a patent owner may be compelled under certain circumstances to grant licenses to third
parties. In those countries, we may have limited remedies if patents are infringed or if we are compelled to grant a license to a
third party, which could materially diminish the value of our patents. This could limit our potential revenue opportunities.
Accordingly, our efforts to enforce intellectual property rights around the world may be inadequate to obtain a significant
commercial advantage from our intellectual property.
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 into or within 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 may
export otherwise infringing products to territories where we have patent protection, but where enforcement is not as strong as that
in the United States. These products may compete with our products in jurisdictions where we do not have any issued patents and
our patent claims or other intellectual property rights may not be effective or sufficient to prevent them from competing with us in
these jurisdictions.
Many companies have encountered significant problems in protecting and defending intellectual property rights in
certain foreign jurisdictions. Proceedings to enforce our patent rights in foreign jurisdictions could result in substantial cost 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.
Patent
terms
may
be
inadequate
to
protect
our
competitive
position
on
our
products
for
an
adequate
amount
of
time.
Given the amount of time required for the development, testing and regulatory review of new product candidates, such
as ganaxolone, patents protecting such candidates might expire before or shortly after such candidates are commercialized. We
expect to seek extensions of patent terms in the United States and, if available, in other countries where we are prosecuting
patents. In the United States, the Drug Price Competition and Patent Term Restoration Act of 1984 permits a patent term
extension of up to five years beyond the normal expiration of the patent, which is limited to the approved indication (or any
additional indications approved during the period of extension). However, the applicable authorities, including the FDA and the
USPTO in the United States, and any equivalent regulatory authority in other countries, may not agree with our assessment of
whether such extensions are available, and may refuse to grant extensions to our patents, or may grant more limited extensions
than we request. If this occurs, our
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competitors may be able to take advantage of our investment in development and clinical trials by referencing our clinical and
preclinical data and launch their product earlier than might otherwise be the case.
Changes
in
patent
laws,
including
recent
patent
reform
legislation,
could
increase
the
uncertainties
and
costs
surrounding
the
prosecution
of
our
patent
applications
and
the
enforcement
or
defense
of
our
issued
patents.
As is the case with other pharmaceutical companies, our success is heavily dependent on intellectual property,
particularly patents. Obtaining and enforcing patents in the pharmaceutical industry involve technological and legal complexity,
and obtaining and enforcing pharmaceutical patents is costly, time-consuming, and inherently uncertain. Changes in either the
patent laws or interpretation of the patent laws in the United States and other countries may diminish the value of our patents or
narrow the scope of our patent protection. For example, the United States Supreme Court has ruled on several patent cases in
recent years, either narrowing the scope of patent protection available in certain circumstances or weakening 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
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 existing patents and patents we may obtain in the future. Recent
patent reform legislation could increase the uncertainties and costs surrounding the prosecution of our patent applications and the
enforcement or defense of our issued patents.
In September 2011, the Leahy-Smith America Invents Act (Leahy-Smith Act) was signed into law. The Leahy-Smith
Act includes a number of significant changes to United States patent law. These include provisions that affect the way patent
applications will be prosecuted and may also affect patent litigation. In particular, under the Leahy-Smith Act, the United States
transitioned in March 2013 to a “first to file” system in which the first inventor to file a patent application will be entitled to the
patent. Third parties are allowed to submit prior art before the issuance of a patent by the USPTO and may become involved in
opposition, derivation, reexamination, inter-parties review or interference proceedings challenging our patent rights or the patent
rights of our licensors. An adverse determination in any such submission, proceeding or litigation could reduce the scope of, or
invalidate patent rights, which could adversely affect our competitive position.
Obtaining
and
maintaining
our
patent
protection
depends
on
compliance
with
various
procedural,
document
submissions,
fee
payment
and
other
requirements
imposed
by
governmental
patent
agencies,
and
our
patent
protection
could
be
reduced
or
eliminated
for
non-compliance
with
these
requirements.
Periodic maintenance fees on any issued patent are due to be paid to the 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 a
number of procedural, documentary, fee payment and other similar provisions during the patent application process. While an
inadvertent lapse can in many cases be cured by payment of a late fee or by other means in accordance with the applicable rules,
there are situations in which noncompliance can result in abandonment or lapse of the patent or patent application, resulting in
partial or complete loss of patent rights in the relevant jurisdiction. Non-compliance events that could result in abandonment or
lapse of a patent or patent application include, but are not limited to, failure to respond to official actions within prescribed time
limits, non-payment of fees and failure to properly legalize and submit formal documents. If we or our licensors fail to maintain
the patents and patent applications covering our product candidates, our competitive position would be adversely affected.
We
may
be
subject
to
claims
by
third
parties
asserting
that
we
have
misappropriated
their
intellectual
property,
or
claiming
ownership
of
what
we
regard
as
our
own
intellectual
property.
Some of our employees were previously employed at universities or at other biotechnology or pharmaceutical
companies, including our competitors or potential competitors. Some of these employees, including each member of our senior
management, executed proprietary rights, non-disclosure and non-competition agreements, or similar agreements, in connection
with such previous employment. Although we try to ensure that our employees do not use the proprietary information or know-
how of others in their work for us, we may be subject to claims that we or these employees have used or disclosed intellectual
property, including trade secrets or other proprietary information, of any such third party.
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Litigation may be necessary to defend against such claims. If we fail in defending any such claims, in addition to paying
monetary damages, we may lose valuable intellectual property rights or personnel or sustain damages. Such intellectual property
rights could be awarded to a third party, and we could be required to obtain a license from such third party to commercialize our
technology or products. Such a license may not be available on commercially reasonable terms or at all. Even if we are successful
in defending against such claims, litigation could result in substantial costs and be a distraction to management.
Intellectual
property
rights
do
not
necessarily
address
all
potential
threats
to
our
competitive
advantage.
The degree of future protection afforded by our intellectual property rights is uncertain because intellectual property
rights have limitations, and may not adequately protect our business, or permit us to maintain our competitive advantage. The
following examples are illustrative:
·
others may be able to make compounds or ganaxolone formulations that are similar to our ganaxolone formulations
but that are not covered by the claims of the patents that we own or control;
·
we or any strategic partners might not have been the first to make the inventions covered by the issued patents or
pending patent applications that we own or control;
·
we might not have been the first to file patent applications covering certain of our inventions;
·
others may independently develop similar or alternative technologies or duplicate any of our technologies without
infringing our intellectual property rights;
·
it is possible that our pending patent applications will not lead to issued patents;
·
issued patents that we own or control may not provide us with any competitive advantages, or may be held invalid
or unenforceable as a result of legal challenges;
·
our competitors might conduct research and development activities in the United States and other countries that
provide a safe harbor from patent infringement claims for certain research and development activities, as well as in
countries where we do not have patent rights and then use the information learned from such activities to develop
competitive products for sale in our major commercial markets;
·
we may not develop additional proprietary technologies that are patentable; and
·
the patents of others may have an adverse effect on our business.
Risks Related to Employee Matters and Managing Growth
Our
future
success
depends
on
our
ability
to
retain
our
executive
officers
and
to
attract,
retain
and
motivate
qualified
personnel.
We are highly dependent upon Christopher M. Cashman, our Chief Executive Officer, Edward F. Smith, our Chief
Financial Officer and Lorianne Masuoka, MD, our Chief Medical Officer. The employment agreements we have with the persons
named above do not prevent such persons from terminating their employment with us at any time. We do not maintain “key
person” insurance for any of our executives or other employees. The loss of the services of any of these persons could impede the
achievement of our research, development and commercialization objectives.
We
will
need
to
grow
the
size
of
our
organization,
and
we
may
experience
difficulties
in
managing
this
growth.
As of December 31, 2017, we had one part-time and 15 full-time employees. As our development and commercialization
plans and strategies develop, or as a result of any future acquisitions, we will need additional managerial, operational, sales,
marketing, financial and other resources. In addition, it may become more cost effective
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to bring in house certain resources currently outsourced to consultants and other third-parties. Our management, personnel and
systems currently in place may not be adequate to support our future growth. Future growth would impose significant added
responsibilities on members of management, including:
·
managing our clinical trials effectively;
·
identifying, recruiting, maintaining, motivating and integrating additional employees;
·
managing our internal development efforts effectively while complying with our contractual obligations to
licensors, licensees, contractors and other third parties;
·
improving our managerial, development, operational and finance systems; and
·
expanding our facilities.
As our operations expand, we will need to manage additional relationships with various strategic partners, suppliers and
other third parties. Our future financial performance and our ability to commercialize ganaxolone, if approved, and to compete
effectively will depend, in part, on our ability to manage any future growth effectively. To that end, we must be able to manage
our development efforts and clinical trials effectively and hire, train and integrate additional management, administrative and
sales and marketing personnel. Our failure to accomplish any of these tasks could prevent us from successfully growing our
company.
If
we
are
unable
to
attract
and
retain
highly
qualified
employees,
and
other
personnel,
advisors
and
consultants
with
scientific,
technical
and
managerial
expertise,
we
may
not
be
able
to
grow
effectively.
Our future growth and success depend on our ability to recruit, retain, manage and motivate our employees, consultants
and other third-parties. The loss of any member of our senior management team or the inability to hire or retain experienced
management personnel could compromise our ability to execute our business plan and harm our operating results.
Because of the specialized scientific and managerial nature of our business, we rely heavily on our ability to attract and
retain qualified scientific, technical and managerial personnel, advisors and consultants. The competition for qualified personnel
in the pharmaceutical field is significant and, as a result, we may be unable to continue to attract and retain qualified personnel
necessary for the development of our business.
We
may
acquire
other
assets
or
businesses,
or
form
collaborations
or
make
investments
in
other
companies
or
technologies
that
could
harm
our
operating
results,
dilute
our
stockholders’
ownership,
increase
our
debt
or
cause
us
to
incur
significant
expense.
As part of our business strategy, we may pursue acquisitions of assets, including preclinical, clinical or commercial stage
products or product candidates, or businesses, or strategic alliances and collaborations, to expand our existing technologies and
operations. We may not identify or complete these transactions in a timely manner, on a cost-effective basis, or at all, and we may
not realize the anticipated benefits of any such transaction, any of which could have a detrimental effect on our financial
condition, results of operations and cash flows. We have no experience with acquiring other companies, products or product
candidates, and limited experience with forming strategic alliances and collaborations. We may not be able to find suitable
acquisition candidates, and if we make any acquisitions, we may not be able to integrate these acquisitions successfully into our
existing business and we may incur additional debt or assume unknown or contingent liabilities in connection therewith.
Integration of an acquired company or assets may also disrupt ongoing operations, require the hiring of additional personnel and
the implementation of additional internal systems and infrastructure, especially the acquisition of commercial assets, and require
management resources that would otherwise focus on developing our existing business. We may not be able to find suitable
strategic alliance or collaboration partners or identify other investment opportunities, and we may experience losses related to any
such investments.
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To finance any acquisitions or collaborations, we may choose to issue debt or equity securities as consideration. Any
such issuance of shares would dilute the ownership of our stockholders. If the price of our common stock is low or volatile, we
may not be able to acquire other assets or companies or fund a transaction using our stock as consideration. Alternatively, it may
be necessary for us to raise additional funds for acquisitions through public or private financings. Additional funds may not be
available on terms that are favorable to us, or at all.
Our
employees
may
engage
in
misconduct
or
other
improper
activities,
including
noncompliance
with
regulatory
standards
and
requirements,
which
could
cause
significant
liability
for
us
and
harm
our
reputation.
We are exposed to the risk of employee fraud or other misconduct, including intentional failures to comply with FDA
regulations or similar regulations of comparable foreign regulatory authorities, provide accurate information to the FDA or
comparable foreign regulatory authorities, comply with manufacturing standards we have established, comply with federal and
state healthcare fraud and abuse laws and regulations and similar laws and regulations established and enforced by comparable
foreign regulatory authorities, report financial information or data accurately or disclose unauthorized activities to us. Employee
misconduct could also involve the improper use of information obtained in the course of clinical trials, which could result in
regulatory sanctions and serious harm to our reputation. We have adopted a code of conduct for our directors, officers and
employees (Code of Conduct) but it is not always possible to identify and deter employee misconduct, and the precautions we
take to detect and prevent this activity may not be effective in controlling unknown or unmanaged risks or losses or in protecting
us from governmental investigations or other actions or lawsuits stemming from a failure to be in compliance with such laws or
regulations. If any such actions are instituted against us, and we are not successful in defending ourselves or asserting our rights,
those actions could have a significant impact on our business and results of operations, including the imposition of significant
fines or other sanctions.
Risks Related to Ownership of Our Common Stock
The
market
price
of
our
stock
may
be
volatile,
and
you
could
lose
all
or
part
of
your
investment.
The trading price of our common stock is likely to be highly volatile and could be subject to wide fluctuations in
response to various factors, some of which are beyond our control. In addition to the factors discussed in this “Risk Factors”
section, these factors include:
·
the success of competitive products or technologies;
·
regulatory actions with respect to our products or our competitors’ products;
·
actual or anticipated changes in our growth rate relative to our competitors;
·
announcements by us or our competitors of significant acquisitions, strategic partnerships, joint ventures,
collaborations or capital commitments;
·
results of clinical trials of ganaxolone or product candidates of our competitors;
·
regulatory or legal developments in the United States and other countries;
·
developments or disputes concerning patent applications, issued patents or other proprietary rights;
·
the recruitment or departure of key personnel;
·
the level of expenses related to our clinical development programs;
·
the results of our efforts to in-license or acquire additional product candidates or products;
·
actual or anticipated changes in estimates as to financial results, development timelines or recommendations by
securities analysts;
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·
variations in our financial results or those of companies that are perceived to be similar to us;
·
fluctuations in the valuation of companies perceived by investors to be comparable to us;
·
share price and volume fluctuations attributable to inconsistent trading volume levels of our shares;
·
announcement or expectation of additional financing efforts;
·
sales of our common stock by us, our insiders or our other stockholders;
·
changes in the structure of healthcare payment systems;
·
market conditions in the pharmaceutical and biotechnology sectors;
·
general economic, industry and market conditions; and
·
other events or factors, many of which are beyond our control.
In addition, the stock market in general, The NASDAQ Global Market and pharmaceutical and biotechnology
companies in particular, have experienced extreme price and volume fluctuations that have often been unrelated or
disproportionate to the operating performance of these companies. Broad market and industry factors may negatively affect the
market price of our common stock, regardless of our actual operating performance. The realization of any of these risks or any of
a broad range of other risks, including those described in these “Risk Factors,” could have a dramatic and material adverse impact
on the market price of our common stock.
We
may
be
subject
to
securities
litigation,
which
is
expensive
and
could
divert
our
management’s
attention.
The market price of our common stock may be volatile, and in the past companies that have experienced volatility in the
market price of their stock have been subject to securities class action litigation. We may be the target of this type of litigation in
the future. Securities litigation against us could result in substantial costs and divert our management’s attention from other
business concerns, which could seriously harm our business.
Insiders
have
substantial
influence
over
us
and
could
delay
or
prevent
a
change
in
corporate
control.
We estimate that our executive officers, directors, and holders of 5% or more of our capital stock collectively
beneficially own approximately 45.2% of our voting stock. This concentration of ownership could harm the market price of our
common stock by:
·
delaying, deferring or preventing a change in control of our company;
·
impeding a merger, consolidation, takeover or other business combination involving our company; or
·
discouraging a potential acquirer from making a tender offer or otherwise attempting to obtain control of our
company.
The interests of this group of stockholders may not always coincide with your interests or the interests of other
stockholders and they may act in a manner that advances their best interests and not necessarily those of other stockholders,
including seeking a premium value for their common stock, and might negatively affect the prevailing market price for our
common stock.
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We
are
an
“emerging
growth
company”
and
we
intend
to
take
advantage
of
reduced
disclosure
and
governance
requirements
applicable
to
emerging
growth
companies,
which
could
result
in
our
common
stock
being
less
attractive
to
investors.
We are an emerging growth company, as defined in the Jumpstart Our Business Startups Act of 2012 (JOBS Act). For as
long as we continue to be an emerging growth company, we may take advantage of exemptions from various reporting
requirements that are applicable to other public companies that are not emerging growth companies, including not being required
to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations
regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding
nonbinding advisory votes on executive compensation and stockholder approval of any golden parachute payments not previously
approved. We could be an emerging growth company for up to five years following the year in which we completed our initial
public offering, although circumstances could cause us to lose that status earlier, including if the market value of our common
stock held by non-affiliates exceeds $700.0 million as of any June 30 before that time or if we have total annual gross revenue of
$1.0 billion or more during any fiscal year before that time, in which cases we would no longer be an emerging growth company
as of the following December 31. If we issue more than $1.0 billion in non-convertible debt during any three-year period before
that time, we would cease to be an emerging growth company immediately. Even after we no longer qualify as an emerging
growth company, we may still qualify as a “smaller reporting company” which would allow us to take advantage of many of the
same exemptions from disclosure requirements including not being required to comply with the auditor attestation requirements
of Section 404 of the Sarbanes-Oxley Act and reduced disclosure obligations regarding executive compensation in our periodic
reports and proxy statements. We cannot predict if investors will find our common stock less attractive because we may rely on
these exemptions. If some investors find our common stock less attractive as a result, there may be a less active trading market for
our common stock and our stock price may be more volatile.
Under the JOBS Act, emerging growth companies can also delay adopting new or revised accounting standards until
such time as those standards apply to private companies. We have irrevocably elected not to avail ourselves of this exemption
from new or revised accounting standards and, therefore, will be subject to the same new or revised accounting standards as other
public companies that are not emerging growth companies. As a result, changes in rules of United States generally accepted
accounting principles or their interpretation, the adoption of new guidance or the application of existing guidance to changes in
our business could significantly affect our financial position and results of operations.
Because
we
do
not
anticipate
paying
any
cash
dividends
on
our
capital
stock
in
the
foreseeable
future,
capital
appreciation,
if
any,
will
be
your
sole
source
of
gain.
We have never declared or paid cash dividends on our capital stock. We currently intend to retain all of our future
earnings, if any, to finance the growth and development of our business. As a result, capital appreciation, if any, of our common
stock will be your sole source of gain for the foreseeable future.
Sales
of
a
substantial
number
of
shares
of
our
common
stock
in
the
public
market
could
cause
our
stock
price
to
fall.
If our stockholders sell, or indicate an intention to sell, substantial amounts of our common stock in the public market,
the trading price of our common stock could decline. As of December 31, 2017 we had outstanding a total of 40,520,705 shares of
common stock. In addition, shares of common stock that are either subject to outstanding options or reserved for future issuance
under our employee benefit plans will become eligible for sale in the public market to the extent permitted by the provisions of
various vesting schedules and either the registration of such shares under the Securities Act or the application of exemptions from
such registration with respect to any sales such as Rule 144 and Rule 701 under the Securities Act. If these additional shares of
common stock are sold, or if it is perceived that they will be sold, in the public market, the trading price of our common stock
could decline.
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Table of Contents
Future
sales
and
issuances
of
our
common
stock
or
rights
to
purchase
common
stock,
including
pursuant
to
our
equity
incentive
plans,
could
result
in
additional
dilution
of
the
percentage
ownership
of
our
stockholders
and
could
cause
our
stock
price
to
fall.
We expect that significant additional capital will be needed in the future to continue our planned operations. To raise
capital, we may sell substantial amounts of common stock or securities convertible into or exchangeable for common stock. These
future issuances of equity or equity-linked securities, together with the exercise of stock options, warrants outstanding or granted
in the future and any additional shares issued in connection with acquisitions, if any, may result in material dilution to our
investors. Such sales may also result in material dilution to our stockholders, and new investors could gain rights, preferences and
privileges senior to those of holders of our common stock.
Pursuant to our equity incentive plans, our compensation committee is authorized to grant equity-based incentive awards
to our directors, executive officers and other employees and service providers. As of December 31, 2017, there were no shares of
our common stock available for future grant under our 2005 Stock Option and Incentive Plan, as amended. The number of shares
of our common stock available for future grant under our 2014 Equity Incentive Plan, as Amended, was 187,100 as of December
31, 2017. Future equity incentive grants and issuances of common stock under our equity incentive plans may have an adverse
effect on the market price of our common stock.
We
have
broad
discretion
in
the
use
of
our
cash
reserves
and
may
not
use
them
effectively.
Our management has broad discretion over the management of our operations and cash resources and could deploy our
resources in ways that do not improve our business, including our ganaxolone clinical development programs, or enhance the
value of our common stock. The failure by our management to apply these funds effectively could result in financial losses that
could have a material adverse effect on our business, cause the market price of our common stock to decline and delay the
development of ganaxolone.
Some
provisions
of
our
charter
documents
and
Delaware
law
may
have
anti-takeover
effects
that
could
discourage
an
acquisition
of
us
by
others,
even
if
an
acquisition
would
be
beneficial
to
our
stockholders
and
may
prevent
attempts
by
our
stockholders
to
replace
or
remove
our
current
management.
Provisions in our amended and restated certificate of incorporation and amended and restated bylaws, as well as
provisions of Delaware law, could make it more difficult for a third party to acquire us or increase the cost of acquiring us, even if
doing so would benefit our stockholders, or remove our current management. These include provisions that:
·
permit our board of directors to issue up to 25,000,000 shares of preferred stock, with any rights, preferences and
privileges as it may designate;
·
provide that all vacancies on our board of directors, including as a result of newly created directorships, may,
except as otherwise required by law, be filled by the affirmative vote of a majority of directors then in office, even if
less than a quorum;
·
establish a classified board of directors such that only one of three classes of directors is elected each year;
·
provide that directors can only be removed for cause;
·
require that any action to be taken by our stockholders must be effected at a duly called annual or special meeting of
stockholders and not be taken by written consent;
·
provide that stockholders seeking to present proposals before a meeting of stockholders or to nominate candidates
for election as directors at a meeting of stockholders must provide advance notice in writing, and also specify
requirements as to the form and content of a stockholder’s notice;
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·
not provide for cumulative voting rights, thereby allowing the holders of a majority of the shares of common stock
entitled to vote in any election of directors to elect all of the directors standing for election; and
·
provide that special meetings of our stockholders may be called only by the chairperson of the board of directors,
the chief executive officer or the board of directors.
These provisions may frustrate or prevent any attempts by our stockholders to replace or remove our current management by
making it more difficult for stockholders to replace members of our board of directors, who are responsible for appointing the
members of our management. Because we are incorporated in Delaware, we are governed by the provisions of Section 203 of the
Delaware General Corporation Law, which may discourage, delay or prevent someone from acquiring us or merging with us
whether or not it is desired by or beneficial to our stockholders. Under Delaware law, a corporation may not, in general, engage in
a business combination with any holder of 15.0% or more of its capital stock unless the holder has held the stock for three years
or, among other things, the board of directors has approved the transaction. Any provision of our amended and restated certificate
of incorporation or amended and restated bylaws or Delaware law that has the effect of delaying or deterring a change in control
could limit the opportunity for our stockholders to receive a premium for their shares of our common stock, and could also affect
the price that some investors are willing to pay for our common stock.
We
are
required
to
meet
the
NASDAQ
Stock
Market’s
continued
listing
requirements
and
other
NASDAQ
rules,
or
we
may
risk
delisting.
Delisting
could
negatively
affect
the
price
of
our
common
stock,
which
could
make
it
more
difficult
for
us
to
sell
securities
in
a
future
financing
or
for
you
to
sell
our
common
stock.
We are required to meet the continued listing requirements of the NASDAQ Stock Market and other NASDAQ rules,
including those regarding director independence and independent committee requirements, minimum stockholders’ equity,
minimum share price and certain other corporate governance requirements. In particular, we are required to maintain a minimum
bid price for our listed common stock of $1.00 per share. If we do not meet these continued listing requirements, our common
stock could be delisted. Delisting from the NASDAQ Stock Market would cause us to pursue eligibility for trading of these
securities on other markets or exchanges, or on the “pink sheets.” In such case, our stockholders’ ability to trade, or obtain
quotations of the market value of our common stock would be severely limited because of lower trading volumes and transaction
delays. These factors could contribute to lower prices and larger spreads in the bid and ask prices of these securities. There can be
no assurance that our securities, if delisted from the NASDAQ Stock Market in the future, would be listed on a national securities
exchange, a national quotation service, the over-the-counter markets or the pink sheets. Delisting from the NASDAQ Stock
Market, or even the issuance of a notice of potential delisting, would also result in negative publicity, make it more difficult for us
to raise additional capital, cause us to lose eligibility to register the sale or resale of our shares on Form S-3 and the automatic
exemption from registration under state securities laws for exchange-listed securities, adversely affect the market liquidity of our
securities, decrease securities analysts’ coverage of us or diminish investor, supplier and employee confidence.
Item 1B. Unresolved Staff Comments.
None.
Item 2. Properties.
Our principal offices occupy approximately 8,500 square feet of leased office space in Radnor, Pennsylvania pursuant to
a lease agreement that expires in 2021. We believe that our current facilities are suitable and adequate to meet our current
needs. We may add new facilities or expand existing facilities as we add employees, and we believe that suitable additional or
substitute space will be available as needed to accommodate any such expansion of our operations.
Item 3. Legal Proceedings.
From time to time, we may become subject to litigation and claims arising in the ordinary course of business. We are not
currently a party to any material legal proceedings, and we are not aware of any pending or threatened legal
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Table of Contents
proceedings against us that we believe could have a material adverse effect on our business, operating results or financial
condition.
Item 4. Mine Safety Disclosures.
Not applicable.
PART II
Item 5. Market for Common Equit y, Related Stockholder Matters and Issuer Purchases of Equity Securities.
Market Information
Our common stock is listed on the NASDAQ Global Market under the symbol MRNS. The following table sets forth for
the indicated periods the high and low intra-day sales prices per share for our common stock on the NASDAQ Global Market.
First Quarter
Second Quarter
Third Quarter
Fourth Quarter
First Quarter
Second Quarter
Third Quarter
Fourth Quarter
Holders of Record
Year Ended December 31, 2017
High
Low
1.77
1.70
5.87
9.33
$
$
$
$
1.01
1.15
1.33
4.92
Year Ended December 31, 2016
High
Low
7.56
6.76
2.73
1.84
$
$
$
$
4.00
1.19
1.23
0.82
$
$
$
$
$
$
$
$
As of March 2, 2018 there were approximately 33 holders of record of shares of our common stock. This number does
not reflect the beneficial holders of our common stock who hold shares in street name through brokerage accounts or other
nominees.
Dividend Policy
We have never declared or paid any cash dividends on our common stock. We currently intend to retain all available funds
and any future earnings to support our operations and finance the growth and development of our business. We do not intend to
pay cash dividends on our common stock for the foreseeable future.
Recent Sales of Unregistered Securities
None.
Item 6. Selected Financial Dat a
Not applicable for smaller reporting company.
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Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations .
You should read the following discussion and analysis of our financial condition and results of operations together with
our financial statements and the related notes appearing at the end of this Annual Report on Form 10-K. Some of the information
contained in this discussion and analysis or set forth elsewhere in this Annual Report on Form 10-K, including information with
respect to our plans and strategy for our business and related financing, includes forward-looking statements that involve risks
and uncertainties. You should read “Cautionary Note Regarding Forward-Looking Statements” and Item 1A. Risk Factors of this
Annual Report on Form 10-K for a discussion of important factors that could cause actual results to differ materially from the
results described in or implied by the forward-looking statements contained in the following discussion and analysis.
Overview
We are a clinical stage biopharmaceutical company focused on developing and commercializing innovative therapeutics
to treat drug-resistant seizures and neuropsychiatric disorders. Our clinical stage product candidate, ganaxolone, is a positive
allosteric modulator of GABA A being developed in three different dose forms: intravenous (IV), capsule and liquid. The multiple
dose forms are intended to maximize therapeutic reach to adult and pediatric patient populations in both acute and chronic care
settings. Ganaxolone acts on a well-characterized synaptic and extrasynaptic GABA A target known for both anti‑seizure and
anti‑anxiety activity.
Our operations to date have consisted primarily of organizing and staffing our company, developing ganaxolone,
including conducting preclinical testing and clinical trials, and raising capital. We have funded our operations primarily through
sales of equity and debt securities. At December 31, 2017, we had cash, cash equivalents and investment balances of
$58.4 million. We have no products currently available for sale, have incurred operating losses since inception, have not
generated any product sales revenue and have not achieved profitable operations. We incurred a net loss of $18.9 million for the
year ended December 31, 2017. Our accumulated deficit as of December 31, 2017 was $144.7 million, and we expect to continue
to incur substantial losses in future periods. We anticipate that our operating expenses will increase substantially as we continue
to advance our clinical-stage product candidate, ganaxolone.
We anticipate that our expenses will increase substantially as we:
·
conduct later stage clinical trials in targeted indications, which could include CDKL5 deficiency disorder (CDD),
postpartum depression (PPD), status epilepticus (SE), Lennox-Gastaut Syndrome (LGS), PCDH19 pediatric epilepsy
(PCDH19-PE), Fragile X Syndrome (FXS) and other indications;
·
continue the research, development and scale-up manufacturing capabilities to optimize products and dose forms for
which we may obtain regulatory approval;
·
conduct other preclinical and clinical studies to support the filing of New Drug Applications (NDAs) with the Food and
Drug Administration (FDA) and other regulatory agencies in other countries;
·
acquire the rights to other product candidates and fund its development;
·
maintain, expand and protect our global intellectual property portfolio;
·
hire additional clinical, manufacturing, and scientific personnel; and
·
add operational, financial and management information systems and personnel, including personnel to support our drug
development and potential future commercialization efforts.
We believe that our cash, cash equivalents and investments as of December 31, 2017 will enable us to fund our operating
expenses and capital expenditure requirements into 2020. However, we will need to secure additional funding in the future, from
one or more equity or debt financings, collaborations, or other sources, in order to carry out all of our
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Table of Contents
planned research and development activities with respect to ganaxolone.
Financial Overview
Research
and
Development
Expenses
Our research and development expenses consist primarily of costs incurred for the development of ganaxolone, which
include:
·
employee-related expenses, including salaries, benefits, travel and stock-based compensation expense;
·
expenses incurred under agreements with Clinical Research Organizations (CROs) and investigative sites that
conduct our clinical trials and preclinical studies;
·
the cost of acquiring, developing and manufacturing clinical trial materials;
·
facilities, depreciation and other expenses, which include direct and allocated expenses for rent and maintenance of
facilities, insurance and other supplies; and
·
costs associated with preclinical activities and regulatory operations.
We expense research and development costs when we incur them. We record costs for some development activities,
such as clinical trials, based on an evaluation of the progress to completion of specific tasks using data such as subject enrollment,
clinical site activations or information our vendors provide to us.
We will incur substantial costs beyond our present and planned clinical trials in order to file an NDA and Supplemental
New Drug Applications (sNDAs) for ganaxolone for various clinical indications, and in each case, the nature, design, size and
cost of further studies and trials will depend in large part on the outcome of preceding studies and trials and discussions with
regulators. It is difficult to determine with certainty the costs and duration of our current or future clinical trials and preclinical
studies, or if, when or to what extent we will generate revenue from the commercialization and sale of ganaxolone if we obtain
regulatory approval. We may never succeed in achieving regulatory approval for ganaxolone. The duration, costs and timing of
clinical trials and development of ganaxolone will depend on a variety of factors, including the uncertainties of future clinical
trials and preclinical studies, uncertainties in clinical trial enrollment rate and significant and changing government regulation.
In addition, the probability of success for our clinical programs will depend on numerous factors, including competition,
manufacturing capability and commercial viability. See “Risk Factors.” Our commercial success depends upon attaining
significant market acceptance, if approved, among physicians, patients, healthcare payers and the medical community. We will
determine which programs to pursue and how much to fund each program in response to the scientific and clinical success, as
well as an assessment of commercial potential.
General
and
Administrative
Expenses
General and administrative expenses consist principally of salaries and related costs for executive and other
administrative personnel and consultants, including stock-based compensation and travel expenses. Other general and
administrative expenses include professional fees for legal, patent review, consulting and accounting services. General and
administrative expenses are expensed when incurred.
We expect that our general and administrative expenses will increase in the future as a result of employee hiring and our
scaling operations commensurate with supporting more advanced clinical trials and in preparation for commercial infrastructure.
These increases will likely include increased costs for insurance, hiring of additional personnel, outside consultants, legal counsel
and accountants, among other expenses.
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Interest
Income
Interest income consists principally of interest income earned on cash and cash equivalent and investment balances.
Interest
Expense
Interest expense is attributable to interest expense associated with our credit facility entered into in April 2014, as
amended, which was paid in full and closed in July 2017.
Results of Operations
Year Ended December 31, 2017 compared to year ended December 31, 2016
Research
and
Development
Expenses
Research and development expenses decreased to $12.4 million for the year ended December 31, 2017, as compared to
$22.0 million in the prior year. The decrease was primarily due to a decrease of $11.0 million associated with our drug-resistant
focal onset seizures program, which we discontinued in June 2016. Additionally, we sold $0.4 million in state research and
development tax credits which we used to offset research and development expenses. The decrease was partially offset by an
increase of $2.3 million associated with our IV program in PPD, for which a Phase 2 clinical trial was initiated in June 2017.
We incurred $1.8 million in research and development expenses related to our preclinical and clinical activities
associated with our drug-resistant focal onset seizures program in the year ended December 31, 2017, compared to $12.8 million
in the prior year. We incurred $2.3 million and $2.2 million in research and development expenses related to our preclinical and
clinical activities associated with our IV programs in PPD and SE in the year ended December 31, 2017, respectively, compared
to $0.1 million and $3.3 million in the prior year.
Prospectively, we do not expect to incur significant expenses for our focal onset seizure program as this program has
been discontinued. We plan to focus our resources and near-term development efforts on other indications such as CDD, PPD
and SE.
General
and
Administrative
Expenses
General and administrative expenses increased $0.4 million, to $6.7 million, for the year ended December 31, 2017,
compared to 2016. The increase in general and administrative expenses was primarily due to an increase in noncash stock-based
compensation expense.
Cash
Flows
Operating Activities. Cash used in operating activities decreased to $18.8 million for the year ended December 31,
2017 compared to $24.8 million for the same period a year ago. The decrease was driven primarily by a decrease in our net loss of
$9.7 million, partially offset by a decrease in the change in operating assets and liabilities of $3.7 million. The net decrease in the
change in operating assets and liabilities was primarily due to upfront payments for planned clinical trials in our IV program,
payment of corporate insurance premiums and the timing of payment obligations related to our drug supply in 2016.
Investing Activities. Cash used in investing activities during the year ended December 31, 2017 represents the purchase
of $24.9 million in investments and $0.5 million in laboratory equipment, offset by maturities of short-term investments of $3.9
million. Cash provided by investing activities during the year ended December 31, 2016 represents the purchase of $2.4 million
in investments and $0.6 million on laboratory equipment, offset by maturities of short-term investments of $4.4 million.
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Financing Activities. Cash provided by financing activities during the year ended December 31, 2017 includes $52.5 million in
net proceeds from equity offerings, $0.2 million in proceeds from short-term bank borrowings and $0.1 million in proceeds from
the exercise of stock options. These proceeds were offset by $5.2 million in principal payments of notes payable. Cash used in
financing activities during the year ended December 31, 2016 represents principal payments of notes payable of $2.1 million and
payment of public offering costs of $0.2 million, offset by proceeds from the exercise of outstanding stock options of $0.1
million.
Year Ended December 31, 2016 compared to year ended December 31, 2015
Research
and
Development
Expenses
Research and development expenses increased $3.1 million, to $22.0 million, for the year ended December 31, 2016,
compared to the same period of 2015. The increase was primarily due to an increase of $2.7 million associated with preclinical
and clinical activities in our IV program, and $1.4 million associated with increases in salaries, benefits and noncash stock-based
compensation, mostly attributable to increased headcount. This increase was partially offset by a decrease of $1.3 million in costs
associated with our drug-resistant focal onset seizure program, which discontinued in June 2016.
The primary drivers of our research and development expenditures have been in our drug-resistant focal onset seizures
and IV programs. We incurred $12.8 million and $3.3 million in research and development expenses related to our preclinical
and clinical activities associated with our drug-resistant focal onset seizures and IV programs, respectively, in the year ended
December 31, 2016, compared to $14.1 million and $0.6 million for the year ended December 31, 2015.
General
and
Administrative
Expenses
General and administrative expenses increased $0.7 million, to $6.2 million, for the year ended December 31, 2016,
compared to the same period of 2015. The increase in general and administrative expenses was primarily due to an increase in
noncash stock-based compensation expense.
Cash
Flows
Operating Activities. Cash used in operating activities increased to $24.8 million for the year ended December 31, 2016
compared to $20.1 million for the same period a year ago. The increase was driven primarily by an increase in our net loss of
$3.8 million and a net decrease in the change in operating assets and liabilities of $1.8 million, partially offset by an increase in
stock-based compensation expense of $1.0 million. The net decrease in the change in operating assets and liabilities was due
primarily to upfront payment obligations related to certain drug manufacturing contracts and deposits on laboratory equipment in
2015.
Investing Activities. Cash provided by investing activities during the year ended December 31, 2016 represents the
purchase of $2.4 million in investments and $0.6 million in laboratory equipment, offset by maturities of short-term investments
of $4.4 million. Cash used in investing activities during the year ended December 31, 2015 represents the purchase of $7.7
million in investments and a deposit of $0.4 million on laboratory equipment, offset by maturities of short-term investments of
$1.7 million.
Financing Activities. Cash used in financing activities during the year ended December 31, 2016 represents principal
payments of notes payable of $2.1 million and payment of public offering costs of $0.2 million, offset by proceeds from the
exercise of outstanding stock options of $0.1 million. Cash provided by financing activities during the year ended December 31,
2015 represents $28.3 million in net proceeds received from a secondary public offering, as well as $0.4 million from the exercise
of outstanding stock options, offset by $0.2 million in installment payments made to a third-party vendor for financed insurance
premiums.
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Liquidity and Capital Resources
Since inception, we have incurred net losses and negative cash flows from our operations. We incurred a net loss of
$18.9 million for the year ended December 31, 2017. Our cash used in operating activities was $18.8 million for year ended
December 31, 2017 compared to $24.8 million for the same period a year ago. Historically, we have financed our operations
principally through the sale of common stock, notes payable, preferred stock and convertible debt. At December 31, 2017, we had
cash, cash equivalents and investment balances of $58.4 million.
Credit
Facility
In 2014, we borrowed an aggregate of $7.0 million in connection with a Loan and Security Agreement, as amended
(LSA). In July 2017, we paid in full the entire outstanding term loans balance of $3.5 million and accrued interest, with no
penalty for prepayment. Through July 2017 and pursuant to the terms of the LSA, we were required to make monthly interest
payments for all outstanding borrowings at an interest rate equal to the greater of (a) prime rate plus 3.25% or (b) 6.5% and
monthly principal payments of 1/24th of our principal borrowings plus interest.
Interest expense related to the term loans was $0.2 million and $0.5 million for the years ended December 31, 2017 and
2016, respectively. As of December 31, 2017, we had no accrued interest.
Funding
Requirements
We have not achieved profitability since our inception, and we expect to continue to incur net losses for the foreseeable
future. We expect our cash expenditures to increase in the near term as we fund our planned clinical trials for ganaxolone.
We believe that our cash, cash equivalents and investments as of December 31, 2017, will enable us to fund our
operating expenses and capital expenditure requirements into 2020. However, we will need to raise substantial additional
financing in the future to fund our operations. In order to meet these additional cash requirements, we may seek to sell additional
equity or convertible debt securities, including securities from our Equity Distribution Agreement with JMP Securities, that may
result in dilution to our stockholders. If we raise additional funds through the issuance of convertible debt securities, these
securities could have rights senior to those of our common stock and could contain covenants that restrict our operations. There
can be no assurance that we will be able to obtain additional equity or debt financing on terms acceptable to us, if at all. Our
failure to obtain sufficient funds on acceptable terms when needed could have a negative impact on our business, results of
operations, and financial condition. Our future capital requirements will depend on many factors, including:
·
·
·
·
·
·
·
the results of our preclinical studies and clinical trials;
the development, formulation and commercialization activities related to ganaxolone;
the scope, progress, results and costs of researching and developing ganaxolone or any other future product
candidates, and conducting preclinical studies and clinical trials;
the timing of, and the costs involved in, obtaining regulatory approvals for ganaxolone or any other future product
candidates;
the cost of commercialization activities if ganaxolone or any other future product candidates are approved for sale,
including marketing, sales and distribution costs;
the cost of manufacturing ganaxolone or any other future product candidates in preclinical studies, clinical trials
and, if approved, in commercial sale;
our ability to establish and maintain strategic collaborations, licensing or other arrangements and the financial terms
of such agreements;
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·
·
·
·
·
any product liability, infringement or other lawsuits related to our products;
the expenses needed to attract and retain skilled personnel;
the costs associated with being a public company;
the costs involved in preparing, filing, prosecuting, maintaining, defending and enforcing patent claims, including
litigation costs and the outcome of such litigation; and
the timing, receipt and amount of sales of, or royalties on, future approved products, if any.
Please see “Risk Factors” for additional risks associated with our substantial capital requirements.
Significant Contractual Obligations and Commitments
The following summarizes our significant contractual obligations as of December 31, 2017 (in thousands):
Payment due by period
Contractual Obligations
Operating lease obligations(1)
Total
(1) Represents commitments for future minimum lease payments.
Off-Balance Sheet Arrangements
Total
$ 1,133 $
$ 1,133 $
Less than
1 year
1 - 3 years 3 - 5 years
More than
5 years
340 $
340 $
654 $
654 $
139 $
139 $
—
—
We do not have any off-balance sheet arrangements, as defined by applicable SEC regulations.
Discussion of Critical Accounting Policies and Significant Judgments and Estimates
We base this management’s discussion and analysis of our financial condition and results of operations on our financial
statements, which we have prepared in accordance with accounting principles generally accepted in the United States (GAAP).
The preparation of our financial statements requires us to make estimates and judgments that affect the reported amounts of
assets, liabilities, revenue and expenses and the disclosure of contingent assets and liabilities in our financial statements. We
evaluate our estimates and judgments, including those related to warrant liabilities, stock-based compensation and accrued
clinical trial expenses on an ongoing basis. We base our estimates on historical experience, known trends and events and various
other factors that we believe to be reasonable under the circumstances, the results of which form the basis for making judgments
about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from
these estimates under different assumptions or conditions. You should consider your evaluation of our financial condition and
results of operations with these policies, judgments and estimates in mind.
While we describe our significant accounting policies in the notes to our financial statements appearing elsewhere in this
Annual Report on Form 10-K, we believe the following accounting policies are the most critical to the judgments and estimates
we use in the preparation of our financial statements.
Clinical
Trial
Expenses
As part of the process of preparing our financial statements, we are required to estimate our clinical trial expenses. Our
clinical trial accrual process seeks to account for expenses resulting from our obligations under contracts with vendors,
consultants and CROs and clinical site agreements in connection with conducting clinical trials. The financial terms of these
contracts are subject to negotiations, which vary from contract to contract and may result in payment flows that do not match the
periods over which materials or services are provided to us under such contracts. Our
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objective is to reflect the appropriate clinical trial expenses in our financial statements by matching the appropriate expenses with
the period in which services and efforts are expended. We account for these expenses according to the progress of the trial as
measured by subject progression and the timing of various aspects of the trial.
We determine accrual estimates based on estimates of the services received and efforts expended that take into account
discussion with applicable personnel and outside service providers as to the progress or state of completion of trials. During the
course of a clinical trial, we adjust our clinical expense recognition if actual results differ from our estimates. We make estimates
of our accrued expenses and prepaid assets as of each balance sheet date in our financial statements based on the facts and
circumstances known to us at that time. Our clinical trial accrual and prepaid assets are dependent, in part, upon the receipt of
timely and accurate reporting from CROs and other third-party vendors. Although we do not expect our estimates to differ
materially from amounts we actually incur, our understanding of the status and timing of services performed relative to the actual
status and timing of services performed may vary and may result in us reporting amounts that are too high or too low for any
particular period.
JOBS Act
Section 107 of the JOBS Act also provides that an “emerging growth company” can take advantage of the extended
transition period provided in Section 7(a)(2)(B) of the Securities Act for complying with new or revised accounting standards. In
other words, an “emerging growth company” can delay the adoption of new or revised accounting standards until those standards
would otherwise apply to private companies. We have irrevocably elected not to avail ourselves of this exemption from new or
revised accounting standards and, therefore, we will be subject to the same new or revised accounting standards as other public
companies that are not emerging growth companies.
Recent Accounting Pronouncements
In February 2016, the Financial Accounting Standard Board (FASB) issued Accounting Standards Update (ASU) 2016-
02, Leases , which requires that lease arrangements longer than 12 months result in an entity recognizing an asset and
liability. The updated guidance is effective for interim and annual periods beginning after December 15, 2018, and early adoption
is permitted. We have not evaluated the impact of the updated guidance on our interim or annual consolidated financial
statements .
In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows , which amends the guidance in Accounting
Standards Codification (ASC) 230 on the classification of certain cash receipts and payments in the statement of cash flows. The
primary purpose of the ASU is to reduce the diversity in practice that has resulted from the lack of consistent principles on this
topic. The guidance in the ASU is effective for fiscal years beginning after December 15, 2017, including interim periods within
those fiscal years. We do not expect the adoption of this ASU to have a material effect on our interim or annual consolidated
financial statements.
In May 2017, the FASB issued ASU 2017-09, Scope of Modification Accounting, which amends the scope of
modification accounting for share-based payment arrangements. The ASU provides guidance on the types of changes to the terms
or conditions of share-based payment awards to which an entity would be required to apply modification accounting under ASC
718. Specifically, an entity would not apply modification accounting if the fair value, vesting conditions, and classification of the
awards are the same immediately before and after the modification. For all entities, the ASU is effective for annual reporting
periods, including interim periods within those annual reporting periods, beginning after December 15, 2017, with early adoption
permitted. We do not expect the adoption of this ASU to have a material effect on our interim or annual consolidated financial
statements.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk .
We are exposed to market risks in the ordinary course of our business. These market risks are principally limited to
interest rate fluctuations.
We had cash, cash equivalents and investment balances of $58.4 million at December 31, 2017, consisting of funds in
cash, money market accounts and U.S. Treasury securities. The primary objective of our investment activities is to preserve
principal and liquidity while maximizing income without significantly increasing risk. We do not enter into
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investments for trading or speculative purposes. Due to the conservative nature of our investment portfolio, we do not believe an
immediate 1.0% increase in interest rates would have a material effect on the fair market value of our portfolio, and accordingly
we do not expect a sudden change in market interest rates to affect materially our operating results or cash flows.
Item 8. Financial Statements and Supplementary Data .
Our financial statements, accompanying notes and Report of Independent Registered Public Accounting Firm are
included in this Annual Report on Form 10-K beginning on page F-1, which are incorporated in this Item 8 by reference.
Item 9. Changes in and Disagreement s with Accountants on Accounting and Financial Disclosure.
None.
Item 9A. Controls and Procedures .
Evaluation of Disclosure Controls and Procedures.
Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the
effectiveness of our disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the
Exchange Act) as of the end of the period covered by this Annual Report on Form 10-K. Management recognizes that any
controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their
objectives and management necessarily applies its judgment in evaluating the cost benefit relationship of possible controls and
procedures. Based on such evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that, as of the end
of the period covered by this report, our disclosure controls and procedures were effective to ensure that the information required
to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized
and reported within the time periods specified in SEC rules and forms, and that information required to be disclosed in the reports
we file or submit under the Exchange Act is accumulated and communicated to our management, including our Chief Executive
Officer and Chief Financial Officer, as our principal financial and accounting officer, to allow timely decisions regarding required
disclosures.
Management’s Report on Internal Control Over Financial Reporting
Management of Marinus Pharmaceuticals, Inc. is responsible for establishing and maintaining adequate internal control
over financial reporting as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act. Our internal control over financial
reporting is 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. Because of its inherent
limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation
of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or
that the degree of compliance with the policies or procedures may deteriorate.
Management utilized the criteria established in the Internal Control – Integrated Framework (2013) issued by the
Committee of Sponsoring Organizations of the Treadway Commission (COSO) to conduct an assessment of the effectiveness of
our internal control over financial reporting as of December 31, 2017. Based on the assessment, management has concluded that,
as of December 31, 2017, our internal control over financial reporting was effective .
Changes in Internal Control Over Financial Reporting
There was no change in our internal control over financial reporting identified in connection with the evaluation required by
Rule 13a-15(d) and 15d-15(d) of the Exchange Act that occurred during the quarter ended December 31,
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2017 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information .
None.
PART II I
Item 10. Directors and Executive Officers and Corporate Governance .
We incorporate the information required by this Item 10 by reference to the definitive proxy statement for our 2018
annual meeting of shareholders, to be filed with the SEC.
Item 11. Executive Compensation .
We incorporate the information required by this Item 11 by reference to the definitive proxy statement for our 2018
annual meeting of shareholders, to be filed with the SEC.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
We incorporate the information required by this Item 12 by reference to the definitive proxy statement for our 2018
annual meeting of shareholders, to be filed with the SEC.
Item 13. Certain Relationships and Related Transactions and Director Independence.
We incorporate the information required by this Item 13 by reference to the definitive proxy statement for our 2018
annual meeting of shareholders, to be filed with the SEC.
Item 14. Principal Accountants Fees and Services .
We incorporate the information required by this Item 14 by reference to the definitive proxy statement for our 2018
annual meeting of shareholders, to be filed with the SEC.
Item 15. Exhibits and Financial Statement Schedules .
(a) Documents filed as part of this report:
1. Financial Statements. The financial statements as set forth under Item 8 of this Annual Report on Form 10-K are
incorporated herein.
2. Financial Statement Schedules. All financial statement schedules have been omitted because they are not
applicable, not required, or the information is shown in the financial statements or related notes.
3. Exhibits. See (b) below.
(b) Exhibits:
Exhibit
No.
3.1
3.2
4.1
Description of Exhibit
Fourth Amended and Restated Certificate of Incorporation. (Incorporated by reference to Exhibit 3.1 to
Form 8-K current report filed on August 7, 2014.)
Amended and Restated By-laws. (Incorporated by reference to Exhibit 3.2 to Form 8-K current report filed on
August 7, 2014.)
Specimen Certificate evidencing shares of the Company’s common stock. (Incorporated by reference to
Exhibit 4.1 to Form S-1/A registration statement filed on July 18, 2014.)
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Exhibit
No.
4.2
10.1+
10.2+
10.3+
10.4+
10.5+
10.6*
10.7
10.8
10.9
10.10
10.11*
10.12+
10.13+
10.14+
10.15+
10.16+
10.17
10.18
10.19
Description of Exhibit
Form of Third Amended and Restated Investors’ Rights Agreement by and among the Company and the
parties listed therein. (Incorporated by reference to Exhibit 4.2 to Form S-1/A registration statement filed on
July 9, 2014.)
Marinus Pharmaceuticals, Inc. 2005 Stock Option and Incentive Plan, as amended. (Incorporated by reference
to Exhibit 10.1 to Form S-1 registration statement filed on May 12, 2014.)
Forms of Stock Option Agreement under the 2005 Stock Option and Incentive Plan. (Incorporated by
reference to Exhibit 10.2 to Form S-1 registration statement filed on May 12, 2014.)
Amended and Restated Employment Agreement dated as of August 3, 2016 between the Company and
Christopher M. Cashman. (Incorporated by reference to Exhibit 10.1 to Form 10-Q quarterly report filed on
August 9, 2016.)
Amended and Restated Employment Agreement dated as of August 3, 2016 between the Company and
Edward F. Smith. (Incorporated by reference to Exhibit 10.1 to Form 10-Q quarterly report filed on August 9,
2016.)
Employment Agreement dated as of April 10, 2017 between the Company and Lorianne Masuoka.
(Incorporated by reference to Exhibit 10.1 to Form 8-K current report filed on April 12, 2017.)
Technology Transfer Agreement dated December 4, 2012 between Domain Russia Investments Limited and
the Company. (Incorporated by reference to Exhibit 10.6 to Form S-1 registration statement filed on May 12,
2014.)
Assignment and Assumption Agreement dated as of December 4, 2012 among Domain Russia Investments
Limited, the Company and NovaMedica, LLC. (Incorporated by reference to Exhibit 10.7 to Form S-1
registration statement filed on May 12, 2014.)
Clinical Development and Collaboration Agreement dated as of June 25, 2013 between NovaMedica, LLC
and the Company. (Incorporated by reference to Exhibit 10.8 to Form S-1 registration statement filed on
May 12, 2014.)
Form of Amended and Restated Indemnification Agreement (VC Directors). (Incorporated by reference to
Exhibit 10.10 to Form S-1 registration statement filed on May 12, 2014.)
Form of Amended and Restated Indemnification Agreement (Non-VC Directors). (Incorporated by reference
to Exhibit 10.11 to Form S-1 registration statement filed on May 12, 2014.)
Amended and Restated Agreement dated as of May 23, 2008 between the Company and Purdue Neuroscience
Company. (Incorporated by reference to Exhibit 10.12 to Form S-1 registration statement filed on May 12,
2014.)
Marinus Pharmaceuticals, Inc. 2014 Equity Incentive Plan, as amended, effective as of May 11, 2017.
(Incorporated by reference to Exhibit 10.1 to Form 10-Q quarterly report filed on August 1, 2017.)
Marinus Pharmaceuticals, Inc. Change in Control Severance Plan effective November 7, 2016. (Incorporated
by reference to Exhibit 10.1 to Form 10-Q quarterly report filed on November 8, 2016.)
Form of Incentive Stock Option Agreement for Officers Under 2014 Equity Incentive Plan. (Incorporated by
reference to Exhibit 10.16 to Form 10-K annual report filed on March 12, 2015.)
Form of Incentive Stock Option Agreement for Employees Under 2014 Equity Incentive Plan. (Incorporated
by reference to Exhibit 10.17 to Form 10-K annual report filed on March 12, 2015.)
Form of Nonqualified Stock Option Agreement Under 2014 Equity Incentive Plan. (Incorporated by reference
to Exhibit 10.18 to Form 10-K annual report filed on March 12, 2015.)
First Amendment to Lease agreement dated as of December 28, 2015 between Radnor Properties-SDC, L.P.
and Marinus Pharmaceuticals, Inc, amending Lease agreement dated as of October 14, 2014 between Radnor
Center Associates and Marinus Pharmaceuticals, Inc. (Incorporated by reference to Exhibit 10.1 to Form 8-K
current report filed on January 4, 2016.)
Equity Distribution Agreement dated as of August 13, 2015 between the Company and JMP Securities LLC.
(Incorporated by reference to Exhibit 1.1 to Form S-3 registration statement filed on August 13, 2015.)
Equity Distribution Agreement dated as of October 31, 2017 between the Company and JMP Securities LLC.
(Incorporated by reference to Exhibit 1.1 to Form 10-Q quarterly report filed on October 31, 2017.)
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Exhibit
No.
10.20
10.21
License Agreement by and between Marinus Pharmaceuticals, Inc. and CyDex Pharmaceuticals, Inc., dated
March 31, 2017. (Incorporated by reference to Exhibit 10.1 to Form 8-K current report filed on April 6, 2017.)
Supply Agreement by and between Marinus Pharmaceuticals, Inc. and CyDex Pharmaceuticals, Inc., dated
March 31, 2017. (Incorporated by reference to Exhibit 10.2 to Form 8-K current report filed on April 6, 2017.)
Description of Exhibit
Subsidiaries of the Registrant. (Filed herewith.)
Consent of KPMG LLP. (Filed herewith)
Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. (Filed herewith)
Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. (Filed herewith.)
Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. (Filed herewith.)
XBRL Instance Taxonomy
21
23.1
31.1
31.2
32.1
101.INS
101.SCH XBRL Taxonomy Extension Schema Document
101.CAL XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF
101.LAB XBRL Taxonomy Extension Labels Linkbase Document
101.PRE XBRL Taxonomy Extension Presentation Linkbase Document
XBRL Taxonomy Extension Definition Linkbase Document
+ Indicates management contract or compensatory plan.
* Portions of this exhibit (indicated by asterisks) have been omitted pursuant to an order granting confidential treatment
under the Securities Act of 1933.
(c) None.
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SIGNATURE S
In accordance with the requirements Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant duly
caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: March 6, 2018
By: /s/ Christopher M. Cashman
Christopher M. Cashman
President and Chief Executive Officer
Marinus Pharmaceuticals, Inc.
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:
Name
Capacity
/s/ Christopher M. Cashman
Christopher M. Cashman
President, Chief Executive Officer
(Principal Executive Officer) and Chairman
/s/ Edward F. Smith
Edward F. Smith
/s/ Enrique J. Carrazana
Enrique J. Carrazana, M.D.
/s/ Michael R. Dougherty
Michael R. Dougherty
/s/ Seth H.Z. Fischer
Seth H.Z. Fischer
/s/ Tim M. Mayleben
Tim M. Mayleben
/s/ Nicole Vitullo
Nicole Vitullo
Vice President, Chief Financial Officer,
Secretary and Treasurer (Principal Finance
and Accounting Officer)
Director
Director
Director
Director
Director
68
Date
March 6, 2018
March 6, 2018
March 6, 2018
March 6, 2018
March 6, 2018
March 6, 2018
March 6, 2018
Table of Contents
CONSOLIDATED FINANCIAL STATEMENTS
MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
INDEX TO CONSOLIDATED FINANCIAL STATEMENT S
CONTENTS
Report of Independent Registered Public Accounting Firm
Consolidated Balance Sheets as of December 31, 2017 and 2016
Consolidated Statements of Operations and Comprehensive Loss for the Years Ended December 31, 2017, 2016 and
2015
Consolidated Statements of Stockholders’ Equity (Deficit) for the Years Ended December 31, 2017, 2016 and 2015
Consolidated Statements of Cash Flows for the Years Ended December 31, 2017, 2016 and 2015
Notes to Consolidated Financial Statements
Page
F-2
F-3
F-4
F-5
F-6
F-7
F-1
Table of Contents
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIR M
To the Stockholders and Board of Directors
Marinus Pharmaceuticals, Inc.:
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of Marinus Pharmaceuticals, Inc. and subsidiary (the Company)
as of December 31, 2017 and 2016, the related consolidated statements of operations and comprehensive loss, stockholders’
equity, and cash flows for each of the years in the three‑year period ended December 31, 2017, and the related notes (collectively,
the consolidated financial statements). In our opinion, the consolidated financial statements present fairly, in all material respects,
the financial position of the Company as of December 31, 2017 and 2016, and the results of its operations and its cash flows for
each of the years in the three‑year period ended December 31, 2017, in conformity with U.S. generally accepted accounting
principles.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an
opinion on these consolidated financial statements based on our audits. We are a public accounting firm registered with the Public
Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company
in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange
Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the
audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement,
whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal
control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial
reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial
reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the consolidated 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 consolidated 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 consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ KPMG LLP
We have served as the Company’s auditor since 2014.
Philadelphia, Pennsylvania
March 6, 2018
F-2
Table of Contents
MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
(In thousands, except share and per share amounts)
ASSETS
Current assets:
Cash and cash equivalents
Short-term investments
Prepaid expenses and other current assets
Total current assets
Property and equipment, net
Investments
Total assets
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
Accounts payable
Accrued expenses
Current portion of notes payable
Total current liabilities
Notes payable
Other long-term liabilities
Total liabilities
Commitments and contingencies (Note 9)
Stockholders’ equity:
December 31,
2017
2016
$
$
33,531 $
19,861
978
54,370
1,338
4,964
60,672 $
$
927 $
1,617
—
2,544
—
120
2,664
26,178
3,922
199
30,299
1,148
—
31,447
2,809
1,775
3,500
8,084
1,743
141
9,968
Preferred stock, $0.001 par value; 25,000,000 shares authorized, no shares issued and
outstanding
Common stock, $0.001 par value; 100,000,000 shares authorized, 40,549,936 issued and
40,520,705 outstanding at December 31, 2017 and 19,734,351 issued and 19,705,120
outstanding at December 31, 2016
Additional paid-in capital
Treasury stock at cost, 29,231 shares at December 31, 2017 and 2016
Accumulated other comprehensive loss
Accumulated deficit
Total stockholders’ equity
Total liabilities and stockholders’ equity
—
—
41
202,790
—
(96)
(144,727)
58,008
60,672 $
20
147,288
—
—
(125,829)
21,479
31,447
$
See accompanying notes to consolidated financial statements.
F-3
Table of Contents
MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
(In thousands, except share and per share amounts)
Year Ended December 31,
2016
2015
2017
Expenses:
Research and development
General and administrative
Loss from operations
Interest income
Interest expense
Other income (expense)
Net loss
Per share information:
Net loss per share of common stock—basic and diluted
Basic and diluted weighted average shares outstanding
$
$
$
12,376 $
6,667
(19,043)
324
(159)
(20)
(18,898) $
(0.80) $
22,005 $
6,237
(28,242)
128
(464)
(65)
(28,643) $
18,916
5,516
(24,432)
64
(475)
(7)
(24,850)
23,540,748
19,498,143
(1.47) $
(1.67)
14,919,783
Net loss
Other comprehensive loss:
Unrealized loss on available-for-sale securities
Total comprehensive loss
$
(18,898) $
(28,643) $
(24,850)
(96)
(18,994) $
—
(28,643) $
—
(24,850)
$
See accompanying notes to consolidated financial statements.
F-4
Table of Contents
Balance, December 31, 2014
Stock‑based compensation expense
Exercise of stock options
Issuance of common stock in
connection with secondary public
offering ($6.00 per share), net of
expenses of $2,200
Net loss
Balance, December 31, 2015
Stock‑based compensation expense
Exercise of stock options
Issuance of Restricted Stock
Net loss
Balance, December 31, 2016
Stock‑based compensation expense
Issuance of common stock under
equity distribution agreement, net of
expenses of $380 (Note 8)
Issuance of common stock in
connection with secondary public
offering ($3.75 per share), net of
expenses of $2,555
Exercise of stock options
Issuance of Restricted Stock
Net loss
Unrealized loss on investments
Balance, December 31, 2017
MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
(In thousands, except share and per share amounts)
Common Stock
Shares
14,036,985 $
Amount
Additional
Paid‑‑in
Capital
14 $ 113,476
2,108
—
373
—
Accumulated
Other
Total
Treasury Stock
Comprehensive Accumulated Stockholders’
Shares
Amount
Loss
Deficit
Equity
29,231 $
—
—
$
—
—
—
— $
—
—
(72,336) $
—
—
41,154
2,108
373
—
327,098
5,056,003
—
19,420,086
—
118,365
195,900
—
19,734,351
—
28,131
5
—
—
144,088
19
3,077
—
123
1
—
—
—
—
20 147,288
2,880
—
—
—
29,231
—
—
—
—
29,231
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
(24,850)
(97,186)
—
—
—
(28,643)
(125,829)
—
28,136
(24,850)
46,921
3,077
124
—
(28,643)
21,479
2,880
9,768,142
10
14,843
—
—
—
—
14,853
10,733,334
90,509
223,600
—
—
40,549,936 $
37,684
10
95
1
—
—
—
—
—
—
41 $ 202,790
—
—
—
—
—
29,231 $
—
—
—
—
—
— $
—
—
—
—
(96)
(96) $
—
—
—
(18,898)
—
(144,727) $
37,694
96
—
(18,898)
(96)
58,008
See accompanying notes to consolidated financial statements.
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MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOW S
(In thousands)
Cash flows from operating activities
Net loss
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation
Stock-based compensation expense
Amortization of debt issuance costs
Amortization of discount on investments
Changes in operating assets and liabilities:
Prepaid expenses and other assets
Accounts payable and accrued expenses
Net cash used in operating activities
Cash flows from investing activities
Purchases of investments
Maturities of short-term investments
Purchases of property and equipment
Net cash (used in) provided by investing activities
Cash flows from financing activities
Proceeds from exercise of stock options
Principal payments of notes payable
Proceeds from equity offerings, net of offering costs
Proceeds from short-term bank borrowings
Net cash provided by (used in) financing activities
Net increase (decrease) in cash and cash equivalents
Cash and cash equivalents—beginning of year
Cash and cash equivalents—end of year
Supplemental disclosure of cash flow information
Cash paid for interest
Financing arrangement with third-party vendor
Property and equipment in accounts payable
Accrued equity offering costs
2017
Year Ended December 31,
2016
2015
$
(18,898) $
(28,643) $
(24,850)
126
2,880
4
(28)
(779)
(2,121)
(18,816)
(24,892)
3,922
(450)
(21,420)
96
(5,247)
52,547
193
47,589
7,353
26,178
33,531 $
184 $
— $
— $
— $
23
3,077
7
—
1,396
(629)
(24,769)
(2,434)
4,474
(644)
1,396
124
(2,128)
(167)
—
(2,171)
(25,544)
51,722
26,178 $
460 $
— $
134 $
— $
11
2,108
7
2
(947)
3,540
(20,129)
(7,705)
1,743
(352)
(6,314)
373
28,278
(206)
—
28,445
2,002
49,720
51,722
468
584
—
142
$
$
$
$
$
See accompanying notes to consolidated financial statements.
F-6
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MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Organization and Description of the Business
We are a clinical stage biopharmaceutical company focused on developing and commercializing innovative therapeutics
to treat epilepsy and neuropsychiatric disorders. Our clinical stage product candidate, ganaxolone, is a positive allosteric
modulator of the GABA A receptor being developed in three different dose forms (intravenous, oral capsule and oral liquid)
intended to maximize therapeutic reach to adult and pediatric patient populations in both acute and chronic care settings and in
both in-patient and self-administered settings. The GABA A receptor is a well‑characterized target in the brain known for both
anti‑seizure, anti-depression and anti‑anxiety effects. Our primary focus to date has been directed towards developing business
strategies, conducting research and development activities, and conducting preclinical testing and human clinical trials for our
product candidate.
Liquidity
We have not generated any product revenues and have incurred operating losses since inception. There is no assurance
that profitable operations will ever be achieved, and if achieved, could be sustained on a continuing basis. In addition,
development activities, clinical and preclinical testing, and commercialization of our product candidates will require significant
additional financing. Our accumulated deficit as of December 31, 2017 was $144.7 million and we expect to incur substantial
losses in future periods. We plan to finance our future operations with a combination of proceeds from the issuance of equity
securities, the issuance of additional debt, potential collaborations and revenues from potential future product sales, if any. We
have not generated positive cash flows from operations, and there are no assurances that we will be successful in obtaining an
adequate level of financing for the development and commercialization of our planned product candidates.
In connection with the closing of a secondary public offering during the third quarter of 2017, we issued a total of
10,733,334 shares of common stock resulting in aggregate net proceeds, after underwriting discounts and commissions and other
estimated offering expenses, of $37.7 million. We believe that our cash, cash equivalents and investment balance as of December
31, 2017 is adequate to fund our operations at least through March 2019.
2. Summary of Significant Accounting Policies
Principles of Consolidation
The consolidated financial statements include the accounts of the Company and its wholly-owned subsidiary. All intercompany
accounts and transactions have been eliminated.
Use of Estimates
The preparation of financial statements in conformity with generally accepted accounting principles (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 revenues and expenses during
the reporting period. Actual results could differ from such estimates.
Fair Value of Financial Instruments and Credit Risk
At December 31, 2017 and 2016, our financial instruments included cash equivalents, certificates of deposit, U.S.
Treasury securities, accounts payable, accrued expenses, and notes payable. The carrying amount of cash equivalents, certificates
of deposit, accounts payable and accrued expenses approximated fair value, given their short-term nature. The carrying amount of
U.S. Treasury securities is recorded at fair value based on the current market price of each security at the measurement date. The
carrying amount of our notes payable approximate fair value because the interest rates on these instruments are reflective of rates
that we could obtain on debt with similar terms and conditions.
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MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Cash equivalents, certificates of deposit and U.S. Treasury securities subject us to concentrations of credit risk.
However, we invest our cash in accordance with a policy objective that seeks to ensure both liquidity and safety of principal. The
policy limits investments to instruments issued by the U.S. government, certain Securities and Exchange Commission (SEC)-
registered money market funds that invest only in U.S. government obligations and various other low-risk liquid investment
options, and places restrictions on portfolio maturity terms.
Cash and Cash Equivalents
We consider all highly liquid investments that have maturities of three months or less when acquired to be cash
equivalents. As of December 31, 2017 and 2016, we invested a portion of our cash balances in money market investments, which
we have included as cash equivalents on our balance sheets.
Investments
As of December 31, 2017, our investments consisted of U.S. Treasury securities and are classified as available-for-sale
and are recorded at fair value with unrealized gains and losses recorded in accumulated other comprehensive loss, as a separate
component of stockholders’ equity. Other income includes interest and dividends, realized gains and losses on sales of securities
and other-than-temporary impairment (OTTI) declines in the fair value of securities, if any. U.S. Treasury securities with
maturities less than 12 months are classified as short-term investments and maturities greater than 12 months are classified as
long-term investments on our balance sheet.
The Company reviews its available-for-sale securities for OTTI declines in fair value below its cost basis each quarter and
whenever events or changes in circumstances indicate that the cost basis of an asset may not be recoverable. This evaluation is
based on a number of factors, including the length of time and the extent to which the fair value has been below its cost basis and
adverse conditions related specifically to the security, including any changes to the credit rating of the security, and the intent to
sell, or whether the Company will more likely than not be required to sell, the security before recovery of its amortized cost basis.
The Company’s assessment of whether a security is other-than-temporarily impaired could change in the future due to new
developments or changes in assumptions related to any particular security.
If a decline in the fair value of an available-for-sale security in the Company’s investment portfolio is deemed to be other-
than-temporary, the Company writes down the security to its current fair value. If the Company intends to sell the security or it is
more likely than not that the Company will be forced to sell the security before recovery of the amortized cost of the security, the
loss is recognized in net income. Otherwise, the loss is separated into a portion representing a credit loss, which is recorded in net
income, and the remainder is recorded in other comprehensive income, net of taxes.
As of December 31, 2016, our investments consisted of certificates of deposit with various financial institutions, with
original maturities ranging from three to 18 months. All investments were classified as held-to-maturity and were recorded at
amortized cost. Fair value of our investments approximated the carrying value on our balance sheet.
Prepaid Expenses and Other Current Assets
Prepaid expenses and other current assets generally represent payments made for goods or services to be received within
one year, and are expensed as the related benefit is received.
Property and Equipment
Property and equipment consist of laboratory and office equipment and are recorded at cost. Property and equipment are
depreciated on a straight‑line basis over their estimated useful lives. We estimate a life of three years for
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MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
computer equipment, including software, five years for office equipment and furniture, and five to fifteen years for laboratory
equipment. When property and equipment are sold or otherwise disposed of, the cost and related accumulated depreciation are
removed from the accounts and the resulting gain or loss is included in operating expenses.
Impairment of Long‑‑Lived Assets
We review long‑lived assets, including property and equipment, for impairment whenever events or changes in business
circumstances indicate that the carrying amount of an asset may not be fully recoverable. If the estimated undiscounted future
cash flows expected to result from the use of the asset and its eventual disposition is less than its carrying amount an impairment
loss would be recognized if the carrying value of the asset exceeded its fair value. Fair value is generally determined using
discounted cash flows.
Research and Development
Research and development costs are expensed as incurred. Costs for certain development activities, such as clinical trials,
are recognized based on an evaluation of the progress to completion of specific tasks using data such as subject enrollment,
monitoring visits, clinical site activations, or information provided to us by our vendors with respect to their actual costs incurred.
Payments for these activities are based on the terms of the individual arrangements, which may differ from the pattern of costs
incurred, and are reflected in the financial statements as prepaid or accrued research and development expense, as the case may
be.
Income Taxes
We recognize deferred tax assets and liabilities for temporary differences between the financial reporting basis and the tax
basis of our assets and liabilities and the expected benefits of net operating loss carryforwards. The impact of changes in tax rates
and laws on deferred taxes, if any, applied during the years in which temporary differences are expected to be settled, is reflected
in the financial statements in the period of enactment. The measurement of deferred tax assets is reduced, if necessary, if, based
on weight of the evidence, it is more likely than not that some, or all, of the deferred tax assets will not be realized. The effect on
deferred tax assets and liabilities of a change in tax rates is recognized in the period that such tax rate changes are enacted. At
December 31, 2017 and 2016, we have concluded that a full valuation allowance is necessary for our net deferred tax assets. We
had no material amounts recorded for uncertain tax positions, interest or penalties in the accompanying financial statements.
Loss Per Share of Common Stock
Basic loss per share is computed by dividing net loss applicable to common stockholders by the weighted average
number of shares of common stock outstanding during each period. Diluted loss per share includes the effect, if any, from the
potential exercise or conversion of securities, such as convertible preferred stock, convertible notes payable, warrants, stock
options, and unvested restricted stock, which would result in the issuance of incremental shares of common stock. In computing
the basic and diluted net loss per share applicable to common stockholders, the weighted average number of shares remains the
same for both calculations due to the fact that when a net loss exists, dilutive shares are not included in the calculation. These
potentially dilutive securities are more fully described in Note 8.
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MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The following table sets forth the computation of basic and diluted earnings per share for the years ended December 31,
2017, 2016 and 2015 (in thousands, except share and per share amounts):
Basic and diluted net loss per share of common stock:
Net loss
Weighted average shares of common stock outstanding
Net loss per share of common stock—basic and diluted
Year Ended December 31,
2017
2016
2015
$
$
(18,898) $
(28,643) $
23,540,748
19,498,143
(0.80) $
(1.47) $
(24,850)
14,919,783
(1.67)
The following potentially dilutive securities have been excluded from the computation of diluted weighted average
shares outstanding, as they would be antidilutive:
Restricted stock
Stock options
2017
239,800
3,754,320
3,994,120
December 31,
2016
195,900
2,239,044
2,434,944
2015
—
1,799,226
1,799,226
As of December 31, 2017, 2016 and 2015, we had no other potentially dilutive securities.
Comprehensive Loss
Comprehensive loss is defined as the change in equity of a business enterprise during a period from transactions and other
events and circumstances from non‑owner sources. As of December 31, 2017, comprehensive loss includes net loss and
unrealized loss on available-for-sale securities. As of December 31, 2016 and 2015, comprehensive loss was equal to net loss.
Segment Information
Operating segments are defined as components of an enterprise about which separate discrete information is available for
evaluation by the chief operating decision maker, or decision‑making group, in deciding how to allocate resources and in
assessing performance. We view our operations and manage our business in one segment, which is the identification and
development of neuropsychiatric therapeutics.
Stock‑‑Based Compensation
We account for stock‑based compensation in accordance with the provisions of Accounting Standards Codification (ASC)
Topic 718, Compensation—Stock Compensation , or ASC 718, which requires the recognition of expense related to the fair value
of stock‑based awards in the statements of operations. For stock options issued to employees and members of our board of
directors for their services on our board of directors, we estimate the grant‑date fair value of options using the Black‑Scholes
option pricing model. The use of the Black‑Scholes option pricing model requires management to make assumptions with respect
to the expected term of the option, the expected volatility of the common stock consistent with the expected life of the option,
risk‑free interest rates, and, for grants prior to our initial public offering, the value of the common stock. For restricted stock
awards, the grant date fair value is determined by the closing market price of our common stock on the date of grant. For awards
subject to time‑based vesting, we recognize stock‑based compensation expense, on a straight‑line basis over the requisite service
period, which is generally the vesting term of the award. For awards subject to performance‑based vesting conditions, we
recognize stock‑based compensation expense when it is probable that the performance condition will be achieved. Stock‑based
awards issued to non‑employees are recorded at their fair values, and are periodically revalued as the equity instruments vest and
are recognized as expense over the related service period in accordance with the provisions of ASC 718 and ASC Topic 505,
Equity .
F-10
Table of Contents
Clinical Trial Expenses
MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
As part of the process of preparing our financial statements, we are required to estimate our expenses resulting from our
obligations under contracts with vendors, clinical research organizations and consultants and under clinical site agreements in
connection with conducting clinical trials. The financial terms of these contracts are subject to negotiations, which vary from
contract to contract and may result in payment flows that do not match the periods over which materials or services are provided
under such contracts. Our objective is to reflect the appropriate trial expenses in our financial statements by matching those
expenses with the period in which services are performed and efforts are expended. We account for these expenses according to
the progress of the trial as measured by patient progression and the timing of various aspects of the trial. We determine accrual
estimates based on estimates of services received and efforts expended that take into account discussion with applicable personnel
and outside service providers as to the progress or state of consummation of trials. During the course of a clinical trial, we adjust
our clinical expense recognition if actual results differ from its estimates. We make estimates of our accrued expenses as of each
balance sheet date based on the facts and circumstances known at that time. Our clinical trial accruals are dependent upon the
timely and accurate reporting of contract research organizations and other third‑party vendors. Although we do not expect our
estimates to be materially different from amounts actually incurred, our understanding of the status and timing of services
performed relative to the actual status and timing of services performed may vary and may result in reporting amounts that are too
high or too low for any particular period. For the years ended December 31, 2017, 2016 and 2015 there were no material
adjustments to our prior period estimates of accrued expenses for clinical trials.
Recent Accounting Pronouncements
In February 2016, the Financial Accounting Standard Board (FASB) issued Accounting Standards Update (ASU) 2016-
02, Leases , which requires that lease arrangements longer than 12 months result in an entity recognizing an asset and
liability. The updated guidance is effective for interim and annual periods beginning after December 15, 2018, and early adoption
is permitted. We have not evaluated the impact of the updated guidance on our interim or annual consolidated financial
statements .
In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows , which amends the guidance in Accounting
Standards Codification (ASC) 230 on the classification of certain cash receipts and payments in the statement of cash flows. The
primary purpose of the ASU is to reduce the diversity in practice that has resulted from the lack of consistent principles on this
topic. The guidance in the ASU is effective for fiscal years beginning after December 15, 2017, including interim periods within
those fiscal years. We do not expect the adoption of this ASU to have a material effect on our interim or annual consolidated
financial statements.
In May 2017, the FASB issued ASU 2017-09, Scope of Modification Accounting, which amends the scope of
modification accounting for share-based payment arrangements. The ASU provides guidance on the types of changes to the terms
or conditions of share-based payment awards to which an entity would be required to apply modification accounting under ASC
718. Specifically, an entity would not apply modification accounting if the fair value, vesting conditions, and classification of the
awards are the same immediately before and after the modification. For all entities, the ASU is effective for annual reporting
periods, including interim periods within those annual reporting periods, beginning after December 15, 2017, with early adoption
permitted. We do not expect the adoption of this ASU to have a material effect on our interim or annual consolidated financial
statements.
3. Fair Value Measurements
FASB accounting guidance defines fair value as the price that would be received to sell an asset or paid to transfer a
liability (the exit price) in an orderly transaction between market participants at the measurement date. The accounting guidance
outlines a valuation framework and creates a fair value hierarchy in order to increase the consistency and comparability of fair
value measurements and the related disclosures. In determining fair value, we use quoted prices and
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MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
observable inputs. Observable inputs are inputs that market participants would use in pricing the asset or liability based on market
data obtained from independent sources.
The fair value hierarchy is broken down into three levels based on the source of inputs as follows:
·
·
·
Level 1—Valuations based on unadjusted quoted prices in active markets for identical assets or liabilities.
Level 2—Valuations based on observable inputs and quoted prices in active markets for similar assets and
liabilities.
Level 3—Valuations based on inputs that are unobservable and models that are significant to the overall fair value
measurement.
Valuation Techniques - Level 2 Inputs
The Company estimates the fair values of its financial instruments categorized as level 2 in the fair value hierarchy,
including U.S. Treasury securities, by taking into consideration valuations obtained from third-party pricing services. The pricing
services use industry standard valuation models, including both income- and market-based approaches, for which all significant
inputs are observable, either directly or indirectly, to estimate fair value. These inputs include reported trades of and broker/dealer
quotes on the same or similar securities, benchmark yields, issuer credit spreads, benchmark securities, and other observable
inputs. The Company obtains a single price for each financial instrument and does not adjust the prices obtained from the pricing
service. The Company validates the prices provided by its third-party pricing services by reviewing their pricing methods,
obtaining market values from other pricing sources and comparing them to the share prices presented by the third-party pricing
services. After completing its validation procedures, the Company did not adjust or override any fair value measurements
provided by its third-party pricing services as of December 31, 2017.
The following fair value hierarchy table presents information about each major category of our financial assets and
liabilities measured at fair value on a recurring basis (in thousands):
December 31, 2017
Assets
Money market funds (cash equivalents)
U.S. Treasury securities
Total assets
December 31, 2016
Assets
Money market funds (cash equivalents)
Certificates of deposit
Total assets
Level 1
Level 2
Level 3
Total
33,531 $
—
33,531 $
— $
24,825
24,825 $
— $
—
— $
33,531
24,825
58,356
25,629 $
3,922
29,551 $
— $
—
— $
— $
—
— $
25,629
3,922
29,551
$
$
$
$
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MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
4. Property and Equipment
Property and equipment consisted of the following (in thousands):
Laboratory equipment
Office equipment
Less: accumulated depreciation
December 31,
2017
2016
1,684 $
139
1,823
(484)
1,338 $
1,367
139
1,506
(358)
1,148
$
$
Depreciation expense was $126 thousand, $23 thousand , and $11 thousand for the years ended December 31, 2017,
2016 and 2015, respectively.
5. Accrued Expenses
At December 31, 2017 and 2016, accrued expenses consisted of the following (in thousands):
Payroll and related costs
Clinical trials and drug development
Professional fees
Other
Total accrued expenses
6. Notes Payable
December 31,
2017
2016
$
$
1,323 $
156
113
25
1,617 $
880
681
101
113
1,775
In 2014, we borrowed an aggregate of $7.0 million in connection with a Loan and Security Agreement, as amended
(LSA). In July 2017, we paid in full the entire outstanding term loans balance of $3.5 million and accrued interest, with no
penalty for prepayment. Through July 2017 and pursuant to the terms of the LSA, we were required to make monthly interest
payments for all outstanding borrowings at an interest rate equal to the greater of (a) prime rate plus 3.25% or (b) 6.5% and
monthly principal payments of 1/24th of our principal borrowings plus interest.
Interest expense related to the term loans was $0.2 million, $0.5 million and $0.5 million for the years ended December
31, 2017, 2016 and 2015, respectively. As of December 31, 2017, we had no accrued interest.
F-13
Table of Contents
7. Investments
MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
As of December 31, 2017, our investments consisted of U.S. Treasury securities, maturing at various dates through January
2019. As of December 31, 2016 our investments consisted of certificates of deposit with various financial institutions maturing in
November 2017. Investments are classified as short- or long-term investments on our consolidated balance sheets based on
maturity. U.S Treasury securities are classified as available-for-sale and are recorded at fair value. Certificates of deposits were
classified as held-to-maturity and were recorded at amortized cost, which approximated fair value.
As of December 31, 2017, all five of our U.S. Treasury securities were in an unrealized loss position, none of which had been in
an unrealized loss position for 12 months or greater. Total amortized cost and fair value were $24.9 million and $24.8 million as
of December 31, 2017, respectively, with a combined unrealized loss of $0.1 million. Based on review of these securities, we
believe that the cost basis of these available-for-sale securities is recoverable and that there were no other-than-temporary
impairments on these securities as of December 31, 2017.
8. Stockholders’ Equity
In 2005, we adopted the 2005 Stock Option and Incentive Plan (2005 Plan) that authorizes us to grant options, restricted
stock and other equity-based awards. As of December 31, 2017, 364,420 options to purchase shares of common stock were
outstanding pursuant to grants in connection with the 2005 Plan. No additional shares are available for issuance under the 2005
Plan. The amount, terms of grants, and exercisability provisions are determined and set by our board of directors.
Effective August 2014, we adopted our 2014 Equity Incentive Plan (2014 Plan) that authorizes us to grant options,
restricted stock, and other equity-based awards, subject to adjustment in accordance with the 2014 Plan. As of December 31,
2017, 3,389,900 options to purchase shares of common stock and 239,800 restricted shares of common stock were outstanding
pursuant to grants in connection with the 2014 Plan, and 187,100 shares of common stock were available for future issuance. The
amount, terms of grants, and exercisability provisions are determined and set by our board of directors. In accordance with the
2014 Plan, on January 1, 2018, shares of common stock available for future grants under the 2014 plan was increased to
2,187,100.
Stock Options
Total compensation cost recognized for all stock option awards in the statements of operations is as follows (in
thousands):
Research and development
General and administrative
Total
Year Ended
Year Ended December 31,
2017
2016
2015
$
$
724 $
1,697
2,421 $
980 $
1,975
2,955 $
685
1,423
2,108
Options issued under both the 2005 Plan and 2014 Plan may have a contractual life of up to 10 years and may be
exercisable in cash or as otherwise determined by the board of directors. Vesting generally occurs over a period of not
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MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
greater than four years. A summary of activity for the years ended December 31, 2017, 2016 and 2015 is presented below (in
thousands, except share and per share amounts):
Outstanding—December 31, 2014
Granted
Exercised
Forfeited
Expired
Outstanding—December 31, 2015
Granted
Exercised
Forfeited
Outstanding—December 31, 2016
Granted
Exercised
Forfeited
Expired
Outstanding—December 31, 2017
Weighted‑‑
Average
Exercise Price
Per Share
Aggregate
Intrinsic
Value
Shares
1,670,574 $
585,800
(327,098)
(44,950)
(85,100)
1,799,226
603,975
(118,365)
(45,792)
2,239,044
1,884,800
(98,402)
(141,358)
(129,764)
3,754,320 $
4.37
12.56
1.14
6.13
1.04
7.74
2.42
1.04
12.08
6.57
4.02
1.46
7.09
11.75
5.22 $ 13,529
Exercisable—December 31, 2017
Exercisable and expected to vest—December 31, 2017
1,651,896 $
3,754,320 $
6.48 $
5,128
5.22 $ 13,529
Included in the 2017 exercised shares above are options that were net shares settled for an exercise price of $49 thousand (7,893
shares).
The weighted average remaining contractual term of options outstanding and exercisable as of December 31, 2017 is 8.4
and 6.9 years, respectively.
Intrinsic value in the table above was determined by calculating the difference between the market value of our common
stock on the last trading day of 2017 of $8.16 per share and the exercise price, multiplied by the number of in-the-money options.
The weighted‑average grant date fair value of options granted was $2.67, $1.60 and $8.15 per share in 2017, 2016 and
2015, respectively, and was estimated at the date of grant using the Black‑Scholes option‑pricing model with the following ranges
of weighted‑average assumptions:
Expected stock price volatility
Expected term of options
Risk‑free interest rate
Expected annual dividend yield
2017
74.45 - 83.29 %
2016
74.69 - 87.67 %
2015
73.64 - 81.21 %
6.1 years
5.3 -
1.78 - 2.18 %
0 %
6.1 years
5.2 -
1.07 - 1.86 %
0 %
5.2 -
6.1 years
1.44 - 1.92 %
0 %
The weighted‑average valuation assumptions were determined as follows:
F-15
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MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
·
·
·
·
Expected stock price volatility: The expected volatility is based on historical volatilities of similar entities within
our industry which were commensurate with our expected term assumption as described in the SEC’s Staff
Accounting Bulletin, or SAB, No. 107.
Expected term of options: We estimated the expected term of our stock options with service‑based vesting using the
“simplified” method, as prescribed in SAB No. 107, whereby the expected life equals the average of the vesting
tranches and the original contractual term of the option due to our lack of sufficient historical data.
Risk‑free interest rate: We base the risk‑free interest rate on the interest rate payable on U.S. Treasury securities in
effect at the time of grant for a period that is commensurate with the assumed expected option term.
Expected annual dividend yield: The estimated annual dividend yield is 0% because we have not historically paid,
and do not expect for the foreseeable future to pay, a dividend on our common stock.
As of December 31, 2017, there was $6.1 million of total unrecognized compensation expense related to unvested stock
options granted under the 2005 Plan and 2014 Plan. That expense is expected to be recognized over the next four years as follows,
in thousands:
2018
2019
2020
2021
Restricted Stock
$
$
3,164
1,616
1,275
45
6,100
All issued and outstanding restricted shares of common stock are time-based and become vested one year after the grant date,
pursuant to the 2014 Plan. Compensation expense is recorded ratably over the requisite service period. Compensation expense
related to restricted stock is measured based on the fair value using the closing market price of the Company’s common stock on
the date of the grant.
F-16
Table of Contents
MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
No restricted shares of common stock were issued prior to fiscal year 2016. A summary of activity for the year ended
December 31, 2017 is presented below (in thousands, except share and per share amounts):
Outstanding—December 31, 2015
Granted
Forfeited
Outstanding—December 31, 2016
Granted
Vested
Forfeited
Outstanding—December 31, 2017
Expected to vest—December 31, 2017
Shares
—
196,275
(375)
195,900
245,200
(179,700)
(21,600)
239,800
239,800
$
$
$
Weighted‑‑average
Grant Date
Fair Value per Share
$
—
1.51
1.50
1.51
1.26
1.12
0.17
1.21
1.21
As of December 31, 2017, there was $0.1 million of total unrecognized compensation cost related to unvested restricted
stock is expected to be recognized over a weighted average service period of 0.83 years.
Total compensation cost recognized for all restricted stock awards in the statements of operations for the year ended
December 31, 2017 is as follows (in thousands):
Research and development
General and administrative
Total
Equity
Distribution
Agreement
Year Ended
December 31,
2017
2016
$
$
125 $
334
459 $
48
74
122
In August 2015, we entered into an Equity Distribution Agreement (EDA) with JMP Securities LLC (JMP), under which
JMP, as our exclusive agent, at our discretion and at such times that we may determine from time to time, may sell over a three-
year period from the execution of the agreement up to a maximum of $35 million of shares of our common stock. We are not
required to sell any shares at any time during the term of the EDA.
The EDA will terminate upon the earliest of: (1) the sale of all shares subject to the EDA, (2) August 15, 2018 or (3) the
termination of the EDA in accordance with its terms. Either party may terminate the EDA at any time upon written notification to
the other party in accordance with the EDA, and upon such notification, the offering will terminate.
We agreed to pay JMP a commission of up to 3.0% of the gross sales price of any shares sold pursuant to the EDA. With
the exception of expenses related to the shares, JMP will be responsible for all of its own costs and expenses incurred in
connection with the offering.
During the year ended December 31, 2017, we issued 9,768,142 shares of our common stock pursuant to the EDA for
aggregate net proceeds to us of $14.9 million. As of December 31, 2017, $19.8 million remained available under the EDA.
F-17
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MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
9. Commitments and Contingencies
Leases
In October 2014, we entered into a five-year operating lease agreement for office space in Radnor, Pennsylvania. Rent
payments under this lease commence May 1, 2015, with payment amounts escalating each May 1 thereafter through the end of the
lease term. In December 2015, we entered into a First Amendment to this lease agreement (Amended Lease) to lease
approximately 8,500 rentable square feet of office space in Radnor, Pennsylvania. This Lease amended an existing lease
agreement to replace leased premises of approximately 4,000 rentable square feet of office space, and we commenced leasing the
larger office space in April 2016. Rent payments under the Amended Lease commenced June 1, 2016, with payment amounts
escalating each June 1 thereafter through the end of the 62-month lease term.
In November 2015, we entered into a one-year operating lease agreement for approximately 1,000 square feet of office
space in Madison, Connecticut, with two annual renewal options of one year each. In November 2016 and November 2017, we
exercised available renewal options. Rent payments under this lease commenced on November 1, 2015, and increase with each
renewal period. Prior to that and through October 2015, we leased a facility in New Haven, Connecticut. Rent expense under
these operating leases, in thousands, was $0.3 million, $0.3 million and $0.1 million for the years ended 2017, 2016 and 2015,
respectively. All leases are non-cancelable.
Our annual future minimum lease payments under these leases are as follows (in thousands):
2018
2019
2020
2021
Total minimum lease payments
Employee Benefit Plan
Operating Lease Payments
340
324
330
139
1,133
$
$
We maintain a Section 401(k) retirement plan for all employees. Employees can contribute up to 50% of their eligible
pay, subject to maximum amounts allowed under law. We may make discretionary profit sharing contributions, which vest over a
period of four years from each employee’s commencement of employment with us. We have not made any discretionary
contributions.
License Agreements
We are obligated to pay royalties pursuant to a license agreement with Purdue Neuroscience Company (Purdue) as a
percentage of net product sales for direct licensed products, such as ganaxolone. The obligation to pay royalties expires, on a
country‑by‑country basis, 10 years from the first commercial sale of a licensed product in each country. The agreement also
requires that we pay Purdue a percentage of the non‑royalty consideration that we receive from a sublicensee and a percentage of
milestone payments for indications other than seizure disorders and vascular migraine headaches not associated with mood
disorders. Under the license agreement, we are committed to use commercially reasonable efforts to develop and commercialize
at least one licensed product.
In March 2017, the Company and CyDex Pharmaceuticals, Inc. (CyDex) entered into a License Agreement and a Supply
Agreement. Under the terms of the License Agreement, CyDex has granted us an exclusive license to use CyDex’s Captisol drug
formulation system and related intellectual property in connection with the development and commercialization of ganaxolone in
any and all therapeutic uses in humans, with some exceptions.
F-18
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MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
As consideration for this license, we paid an upfront fee which was recorded as research and development expense in the
three months ended March 31, 2017, and are required to make additional payments in the future upon achievement of various
specified clinical and regulatory milestones. We will also be required to pay royalties to CyDex on sales of ganaxolone, if
successfully developed, in the low-to-mid single digits based on levels of annual net sales.
Under the terms of the Supply Agreement, we are required to purchase all of our requirements for Captisol with respect
to ganaxolone from CyDex, and CyDex is required to supply us with Captisol for such purposes, subject to certain limitations.
10. Income Taxes
The Tax Cuts and Jobs Act (the "TCJA") was enacted on December 22, 2017 and became effective January 1, 2018. The
TCJA had significant changes to U.S. tax law, lowering U.S. corporate income tax rates, implementing a territorial tax system,
imposing a one-time transition tax on deemed repatriated earnings of foreign subsidiaries and modified the taxation of other
income and expense items.
The TCJA reduces the U.S. corporate income tax rate from 34% to 21%, effective January 1, 2018. Deferred tax assets
and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary
differences are expected to reverse. As a result of the reduction in the U.S. corporate income tax rate from 34% to 21% under the
TCJA, we revalued deferred tax assets, net as of December 31, 2017. The tax impact of revaluation of the deferred tax assets, net
was $16.1 million which was wholly offset by a corresponding reduction in our valuation allowance of $16.1 million resulting in
a no net impact to our income tax expense.
The TCJA provided for a one-time transition tax on the deemed repatriation of post-1986 undistributed foreign
subsidiary earnings and profits. The Company did not have consolidated accumulated earnings and profits attributable to it
foreign subsidiaries, accordingly, the Company did not record any income tax expense related to the transition tax.
Due to the timing of the new tax law and the substantial changes it brings, the Staff of the SEC issued Staff Accounting
Bulletin No. 118 ("SAB 118"), which provides registrants a measurement period to report the impact of the new US tax
law. During the measurement period, provisional amounts for the effects of the law are recorded to the extent a reasonable
estimate can be made. To the extent that all information necessary is not available, prepared or analyzed, companies may
recognize provisional estimated amounts for a period of up to one year following enactment of the TCJA.
Loss before income taxes is allocated as follows (in thousands):
U.S. operations
Foreign operations
Loss before income taxes
Year Ended December 31,
2017
2016
2015
$
$
8,347 $
10,551
18,898
28,643 $
—
28,643
24,850
—
24,850
As of December 31, 2017 and 2016, we had approximately $128.1 million and $121.8 million, respectively, of net
operating loss (NOL) carry forwards available to offset future federal and state taxable income that will expire beginning in 2023.
We also have federal research and development credit carryovers of approximately $5.0 million and state credit carryovers of
which approximately $0.4 million expire beginning in 2019. In 2017, we received net proceeds
F-19
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MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
of $0.4 million from the sale of state research and development credits, which was recorded as a credit to research and
development expenses on our consolidated statement of operations.
The NOL carry forwards are subject to review and possible adjustment by the Internal Revenue Service and state tax
authorities. NOL, and tax credit carry forwards may become subject to an annual limitation in the event of certain cumulative
changes in the ownership interest of significant stockholders over a three ‑ year period in excess of 50%, as defined under
Sections 382 and 383 of the Internal Revenue Code of 1986, as amended, or the Code, as well as similar state tax provisions. This
could limit the amount of NOLs that we can utilize annually to offset future taxable income or tax liabilities. The amount of the
annual limitation, if any, will be determined based on the value of our company immediately prior to an ownership change.
Subsequent ownership changes may further affect the limitation in future years. Additionally, U.S. tax laws limit the time during
which these carry forwards may be applied against future taxes, therefore, we may not be able to take full advantage of these
carry forwards for federal income tax purposes. We are currently evaluating the ownership history of our company to determine if
there were any ownership changes as defined under Section 382(g) of the Code and the effects any ownership change may have
had.
The components of the net deferred tax asset are as follows (in thousands):
Gross deferred tax assets:
Net operating loss carryforwards
Accrued expenses
Contributions
Deferred expenses
Stock‑based compensation
Research and development and other credits
Total gross deferred tax assets
Gross deferred tax liabilities:
Depreciation
Total gross deferred tax liabilities
Net deferred tax assets
Less: valuation allowance
Net deferred tax assets after valuation allowance
December 31,
2017
2016
$
35,559 $
52
4
35
1,459
5,536
42,645
(17)
(17)
42,628
(42,628)
$
— $
48,654
55
6
58
1,523
5,258
55,554
(3)
(3)
55,551
(55,551)
—
In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some
portion or all of the deferred income tax assets will not be realized. The ultimate realization of deferred income tax assets is
dependent upon the generation of future taxable income during the periods in which those temporary differences become
deductible. Management considers the scheduled reversal of deferred income tax liabilities, projected future taxable income, and
tax planning strategies in making this assessment. Based on consideration of these items, management has determined that
enough uncertainty exists relative to the realization of the deferred income tax asset balances to warrant the application of a full
valuation allowance as of December 31, 2017. The valuation allowance decreased by $12.9 million and increased by $13.5
million during the years ended December 31, 2017 and 2016, respectively. The decrease in 2017 was due primarily to the TCJA
which reduces the federal corporate income tax rate in the United States to 21% from 34%, effective January 1, 2018. The
increase in 2016 was due primarily to the generation of NOLs.
We did not have unrecognized tax benefits as of December 31, 2017 and 2016, and do not expect this to change
significantly over the next twelve months. We recognize tax positions in the financial statements only when it is more likely than
not that the position will be sustained on examination by the relevant taxing authority based on the technical merits of the
position. A position that meets this standard is measured at the largest amount of benefit that will more likely than not be realized
on settlement. A liability is established for differences between positions taken in a tax return and
F-20
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MARINUS PHARMACEUTICALS, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
amounts recognized in the financial statements. Accrued interest and penalties, where appropriate, are recorded in income tax
expense. We did not have uncertain tax positions as of December 31, 2017 and 2016. As of December 31, 2017 and 2016, we
have not accrued interest or penalties related to any uncertain tax positions. Our tax returns filed since inception are still subject to
examination by major tax jurisdictions.
A reconciliation of income tax expense (benefit) at the statutory federal income tax rate and income taxes as reflected in
the financial statements is as follows:
Federal income tax expense at statutory rate
Permanent items
State income tax, net of federal benefit
R&D tax credits
Change in federal statutory rate on deferreds
Foreign income tax effect
Other
Change in valuation allowance
Effective income tax rate
Year Ended December 31,
2017
2016
2015
34.0 %
(0.6)
2.8
1.1
(85.6)
(19.0)
(1.1)
68.4
0.0 %
34.0 %
(1.2)
7.5
5.2
—
—
1.6
(47.1)
0.0 %
34.0 %
(1.0)
7.1
4.2
—
—
5.0
(49.3)
0.0 %
For all years through December 31, 2017, we generated research and development credits but have not conducted a
study to document the qualified activities. This study may result in an adjustment to our research and development credit
carryforwards; however, until a study is completed and any adjustment is known, no amounts are being presented as an uncertain
tax position for these years. A full valuation allowance has been provided against our research and development credits and, if an
adjustment is required, this adjustment to the deferred tax asset established for the research and development credit carryforwards
would be offset by an adjustment to the valuation allowance.
We file income tax returns in the United States, the State of Connecticut, and the Commonwealth of Pennsylvania. The
federal and state income tax returns are generally subject to tax examinations for the tax years ended December 31, 2014 through
December 31, 2016. To the extent we have tax attribute carryforwards, the tax years in which the attribute was generated may still
be adjusted upon examination by the Internal Revenue Service or state tax authorities to the extent utilized in a future period.
11. Quarterly Financial Information (unaudited)
First Quarter Second Quarter Third Quarter Fourth Quarter Total Year
2017
Research and development expenses
General and administrative expenses
Net loss
Net loss per share, basic and diluted
2016
Research and development expenses
General and administrative expenses
Net loss
Net loss per share, basic and diluted
2,817 $
1,691 $
(4,552)$
(0.21)$
7,258 $
1,586 $
(8,949)$
(0.46)$
2,642 $
1,571 $
(4,170)$
(0.15)$
4,840 $
1,529 $
(6,464)$
(0.33)$
12,376
3,344 $
1,593 $
6,667
(4,738)$ (18,898)
(0.80)
(0.12)$
22,005
4,413 $
1,518 $
6,237
(6,014)$ (28,643)
(1.47)
(0.31)$
$
$
$
$
$
$
$
$
3,573 $
1,812 $
(5,438)$
(0.26)$
5,494 $
1,604 $
(7,216)$
(0.37)$
F-21
Marinus Pharmaceuticals International Ltd., a Bermuda company and wholly owned subsidiary.
SUBSIDIARIES OF THE REGISTRANT
Exhibit 21
Consent of Independent Registered Public Accounting Firm
Exhibit 23.1
The Board of Directors
Marinus Pharmaceuticals, Inc.:
We consent to the incorporation by reference in the registration statements on Form S-3 (Nos. 333-221243 and
333-206351) and Form S-8 (Nos.333-219613 and 333-200701) of Marinus Pharmaceuticals, Inc. of our report
dated March 6, 2018, with respect to the consolidated balance sheets of Marinus Pharmaceuticals, Inc. as of
December 31, 2017 and 2016, and the related consolidated statements of operations and comprehensive loss,
stockholders’ equity and cash flows for each of the years in the three-year period ended December 31, 2017, and
the related notes (collectively, the consolidated financial statements), which report appears in the December 31,
2017 annual report on Form 10-K of Marinus Pharmaceuticals, Inc.
/s/ KPMG LLP
Philadelphia, Pennsylvania
March 6, 2018
Exhibit 31.1
I, Christopher M. Cashman, certify that:
Certification of Chief Executive Officer Pursuant to
Exchange Act Rules 13a-14(a) or 15d-14(a)
1.
I have reviewed this annual report on Form 10-K of Marinus Pharmaceuticals, Inc.;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly
present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the
periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting
(as defined in Exchange Act Rules 13a-15(f) and 15(d)-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being
prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting
to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report
our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this
report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred
during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal
control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or
persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial
information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role
in the registrant’s internal control over financial reporting.
Date: March 6, 2018
/s/ Christopher M. Cashman
Christopher M. Cashman,
President and Chief Executive Officer
Exhibit 31.2
I, Edward F. Smith, certify that:
Certification of Chief Financial Officer Pursuant to
Exchange Act Rules 13a-14(a) or 15d-14(a)
1.
I have reviewed this annual report on Form 10-K of Marinus Pharmaceuticals, Inc.;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly
present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the
periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting
(as defined in Exchange Act Rules 13a-15(f) and 15(d)-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being
prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting
to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report
our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this
report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred
during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal
control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or
persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial
information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role
in the registrant’s internal control over financial reporting.
Date: March 6, 2018
/s/ Edward F. Smith
Edward F. Smith,
Chief Financial Officer and Treasurer
Certification Pursuant to 18 U.S.C. Section 1350
In connection with the annual report of Marinus Pharmaceuticals, Inc. (the “Company”) on Form 10-K for the year
ended December 31, 2017 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), each of the
undersigned, in the capacities and on the date indicated below, hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to his knowledge:
(1)
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of
1934; and
(2)
The information contained in the Report fairly presents, in all material respects, the financial condition and
Exhibit 32.1
results of operations of the Company.
Date: March 6, 2018
Date: March 6, 2018
/s/ Christopher M. Cashman
President and Chief Executive Officer
(Principal executive officer)
/s/ Edward F. Smith
Chief Financial Officer and Treasurer
(Principal financial and accounting officer)