UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended July 31, 2019
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________ to _________.
Commission file number 000-54318
ONCOSEC MEDICAL INCORPORATED
(Exact name of registrant as specified in its charter)
Nevada
(State or other jurisdiction of
incorporation or organization)
24 North Main Street
Pennington, NJ
3565 General Atomics Court, Suite 100
San Diego, CA
(Address of principal executive offices)
98-0573252
(I.R.S. Employer
Identification Number)
08534
92121
(Zip Code)
Securities registered pursuant to Section 12(b) of the Act:
(855) 662-6732
(Registrant’s telephone number, including area code)
Title of Class
Common Stock, par value $0.0001 per share
Trading Symbol
ONCS
Name of Exchange on which Registered:
Nasdaq Capital 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 [X]
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. Yes [ ] No [X]
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes [X] No [ ]
Indicate by check mark whether the registrant has submitted electronically, if any, every Interactive Data File required to be submitted pursuant to Rule 405 of
Regulation S-T (§229.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes [X] No
[ ]
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging
growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the
Exchange Act.
Large accelerated filer [ ]
Non-accelerated filer [ ]
Accelerated filer [ ]
Smaller reporting company [X]
Emerging growth company [ ]
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. [ ]
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes [ ] No [X]
The aggregate market value of voting and non-voting common stock held by non-affiliates of the registrant as of January 31, 2019, the last business day of the
registrant’s most recently completed second fiscal quarter, was approximately $47,184,790, computed by reference to the price at which the registrant’s common stock was last
sold on such date, as reported by the Nasdaq Capital Market. Shares of common stock held by the registrant’s officers and directors and holders of 10% or more of the
outstanding shares of the registrant’s common stock have been excluded from this calculation because such persons may be deemed to be affiliates of the registrant; however,
this determination of affiliate status is not, and shall not be considered, a determination of affiliate status for any other purpose.
As of October 25, 2019, there were 10,672,928 outstanding shares of the Company’s common stock.
Portions of the registrant’s proxy statement for the 2019 Annual Meeting of Stockholders, which is expected to be filed with the U.S. Securities and Exchange
Commission within 120 days after the end of the registrant’s fiscal year ended July 31, 2019, are incorporated by reference in Part III of this Annual Report on Form 10-K to the
extent stated herein.
DOCUMENTS INCORPORATED BY REFERENCE
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS AND OTHER MATTERS
TABLE OF CONTENTS
PART I
ITEM 1. BUSINESS
ITEM 1A. RISK FACTORS
ITEM 1B. 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 DISCLOSURE ABOUT MARKET RISK
ITEM 8. 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 ACCOUNTING FEES AND SERVICES
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
ITEM 16. FORM 10-K SUMMARY
SIGNATURES
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS AND OTHER MATTERS
This Annual Report on Form 10-K contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or Securities Act, and
Section 21E of the Securities Exchange Act of 1934, as amended, or Exchange Act. Forward-looking statements relate to future events or circumstances or our future
performance and are based on our current assumptions, expectations and beliefs about future developments and their potential effect on our business. All statements in this
report that are not statements of historical fact could be forward-looking statements. In some cases, you can identify forward-looking statements by terminology such as “may,”
“should,” “expects,” “plans,” “intends,” “anticipates,” “believes,” “estimates,” “predicts,” “potential” or “continue” or the negative of these terms or other comparable
terminology. The forward-looking statements in this report include statements about, among other things: the status, progress and results of our clinical programs; our ability to
obtain regulatory approvals for, and the level of market opportunity for, our product candidates; our business plans, strategies and objectives, including plans to pursue
collaboration, licensing or other similar arrangements or transactions; our expectations regarding our liquidity and performance, including our expense levels, sources of capital
and ability to maintain our operations as a going concern; the competitive landscape of our industry; and general market, economic and political conditions.
Some of the factors that we believe could cause actual results to differ from those anticipated or predicted include:
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the success and timing of our clinical trials, including safety and efficacy of our product candidates, patient accrual, unexpected or expected safety events, and
the usability of data generated from our trials;
our ability to successfully file and obtain timely marketing approval from the U.S. Food and Drug Administration, or FDA, or comparable foreign regulatory
agency for one or more Biologics License Applications, or BLAs, or New Drug Applications, or NDAs;
our ability to obtain and maintain marketing approval from regulatory agencies for our products in the U.S. and foreign countries;
our ability to adhere to ongoing compliance requirements of all health authorities, in the U.S. and foreign countries;
our ability to obtain and maintain adequate reimbursement for our products;
our ability to obtain the desired labeling of our products under any regulatory approval we might receive;
our plans to develop and commercialize our products;
the structure, timing and completion of the proposed strategic partnerships with China Grand Pharmaceuticals and Healthcare Holdings Limited and Sirtex
Medical US Holdings, Inc.;
the successful development and implementation of sales and marketing campaigns;
the loss of key scientific or management personnel;
the size and growth of the potential markets for our product candidates and our ability to serve those markets;
our ability to successfully compete in the potential markets for our product candidates, if commercialized;
regulatory developments in the United States and foreign countries;
the rate and degree of market acceptance of any of our product candidates;
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new products, product candidates or new uses for existing products or technologies introduced or announced by our competitors and the timing of these
introductions or announcements;
market conditions in the pharmaceutical and biotechnology sectors;
our available cash and investments;
the accuracy of our estimates regarding expenses, future revenues, capital requirements and needs for additional financing;
our ability to obtain additional funding;
our ability to obtain and maintain intellectual property protection for our product candidates;
our ability to maintain license agreements for our licensed product candidates;
the success and timing of our preclinical studies, including those intended to support an Investigational New Drug, or IND, application;
the ability of our product candidates to successfully perform and advance in clinical trials;
our continued compliance with the listing requirements of the Nasdaq Capital Market;
our ability to obtain and maintain authorization from regulatory authorities for use of our product candidates for initiation and conduct of clinical trials;
our ability to manufacture and supply our products, gain access to products we plan to use in combination studies and the performance of and reliance on third-
party manufacturers and suppliers;
the performance of our clinical research organizations, clinical trial sponsors, and clinical trial investigators; and
our ability to successfully implement our strategy.
Forward-looking statements are only predictions and are not guarantees of future performance, and they are subject to known and unknown risks, uncertainties and
other factors, including the risks described under “Risk Factors” in Part I, Item IA of this report and similar discussions contained in the other documents we file from time to
time with the Securities and Exchange Commission, or the “SEC.” Moreover, we operate in a rapidly evolving industry in which new risks and uncertainties continuously
emerge, and it is not possible for us to predict all of the risks we may face or assess the impact of all uncertainties or other factors on our business or the extent to which any
factor or combination of factors could cause actual results to differ from our current expectations, assumptions or beliefs. In light of these risks, uncertainties and other factors,
the forward-looking events and circumstances described in this report may not occur and our results, levels of activity, performance or achievements could differ materially
from those expressed in or implied by any forward-looking statements we make. As a result, you should not place undue reliance on any of our forward-looking statements.
Forward-looking statements speak only as of the date they are made, and unless required to by law, we undertake no obligation to update or revise any forward-looking
statement for any reason, including to reflect new information, future developments, actual results or changes in our expectations.
We qualify all of our forward-looking statements by this cautionary note.
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Unless the context indicates otherwise, all references to OncoSec, our Company, we, us and our in this report refer to OncoSec Medical Incorporated and its
consolidated subsidiaries.
We own registered trademark rights in the United States to ImmunoPulse®, and we have filed applications in the United States and in certain foreign jurisdictions to
register trademark rights to ImmunoPulse and OncoSec. Other service marks, trademarks or trade names used in this report are the property of their respective owners. We do
not use the ® or ™ symbol in each instance in which one of our registered or common law trademarks appears in this report, but this should not be construed as any indication
that we will not assert our rights thereto to the fullest extent permissible under applicable law.
We make available, free of charge, on our website, www.oncosec.com, our reports on Forms 10-K, 10-Q, 8-K and amendments thereto, as soon as reasonably
practical after we file such materials with the SEC. Any information that we include on or link to our website is not, and should not be considered, part of this report.
PART I
ITEM 1. BUSINESS
Overview
We are a late-stage biotechnology company focused on designing, developing and commercializing innovative therapies and proprietary medical approaches to
stimulate and to guide an anti-tumor immune response for the treatment of cancer. Our core platform technology, ImmunoPulse®, is a drug-device therapeutic modality
comprised of a proprietary intratumoral electroporation (“EP”) delivery device. The ImmunoPulse® platform is designed to deliver plasmid DNA-encoded drugs directly into a
solid tumor and promote an immunological response against cancer. The ImmunoPulse® device can be adapted to treat different tumor types, and consists of an electrical pulse
generator, a reusable handle and disposable applicators. Our lead product candidate is a DNA-encoded interleukin-12 (“IL-12”) called tavokinogene telseplasmid (“TAVO”).
The ImmunoPulse® EP platform is used to deliver TAVO intratumorally, with the aim of reversing the immunosuppressive microenvironment in the treated tumor. The
activation of the appropriate inflammatory response can drive a systemic anti-tumor response against untreated tumors in other parts of the body. In 2017, we received Fast
Track designation and Orphan Drug Designation from the U.S. Food and Drug Administration (“FDA”) for TAVO in metastatic melanoma, which could qualify TAVO for
expedited FDA review, a rolling Biologics License Application review and certain other benefits.
Our current focus is to pursue our study of TAVO in combination with KEYTRUDA® (pembrolizumab) in melanoma, triple negative breast cancer (“TNBC”), and
squamous cell carcinoma head and neck (“SCCHN”).
KEYNOTE-695 targets melanoma patients who are definitive anti-PD-1 non-responders. In May 2017, we entered into a clinical trial collaboration and supply
agreement with a subsidiary of Merck & Co., Inc. (“Merck”) in connection with KEYNOTE-695 study. Pursuant to the terms of the agreement, both companies will bear their
own costs related to manufacturing and supply of their product, as well as be responsible for their own internal costs. We are the study sponsor and are responsible for external
costs. The KEYNOTE-695 study is currently enrolling and treating patients and we plan to complete enrollment in this study in first half 2020. This study is a registration-
directed, Phase 2b open-label, single-arm, multicenter study in the United States, Canada, Australia and Europe.
In May 2018, we entered into a second clinical trial collaboration and supply agreement with Merck with respect to a Phase 2 study of TAVO in combination with
KEYTRUDA® to evaluate the safety and efficacy of the combination in patients with inoperable locally advanced or metastatic TNBC, who have previously failed at least one
systemic chemotherapy or immunotherapy. This study is referred to as KEYNOTE-890. Pursuant to the terms of the agreement, both companies will bear their own costs related
to manufacturing and supply of their product, as well as be responsible for their own internal costs. We are the study sponsor and are responsible for external costs. The
KEYNOTE-890 study is currently enrolling and treating patients. We plan to complete enrollment in fourth quarter 2019 and provide interim preliminary data from this study at
the San Antonio Breast Cancer Symposium (“SABCS”) in December 2019. The study is a Phase 2 open-label, single-arm, multicenter study in the United States and Australia.
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OMS-131 is an investigator-initiated clinical trial conducted by the University of California San Francisco Helen Diller Family Comprehensive Cancer Center. This
study targets patients with SCCHN and is a single-arm open-label clinical trial in which 35 evaluable patients will receive TAVO, KEYTRUDA® and epacadostat. OMS-131 is
currently enrolling and treating patients.
In June 2019, we entered into a collaboration with Dana-Farber Cancer Institute (“DFCI”), a world-leading cancer research and treatment institution, and The Marasco
Laboratory, a cutting-edge CAR T-cell research laboratory led by Wayne Marasco, M.D., Ph.D., a renowned cancer immunology researcher, to develop CAR T-cell therapies
for triple-negative breast cancer and ovarian cancer.
We intend to continue to pursue other ongoing or potential new trials and studies related to TAVO, in various tumor types. In addition, we are also developing our
next-generation EP device and applicator, including advancements toward prototypes, pursuing discovery research to identify other product candidates that, in addition to IL-12,
can be encoded into propriety plasmid-DNA, delivered intratumorally using EP. Specifically, we are developing a new, propriety technology to potentially treat liver, lung,
bladder, pancreatic and other difficult to treat visceral lesions through the direct delivery of plasmid-based IL-12 with a new Visceral Lesions Applicator (“VLA”).
The VLA has been designed to work with our recently announced generator, APOLLOTM, to leverage plasmid-optimized EP, enhancing the depth and frequency of
transfection of immunologically relevant genes into cells located in deep visceral lesions. Using our next-generation technology, our goal is to reverse the immunosuppressive
mechanisms of a tumor, as well as to expand our pipeline. We believe that the flexibility of our propriety plasmid-DNA technology allows us to deliver other immunologically
relevant molecules into the tumor microenvironment in addition to the delivery of plasmid-DNA encoding for IL-12. In March 2019, the Company had a poster presentation at
the 2019 America Association for Cancer Research (“AACR”) where it presented pre-clinical data regarding its new anti-tumor product candidate, which will amplify the
power of intratumoral IL-12 through the addition of both CXCL9, a critical T cell chemokine, and anti-CD3, a membrane bound pan T cell stimulator. These other
immunologically relevant molecules may complement IL-12’s activity by limiting or enhancing key pathways associated with tumor immune subversion.
We have established a collaboration with Emerge Health Pty (“Emerge”), the leading Australian company providing full registration, reimbursement, sales, marketing
and distribution services of therapeutic products in Australia and New Zealand, to commercialize TAVO and plan to make it available under Australia’s Special Access Scheme
(“SAS”) in 2019. As a specialized Australian pharmaceutical company focused on the marketing and sales of high-quality medicines to the hospital sector, Emerge has
previously made numerous other products successfully available under Australia’s SAS.
Cancer Immunotherapy Treatments: Background
Many traditional modalities for treating cancer have limited clinical efficacy and are frequently associated with significant negative side effects. Immunotherapy, a
relatively new therapeutic modality that has received significant attention in recent years, focuses on modulating the immune system to treat cancer rather than directly killing
the cancer cells. Systemic delivery of immune-modulating proteins, such as interleukin-2 and interleukin-10, or IL-2, and IL-10, has shown early indications of efficacy, but
with significant mechanism-based toxicity.
Recent attention has also focused on the development of monoclonal antibody drugs, which target critical “immune checkpoint” proteins and augment anti-tumor
immunity. Therapies using monoclonal antibodies, such as anti-CTLA-4 (cytotoxic T-lymphocyte-associated protein-4), anti-PD-1 (program cell-death-1) and anti-PD-L1
(programmed death-ligand-1), are being developed for the treatment of several cancers and have been approved for the treatment of multiple sold tumor cancers. Although these
new immuno-oncology agents have shown clinical benefit for patients with late-stage cancer across multiple tumor types, only a small subset of the overall patient population
responds to these therapies. Certain tumors are able to evade the immune system. We believe that when tumors do not have any immune cells inside (immune desert) or
surrounding the tumor (immune excluded), immune checkpoint therapies are less effective or ineffective. These tumors are sometimes referred to as “cold” tumors.
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We believe that if we can convert an inactive, or “cold,” tumor with a low frequency of tumor infiltrating lymphocytes, or TILs, that limit the anti-tumor response and
remove the interferon signature, into an active, or “hot,” tumor that can activate the anti-PD-1 or anti-PD-L1 pathway, then we can potentially increase the number of patients
who respond to these therapies. We believe our TAVO platform addresses this objective, as it has the potential to reshape the tumor microenvironment in patients with an
immunologically cold tumor into a highly-inflamed tumor with a fully engaged PD-1 / PD-L1 axis. The immunological components that enable this conversion relates to the
intratumoral delivery of TAVO, which increases the density of TILs, and in the presence of an anti-PD-1 antibody, adaptive resistance can be neutralized allowing for the
maximal T cell cytotoxicity.
There is a significant unmet medical need for patients who may not respond well to these therapies on their own. In particular, for patients who have “cold” tumors and
would be unlikely to respond to an immune checkpoint therapy alone, our focus is to develop a therapeutic that has the ability to directly modulate the microenvironment of the
tumor by stimulating a local immune reaction through the intratumoral delivery of IL-12 or other immune-modulating molecules. This immune cascade allows anti-tumor
immune cells to infiltrate the lesion, turning the tumor “hot” and ultimately generates a productive systemic immune response. In doing so, we believe intratumoral delivery of
immune-modulating molecules, such as IL-12 provides a strong biological rationale for treatment in combination with immune checkpoint inhibitors, such as anti-PD-1 or anti-
CTLA-4.
CLINICAL PROGRAMS
Our Lead Product Candidate: TAVO
Our lead product candidate, TAVO, is a drug-device combination. The drug consists of a plasmid construct called tavokinogene telseplasmid, or TAVO, with plasmid
DNA-encoded, IL-12, and is delivered into a tumor using our proprietary electroporation device. Our clinical data indicates that the in vivo gene transfer of plasmid DNA-
encoded IL-12 using EP is well-tolerated and anti-tumor activity has been observed after a single cycle of treatment. Importantly, regression in distant, non-injected/non-
electroporated lesions has also been observed (“abscopal effect”) in different solid cancers.
Our Clinical Pipeline
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MELANOMA
Melanoma is a deadly form of skin cancer with rapidly rising incidences both in the U.S. and internationally. The National Cancer Institute (“NCI”) Surveillance,
Epidemiology and End Results (“SEER”) Program estimates that 96,480 new melanoma cases were diagnosed in 2019, representing 5.5% of all new cancer cases in the U.S.
Overall, the five-year survival rate for melanoma, regardless of disease stage, is high (92.2%); however, according to SEER 2019, for patients who present with metastatic
disease and receive systemic treatment, the five-year survival rate is considerably lower at less than 25%. Despite recent advances in therapy, advanced metastatic melanoma
continues to present a major and increasing burden with significant morbidity and mortality.
KEYNOTE-695 Study (ongoing)
The KEYNOTE-695 study is a Phase 2b, open-label, single-arm, multi-center study of TAVO in combination with an intravenous anti-PD-1 antibody, Merck’s
KEYTRUDA®, in patients with histological diagnosis of melanoma with progressive locally advanced or metastatic disease defined as stage III/IV. KEYNOTE-695 study is
evaluating 100 patients and is currently enrolling and treating patients in the United States, Canada, and Australia across approximately 20 sites, and we plan to treat patients in
Europe.
KEYNOTE-695 enrollment criteria with respect to anti-PD-1 checkpoint failure is highly restrictive. In order to be considered an anti-PD-1 checkpoint failure, all
patients must have histological or cytological confirmed diagnosis of unresectable melanoma (Stage III or IV) with progressive locally advanced or metastatic diseases, be
refractory to anti-PD-1 monoclonal antibodies, namely KEYTRUDA® (pembrolizumab) or OPDIVO® (nivolumab), as either monotherapy or in combination with other
approved checkpoint inhibitors or targeted therapies according to their approved label, and must have relapsed as documented disease progression within 12 weeks of the last
dose of anti-PD-1 monoclonal antibodies according to RECIST v1.1, measured by radiologic assessment. Patients can have no intervening therapies between failure of anti-PD-
1 therapy and the TAVO / KEYTRUDA® combination treatment with the exception of approved BRAF/MEK inhibitor combinations. Patients that are BRAF eligible must
receive and progress following BRAF treatment. The primary endpoint of the study, by blinded independent central review, is to assess the objective response rate (“ORR”)
based on RECIST v1.1.
KEYNOTE-695 is a registration directed clinical trial. In order to be eligible for accelerated approval, the TAVO / KEYTRUDA® combination must treat a serious
condition and provide a meaningful advantage over available therapies. Prior to the commencement of the study, within the context of the Fast Track designation request, the
Company reviewed the patient inclusion and progression criteria, and other study requirements with FDA. In light of this review, we strictly defined the patient population to be
enrolled in KEYNOTE-695 to include only those patients who have definitively failed prior anti-PD-1 checkpoint therapy, as determined by the above-described rigor, and
who have exhausted all available FDA approved treatment options.
We had previously provided topline preliminary data updates at The Society for Immunotherapy of Cancer (“SITC”) in November of 2018, at our Business Outlook in
February 2019, and at several Company investor presentations in the fall of 2019 which were made available publicly on the Company’s website. We plan to complete
enrollment in the study in the first half 2020. Lastly, based on the outcome of the study and feedback from FDA, we plan to file for accelerated approval with the FDA for this
patient population in second half 2020.
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OMS-102 (completed)
OMS-102 was an open-label, multi-center, Phase 2 trial of TAVO and KEYTRUDA® (pembrolizumab) in patients with advanced, metastatic melanoma. In August
2015, we enrolled the first patient in our Phase 2 investigator-sponsored clinical trial led by the clinicians at the University of California, San Francisco, or UCSF. Huntsman
Cancer Institute in Utah was the second clinical site. The primary endpoint of this study was to assess the anti-tumor efficacy of the combination of TAVO and KEYTRUDA®
in patients with stage III/IV metastatic melanoma whose tumors are characterized by low frequency of CD8+/PD-1+/CTLA-4+ TILs (tumor infiltrating lymphocytes). The
primary endpoint of the study was best overall response rate by RECIST of the combination regimen. Recent data suggests that patients whose tumors are lacking TILs or CD8+
T-cells at the tumor margin or generally have a low frequency of CD8+/PD-L1+/CTLA-4+ TILs are unlikely to respond to anti-PD-1 therapies such as KEYTRUDA®, while
tumors with a frequency of CTLA-4+/PD-L1+/CD8+ >20% in the tumor are likely to have a clinical benefit. Therapies, such as TAVO, that promote TIL generation and PD-L1
positivity play an important role in augmenting the clinical efficacy of the anti-PD1/PD-L1 agents.
Initial data were presented in February 2017 at ASCO-SITC and the trial stopped enrolling patients in September 2017, allowing the Company to progress on
KEYNOTE-695. The final data was selected for prominence at SITC 2017 and was presented during the oral poster session. The overall response rate in the 22-patient
population was 43% by RECIST v1.1. at week 24 (best overall response rate was 50% by clinical assessment), with one Grade-3 adverse event of cellulitis that resolved with
antibiotics. Based on these results, we believe the combination of TAVO and KEYTRUDA® demonstrated efficacy in this low TIL metastatic melanoma patient population and
was well-tolerated. Further, long-term follow up has shown responses with significant durability, with all patients who experienced a response remaining in responding status.
To date only one patient has required additional surgery to maintain remission.
OMS-100 (completed)
OMS-100 was an open-label Phase 2 trial of TAVO monotherapy in patients with metastatic melanoma. On December 5, 2014, we released top-line six-month data
from a Phase 2 repeat dose trial of TAVO in patients with stage III/IV metastatic melanoma. We presented final data at the Melanoma Bridge Conference in 2018. This study is
now locked with the data collected at 6 clinical centers. Thirty (30) patients with stage III/IV melanoma received up to four cycles of TAVO delivered by EP on days one, five
and eight of each 12-week cycle. Of the 28 patients in the study who were evaluable, an objective response rate of 35.7% (10/28 patients) was observed. Five patients (17.9%)
had a CR, 5 patients (17.9%) had a PR, 12 patients (42.9%) had SD. Of the distant untreated and assessed lesions that decreased in longest dimension by ≥ 30%, 17.4% (20/115)
were assessed. Of the 26 patients with ≥ 1 assessed lesion, 12 patients (46.2%) had ≥ 1 assessed distant lesion with major regression (≥ 30%). Two patients were not evaluated
due to not having evaluable distant untreated lesions. Other clinical endpoints included objective response rate, local and distant lesion regression, duration of response, overall
survival and safety. The results of this study demonstrated that multiple treatment cycles of TAVO were well-tolerated, with no treatment-limiting toxicities. The majority of
adverse events were localized to the treatment site and were Grade-1 or -2 in severity.
In order to continue to acquire clinical and immune correlational data on melanoma patients treated with TAVO, the protocol of the OMS-I100 study was amended in
February 2014 to enroll up to an additional 30 patients. Enrollment in OMS-I100 Addendum was completed in March 2016. The study is now completed and the Company
presented final data at the Melanoma Bridge Conference being held on November 29 – December 1, 2018. These data were selected for an oral presentation and will include
new data demonstrating that local treatment with TAVO alone led to whole-body immune responses associated with regression of untreated lesions in almost half of the 50
patients treated on the study.
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Following this trial, a retrospective analysis of the patients who went on to receive an anti-PD-1/PD-L1 therapy was conducted. Results from this retrospective analysis
suggested that TAVO primes and enhances response rates to PD-1/PD-L1 blockade. Specifically, of the 29 patients who completed TAVO, 14 subsequently received an anti-
PD-1/PD-L1 treatment. Overall, five of these 14 patients (36%) experienced a complete response and four patients experienced a partial response (29%), for an overall response
rate of 65% (75% without intervening therapies). Two patients experienced stable disease (14%) and three patients experienced progressive disease (21%). We believe this
retrospective sequential data could suggest combinatorial potential of an immune-priming effect with TAVO prior to anti-PD-1/PD-L1 therapy. Data from this retrospective
analysis formed the clinical rationale for conducting OMS-I102.
TRIPLE NEGATIVE BREAST CANCER (TNBC)
Breast cancer is the most common cancer diagnosed among U.S. women and is the second leading cause of cancer-related deaths. Worldwide, approximately 170,000
new cases of TNBC are diagnosed each year, with TNBC representing one of the four main molecular subtypes of invasive breast cancer, accounting for approximately 10 -20%
of all breast cancer, according to breastcancer.org. According to the American Cancer Society, for patients who present with Stage 4 metastatic disease, the five-year survival
rate is considerably lower at approximately 22%.
TNBC frequently affects younger women (less than 40 years old) and is characterized by higher relapse rates than estrogen receptor positive breast cancers. TNBC is
also associated with an increased risk of recurrence, both locally and in distant sites including the lungs and brain. Advanced TNBC remains a significant area of unmet medical
need and there is no established standard-of-care. Chemotherapy is the current standard-of-care treatment in the adjuvant, neoadjuvant, and metastatic settings. Due to the loss
of the tumor cell receptors, patients with TNBC do not benefit from hormonal therapy or treatments targeting the oncogenic HER2 pathway. The standard of care for patients
with recurrent and/or metastatic disease is cytotoxic chemotherapy, leading to a median survival of approximately 13 months from the time of recurrence or diagnosis of distant
metastases. Importantly, for patients with metastatic TNBC, the traditional chemotherapeutic treatment approach has undergone limited advance in the last decades, and no
regimen is specifically indicated in this unique patient population.
KEYNOTE-890 study (ongoing)
KEYNOTE-890 is a Phase 2, open-label, single-arm, multi-center study in the United States and Australia of TAVO in combination with an intravenous anti-PD-1
antibody, Merck’s KEYTRUDA®, in patients with histologically confirmed diagnosis of inoperable locally advanced or metastatic TNBC who have received at least one prior
line of approved systemic chemotherapy or immunotherapy.
In collaboration with Merck, we plan to complete enrollment in KEYNOTE-890 in fourth quarter 2019. We had previously provided topline interim preliminary data
in May 2019 on the first group of patients enrolled from this study and we plan to provide additional interim preliminary data on these patients at the San Antonio Breast Cancer
Symposium (“SABCS”) in December 2019. Based on the outcome of the study and feedback from FDA, we plan to conduct additional clinical research in TNBC in a
registration directed clinical trial.
OMS-140 (complete)
OMS-140 is a Phase 2, monotherapy biomarker study in patients with advanced or metastatic TNBC. The study is being conducted at Stanford University and is
designed to assess whether TAVO increases TNBC tumor immunogenicity by driving a pro-inflammatory cascade that leads to increases in cytotoxic TILs. The presence and
number of TILs is thought to be a key requirement for promoting the anti-tumor activity of anti-PD-1. By driving cytotoxic immune cells into the tumor, TAVO could be used
in combination with checkpoint blockade therapies, which have reported some, but limited, activity in TNBC.
The primary objective of the study is to evaluate the potential of TAVO to promote a pro-inflammatory molecular and histological signature, and the secondary
objectives include the evaluation of safety and tolerability; evaluation of local ablation effect (% of necrosis) and description of other evidence of anti-tumor activity. The study
has been subsequently amended to capture the post TAVO treatments and outcomes.
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Preliminary data was presented at the SABCS annual meeting in 2018 and the enrollment in this trial (n=10) is now complete. The clinical observations from this study
prompted the Company to conduct KEYNOTE-890, which is currently underway.
SQUAMOUS CELL CARCINOMA HEAD & NECK CANCER (SCCHN)
Head and neck cancer represent approximately 4% of all cancers in the U.S., and it is estimated over 65,000 patients will develop head and neck cancer this year with
over 14,000 deaths.
OMS-131 (ongoing)
OMS-131 is an investigator-initiated Phase 2 clinical trial conducted by the University of California San Francisco Helen Diller Family Comprehensive Cancer
Center. This study targets patients with SCCHN and is a single-arm open-label clinical trial in which 35 evaluable patients will receive TAVO, KEYTRUDA® and epacadostat.
OMS-131 is currently enrolling and treating patients.
OMS-131, also referred to as the “TRIFECTA” study, was formed from the clinical observations from a 2017 pilot study of TAVO in head and neck cancer patients,
which demonstrated clinical and biological results including evidence of synergy between TAVO and PD-1 antibodies in the disease.
DANA-FARBER CANCER INSTITUE
In June 2019, the Company entered into a collaboration with Dana-Farber Cancer Institute (“DFCI”), a world-leading cancer research and treatment institution, and
The Marasco Laboratory, a cutting-edge CAR T-cell research laboratory led by Wayne Marasco, M.D., Ph.D., a renowned cancer immunology researcher, to develop CAR T-
cell therapies for triple-negative breast cancer and ovarian cancer.
Under the terms of the agreement, the Company has acquired an exclusive option to licensing rights to the CAR T-cell product candidates and associated IP resulting
from the research being conducted at The Marasco Laboratory using engineered single-chain variable fragment (scFv) antibodies in a dual-targeted bi-specific CAR T-cell
approach. Previous research conducted by The Marasco Laboratory suggests their proprietary CAR T-cell technology has the potential to be effective against numerous solid
tumor indications, while minimizing the toxicity that current CAR T-cell technologies exhibit when applied beyond liquid tumor indications.
ROSEWELL PARK COMPREHENSIVE CANCER CENTER
The Company has an ongoing research collaboration with Roswell Park Comprehensive Cancer Center (“Roswell Park”) to evaluate the use of Roswell Park’s
intravital microscopy (“IVM”) and TAVO PLUS (enhanced IL-12 DNA-plasmid), in combination with our APOLLO™ EP generator in preclinical studies. The collaboration is
led by Joseph Skitzki, MD, FACS, Associate Professor of Immunology, Associate Professor of Surgery and Chair of the Melanoma/Sarcoma Disease Site Research Group at
Roswell Park.
DUKE UNIVERSITY
The Company has an ongoing research collaborative with Duke University’s Center for Applied Therapeutics (“Duke University”) to evaluate TAVOPLUS in
combination or sequenced with a HER2-plasmid vaccine administered our APOLLO™ EP generator in preclinical studies. The research is led by Herbert Kim Lyerly, M.D.,
George Barth Geller Professor, Professor of Immunology, Surgery and Pathology at Duke University School of Medicine.
Other Trials and Studies
In addition to the trials and studies described above, we have also pursued and closed Phase 2 clinical trials in patients with Merkel cell carcinoma, and cutaneous T-
cell lymphoma, although we do not have any active clinical programs related to these indicators at this time.
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Visceral Lesion Applicator
We are developing our next-generation EP device and applicator, including advancements toward prototypes, pursuing discovery research to identify other product
candidates that, in addition to IL-12, can be encoded into propriety plasmid-DNA, delivered intratumorally using EP. Specifically, we are developing a new, propriety
technology to potentially treat liver, lung, bladder, pancreatic and other difficult to treat visceral lesions through the direct delivery of plasmid-based IL-12 with a new Visceral
Lesions Applicator (“VLA”).
The VLA has been designed to work with our new EP generator, APOLLOTM, which optimizes the balance of lower voltage and longer pulse duration to significantly
increase DNA-plasmid cellular transfection rates. Moving forward, we see significant opportunity to leverage this innovative technology to secure new partnerships that may
allow us to expand our capabilities and drive shareholder value.
Emerge Health Pty
We have established a collaboration with Emerge Health Pty (“Emerge”), the leading Australian company providing full registration, reimbursement, sales, marketing
and distribution services of therapeutic products in Australia and New Zealand, to commercialize TAVO and plan to make it available under Australia’s Special Access Scheme
(“SAS”) in 2019. As a specialized Australian pharmaceutical company focused on the marketing and sales of high-quality medicines to the hospital sector, Emerge has
previously made numerous other products successfully available under Australia’s SAS.
Our ImmunoPulse® Platform
The effectiveness of many drugs and DNA-based therapeutics is dependent upon their crossing the cell membrane. In the 1970s, it was discovered that the brief
application of high-intensity, pulsed electric fields to the cell resulted in a temporary and reversible increase in the permeability of the cell membrane, a mechanism known as
“electroporation.”
The transient, reversible nature of the electrical permeabilization of cell membranes and the resulting increase in intracellular delivery of therapeutic agents is the
underlying basis of our ImmunoPulse® therapeutic approach. Our EP delivery system consists of an electrical generator, a reusable applicator handle and disposable tips. While
the extent of membrane permeabilization depends on various electrical, physical, chemical, and biological parameters, research with EP delivery has demonstrated an
improvement in cellular uptake of chemical molecules such as chemotherapeutic agents (e.g., bleomycin and cisplatin), and nucleic acids (e.g., DNA and RNA).
Multiple viral and non-viral delivery modalities have been developed to deliver nucleic acids into cells, however, many of these methods have faced challenges related
to the safe and efficient expression of the DNA-encoded biologic into the intended target cells. For example, viral mediated delivery technologies appear to be efficient at
transfecting cells, but they have suffered from significant safety issues related to the immunogenicity of the viral vector, shedding of the virus, and potential integration of the
viral DNA into the host genome. Other non-viral delivery methods have employed the use of nanotechnology to coat the DNA with fat molecules, called lipids. Although these
lipid nanoparticle technologies have been used extensively in the clinic to deliver DNA-encoded biologic agents, few particles have been developed with the ability to
specifically target cancer cells; instead, many of these particles naturally target the liver, which can lead to potential liver toxicities.
Like viral vectors and lipid nanoparticle technologies, EP has been used extensively in the clinic to deliver multiple therapeutic agents, including DNA. However,
unlike these other technologies, EP has not seen the same safety concerns. In fact, the use of EP to deliver bleomycin intratumorally has been approved for use in Europe for
cancers, such as basal cell carcinoma, and has been accepted across many European countries, including the United Kingdom.
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Our ImmunoPulse® platform employs an EP system designed to create favorable conditions to deliver plasmid DNA encoding immunotherapeutic cytokines directly
into cells of the tumor microenvironment. The cytokine-encoding plasmid is first injected into the tumor. A needle-electrode array then delivers the electrical pulses produced in
the pulse generator.
Our lead product candidate, TAVO, consists of a plasmid construct encoding the proinflammatory cytokine IL-12 that is injected into the tumor and delivered into the
tumor cells through in vivo EP using our ImmunoPulse® technology. We are also researching other DNA-encoded, immunologically-active molecules, with an aim of
developing additional immunotherapeutic drugs that, when delivered through EP using our ImmunoPulse® platform, may be capable of breaking the immune system’s
tolerance to cancer.
Commercialization
Strategy
Our primary focus is to continue our clinical development strategy for TAVO, including our planned and ongoing clinical trials discussed under “Clinical Programs”
above and potentially other trials we may pursue in the future.
As a part of our commercialization strategy, we also regularly investigate and evaluate potential collaboration opportunities, to identify rational combinations with
existing and emerging monoclonal antibody therapies and other drugs. For instance, we may seek to collaborate with pharmaceutical or biotechnology companies to provide us
with access to complementary technologies and/or greater resources. In addition, we may seek to expand the applications of our technologies through strategic collaborations or
other opportunities, such as in-licensing or strategic acquisitions, and we may seek to out-license our intellectual property to other companies to leverage our technologies for
applications that we may not choose to internally and independently develop.
Manufacturing and Supply
Currently, we assemble and store certain components of our EP system, which is our proprietary delivery mechanism for our TAVO product candidate, and we utilize
the services of qualified contract manufacturers to make the remaining components of these systems and for the manufacture, testing, packaging and storage of our plasmid
product candidate for clinical trials or other studies. The manufacture of our systems and product supplies requires significant expertise and capital investment, including the use
of advanced manufacturing techniques and process controls. We do not own and have no plans to build our own clinical or commercial Good Manufacturing Practices (“GMP”)
manufacturing capabilities for device or drug substance or product. We expect to increase our reliance on third-party manufacturers if and when we commercialize any of our
product candidates and systems.
We rely upon a small number of suppliers and manufacturers for our clinical activities. For manufacturing and distributing we use Cryosite, PCI, Richter-Helm
Biologics, VGXI, Baxter Oncology GmbH, SGS, Minnetronix and EG Medacys, which collectively account for approximately 90% of clinical materials and EP systems support
and materials. We believe there are alternate sources of raw material supply and finished goods manufacturing to satisfy our requirements, although transitioning to other
vendors, if necessary, could result in significant delay or material additional costs. In addition, for combination trials, we typically rely exclusively on one supplier of the non-
company-owned product used in the trial, such as our reliance upon Merck for the supply of KEYTRUDA® in the KEYNOTE-695 and KEYNOTE-890 studies.
We are ISO 13485:2016 certified and comply with all appropriate standards and authorities for the assembly, manufacturing and activities we conduct, and we have
established an audited quality management system for these activities. In addition, all contract manufacturers that we use must comply with various requirements enforced by
the FDA through its facilities inspection programs. See “Regulation” below for more information.
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Competition
The biotechnology industry is intensely competitive. This competitive environment stimulates an ongoing and extensive search for technological innovation and
necessitates effective and targeted marketing strategies to communicate the effectiveness, safety and value of products to healthcare professionals in private practice and group
practices and payors in managed care organizations, group purchasing organizations, and Medicare and Medicaid services.
We face competition from a number of sources, including large pharmaceutical companies, biotechnology companies, academic institutions, government agencies and
private and public research institutions. We compete against all other developers of cancer treatments, including other immunotherapy treatments as well as other types of
treatments for the cancer indications on which we are focused. In particular, a number of companies, some of which are large, well-established pharmaceutical companies, have
development strategies similar to our current focus. These companies include, among others, Bristol Myers-Squibb, Iovance Therapeutics, Syndax, Dynavax Technologies,
Checkmate, Immunomedics and Idera Pharmaceuticals. In addition, we also compete with other clinical-stage biotechnology companies for funding and support from
healthcare and other investors and potential collaboration relationships with larger pharmaceutical or other companies, as well as for personnel with expertise in our industry.
We are smaller and less well-funded than many of our competitors, and we have a shorter and less proven operating history and a less recognizable and established brand name
than many of our competitors. In addition, some of our competitors have commercially available products, which provide them with operating revenue and other competitive
advantages.
Our competitors may obtain regulatory approval of their product candidates more rapidly than we can or may obtain more robust patent protection or other intellectual
property rights to protect their product candidates and technologies, which could limit or prevent us from developing or commercializing our product candidates. If we are able
to obtain regulatory approval of one or more of our product candidates, we will face competition from approved products or products under development by larger companies
that may address our targeted indications. If we directly compete with these very large entities for the same markets and/or customers, their greater resources, brand recognition,
sales and marketing experience and financial strength could prevent us from capturing a share of these markets or customers. Our competitors may also develop products that
are more effective, more useful, better tolerated, subject to fewer or less severe side effects, more widely prescribed, less costly or more widely accepted for other reasons than
any of our products that obtain regulatory approvals, and our competitors may also be more successful than us in manufacturing, distributing and otherwise marketing their
products.
We expect our product candidates, if approved and commercialized, to compete on the basis of, among other things, product efficacy and safety, time to market, price,
coverage and reimbursement by third-party payors, extent of adverse side effects and convenience of treatment procedures. We may not be able to effectively compete in any of
these areas. Presently, we compete with other biotechnology companies for funding and support on the basis of our technology platforms and the potential value of our product
candidates based on the factors described above.
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Intellectual Property
We believe our success and ability to compete depends in large part on our ability to protect our proprietary rights and technologies, including obtaining and
maintaining patent, trademark and trade secret protection of our product candidates and their respective components and underlying technologies, including devices,
formulations, manufacturing methods and methods of treatment, and appropriately safeguarding unpatented proprietary rights, including trade secrets and know-how. As of
October 2019, we owned 15 issued patents (6 U.S. and 9 foreign) and 47 pending patent applications (13 U.S. and 34 foreign). We are currently prosecuting pending patent
applications in various jurisdictions. One of our patent applications in the US with claims directed to cytokine-based intratumoral immunotherapies in combination with a
checkpoint inhibitor, was issued on October 1, 2019. In addition, we have licensed intellectual property rights that allow us to use certain EP technology to deliver DNA-based
cytokines as an immunotherapy, as well as catheter-based delivery devices. From these in-licensed portfolios, we have access to 75 issued U.S. and foreign issued patents (4
from USF, 14 from Gaeta Therapeutics, and 57 from Inovio) and 15 U.S. and foreign pending patent applications (2 from USF, 4 from Gaeta Therapeutics, and 9 from Inovio).
We expect to continue to file additional patent applications, if and when appropriate, as our research and development efforts continue. The majority of the patents in our
portfolio, including owned and in-licensed patents and fundamental patents directed toward our proprietary technology, expire between 2019 and 2039. We have previously
obtained patent protection through an asset purchase agreement with Inovio covering our original clinical electroporation device. The primary patents providing protection of
this original device have expired or will expire in 2019. However, the Company has filed and will continue to file patent applications this year, on our next generation
electroporation devices and applicator handles and our next generation DNA-based cancer immunotherapeutics.
In addition, we have entered into a cross-license agreement for certain electroporation technology with Inovio, including patent protection for some of our clinical
electroporation devices (some of which, as noted above, have recently expired or will soon expire). Under the terms of the agreement, Inovio has granted us a non-exclusive,
worldwide license under certain of its electroporation patents, and in exchange, we have granted to Inovio an exclusive license to certain of our purchased technology in a
limited field of use.
Regulation
Commercialization Approval for our Product Candidates
Biotechnology companies are subject to extensive, complex, costly and evolving government regulation relating to the ability to market and sell any therapeutic or
medical device. In the United States, these regulations are principally enforced by the FDA and state government agencies. Outside the United States, these regulations are
typically administered by various health authorities comparable to the FDA in countries where products or product candidates are researched, tested, manufactured and/or
marketed.
United States
General
In the United States, the federal Food, Drug and Cosmetic Act, or FDCA, other state statutes and regulations, many of which are administered and enforced by the
FDA, govern or influence, among other things, the research, development, testing, manufacture, storage, record-keeping, approval, labeling, promotion, marketing, distribution,
post-approval monitoring and reporting, sampling, import and export of product candidates such as ours. Under these regulations, we and our contract manufacturers may be
subject to periodic inspection of our facilities, quality control and other procedures, and operations and/or the testing of our product candidates during and after the approval
process for a product candidate, to confirm compliance with all applicable regulations, including current good manufacturing practices and other applicable requirements.
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Possible penalties or other consequences for failure to comply with these regulatory requirements include, among others, observations, notices, citations and/or warning
letters that could force us to modify our clinical programs or other activities; clinical holds on our ongoing clinical programs; adverse publicity from the FDA or others; the
FDA’s suspension of its review of pending applications; fines; product recalls or seizures; total or partial suspension of production and/or distribution; labeling changes;
withdrawal of previously granted product approvals; enforcement actions; injunctions and civil or criminal prosecution. Any such sanctions, if imposed, could have a material
adverse effect on our business, operating results and financial condition.
Approval Process
Before any new drug, device or dosage form, including a new use of a previously approved drug or biologic, can be marketed in the United States, FDA approval is
required. The process required by the FDA before a product may be marketed in the United States generally involves, among other things:
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completion of non-clinical testing;
completion of chemistry, manufacturing, and control testing, commonly known as CMC;
submission to the FDA of an investigational new drug application (IND) for human clinical testing, which must be accepted and effective before human clinical
trials may begin in the United States;
performance of adequate human clinical trials in accordance with good clinical practices to establish the safety and efficacy of the proposed product for each
intended use;
for a stand-alone medical device, submission to the FDA of a premarket approval application (PMA) or 510(k) premarket notification, which the FDA must
review and approve; and
for a therapeutic, submission to the FDA of a new drug application (NDA), or biologic license application (BLA), which the FDA must review and approve.
The pre-clinical and clinical testing and approval process can take many years and requires substantial company time, effort and financial resources. The receipt and
timing of approval, if any, is uncertain. The results of pre-clinical tests, together with certain manufacturing information, analytical data and a proposed clinical trial protocol
and other information, are submitted as part of an IND to the FDA. Once an IND is in effect, the protocol for each clinical trial to be conducted under the IND must be
submitted to the FDA, which may or may not allow the trial to proceed. A separate submission to an existing IND must also be made for each successive clinical trial conducted
during product development.
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Clinical trials involve the administration of the investigational new drugs or biologics to human subjects under the supervision of qualified investigators in accordance
with good clinical practice requirements. For purposes of an NDA or BLA submission and approval, human clinical trials are typically conducted in the following sequential
phases, which may overlap or be combined:
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Phase 1: The product candidate is initially introduced to healthy human subjects or patients and tested for safety, dose tolerance, absorption, metabolism,
distribution and excretion and, if possible, to gain an early indication of its safety, tolerability and effectiveness.
Phase 2: The product candidate is administered to a limited patient population to identify possible adverse effects and safety risks, to preliminarily evaluate the
efficacy of the product for specific targeted indications, and to determine dose tolerance and optimal dosage. Multiple Phase 2 clinical trials may be conducted.
Phase 3: The product candidate is administered in an expanded patient population at multiple, geographically-dispersed clinical trial sites, to obtain additional
evidence of clinical efficacy and safety and to establish the overall risk-benefit relationship of the product candidate.
Phase 4: In some cases, the FDA may condition approval of an NDA or BLA for a product candidate on the sponsor’s agreement to conduct additional post-
approval clinical trials to further assess the safety and efficacy of the drug or biologic.
The results of product development, pre-clinical studies and clinical trials are submitted to the FDA as part of an NDA or BLA requesting approval to market the
product. NDAs or BLAs must also contain extensive information relating to the product’s pharmacology, chemistry, manufacture, controls, and proposed labeling, among other
things.
Once the NDA or BLA submission has been accepted, the FDA begins an in-depth substantive review. Pursuant to the FDA’s performance goals, NDA and BLA
standard reviews are to be completed within 10 months, subject to extensions by the FDA. Before approving an NDA or BLA, the FDA often inspects the facility or facilities
where the product is manufactured and will not approve an application unless it determines that the manufacturing processes and facilities are in compliance with good
manufacturing practices. Additionally, the FDA will typically inspect one or more clinical sites to assure compliance with good clinical practices before approving an NDA or
BLA. If the FDA determines that an NDA or BLA is not approvable, then the FDA may outline the deficiencies and often will request that additional information be provided or
additional clinical trials be completed. Notwithstanding the submission of any requested additional testing or information, the FDA ultimately may decide that the application
does not satisfy the regulatory criteria for approval.
Further, even if regulatory approval of a product candidate is obtained, such approval would specify the indicated uses for which the product may be marketed.
Additionally, we would be subject to pervasive and continuing regulation by the FDA with respect to any approved product, including requirements related to, among other
things, drug or device listing, record-keeping, periodic reporting, product sampling and distribution, manufacturing practices, labeling, advertising, promotion, and reporting of
adverse events associated with any approved products. Moreover, we could be required to conduct post-approval studies, such as Phase 4 clinical trials, or surveillance programs
to monitor the safety of any approved products. FDA has the authority to stop or limit further marketing of a product or impose more stringent labeling restrictions based on the
results of these post-approval programs or in the event of any unexpected or serious health or safety concern regarding any approved product.
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Non-U.S. Regulation
If we pursue research and/or commercialization activities for our product candidates outside the United States, we would need to obtain necessary approvals from the
regulatory authorities comparable to the FDA in applicable jurisdictions before we could commence clinical trials or marketing of our product candidates in these jurisdictions.
In addition, we would become subject to a variety of foreign regulations regarding safety and efficacy of our product candidates and governing, among other things, clinical
trials, commercial activities, manufacture and distribution of our product candidates. The requirements to obtain product approvals vary widely from country to country, and the
FDA’s approval requirements, review procedures and timelines may not be the same as or even similar to the requirements or a comparable foreign regulator. As a result, even
if we obtain regulatory approval for a product candidate in one country, we may be required to undertake additional clinical trials or studies, submit additional information, wait
for longer review periods or make other efforts in order to obtain regulatory approvals in other desirable geographic markets.
Healthcare Laws and Regulations
The healthcare industry is heavily regulated, constantly evolving and subject to significant change and fluctuation. The U.S. federal and state healthcare laws and
regulations that currently impact our business include, among others:
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the laws and regulations administered and enforced by the FDA, including the FDCA, and other federal statutes and regulations, discussed above;
the federal Patient Protection and Affordable Care Act as amended by the Health Care and Education Reconciliation Act, referred to collectively as the Affordable Care
Act, which, in general and among other things, expands the government’s investigative and enforcement authority, including requiring pharmaceutical companies to
record and disclose to government agencies any transfers of value to doctors and teaching hospitals, and increases the penalties for fraud and abuse, including
amendments to the federal False Claims Act and the Anti-Kickback Statute to make it easier to bring suits under these statutes;
the federal Anti-Kickback Statute, which generally prohibits, among other things, soliciting, receiving or providing remuneration to induce the referral of an individual
for an item or service or the purchasing or ordering of an item or service for which payment may be made under federal healthcare programs, such as the Medicare and
Medicaid programs;
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the federal false claims laws, which generally prohibit, among other things, knowingly presenting or causing to be presented claims for payment from
Medicare, Medicaid or other third-party payors that are false or fraudulent;
the federal Health Insurance Portability and Accountability Act of 1986, or HIPAA, as amended by the federal Health Information Technology for Economic
and Clinical Health Act, or HITECH, which, in general and among other things, establish comprehensive federal standards with respect to the privacy, security
and transmission of individually identifiable health information and impose requirements for the use of standardized electronic transactions with respect to
transmission of such information;
analogous state and foreign laws and regulations, such as anti-kickback and false claims laws that may apply to items or services reimbursed by any third-party
payor, including commercial insurers, and state laws governing the privacy and security of health information in certain circumstances, many of which differ
from each other in significant ways and may not be preempted by applicable federal laws, thus complicating compliance efforts.
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Additionally, the healthcare compliance environment is continuously changing, with proposed revisions to or replacement of the Affordable Care Act at the federal
level and with some states mandating implementation of compliance programs, compliance with industry ethics codes, spending limits and reporting to state governments of
gifts, compensation and other remuneration to physicians. Further, to the extent we continue to pursue operations in foreign countries, such as our clinical activities in Australia,
or in Canada, or if we seek to sell any product that obtains regulatory approval in a foreign country, we would be subject to different reporting and other compliance
requirements in multiple jurisdictions, including foreign laws and regulations comparable to the U.S. laws and regulations described above.
All of these laws impose penalties for non-compliance, some of which may be severe. If we or our operations are found to be in violation of any of these laws or any
other governmental regulations that apply to us, we may be subject to civil or criminal penalties, fines or other monetary damages or orders forcing us to curtail or restructure
our operations.
Other Regulatory Requirements and Environmental Matters
We are or may become subject to various laws and regulations regarding laboratory practices and the experimental use of animals, as well as environmental laws and
regulations governing, among other things, any use and disposal by us of hazardous or potentially hazardous substances in connection with our research. In each of these areas,
the FDA and other government agencies have broad regulatory and enforcement powers, including, among other things, the ability to levy fines and civil penalties, suspend or
delay issuance of approvals, seize or recall products and withdraw approvals.
In addition, to the extent we continue to pursue operations in foreign jurisdictions, we will be subject to anti-bribery laws in the United States and applicable foreign
jurisdictions, including the U.S. Foreign Corrupt Practices Act, or FCPA, and comparable foreign laws. Further, we are subject to a variety of laws and regulations relating to
other matters, including workplace health and safety, labor and employment, public reporting and taxation, among others, and our failure to comply with these laws and
regulations may result in a variety of administrative, civil and criminal enforcement measures, including monetary penalties or imposition of sanctions or other corrective
requirements.
Recent Events
On October 10, 2019, the Company announced that it entered into a strategic transaction (the “Transaction”) with Grand Decade Developments Limited, a direct,
wholly-owned subsidiary of China Grand Pharmaceutical and Healthcare Holdings Limited, a company formed under the laws of the British Virgin Islands (“CGP”), and its
affiliate, Sirtex Medical US Holdings, Inc., a Delaware corporation (“Sirtex”). Pursuant to stock purchase agreements entered into between the parties pursuant to the
Transaction, the Company will receive a $30 million equity investment from CGP and its affiliate Sirtex at $2.50 per share, which is approximately a 25% premium to the
average share price over the last 20 trading days as of October 9, 2019. Upon closing of the Transaction, CGP and Sirtex together will hold approximately 53% of the
Company’s outstanding common stock and will be entitled to three of nine seats on the Company’s Board of Directors. The closing of the stock purchase is subject to
stockholder approval and other customary closing conditions. For additional information on the Transaction please see Note 13—Subsequent Events in the accompanying
Notes to Consolidated Financial Statements.
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Our Team
Our senior management team and board of directors have decades of experience, each demonstrating a strong track record of success in the biotechnology and
pharmaceutical industries, including in research and development, commercialization and financing activities. In addition, we have assembled a clinical and regulatory team
experienced in developing and advancing novel therapeutic approaches through clinical testing and regulatory approvals, including extensive technical, manufacturing,
analytical and quality experience to oversee our clinical, manufacturing and testing activities. Our team consists of a relatively small number of employees, as well as
consultants and advisors regarding research and development, regulatory, compliance, healthcare and investor and public relations matters. We also expect to engage experts in
healthcare and in general business to advise us in various capacities. For instance, we have in the past consulted with various oncology researchers and clinicians to provide
counsel as part of our advisory panels for our clinical programs, and we expect to continue to establish consulting and advisory relationships with scientific, clinical and medical
experts in academia and industry to assist us with FDA submissions, clinical testing and identification and development of new product candidates.
As of July 31, 2019, we had a total of 38 employees, including 37 full-time employees and one part-time employee. None of our employees is represented by a labor
union or covered by a collective bargaining agreement, and we believe that our relations with our employees are good.
Corporate Information
We were incorporated under the laws of the State of Nevada in February 2008 under the name Netventory Solutions Inc. to pursue the business of inventory
management solutions. In March 2011, we completed a merger with our subsidiary to change our name to “OncoSec Medical Incorporated,” and we commenced operations as a
biotechnology company upon our acquisition of assets from Inovio related to the use of drug-medical device combination products for the treatment of various cancers. Our
principal executive offices are located at 24 North Main Street, Pennington, NJ 08534 and 3565 General Atomics Court, Suite 100, San Diego, California 92121. The telephone
number for our principal executive offices is (855) 662-6732. Our website address is www.oncosec.com. Information contained on our website is not, and should not be
considered, part of this report. We will make available free of charge through our website our annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports
on Form 8-K, and any amendments to these reports, as soon as reasonably practicable after we electronically file such material with, or furnish such material to, the Securities
and Exchange Commission, or SEC. We are not including the information on our website as a part of, nor incorporating it by reference into, this report. You may read and copy
any materials we file at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference
Room by calling the SEC at 1-800-SEC-0330. Additionally, the SEC maintains a website that contains annual, quarterly, and current reports, proxy statements, and other
information that issuers (including us) file electronically with the SEC. The SEC’s website address is http://www.sec.gov/.
In addition, we intend to use our media and investor relations website, SEC filings press releases, public conference calls and webcasts as wells as social media to
communicate with our subscribers and the public about the Company, its services and other issues. It is possible that the information we post on social media could be deemed
to be material information. Therefore, in light of the SEC’s guidance, we encourage investors, the media and others interested in the Company to review the information we post
on the U.S. social media channels listed on our website.
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ITEM 1A. RISK FACTORS
Investing in our securities involves a high degree of risk. You should carefully consider each of the following risks and all of the other information contained in this
report and the other documents we file with the SEC before making any investment decision with respect to our securities. If any of the risks described below materialize, our
business, financial condition, results of operations, prospects or stock price could be materially and adversely affected. The risks described below are not the only risks we
face. Additional risks and uncertainties not currently known to us may also materially and adversely affect our business operations and financial condition or the price of our
common stock.
Risks Related to Our Strategic Transaction with CGP and Sirtex
The announcement and pendency of our strategic transaction with CGP and Sirtex may have an adverse effect on our business and operating results.
On October 10, 2019, we entered into Stock Purchase Agreements (the “Purchase Agreements”) with each of CGP and Sirtex pursuant to which the Company agreed
to sell and issue to CGP and Sirtex 10,000,000 shares and 2,000,000 shares, respectively, of the Company’s common stock at a purchase price of $2.50 per share, subject to the
terms and conditions set forth in the Purchase Agreements. We are subject to risks in connection with the announcement and pendency of the proposed transaction, including,
but not limited to, the following:
● Disruption to our business, including increased costs and expenses and diversion of management time and resources that could otherwise have been devoted to other
opportunities that may have been beneficial to us;
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The restrictions imposed on our business and operations pursuant to certain covenants set forth in the Purchase Agreements, which may prevent us from pursuing certain
opportunities, or taking certain actions without approval from CGP and Sirtex;
The pendency and outcome of legal proceedings that may be instituted against us, our directors, executive officers and others relating to the proposed transaction;
The diversion of our employees’ attention due to activities related to the proposed transaction;
the fact that CGP’s and Sirtex’s obligations to consummate the Purchase Agreements are subject to certain conditions, and the possibility that such conditions may not
be satisfied, including as a result of events outside our control, including stockholder approval;
a possible reduction or dilution in the current management team’s or Board’s future control and decision-making by adding CGP and Sirtex-appointed directors to the
Board;
the possibility that the trading price of our common stock may significantly decrease in the future; and
the fact that we have incurred and will continue to incur significant transaction costs and expenses in connection with the Purchase Agreements, regardless of whether the
Purchase Agreements are consummated.
The failure to complete our pending strategic transaction with CGP and Sirtex may adversely affect our business, financial condition, operating results, and stock price.
Consummation of the Purchase Agreements and transactions contemplated thereby remain subject to certain customary closing conditions, including, without
limitation, adoption of the Purchase Agreements by our stockholders and the absence of legal impediments. There can be no assurance that these conditions to the completion of
the transaction will be satisfied in a timely manner or at all. If the transaction is not completed, our stock price could decline to the extent our current stock price reflects an
assumption that the transaction will be completed.
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Furthermore, if the transaction is not completed, we may suffer other consequences that could adversely affect our business, financial condition, operating results, and stock
price, including the following:
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any disruptions to our business resulting from the announcement and pendency of the proposed transaction may continue or intensify in the event the transaction is not
consummated or is significantly delayed;
● we would have incurred significant costs, including professional services fees and other transaction costs, in connection with the proposed transaction that we would be
unable to recover;
● we may have to pay a termination fee equal to approximately four percent of the transaction value under certain circumstances that give rise to the termination of the
Purchase Agreements;
● we may be subject to negative publicity or be negatively perceived by the investment or business communities;
● we may be subject to legal proceedings related to the transactions contemplated by the Purchase Agreements; and
● we may not be able to take advantage of alternative business opportunities or effectively respond to competitive pressures.
Risks Related to Our Business
Our business could be negatively affected as a result of a proxy fight and the actions of activist shareholders.
Activist shareholders may from time to time attempt to effect changes in our strategic direction and, in furtherance thereof, may seek changes in how we are governed.
Alpha Holdings, Inc. (“Alpha”), a shareholder, has recently launched a proxy contest in relation to the strategic transaction with Grand Decade Developments Limited, China
Grand Pharmaceutical and Healthcare Holdings Limited, and Sirtex Medical US Holdings, Inc. While our Board of Directors and management team strive to maintain
constructive, ongoing communications with our shareholders, including Alpha and other activist shareholders, and welcomes their views and opinions with the goal of working
together constructively to enhance value for all shareholders, activist campaigns that contest, or conflict with, our strategic direction could have an adverse effect on us because:
● Responding to proxy contests, litigation and other actions by activist stockholders can be costly and time-consuming, disrupt our operations and divert the attention of
management and our employees.
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Perceived uncertainties as to our future direction may result in the loss of potential business opportunities and harm our ability to attract new investors and to retain and
attract experienced executives and employees.
● We may experience a significant increase in legal fees, administrative, advisor and associated costs incurred in connection with responding to a proxy contest or related
action.
These factors could adversely impact our results of operations and could also cause our stock price to experience periods of volatility or stagnation.
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We have never generated, and may never generate, revenue from our operations.
We have not generated any revenue from our operations since our inception, and we do not anticipate generating meaningful revenue in the near term. During our
fiscal year ended July 31, 2019, we incurred a net loss of approximately $30.3 million, and from inception through July 31, 2019, we have incurred an aggregate net loss of
approximately $164.4 million. We will need significant additional funding to continue our operations and pursue our strategic plans, including continued development of
ImmunoPulse® IL-12. Although we have been and expect to continue to tightly manage our operating expenses, we expect our operating expenses will continue to increase as
we further our development activities and pursue FDA approval for one or more of our product candidates.
Because of the numerous risks and uncertainties associated with our product development and planned commercialization efforts, many of which are discussed in these
risk factors, we are unable to predict the extent of our future losses or when or if we will generate meaningful revenue or become profitable, and it is possible we will never
achieve these goals. Our failure to develop our investments in our proprietary technologies and product candidates into revenue-generating operations would have a material
adverse effect on our business, results of operations, financial condition, and prospects and could result in our inability to continue operations.
We have limited working capital and a history of losses, which raises substantial doubt as to whether we will be able to continue as a going concern.
Our auditor’s report on our financial statements for the year ended July 31, 2019 includes a going concern paragraph. The Company has never generated any cash from
its operations and does not expect to generate such cash in the near term. As a result, the Company has suffered recurring losses and requires significant cash resources to
execute its business plans. These losses are expected to continue for an extended period of time. The aforementioned factors raise substantial doubt about the Company’s ability
to continue as a going concern within one year from the date of filing. The accompanying financial statements have been prepared on a going concern basis, which contemplates
the realization of assets and the satisfaction of liabilities in the normal course of business. The financial statements do not include any adjustments relating to the recoverability
and classification of asset amounts or the classification of liabilities that might be necessary should the Company be unable to continue as a going concern within one year after
the date the financial statements are issued.
Our ability to obtain additional financing will depend on a number of factors, including, among others, our ability to generate positive data from our clinical and pre-
clinical studies, the condition of the capital markets and the other risks described in these risk factors. If any one of these factors is unfavorable, we may not be able to obtain
additional funding, in which case, our business could be jeopardized and we may not be able to continue our operations or pursue our strategic plans. If we are forced to scale
down, limit or cease operations, our stockholders could lose all of their investment in our Company.
We will need to raise additional capital to continue operating our business, and additional funds may not be available when needed, on acceptable terms or at all.
As of July 31, 2019, we had cash, cash equivalents, and investment securities of approximately $25.1 million and, as of that date, we estimated our cash requirements
for the following 12 months to be approximately $30 million. We do not generate any cash from our operations.
Historically, we have raised the majority of the funding for our business through offerings of our common stock and warrants to purchase our common stock. We are
exploring other ways of funding our operations that involve less dilution to our existing stockholders, including, among others, technology licensing or other collaboration
arrangements, debt financings or grants. We may need to continue to seek funding for our operations through additional dilutive public or private equity financings.
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If we issue equity or convertible debt securities to raise additional funds, our existing stockholders would experience further dilution, and the new equity or debt
securities may have rights, preferences and privileges senior to those of our existing stockholders. If we incur debt, our fixed payment obligations, liabilities and leverage
relative to our equity capitalization would increase, which could increase the cost of future capital. Further, the terms of any debt securities we issue or borrowings we incur, if
available, could impose significant restrictions on our operations, such as limitations on our ability to incur additional debt or issue additional equity or other operating
restrictions that could adversely affect our ability to conduct our business, and any such debt could be secured by any or all of our assets pledged as collateral. Additionally, we
may incur substantial costs in pursuing future capital, including investment banking, legal and accounting fees, printing and distribution expenses and other costs.
Moreover, equity or debt financings or any other source of capital may not be available to us when needed or at all, or, if available, may not be available on
commercially reasonable terms. Weak economic and capital market conditions generally or uncertain conditions in our industry could increase the challenges we face in raising
capital for our operations. In recent periods, the capital and financial markets for early and development-stage biotechnology and life science company stocks have been volatile
and uncertain. If we cannot raise the funds that we need, we could be forced to delay or scale down some or all of our development activities or cease all operations, and our
stockholders could lose all of their investment in our Company.
We are a clinical-stage company with a limited operating history and no approved products, which makes assessment of our future viability difficult and which may hinder
our ability to generate revenue and meet our other objectives.
We are a clinical-stage, pre-commercial company with only a limited operating history upon which to base an evaluation of our current business and future prospects
and how we will respond to competitive, financial or technological challenges. Excluding the SAS program under the Emerge agreement, none of our product candidates are
commercially available. Additionally, although we are investigating licensing and partnering opportunities, no such opportunities have been finalized and, even if completed, we
do not expect that these potential opportunities would generate any significant near-term revenue. Our operations to date have been limited to organizing, staffing and financing,
applying for patent rights, undertaking clinical trials of ImmunoPulse® IL-12 and engaging in other research and development activities, including pre-clinical and other clinical
studies of our other product candidates. We have not demonstrated an ability to obtain regulatory approval of a product candidate, or conduct the sales and marketing activities
necessary for successful product commercialization. Consequently, the revenue-generating potential of our business is unproven and uncertain.
In addition, we have limited insight into trends that may emerge and affect our business or our industry. We will be subject to the risks, uncertainties and difficulties
frequently encountered by clinical-stage companies in evolving markets, and we may not be able to successfully address any or all of these risks and uncertainties. Further,
errors may be made in predicting and reacting to relevant business or industry trends. The occurrence of any of these risks could cause our business, results of operations, and
financial condition to suffer or fail.
We are significantly dependent on the success of our ImmunoPulse® technology platform and our product candidates based on this platform, including our lead product
candidate TAVO.
We have invested, and we expect to continue to invest, significant efforts and financial resources in the development of product candidates based on our
ImmunoPulse® technology, including primarily our lead product candidate TAVO. Our ability to generate meaningful revenue, which may not occur for the foreseeable future,
if ever, will depend heavily on the successful development, regulatory approval and commercialization of one or more of these product candidates, and such regulatory
approval and commercialization may never occur.
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The success of TAVO or any other product candidates based on our ImmunoPulse® technology will depend on a number of factors, including, among others:
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our ability to conduct and complete pre-clinical and clinical studies and trials, including the time, costs and uncertainties associated with all aspects of these
trials;
the data we obtain from pre-clinical and clinical testing of the product candidates, including data demonstrating the required level of safety and efficacy of the
product candidates (for example, a key factor in determining whether we are able to successfully develop and commercialize TAVO in melanoma will be the
data we obtain from our PISCES/KEYNOTE-695 study, which is our ongoing study of TAVO in combination with Merck’s approved therapy for melanoma in
patients who have shown resistance to or relapse from certain other cancer therapies);
the regulatory approval pathway we choose to pursue for our product candidates in the United States of America or any other jurisdiction;
our ability to obtain required regulatory approvals for one or more of our product candidates in the United States and in other jurisdictions, and the time
required to obtain these approvals, if they are ever obtained;
the manufacturing arrangements we are able to establish with third-party manufacturers, both for the manufacture of the product candidates for clinical trial use
and for the potential commercial manufacture of products, if and when approved;
our ability to build an infrastructure capable of supporting product sales, marketing and distribution of any approved products in territories where we pursue
commercialization directly;
our ability to establish commercial distribution agreements with third-party distributors for any approved products in territories where we do not pursue
commercialization directly;
the labeling requirements for any product candidates that are approved, including obtaining sufficiently broad labels that would not unduly restrict our ability to
market the product;
acceptance of our products, if and when approved, by patients and the medical community;
the ability of our products, if and when approved, to effectively compete with other cancer treatments;
a continued acceptable safety profile for any product candidates that are approved following such approval;
our level of success in obtaining and maintaining patent and trade secret protection and otherwise protecting our rights in our intellectual property portfolio;
the levels of coverage and reimbursement we are able to secure for any product candidates that receive regulatory approval;
our ability to establish a commercially viable price for our products, if and when approved; and
delays or unanticipated costs, including those related to any of the foregoing.
If one or more of these factors is unfavorable, we could experience significant delays or we may not be able to successfully commercialize TAVO or any of our other
product candidates, which would materially harm our business.
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We may not be successful in our efforts to identify or discover additional product candidates and may fail to capitalize on programs or product candidates that may present
a greater commercial opportunity or for which there is a greater likelihood of success.
The success of our business depends upon our ability to identify, develop and commercialize product candidates based on our programs. If we do not successfully
develop and eventually commercialize products, we will face difficulty in obtaining product revenue in future periods, or may never obtain such revenue, resulting in significant
harm to our financial position and adversely affecting our share price. Research programs to identify new product candidates require substantial technical, financial and human
resources.
Additionally, because we have limited resources, we may forego or delay pursuit of opportunities with certain programs or product candidates or for indications that
later prove to have greater commercial potential. Our estimates regarding the potential market for a product candidate could be inaccurate, and our spending on current and
future research and development programs may not yield any commercially viable products. If we do not accurately evaluate the commercial potential for a particular product
candidate, we may relinquish valuable rights to that product candidate through strategic collaboration, licensing or other arrangements in cases in which it would have been
more advantageous for us to retain sole development and commercialization rights to such product candidate. Alternatively, we may allocate internal resources to a product
candidate in a therapeutic area in which it would have been more advantageous to enter into a partnering arrangement.
If any of these events occur, we may be forced to abandon or delay our development efforts with respect to a particular product candidate or fail to develop a
potentially successful product candidate, which could have a material adverse effect on our business, financial condition, results of operations and prospects.
It may be difficult to identify and enroll patients due to clinical trial inclusion-exclusion criteria or other factors, which has in the past, and may in the future, lead to delays
in enrollment and in generating clinical data for our trials.
Our clinical trials have had, and may have in the future, strict inclusion criteria for patient enrollment. These criteria could present significant obstacles to the timely
recruitment and enrollment of a sufficient number of eligible patients into our trials. We may experience slower than expected patient enrollment in our existing or future
clinical trials. Any inability to successfully enroll the number of patients meeting the criteria for any of our clinical trials could cause significant delays in the trial and increase
the costs associated with the trial, which could materially harm our business and prospects.
Patient enrollment in a clinical trial may be affected by many factors, including:
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the severity of the disease under investigation;
the design of the study protocol;
the eligibility criteria for the study;
the perceived risks, benefits and convenience of administration of the product candidate being studied;
the competitive disease space with many trials for patients to select from; and
the proximity and availability of clinical trial sites to prospective patients.
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Certain characteristics of our ImmunoPulse® platform may negatively impact market acceptance of the platform.
Physicians, patients, and third-party payors may be less accepting of product candidates based on our ImmunoPulse® technology platform due to certain
characteristics of this platform. For example, these parties may have concerns about the complexity inherent in a combination therapy approach or the clinical application of
electroporation technology, which is less prevalent in the United States than in certain foreign markets. Moreover, our efforts to educate the medical community and third-party
payors about the benefits of any of our technologies and product candidates may require significant resources and may never be successful. As a result, even if any of our
product candidates achieve regulatory approval, a lack of acceptance by physicians, third-party payors and patients of the products or underlying technologies could prevent
their successful commercialization and could materially limit our revenue potential.
If the commencement or completion of clinical testing for our product candidates is delayed or prevented, we could experience significantly increased costs and our ability
to pursue regulatory approval or generate revenue could be delayed or limited.
Clinical trials are very expensive, time-consuming, unpredictable and difficult to design and implement. Even if we are able to complete our ongoing and currently
proposed clinical trials and assuming the results are favorable, clinical trials for product candidates based on our technology are planned to continue for several years and may
take significantly longer than expected to complete. Even with the Fast Track designation we received from the FDA for TAVO in metastatic melanoma in February 2017,
additional clinical trials, which can take years to complete, are still required.
Delays in the commencement or completion of clinical testing could significantly affect our product development costs and business plan. We do not know and cannot
predict whether any of our ongoing or planned trials or studies will be completed on schedule or at all. We also do not know and cannot predict whether any other pre-clinical or
clinical trials, including Phase 3 clinical trials to follow completion of our ongoing or any other Phase 2 clinical trials, will be planned or will begin, and in many cases such
future trials would be dependent on obtaining favorable results from preceding studies.
The commencement and completion of clinical trials can be delayed or prevented for many reasons, including due to delays or issues related to:
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obtaining clearance or approval from the FDA or a comparable international regulatory body and other applicable agencies, including the U.S. National
Institutes of Health, to commence a clinical trial;
reaching agreement on acceptable terms with prospective clinical research organizations, or CROs, clinical investigators and trial sites;
obtaining institutional review board, or IRB, and institutional biological committee, or IBC, approval to initiate and conduct a clinical trial at a prospective site;
identifying, recruiting and training suitable clinical investigators;
identifying, recruiting and enrolling subjects to participate in clinical trials, which can pose challenges for a variety of reasons, including competition from other
clinical trial programs for similar indications, requirements for larger than anticipated patient populations, slower than expected enrollment, or higher than
predicted rates of patient drop-out or withdrawal;
retaining patients who have initiated a clinical trial but who may be prone to withdraw due to side effects from the therapy, lack of efficacy, personal issues,
death or for any other reason, or who are lost to further follow-up; and
identifying and maintaining a sufficient supply of necessary products or product candidates, including those produced by third parties, on commercially
reasonable terms.
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With respect to any clinical trial we plan, the FDA could determine it is not satisfied with our plan or the details of our clinical trial protocols and designs and could put
a clinical hold on the proposed trials, or issue a clinical holder after a trial has commenced. Any such determination could delay the commencement or completion of the trials
and would be a setback for the commercialization strategy for the product candidate that is the subject of the trial. Additionally, changes in applicable regulatory requirements
and guidance may occur, in which case clinical trial protocols may need to be amended to reflect these changes. Any such amendments could require us to resubmit our clinical
trial protocols to IRBs or IBCs for reexamination, which could impact the costs, timing and successful completion of a clinical trial. If we experience delays in completion of, or
if we terminate, any of our ongoing, planned or future clinical trials, the commercial prospects for our product candidates could be harmed, which could have a material adverse
effect on our business, results of operations, financial condition and prospects.
To the extent we conduct clinical trials of our product candidates in combination with third parties’ products, we will face additional risks relating to these products.
To the extent our commercialization strategy includes the combination of our product candidates with third parties’ products or product candidates, we will likely be
required to conduct clinical studies to evaluate the combinations. We have several ongoing and planned combination trials, and these combination studies involve additional
risks due to their reliance on circumstances outside our control, such as those relating to the availability and marketability of the third-party product involved in the study. If the
marketability of third-party products such as KEYTRUDA® is impacted, or if we are unable to secure and maintain a sufficient supply of such third-party products when
needed on commercially reasonable terms, our clinical studies could be delayed or we could be forced to terminate these studies. Such a delay or termination could have a
material negative impact on our development strategy, business, results of operations, financial condition, and prospects.
If serious adverse or unacceptable side effects are identified during the development of one or more of our product candidates or any future product candidate, we may
need to address any serious safety concerns as part of ongoing or post-marketing surveillance efforts; otherwise we may need to modify, limit or discontinue development
efforts related to some of our product candidates.
Establishing the safety of a new product is one of the principal objectives of any clinical trial. Adverse events, including serious adverse events, suspected adverse
reactions, and unexpected adverse events, and their proper reporting, form the basis of the critical risk-benefit analysis of investigational drug therapies. If adverse events are
identified during the development of one or more of our product candidates or any future product candidates, we may need to address any serious safety concerns as part of
ongoing or post market surveillance efforts. Alternatively, we may need to modify, limit or discontinue the development of these product candidates to more narrow uses or
subpopulations in which the adverse events, undesirable side effects or other characteristics are less prevalent, less severe or more acceptable from a risk-benefit perspective. In
the development of new and investigational drug therapies in this industry, many compounds that initially showed promise in early stage testing have later been associated with
adverse events, including serious adverse events that have subsequently prevented further development of the compound. It is not uncommon for an adverse event to be
encountered during a clinical trial. Upon discovery of an adverse event, sponsors are generally required to investigate this event in order to determine whether there is enough
evidence to suggest that there was a reasonable possibility that the drug caused the adverse event.
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In the event that adverse events, including serious adverse events, suspected adverse reactions, and unexpected adverse events are identified during any of our clinical
trials, these trials could be modified, limited, suspended or terminated. Such adverse events may trigger a notification requirement to the FDA or comparable foreign regulatory
authorities, who in turn could order us to cease further development or deny approval of one or more of our product candidates or any future product candidates for any or all
targeted indications. The FDA could also issue a letter requesting additional data or information prior to making a final decision regarding whether or not to approve a product
candidate. The number of requests for additional data or information issued by the FDA in recent years has increased and has resulted in substantial delays in the approval of
several new drugs. Adverse events or undesirable side effects caused by one or more of our product candidates or any future product candidates could also result in the inclusion
of unfavorable information in our product labeling, such as a Black Box warning, or denial of regulatory approval by the FDA or other regulatory authorities for any or all
targeted indications, and in turn prevent us from commercializing and generating market acceptance and revenues from the sale of that product candidate. Adverse events or
side effects could affect patient recruitment or the ability of enrolled patients to complete the trial and could result in potential product liability claims.
No matter how extensive clinical trials and premarket studies may be, the safety profile of a new therapeutic product can only be fully characterized by continuing
safety surveillance through a spontaneous adverse event monitoring system and a post-marketing surveillance study. FDA may require post-marketing testing, known as Phase
4 testing, risk evaluation and mitigation strategies, and surveillance to monitor the effects of an approved product or place conditions on an approval that could restrict the
distribution or use of the product. Regulatory authorities may withdraw product approvals or request product recalls if a company fails to comply with regulatory standards, if it
encounters problems following initial marketing, or if previously unrecognized problems are subsequently discovered. It well understood in the drug development process that
drug safety can never be considered an absolute, since the safety profile of a new therapeutic product will continue to evolve as more and more information is generated,
gathered, and assessed.
Additionally, if one or more of our product candidates or any future product candidates receive marketing approval and we or others later identify undesirable side
effects caused by this product, a number of potentially significant negative consequences could result, including:
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regulatory authorities may require the addition of unfavorable labeling statements, including specific warnings, black box warnings, adverse reactions,
precautions, and/or contraindications;
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regulatory authorities may suspend or withdraw their approval of the product, and/or require it to be removed from the market;
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our reputation may suffer.
Any of these events could prevent us from achieving or maintaining market acceptance of any of our product candidates or any future product candidates, or could
substantially increase our commercialization costs and expenses, which in turn could delay or prevent us from generating significant revenues, or any revenues, from its sale.
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We rely on third parties to conduct our clinical trials and other studies, and if these third parties do not successfully carry out their duties or meet expected deadlines, we
may not be able to obtain regulatory approval for or commercialize our product candidates and our business could be substantially harmed.
We have entered into, and expect to continue to enter into, agreements with third-party CROs to help us manage critical aspects of the clinical trials we sponsor. We
rely on these third parties for the execution of certain of our clinical and pre-clinical studies, and we only control certain aspects of their activities. We and our CROs are
required to comply with the FDA’s regulations for conducting clinical trials and good clinical practice, as well as the guidelines of the International Conference on
Harmonization of Technical Requirements for Registration of Pharmaceuticals for Human Use. We are also required to harmonize standard operating procedures between
companies and conduct periodic internal and vendor audits to ensure compliance. Additionally, the FDA and comparable foreign regulators enforce these good clinical practice
regulations through periodic inspections of trial sponsors, principal investigators, trial sites, laboratories and other entities involved in the completion of the study protocol and
processing of data.
If we or our CROs fail to comply with applicable good clinical practice or other regulations, the data generated in our clinical trials may be deemed unreliable and/or
the FDA or comparable foreign regulators may refuse to accept the data, and these regulators may require us to perform additional or repeat clinical trials, which could
significantly increase costs and delay the regulatory approval process. Additionally, repeated compliance failures could prompt the FDA or other regulatory authority to suspend
or terminate a clinical trial, which could cause significant approval delays and increased costs. Further, if CROs do not otherwise successfully carry out their contractual duties
or obligations or meet expected deadlines or if the quality or accuracy of the clinical data they obtain is compromised for any reason, our clinical trials may need to be extended,
delayed or terminated or we may not be able to rely on the data produced by the trials. Moreover, if any of our relationships with third-party CROs terminate before completion
of a clinical trial, we may not be able to establish arrangements with alternative CROs on commercially reasonable terms, on a timely basis or at all, which could materially
delay or jeopardize the trial. Any such occurrence could delay or prevent us from obtaining regulatory approval for our product candidates or successfully commercializing our
product candidates, which could increase our costs, delay or eliminate our prospects for generating revenue, and otherwise materially harm the results of our operations,
financial condition and prospects.
We rely on clinical data and results obtained by third parties that could ultimately prove to be inaccurate or unreliable.
As part of the strategy implemented to mitigate development risk, we seek to develop product candidates with well-studied mechanisms of action and we utilize
biomarkers to assess potential clinical efficacy early in the development process. This strategy necessarily relies upon clinical data and other results produced or obtained by
third parties, which may ultimately prove to be inaccurate or unreliable. If the third party data and results we rely upon prove to be inaccurate, unreliable or not applicable to our
product candidates, we could make inaccurate assumptions and conclusions about the product candidates, and our research and development efforts could be compromised and
called into question for any marketing applications we submit.
We may be subject to claims that our consultants or independent contractors have wrongfully used or disclosed to us alleged trade secrets of their other clients or former
employers.
As is common in the biopharmaceutical industry, we engage the services of consultants to assist in the development of product candidates. Many of these consultants
were previously employed at or may have previously been or are currently providing consulting services to, other pharmaceutical companies, including our competitors or
potential competitors. We may become subject to claims related to whether these consultants have inadvertently or otherwise used or disclosed trade secrets or other proprietary
information of their former employers or their former or current customers. Litigation may be necessary to defend against these claims. Even if we are successful in defending
these claims, litigation could result in substantial costs and be a distraction to management.
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We have participated in, and continue to participate in, clinical trials conducted under an approved investigator-sponsored investigational new drug application, and we
have little or no control over the conduct or timing of, or FDA communications regarding, these trials.
We have participated in and continue to participate in clinical trials conducted under an approved investigator-sponsored investigational new drug, (IND), application.
We also have plans to participate in future investigator-sponsored trials under both INDs and Investigational Device Exemptions (IDEs), since our product candidates are drug-
device combination products. In investigator-initiated trials, the investigator typically designs and implements the study and the investigator or its institution acts as the sponsor
of the trial. This trial has control over the design, conduct and timing of the trial, and as a result, we have limited or no control over the commencement, conduct and completion
of these investigator-initiated trials. In addition, regulations and guidelines imposed by the FDA with respect to INDs and IDEs include a requirement that the sponsor of a
clinical trial perform the study in accordance with an approved investigational plan, and provide ongoing communication with the FDA as it pertains to the safety of the drug,
device, or treatment being tested. It is the responsibility of the investigator, as the sponsor of the trial, to be the sole point of contact with the FDA for these communications and
to exercise all decision-making authority regarding these or other submissions to the FDA about the trial. Consequently, we may have little or no control over the content or
timing of these communications, including whether they are timely, accurate or complete. Any failures by the investigator sponsoring these trials could result in reviews, audits,
delays or clinical holds by the FDA that could negatively affect the timelines for these trials or jeopardize their completion. As a result, our lack of control over the conduct and
timing of, and communications with the FDA regarding, these investigator-sponsored trials expose us to additional risks, many of which are outside of our control and the
occurrence of which could severely harm our performance and the commercial prospects for our product candidates.
Regulatory authorities may not approve our product candidates, or any approvals we achieve may be too limited or too late for us to earn meaningful, or any, revenue.
The research, testing, and possible eventual manufacturing, labeling, approval, selling, marketing and distribution of our product candidates are subject to extensive
regulation by the FDA and other regulatory authorities in the United States, as well as comparable regulatory bodies in other countries. These regulatory agencies have the
authority to delay approval of or refuse to approve our product candidates for a variety of reasons, including, among others, the occurrence of adverse reactions or a failure to
meet safety and efficacy endpoints in our clinical trials or otherwise to the satisfaction of the regulator, disapproval of our or our partners’ trial design, or disagreement with our
interpretation of data from pre-clinical studies or clinical trials. As a result, even if our product candidates achieve their endpoints in clinical trials, they still may not be
approved by any of these regulatory agencies. Moreover, the requirements to obtain product approvals vary widely from country to country, and the FDA’s approval
requirements, review procedures and timelines may not be the same as or even similar to the requirements of a comparable foreign regulator. As a result, even if we obtain
regulatory approval for a product candidate in one country, we may be required to undertake additional clinical trials or studies, submit additional information, wait for longer
review periods or make other efforts in order to obtain regulatory approvals in other desirable geographic markets, or may not be able to achieve approval in those other
desirable geographic markets.
Although we have seen no systemic drug-related adverse events in our trials and studies to date, if we cannot adequately demonstrate through the clinical trial process
that a product candidate we are developing is safe and effective, regulatory approval of that product candidate may never be achieved, which could impair our reputation,
increase our costs and delay or prevent us from generating revenue. Importantly, success in pre-clinical testing and early clinical studies does not ensure that later clinical trials
will generate adequate data to demonstrate the required level of efficacy and safety of an investigational drug. A number of companies in the pharmaceutical and biotechnology
industries, including many with greater resources and experience than we have, have suffered significant setbacks in clinical trials, even after obtaining promising results in
Phase 2, and earlier studies. Further, even if a product candidate is approved, it may be approved for fewer or more limited indications than requested, may include substantial
safety warnings or the approval may be subject to the performance of significant post-marketing studies. In addition, regulatory agencies may not approve the labeling claims
that are necessary or desirable for the successful commercialization of our product candidates. Any limitation, condition or denial of approval could have an adverse effect on
our business, reputation and results of operations.
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Furthermore, because of the substantial competition we face, even if we are ultimately able to achieve regulatory approval for one or more of our product candidates,
delays in such regulatory approval could delay, limit or prevent our ability to successfully commercialize our product candidates if competing products obtain approvals before
ours and gain market traction against which we are not able to compete. Moreover, we may be forced to reevaluate our development strategies and plans in the face of setbacks
or other delays that could jeopardize the value of any regulatory approval that is obtained, which could include abandoning planned clinical trial efforts for a product candidate
that we no longer believe has promising value as a commercial product. If we are not able to obtain or maintain required regulatory approvals for our product candidates or if we
decide or are forced to abandon our efforts to obtain or maintain these approvals, we would have expended significant costs on assets that may never generate any return. Such
an outcome would have a material adverse effect on our business, results of operations and financial condition, as well as on our continued viability as a company.
We will need to obtain FDA approval of any proposed product brand names, and any failure or delay associated with such approval may adversely impact our business.
A pharmaceutical product cannot be marketed in the US or other countries until we have completed a rigorous and extensive regulatory review process, including
approval of a brand name. Any brand names we intend to use for our product candidates in the US will require approval from the FDA regardless of whether we have secured a
formal trademark registration from the US Patent and Trademark Office (PTO). The FDA typically conducts a review of proposed product brand names, including an
evaluation, for example, of potential for confusion with other product names. The FDA may also object to a product brand name if it believes the name implies inappropriate
promotional claims. If the FDA objects to any of our proposed product brand names, we may be required to adopt an alternative brand name for our product candidates. If we
adopt an alternative brand name, we would lose the benefit of our existing trademark applications for such product candidate and may be required to expend significant
additional resources in an effort to identify a suitable product brand name that would qualify under applicable trademark laws, not infringe the existing rights of third parties and
be acceptable to the FDA. We may be unable to build a successful brand identity for a new trademark in a timely manner or at all, which would limit our ability to
commercialize our product candidates.
Our in-licensed intellectual property may not provide us with sufficient rights and may not prevent competitors from pursuing similar technology.
In addition to our owned proprietary rights, we have also exclusively licensed certain patents and patent applications that cover our current and future clinical
platforms. These patents will expire between 2024 and 2032. These method patents protect the use of a product for a specified method under certain defined parameters. This
type of patent does not prevent a competitor from making and marketing a product that is identical or similar to the protected product under parameters that are outside the
scope of the patented method claims. Moreover, even if competitors do not actively promote such a product for the indications protected by the method patent, physicians could
prescribe the products for these methods on an off-label basis. Although such off-label prescriptions may infringe or contribute to the infringement of method-of-use patents, the
practice is common and such infringement is difficult to detect, prevent or prosecute.
We entered into a cross-license agreement in 2011 for certain electroporation technology with Inovio, which includes some of our patents protecting our
ImmunoPulse® clinical device (and some of which have recently expired or will expire in 2019). Under the terms of the agreement, Inovio has granted us a non-exclusive,
worldwide license under certain of its electroporation patents, and in exchange, we have granted to Inovio an exclusive license to certain aspects of our technology in a limited
field of use. Although we do not currently rely on the intellectual property we have licensed from Inovio, our product candidates could in the future utilize this intellectual
property. This license is non-exclusive and Inovio could use the technology to compete with us or could license the technology to others, including our competitors.
Additionally, the license we have granted to Inovio could enable it to develop products that compete against ours, directly or indirectly, in the specific field of use subject to the
license. In the future, if we raise additional funds through licensing or sublicensing arrangements, it may be necessary to relinquish potentially valuable rights to our product
candidates, or grant licenses on terms that are not favorable to us.
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We entered into a license agreement with Gaeta Therapuetics in May, 2019. Under the license, we obtained exclusive worldwide rights to Gaeta Therapeutics’ broad
portfolio of patents and applications covering the combination use of IL-12 protein or DNA and various checkpoint inhibitor therapies, including anti-CTLA-4 and anti-PD-1
compounds, in key global markets. Although we do not currently rely on the intellectual property we have licensed from Gaeta, our product candidates could in the future utilize
this intellectual property. The in-licensing of this portfolio provides patent protection on our current clinical methods in certain countries until at least 2032 and also gives us the
potential to block others utilizing IL-12 in combination with various checkpoint inhibitors, which may not be part of our current clinical platform.
If we are not able to maintain our existing in-licenses or if we are not able to establish new in-licenses for any other third-party rights we need, we could become
subject to significant costs or royalty or other fees to establish alternative license arrangements, if such licenses are available when needed, on acceptable terms or at all, or we
could be forced to develop modifications to the affected product candidates or technologies to avoid reliance on the third-party rights, if such modifications are possible. If there
is any conflict, dispute, disagreement or issue of non-performance between us and the respective licensing partner regarding the rights or obligations under the license
agreements, including any conflict, dispute or disagreement arising from a failure to satisfy payment obligations under such agreements, the ability to develop and
commercialize the affected product candidate may be adversely affected. Any inability to secure and maintain adequate rights to any third-party technologies necessary for the
development of our product candidates could severely limit our continued research and development activities, our efforts to obtain product approvals and, if such approvals are
obtained, our ability to commercialize the approved products, any of which would materially adversely impact our business and prospects.
We may become involved in litigation or other proceedings in our efforts to protect our patent and other intellectual property rights, which could require significant time
and costs and would be subject to unpredictable outcomes.
We may become aware of activities by third parties, including our competitors, that infringe our issued patents or other intellectual property rights. If we choose to file
a lawsuit against a potentially infringing third party to try to enforce our patents or other intellectual property rights, the third party may seek a ruling that the patents are invalid
and/or should not be enforced. Such a ruling could severely limit our ability to protect our rights from use by third parties. Further, patent law is a constantly evolving body of
law, and changes can affect our rights and our ability to execute on our strategy and our financial results. In the past several years, the U.S. Supreme Court has revised certain
tests regarding assessing the validity of patents, which could result in the invalidation of issued patents and/or their claims based on the application of the current patent validity
standards. As a result, in the event of any patent infringement litigation or other proceedings involving our patents, our patents could be subject to challenge and subsequent
invalidation or significant narrowing of claim scope under the current standards. Moreover, even if the validity of our patents is upheld in a patent infringement lawsuit, a court
could refuse to stop a third party’s activities on the grounds that the activities do not infringe the specific claims of our patents. Further, even if we were successful in stopping
the infringing activity, patent infringement lawsuits are expensive and could consume significant time, management attention, capital and other resources. Any claims we assert
against accused infringers could provoke these parties to assert counterclaims against us alleging that we infringe their patents; or provoke those parties to petition the United
States Patent and Trademark Office, or USPTO, to institute inter partes review against the asserted patents, which may lead to a finding that all or some of the claims of the
patent are invalid.
These risks of third parties’ infringement of our intellectual property rights may increase if we engage in discussions, collaborations or other strategic arrangements
with third parties. Also, new challenges could arise if and to the extent we pursue engagements with third parties located outside the United States. These factors could increase
the risks and costs associated with building and protecting our intellectual property portfolio and could adversely affect our performance and our business prospects. Despite
efforts to protect our proprietary information during such discussions, third parties may unintentionally or willfully disclose or convert our proprietary information, including
our trade secrets, and we may not be able to obtain adequate remedies for such breaches.
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Third parties may claim that we infringe their proprietary rights, which could prevent us from pursuing our clinical and other studies and other research and development
activities.
The validity and infringement of patents or proprietary rights of third parties has been the subject of substantial litigation in the biotechnology industry. In the course of
our research and development activities, we could become subject to legal claims that we, our activities or our product candidates or technologies infringe the rights of others.
This type of patent infringement litigation is costly and time-consuming and diverts the attention of management and technical personnel. In addition, if we or our product
candidates or technologies are found to infringe the rights of others, we could lose our ability to continue our development programs or could be forced to pay monetary
damages. Although the parties to patent and intellectual property disputes in the biotechnology industry have often settled their disputes by establishing licenses or similar
arrangements, the costs associated with these arrangements may be substantial and could include ongoing royalties. Furthermore, any such licenses may not be available when
needed, on commercially reasonable terms or at all. These risks may be amplified due to our small size and limited experience and resources relative to many of our
competitors. As a result, any claims of infringement against us, adverse determination in a judicial or administrative proceeding or failure to obtain necessary licenses could
materially delay, hinder or restrict our development efforts or prevent us from continuing to pursue our operational and strategic plans, which could have a material adverse
effect on our business, prospects and results of operations.
Publications of discoveries in the scientific literature often lag behind the actual discoveries, and patent applications in the U.S. and other jurisdictions are typically not
published until 18 months after a first filing, or in some cases not at all. Therefore, we cannot know with certainty whether we or our licensors were the first to make the
inventions claimed in patents or pending patent applications that we own or licensed, or that we or our licensors were the first to file for patent protection of such inventions. In
the event that a third party has also filed a U.S. patent application relating to our product candidates or a similar invention, depending upon the priority dates claimed by the
competing parties, we may have to participate in interference proceedings declared by the PTO to determine priority of invention in the U.S. The costs of these proceedings
could be substantial and it is possible that our efforts to establish priority of invention would be unsuccessful, resulting in a material adverse effect on our U.S. patent position.
As a result, the issuance, scope, validity, enforceability and commercial value of our patent rights are highly uncertain.
If we fail to comply with environmental, health and safety laws and regulations, we could become subject to fines or penalties or incur costs that could harm our business;
even if we comply with such laws and regulations, they may result in higher costs for us in the form of higher raw material, energy, freight and compliance costs.
We are subject to numerous environmental, health and safety laws and regulations, including those governing laboratory procedures and the handling, use, storage,
treatment and disposal of hazardous materials and wastes. Our operations involve the use of hazardous and flammable materials, including chemicals and biological materials.
Our operations also produce hazardous waste products. We generally contract with third parties for the disposal of these materials and wastes. We cannot eliminate the risk of
contamination or injury from these materials. Although we believe that the safety procedures for handling and disposing of these materials comply with the standards prescribed
by these laws and regulations, we cannot eliminate the risk of accidental contamination or injury from these materials. In the event of contamination or injury resulting from our
use of hazardous materials, we could be held liable for any resulting damages, and any liability could exceed our resources. We also could incur significant costs associated with
civil or criminal fines and penalties for failure to comply with such laws and regulations.
Although we maintain workers’ compensation insurance to cover us for costs and expenses we may incur due to injuries to our employees resulting from the use of
hazardous materials, this insurance may not provide adequate coverage against potential liabilities. We do not maintain insurance for environmental liability or toxic tort claims
that may be asserted against us in connection with our storage or disposal of biological, hazardous or radioactive materials.
In addition, we may incur substantial costs in order to comply with current or future environmental, health and safety laws and regulations. These current or future laws
and regulations may impair our research, development or production efforts. Our failure to comply with these laws and regulations also may result in substantial fines, penalties
or other sanctions. Increased environmental legislation or regulation could also result in higher costs for us in the form of higher raw materials, as well as energy and freight
costs. It is possible that certain materials might cease to be permitted to be used in our processes. We could also incur additional compliance costs for monitoring and reporting
emissions and for maintaining permits.
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The biotechnology industry is highly competitive, and many of our competitors are significantly larger and more experienced than we are.
The biotechnology industry is intensely competitive. This competitive environment stimulates an ongoing and extensive search for technological innovation and
necessitates effective and targeted marketing strategies to communicate the effectiveness, safety and value of products to healthcare professionals in private practice and group
practices and payors in managed care organizations, group purchasing organizations, and Medicare and Medicaid services.
We face competition from a number of sources, including large pharmaceutical companies, biotechnology companies, academic institutions, government agencies and
private and public research institutions. We compete against all other developers of cancer treatments, including other immunotherapy treatments as well as other types of
treatments for the cancer indications on which we are focused. In particular, a number of companies, some of which are large, well-established pharmaceutical companies, have
development strategies similar to our current focus. These companies include, among others, Bristol Myers-Squibb, Iovance Therapeutics, Syndax, Dynavax Technologies,
Checkmate Pharmaceuticals and Idera Pharmaceuticals. In addition, we also compete with other clinical-stage biotechnology companies for funding and support from
healthcare and other investors and potential collaboration relationships with larger pharmaceutical or other companies, as well as for personnel with expertise in our industry.
We are smaller, less experienced and less well-funded than many of our competitors, and we have a shorter and less proven operating history and a less recognizable and
established brand name than many of our competitors. In addition, some of our competitors have commercially available products, which provide them with operating revenue
and other competitive advantages. Furthermore, recent trends in the biotechnology industry are for large drug companies to acquire smaller outfits and consolidate into a smaller
number of very large entities, which further concentrates financial, technical, and market strength and increases competitive pressure in the industry.
Our competitors may obtain regulatory approval of their product candidates more rapidly than we can or may obtain more robust patent protection or other intellectual
property rights to protect their product candidates and technologies, which could limit or prevent us from developing or commercializing our product candidates. If we are able
to obtain regulatory approval of one or more of our product candidates, we would face competition from approved products or products under development by larger companies
that may address our targeted indications. If we directly compete with these very large entities for the same markets and/or customers, their greater resources, brand recognition,
sales and marketing experience and financial strength could prevent us from capturing a share of these markets or customers. Our competitors may also develop products that
are more effective, more useful, better tolerated, subject to fewer or less severe side effects, more widely prescribed, less costly or more widely accepted for other reasons than
any of our products that might obtain regulatory approvals, and our competitors may also be more successful than us in manufacturing, distributing and otherwise marketing
their products.
We expect our product candidates, if approved and commercialized, to compete on the basis of, among other things, product efficacy and safety, time to market, price,
coverage and reimbursement by third-party payors, extent of adverse side effects and convenience of treatment procedures. We may not be able to effectively compete in any of
these areas, or we may be prevented from being able to compete at all in these areas due to the performance of our products during clinical trials and/or the circumstances of an
approval. Presently, we compete with other biotechnology companies for funding and support on the basis of our technology platforms and the potential value of our product
candidates based on the factors described above.
If we are unable to compete effectively, our business, results of operations, financial condition, and prospects may be materially adversely affected.
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We may incur liability if our presentations of information regarding our product candidates are determined, or are perceived, to be inconsistent with regulatory
requirements or guidelines.
The FDA provides guidelines regarding appropriate presentation of product information and continuing medical and health education activities. Even though we do not
have any FDA approved products, these guidelines apply to our current activities with respect to disclosures, presentations or other communications about our product
candidates and technologies at healthcare conferences or in other forums. Although we endeavor to follow these guidelines, the FDA, the Office of the Inspector General of the
U.S. Department of Health and Human Services, or the Department of Justice could disagree, in which case we could be subject to significant liability, including civil and
administrative remedies as well as criminal sanctions. In addition, management’s attention could be diverted and our reputation could be damaged, any of which could
materially harm our business and prospects.
If we and our contract manufacturers fail to produce our systems and product candidates in the volumes and within the timelines we require, or if they fail to comply with
applicable regulations, we could face delays in the development and commercialization of our equipment and product candidates.
Currently, we assemble certain components of our EP system, which is our proprietary delivery mechanism for our TAVO product candidate, and we utilize the
services of contract manufacturers to manufacture the remaining components of these systems and for the manufacture, testing and storage of all of our supply of our plasmid
product candidate for clinical trials or other studies. Except for the facility used to assemble certain components of our electroporation system, we do not own and have no plans
to build our own clinical or commercial manufacturing capabilities, and we expect to increase our reliance on third-party manufacturers if and when we commercialize any of
our product candidates and systems.
The manufacture of our systems and product supplies requires significant expertise and capital investment, including the use of advanced manufacturing techniques
and process controls. Manufacturers often encounter difficulties in production, particularly in scaling up for commercial production if regulatory approvals are obtained. These
difficulties include, among others: problems with production costs and yields; quality control issues, including qualification of the equipment, stability of product candidates
and compliance with testing requirements; shortages of qualified personnel; and compliance with strictly enforced federal, state and foreign regulations. If we or our
manufacturers were to encounter any of these difficulties or our manufacturers otherwise fail to comply with their contractual obligations to us, our ability to provide our
electroporation equipment to our partners and product candidates to patients enrolled in our clinical trials, or to commercially launch a product if regulatory approvals are
obtained, would be jeopardized. Any delay or interruption in the supply of clinical trial supplies could delay the completion of our clinical trials, increase the costs associated
with maintaining our clinical trial programs, and, depending upon the period of delay, require us to commence new trials at significant additional expense or terminate the
development program completely.
In addition, all manufacturers of our products must comply with current good manufacturing practices, which are regulated by the FDA through its facilities inspection
programs. These practices include requirements regarding, among other things, quality control, quality assurance and the generation and maintenance of records and
documentation. We are required by law to establish adequate oversight and control over raw materials, components and finished products furnished by our third-party
manufacturers, but we have limited direct control over our manufacturers’ compliance with these regulations and standards. Any failure by our manufacturers, including our
non-U.S. contract manufacturers, to comply with these requirements could potentially result in fines and civil penalties, suspension of production, restrictions on imports and
exports, suspension or delay in product approval, product seizure or recall or withdrawal of product approval. Additionally, if the safety of any product candidate or approved
product is compromised due to our or our manufacturers’ failure to adhere to applicable regulatory requirements or for other reasons, we may not be able to obtain or maintain
regulatory approval for or successfully commercialize our products, and we may be held liable for any injuries sustained as a result of the failure. Any of these factors could
cause delays in clinical trials, regulatory submissions or approvals, entail significant costs or hinder our ability to effectively commercialize our product candidates.
Furthermore, assuming we are successful in receiving approval for and commercializing one or more of our product candidates, if our manufacturers fail to deliver the required
commercial quantities on a timely basis, pursuant to provided specifications and at commercially reasonable prices, we may be unable to meet demand for our products and we
could lose potential revenue.
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Our business and operations could suffer in the event of cyber-attacks or system failures.
Despite the implementation of security measures, our internal computer systems and those of our current and any future partners, contractors and consultants are
vulnerable to damage from cyber-attacks, computer viruses, unauthorized access, natural disasters, terrorism, war and telecommunication and electrical failures. System failures,
accidents or security breaches could cause material disruptions to our commercialization activities, clinical and other development programs, financial and disclosure controls
and other reporting functions and the administrative aspects of our business, in addition to possibly requiring substantial expenditures of capital and other resources to remedy.
Further, any loss of clinical trial data from completed or future clinical trials as a result of such a disruption could result in delays in our regulatory approval efforts and
significantly increase our costs to recover or reproduce the lost data. Moreover, to the extent any such disruption results in the loss of or damage to our data or applications or
inappropriate disclosure of confidential or proprietary information, we could incur significant liabilities. The occurrence of any of these circumstances could cause our
operations and our performance to suffer.
We may be unable to acquire or develop new product candidates or technologies, or we may never be able to commercialize any product candidates or technologies we do
successfully acquire or develop.
As part of our business strategy, we plan to expand our clinical pipeline and build our portfolio of product candidates through the development, acquisition or licensing
of assets or businesses, product candidates or approved products. The process of identifying, planning, negotiating, implementing and integrating an acquisition or license of a
new business, product candidate or approved product can be lengthy and complex and can involve numerous difficulties, including difficulties related to:
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identifying new potential product candidates or promising technologies;
competing with other companies for the acquisition or license, including many of our competitors with substantially greater financial, marketing and sales
resources;
negotiating the terms of the acquisition or license, at which we have relatively little experience;
accurately judging the value or worth of a potential acquisition or in-license candidate;
paying for an acquisition or license, including the consideration to acquire or license a business, technology or asset (which could include cash and/or issuance
of equity or debt securities);
acquisition and integration efforts could disrupt our business and divert the time and attention of management and other internal personnel from existing
operations;
any integration failures could result in the loss or impairment of relationships with employees, consultants, suppliers and other vendors and partners;
exposure to unknown or contingent liabilities based on an acquired company’s operations or assets;
acquisition and integration efforts and costs could reduce available liquidity and other resources to pursue other acquisitions or strategic transactions;
challenges establishing appropriate controls and procedures for any acquisition by us of a private company;
failing to recoup our investment of time, capital and other resources into a proposed acquisition or license, as a result of failing to complete the transaction or,
for transactions that are completed, failing to realize the anticipated benefits of acquired or licensed business or asset;
challenges developing and commercializing any product candidates or technologies that we are successful in acquiring or licensing, which is subject to all of the
risks described throughout these risk factors regarding the development of our current product candidates.
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As a result of these and other difficulties, any efforts to acquire or develop new product candidates, technologies or businesses may not produce commercially
successful products or otherwise result in meaningful revenue or profitability for our business. As a result, the pursuit of these activities could have a material adverse effect on
our business, results of operations, financial condition and prospects.
Any collaboration arrangements we may establish may not be successful, which could adversely affect our ability to develop and commercialize our product candidates.
We may seek collaboration arrangements for the development or commercialization of our current and any future product candidates. To the extent we pursue
collaboration arrangements, we would face significant risks in connection with establishing and maintaining the arrangements, including, among others:
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we could be subject to intense competition in seeking appropriate collaborators;
collaboration arrangements are complex, costly and time-consuming to negotiate, document and implement, and they could require our payment to the
collaborator of cash or other consideration, including issuances of equity or debt securities, in order to establish the relationship;
we may be unsuccessful in establishing and implementing any collaboration we desire to pursue, or the terms of the arrangement may not be favorable to us;
collaborations often would require that we relinquish some or all of the control over the future success of the product candidate to the third-party collaborator;
the success of any collaboration arrangements we may establish would depend heavily on the efforts and activities of our collaborators, who would likely have
significant discretion in determining the efforts and resources they would apply to these collaborations;
disagreements between collaborators regarding clinical development and commercialization matters can be difficult to resolve and can lead to delays in the
development process or commercialization of the applicable product candidate and, in some cases, termination of the arrangement; and
any termination of a collaboration arrangement that we are able to establish could adversely affect our performance, particularly to the extent we become reliant
upon the collaboration for revenue or important commercialization processes or efforts.
In addition, collaboration arrangements may also include our pursuit of combination trials to develop and commercialize our product candidates as combination
products, such as our KEYNOTE-695 and KEYNOTE-890 studies with Merck’s KEYTRUDA®. To the extent we continue to pursue these or any other similar collaborative
arrangement, we will face certain additional risks and uncertainties in development, as drug/device combination products are particularly complex, expensive and time-
consuming to develop due to the number of variables involved in the final product design, including ease of patient and doctor use, establishing clinical efficacy, reliability and
cost of manufacturing, regulatory approval requirements and standards and other important factors. Additionally, combination products face continued risk and uncertainty
post-development in connection with manufacturing and supply regarding the establishment of a reliable commercial supply chain.
The occurrence of any of these risks with respect to any collaboration arrangements we pursue or establish could materially adversely affect our performance, financial
condition and reputation.
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Our results of operations and liquidity needs could be materially negatively affected by market fluctuations and economic downturn.
Our results of operations could be materially negatively affected by economic conditions generally, both in the U.S. and elsewhere around the world. Continuing
concerns over inflation, energy costs, geopolitical issues, the availability and cost of credit, the U.S. mortgage market and residential real estate market in the U.S. have
contributed to increased volatility and diminished expectations for the economy and the markets going forward. These factors, combined with volatile oil prices, declining
business and consumer confidence and increased unemployment, have precipitated an economic recession and fears of a possible depression. Domestic and international equity
markets continue to experience heightened volatility and turmoil. These events and the continuing market upheavals may have an adverse effect on us. In the event of a
continuing market downturn, our results of operations could be adversely affected by those factors in many ways, including making it more difficult for us to raise funds if
necessary, and our stock price may further decline.
Unfavorable global economic conditions could adversely affect our business, financial condition or results of operations.
Our results of operations could be adversely affected by general conditions in the global economy and in the global financial markets. For example, the global financial
crisis caused extreme volatility and disruptions in the capital and credit markets. A severe or prolonged economic downturn, such as the global financial crisis, could result in a
variety of risks to our business, including, weakened demand for our drug candidates and our ability to raise additional capital when needed on acceptable terms, if at all. A
weak or declining economy could also strain our suppliers, possibly resulting in supply disruption, or cause our customers to delay making payments for our services.
Following its June 23, 2016 vote to leave the European Union, on March 29, 2017, the United Kingdom invoked Article 50 of the Lisbon Treaty and formally began
the process of exiting the European Union. Although Brexit has already and may continue to adversely affect European and/or worldwide economic or market, political or
regulatory conditions and may contribute to instability in the global financial markets, political institutions and regulatory agencies, the resulting immediate changes in foreign
currency exchange rates have had a limited overall impact due to natural hedging. The long-term impact of Brexit, including on our business and our industry, will depend on
the terms that are negotiated in relation to the United Kingdom’s future relationship with the European Union, and we are closely monitoring the Brexit developments in order to
determine, quantify and proactively address changes as they become clear. Despite the Brexit developments, we do not expect macroeconomic conditions to have a significant
impact on our liquidity needs, financial condition or results of operations.
We may not be successful in executing our sales and marketing strategy for the commercialization of any of our product candidates, should they be approved, in which case
we may not be able to generate significant, or any, revenue.
If one or more of our product candidates are approved, our commercialization strategy may include the establishment of our own sales, marketing and distribution
capabilities to market products to our target markets. Developing these capabilities would require significant expenditures on personnel and infrastructure. Moreover, we have
no experience with these activities. While we currently expect that any approved products would be marketed for a relatively small patient population, we might not be able to
create an effective sales force to address even a niche market. In addition, some of our product candidates could require, if approved, a large sales force to call on and educate
physicians and patients. We could decide in the future to pursue collaborations with one or more pharmaceutical companies to sell, market and distribute any approved products,
but we may not be able to establish any such arrangement when desired, on acceptable terms or at all. Further, any such collaboration we do establish may not be effective in
generating meaningful revenue to us.
We may be unsuccessful in implementing the commercialization strategies we have planned. Further, we have not proven our ability to succeed in the biotechnology
industry and are not certain that our commercialization strategies, even if implemented as we envision, would lead to significant revenue. If we are unable to successfully
implement our commercialization plans and drive adoption by patients and physicians of any product candidates that obtain regulatory approval, then we will not generate
meaningful, or any, revenue, which would have a material adverse effect on our business, results of operations, financial condition and prospects.
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If any product candidate that receives regulatory approval does not achieve broad market acceptance, our revenue potential may be limited.
The commercial success of any product candidate that obtains marketing approval from the FDA or comparable foreign regulatory authorities will depend on the
acceptance of these products by physicians, patients, third-party payors and the medical community. The degree of market acceptance of any product candidate that receives
regulatory approval will depend on a number of factors, including:
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our ability to provide acceptable evidence of safety and efficacy;
acceptance by physicians and patients of the product as a safe and effective treatment;
the prevalence and severity of adverse effects;
limitations or warnings contained in a product’s FDA-approved or other regulator-approved labeling;
the clinical indications for which the product is approved;
the availability and perceived advantages of alternative treatments;
any negative publicity related to the product or any competing product;
the effectiveness of our or any current or future collaborators’ sales, marketing and distribution strategies;
pricing and cost effectiveness;
our ability to obtain adequate third-party payor coverage or reimbursement; and
the willingness of patients to pay out-of-pocket in the absence of adequate third-party payor coverage and reimbursement.
Failures with respect to any one of these factors could severely limit the commercial potential of any product candidate that obtains regulatory approval, which could
materially adversely affect our performance and prospects.
We may not be able to establish adequate coverage and reimbursement by third-party payors for any product candidate that achieves regulatory approvals, which could
severely limit our market potential, performance and prospects.
Cost containment has become a significant trend in the U.S. healthcare industry. Third-party payors have attempted to control costs by limiting coverage and the
amount of reimbursement for certain products and procedures. Increasingly, third-party payors are requiring that companies provide them with predetermined discounts from
list prices and are challenging the prices charged for medical products and treatments. In addition, recent trends in U.S. politics suggest that the U.S. healthcare insurance
framework may experience significant changes in the near term. For all of these and other reasons, coverage and reimbursement at adequate or any levels may not be available
for any product candidate that achieves regulatory approval. If coverage and reimbursement is not available or is not available at an adequate level for any approved product,
the demand for or price of the product could be materially negatively affected, which could severely limit our revenue potential and prospects.
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In addition, the regulations that govern marketing approvals, pricing, coverage and reimbursement for new therapeutic products vary widely from country to country.
Some countries require approval of the sale price of a product 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 government control even after initial approval is
granted. As a result, even if we obtain regulatory approval for a product candidate in a particular country, we could be subject to continuing pricing regulations that could delay
our commercial launch of the product or negatively impact the revenue potential for the product in that country.
Future growth, including growth in international operations, could strain our resources, and if we are unable to manage any growth we may experience, we may not be
able to successfully implement our business plans.
In late 2016, we established a subsidiary corporation in Australia in preparation for planned clinical trials in that country. In addition, our business plan includes
continued growth of our operations, including, among other things, growth in our workforce, expansion of our clinical trial efforts within and outside of the United States, and
expansion of our portfolio of product candidates. This growth could place an additional strain on our management, administrative, operational and financial infrastructure, and
will require that we incur significant additional costs and hire and train additional personnel to support our expanding operations. Further, we must maintain and continue to
improve our operational, financial and management controls and reporting systems and procedures, which can be more challenging during periods of expansion. As a result, our
future success will depend in part on the ability of management to effectively manage any of this growth we may experience. If we fail to successfully manage any growth we
may experience, we may be unable to execute on our business plan.
In connection with any geographic expansion we may pursue, international operations would involve substantial additional risks, including, among others:
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difficulties complying with the U.S. Foreign Corrupt Practices Act and other applicable anti-bribery laws, such as the United Kingdom Bribery Act 2010, and
similar antibribery and anticorruption laws in other jurisdictions;
difficulties complying with foreign laws, regulations, standards and regulatory guidance governing the collection, use, disclosure, retention, security and
transfer of personal data, including the European Union General Data Privacy Regulation, which introduces strict requirements for processing personal data of
individuals within the European Union;
difficulties maintaining compliance with the varied and potentially conflicting laws and regulations of multiple jurisdictions that may be applicable to our
business, many of which may be unfamiliar to us;
difficulties in managing foreign operations;
financial risks, such as longer payment cycles, difficulty in enforcing contracts and collecting accounts receivable, and exposure to foreign currency exchange
rate fluctuations;
complexities associated with managing multiple payor-reimbursement regimes or self-pay systems;
more complexity in our regulatory and accounting compliance;
differing or changing obligations regarding taxes, duties or other fees;
limited intellectual property protection in some jurisdictions;
risks associated with currency exchange and convertibility, including vulnerability to appreciation and depreciation of foreign currencies against the U.S. dollar;
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uncertainty related to developing legal and regulatory systems and standards for economic and business activities in some jurisdictions;
trade restrictions or barriers, including tariffs or other charges and import-export regulations, which are subject to increased uncertainty following the results of
the 2016 U.S. presidential election and the trade policies of the current administration regarding existing and proposed trade agreements and the ability to import
goods into the United States;
changes in applicable laws or policies;
possible failure by us or our distributors to obtain appropriate licenses or regulatory approvals for the sale or use of our product candidates, if approved, in
various countries; and
business interruptions resulting from geopolitical actions, economic instability, or the impact of and response to natural disasters, including, but not limited to,
wars and terrorism, political unrest, outbreak of disease, earthquakes, boycotts, curtailment of trade, and other business restrictions.
The occurrence of any of these risks could limit our ability to pursue international expansion, increase our costs or expose us to fines or other legal sanctions, any of
which could negatively impact our business, reputation and financial condition.
If we are unable to successfully recruit and retain qualified personnel, we may not be able to maintain or grow our business.
In order to successfully implement and manage our business plans, we depend on, among other things, successfully recruiting and retaining qualified executives,
managers, scientists and other employees with relevant experience in life sciences and the biotechnology industry. Competition for qualified individuals is intense, particularly
in our industry, due to the many larger and more established life science and biotechnology companies that compete with us for talent. We also experience competition for the
hiring of scientific and clinical personnel from universities and research institutions. In addition, we heavily rely on consultants and advisors, including scientific, clinical and
regulatory advisors, to assist us in formulating our research and development and commercialization strategies. Our consultants and advisors may be employed by others or
may have commitments under consulting or advisory contracts with other entities that may limit their availability to support us. If we are not able to retain existing personnel,
consultants and/or advisors, and find, attract and retain new qualified personnel, consultants and/or advisors on acceptable terms and in a timely manner to coincide with our
needs, we may not be able to successfully maintain or grow our operations and our business and prospects could suffer.
Additionally, although we have employment agreements with each of our executive officers, these agreements are terminable by them at will. The loss of the services
of any one or more members of our current senior management team could, among other things, disrupt or divert our focus from pursuing our business plans while we seek to
recruit other executives, impact the perceptions of our existing and prospective employees, partners and investors regarding our business and prospects, cause us to incur
substantial costs in connection with managing transitions and recruiting suitable replacements and, if the departing personnel are crucial to any of our clinical or other
development programs, delay or prevent the development and commercialization of the affected product candidates. These risks would be amplified if we are not able to recruit
suitable replacements for any departing personnel on acceptable terms and in a timely manner. The occurrence of any of these or other potential consequences could cause
significant harm to our business.
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Extensive industry regulation has had, and will continue to have, a significant impact on our business, especially our product development, manufacturing and distribution
capabilities.
Biotechnology companies are subject to extensive, complex, costly and evolving government regulation relating to the ability to market and sell any drug or medical
device. In the United States, these regulations are principally administered and enforced by the FDA and, to a lesser extent, by the U.S. Drug Enforcement Agency, or DEA, and
comparable state government agencies, and outside the United States, these types of regulations are typically administered by various regulatory agencies comparable to the
FDA in foreign countries where products or product candidates are researched, tested, manufactured and/or marketed.
The U.S. Federal Food, Drug and Cosmetic Act, or FDCA, the Controlled Substances Act, and other federal statutes and regulations, as well as similar state and foreign
statutes and regulations, govern or influence, among other things, the research, development, testing, manufacture, storage, record-keeping, approval, labeling, promotion,
marketing, distribution, post-approval monitoring and reporting, sampling, import and export of product candidates such as ours. Under these regulations, we and our contract
manufacturers may become subject to periodic inspection of our facilities, quality control and other procedures, and operations and/or product candidate testing by the FDA,
DEA and other authorities during and after the approval process for a product candidate, to confirm compliance with all applicable regulations, including current good
manufacturing practices and other applicable requirements. Further, even if regulatory approval of a product candidate is obtained, such approval would, in the U.S. at least,
impose limitations on the indicated uses for which the product may be marketed, and these limitations could materially limit a product’s market and revenue potential.
Additionally, we would be subject to pervasive and continuing regulation by the FDA and/or comparable foreign regulators with respect to any approved product. Moreover, we
could be required to conduct potentially costly post-approval studies or surveillance programs to monitor the effect of any approved products, and the FDA and comparable
foreign regulators have the authority to stop or limit further marketing of a product or impose more stringent labeling restrictions based on the results of these post-approval
tests and programs or in the event of any unexpected or serious health or safety concern regarding any approved product.
Possible penalties or other consequences for failure to comply with these regulatory requirements include, among others, observations, notices, citations and/or warning
letters that could force us to modify our clinical programs or other activities; clinical holds on our ongoing clinical programs; adverse publicity from the FDA or others; the
FDA’s suspension of its review of pending applications; fines; product recalls or seizures; total or partial suspension of production and/or distribution; labeling changes;
withdrawal of previously granted product approvals; enforcement actions; restrictions on imports and exports; injunctions and civil or criminal prosecution. Any such sanctions,
if imposed, could have a material adverse effect on our business, operating results and financial condition.
Moreover, the regulations, policies and guidance of the FDA or other regulatory agencies could change and new or additional statutes or regulations could be enacted
or promulgated. If changes or new laws are more stringent or impose additional or more challenging requirements, our costs of compliance could increase, regulatory approval
of our product candidates could be delayed or jeopardized, or post-approval activities for any product candidates that obtain regulatory approval could be further restricted or
regulated. If we are not able to achieve and maintain regulatory compliance, we may not be permitted to market any of our product candidates, which would materially
adversely affect our prospects to generate revenue.
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If we fail to comply with applicable healthcare laws and regulations, we could face substantial penalties and our business, operations, prospects and financial condition
could be adversely affected.
The healthcare industry is heavily regulated, constantly evolving and subject to significant change and fluctuation. The U.S. federal and state healthcare laws and
regulations that impact our business include, among others:
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the laws and regulations administered and enforced by the FDA, including the FDCA, Controlled Substances Act and other federal statutes and regulations,
discussed above;
the federal Anti-Kickback Statute, which generally prohibits, among other things, soliciting, receiving or providing remuneration to induce the referral of an
individual for an item or service or the purchasing or ordering of an item or service for which payment may be made under federal healthcare programs, such as
the Medicare and Medicaid programs;
the federal false claims laws, which generally prohibit, among other things, knowingly presenting or causing to be presented claims for payment from
Medicare, Medicaid or other third-party payors that are false or fraudulent;
the Affordable Care Act, which, in general and among other things, expands the government’s investigative and enforcement authority, including requiring
pharmaceutical companies to record and disclose to government agencies any transfers of value to doctors and teaching hospitals, and increases the penalties for
fraud and abuse, including amendments to the federal False Claims Act and the Anti-Kickback Statute to make it easier to file lawsuits under these statutes;
HIPAA and HITECH, which, in general and among other things, establish comprehensive federal standards with respect to the privacy, security and
transmission of individually identifiable health information and impose requirements for the use of standardized electronic transactions with respect to
transmission of such information;
the FCPA and other applicable anti-bribery laws; and
state law equivalents of each of these federal laws, such as anti-kickback and false claims laws that may apply to items or services reimbursed by any third-party
payor, including commercial insurers, and state laws governing the privacy and security of health information in certain circumstances, many of which differ
from each other in significant ways and may not be preempted by applicable federal laws, thus complicating compliance efforts.
Additionally, the healthcare compliance environment is continuously changing, with proposed revisions to or replacement of the Affordable Care Act at the federal
level and with some states mandating implementation of compliance programs, compliance with industry ethics codes, registration requirements for sales personnel, spending
limits and reporting to state governments of gifts, compensation and other remuneration to physicians. This shifting regulatory environment, as well as our obligation to comply
with different reporting and other compliance requirements, in multiple jurisdictions, including foreign laws and regulations comparable to the U.S. laws and regulations
described above, to the extent we continue to pursue operations in foreign countries, such as our clinical activities in Australia, or if we seek to sell any product that obtains
regulatory approval in a foreign country, increases the possibility that we may violate one or more of these laws. In addition, these conditions may also adversely affect our
ability to obtain regulatory approval for any of our product candidates, the availability of capital, our ability to generate meaningful or any revenue and, if any of our product
candidates achieve regulatory approval, our ability to establish a price we believe is fair for the approved product. Further, even though we do not and will not control referrals
of healthcare services or bill directly to third-party payors, certain federal and state healthcare laws and regulations pertaining to fraud and abuse and patients’ rights would be
applicable to our business, if any of our product candidates obtain regulatory approval and become commercially available.
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All of these laws impose penalties or other consequences for non-compliance, some of which may be severe. If we or our operations are found to be in violation of any
of these laws or any other governmental regulations that apply to us, the consequences could include, but are not limited to, fines or other monetary damages, orders forcing us
to curtail or restructure our operations, injunctions and civil or criminal prosecution. Any such penalties could adversely affect our ability to operate our business and pursue our
strategic plans. Additionally, any action against us for violation of these laws, even if we successfully defend against it, could cause us to incur significant legal expenses and
divert management’s attention from the operation of our business. Moreover, achieving and sustaining compliance with the various U.S. federal and state and foreign laws and
regulations that apply to our business could prove costly. The occurrence of any of these risks could cause our performance and financial condition to materially suffer.
We are subject to new legislation and regulatory proposals that may affect costs for compliance and adversely affect revenue.
The 116th Congress has closely monitored health care spending in the United States. Many members of Congress have prioritized health care spending and are
committed to lowering spending in federal government programs. Legislative efforts to reduce health care spending within federal programs may affect overall health care
spending in the United States. The Senate Health, Education, Labor, and Pensions (HELP Committee) advanced legislation in June 2019 intended to improve price transparency
for health care services and products. The provisions would increase public access to pricing information and allow patients to choose lower cost care options. This may drive
down health care spending and impact medical device prices. Further, there are efforts by the House Energy and Commerce Committee as well as the House Ways and Means
Committee to broadly address spending for prescription drugs. It is possible that the Committees could attempt legislate on medical device costs as well. Lastly, the House and
Senate Judiciary Committees have also focused heavily on patent and exclusivity reform for prescription drugs. It is also possible that the Judiciary Committees could expand
into device-related issues. While we cannot predict what proposals may ultimately become law, elements under consideration could significantly change health care spending in
which the medical device market operates.
President Donald Trump and the Department of Health and Human Services (HHS) are also addressing price transparency in the health care industry. On June 24,
2019, President Trump signed an Executive Order (EO) directing federal agencies to improve price transparency. Since then, HHS has proposed regulations to improve price
transparency in various health care settings that utilize medical devices (e.g., hospitals). Although these are broad efforts to improve transparency across sectors, it is possible
the rulemaking could impact health care costs generally.
Any product for which we obtain marketing approval could be subject to restrictions or withdrawal from the market and we may be subject to penalties if we fail to comply
with regulatory requirements or if we experience unanticipated problems with products, when and if any of them is approved.
Any product for which we might obtain marketing approval, along with the manufacturing processes and facilities, post-approval data, labeling, advertising and
promotional activities for such product, will be subject to continual requirements of and review by the FDA and comparable regulatory authorities. These requirements include
submissions of safety and other post-marketing information and reports, registration requirements, industry standards and regulatory requirements (e.g. CGMPs) relating to
quality control, quality assurance and corresponding maintenance of records and documents, requirements regarding the distribution of samples to physicians and
recordkeeping, and requirements regarding company presentations and interactions with healthcare professionals. Even if we obtain regulatory approval of a product, the
approval may be subject to limitations on the indicated uses for which the product may be marketed or to the conditions of approval, or contain requirements for costly post-
marketing testing, studies, and surveillance to monitor the safety or efficacy of the product. We also may be subject to state laws and registration requirements covering the
marketing, promotion, and distribution of products. Later discovery of previously unknown problems with products, manufacturers or manufacturing processes, or failure to
comply with legal and regulatory requirements, may result in actions such as:
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restrictions on the labeling, marketing, or promotion of a product;
requirements to conduct post-marketing studies or clinical trials;
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refusal to approve pending applications or supplements to approved applications that we submit;
voluntary or mandatory recall;
fines;
suspension or withdrawal of marketing or regulatory approvals;
refusal to permit the import or export of products;
product seizure or detentions;
injunctions or the imposition of civil or criminal penalties; and
adverse publicity.
If we or our respective suppliers, third-party contractors, clinical investigators or collaborators are slow to adapt, or are unable to adapt, to changes in existing
regulatory requirements or adoption of new regulatory requirements or policies, we or our respective collaborators may experience one or more of the actions above, resulting
in decreased revenue from milestones, product sales or royalties.
We are heavily dependent on the success of our clinical product candidates and we cannot provide any assurance that any of our product candidates will be approved,
commercialized or successfully marketed in the future.
We plan to seek regulatory approval to commercialize our product candidates in the United States, and potentially in the European Union and additional foreign
countries. While the scope of regulatory review and approval can be similar in other countries, to obtain separate regulatory review and approval in many other countries, we
must comply with the numerous and varying regulatory requirements of such countries, including those regarding safety and efficacy, clinical trials, manufacturing, post-
marketing commitments, and commercial sales, pricing and distribution of our product candidates, and we cannot predict success in those jurisdictions.
In addition, the clinical trial requirements of the FDA, the European Commission, the European Medicines Agency, or the EMA, the competent authorities of the
European Union, or EU, Member States and other regulatory authorities and the criteria these regulators use to determine the safety and efficacy of a product candidate vary
substantially according to the type, complexity, novelty and intended use and market of such product candidates. The regulatory approval process for novel product candidates
such as ours can be more expensive and take longer than for other, better known or more extensively studied product candidates. Even if we are successful in developing
additional product candidates, it is difficult to determine how long it will take or how much it will cost to obtain regulatory approvals for these product candidates in either the
United States or the EU, or how long it will take to commercialize any other products for which we receive marketing approval. In addition, any future marketing authorization
granted by the European Commission may not be indicative of what FDA may require for approval and vice versa.
Further, in the U.S., the European Union member states, and elsewhere, there have been, and we expect there will continue to be, efforts to control and reduce
healthcare costs. In the U.S. for example, the price of drugs has come under intense scrutiny by the U.S. Congress. Third party payers decide which drugs they will pay for and
establish reimbursement and co-payment levels. Government and other third-party payers are increasingly challenging the prices charged for healthcare products, examining the
cost effectiveness of drugs in addition to their safety and efficacy, and limiting or attempting to limit both coverage and the level of reimbursement for prescription drugs.
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Europe has enacted a new data privacy regulation, the General Data Protection Regulation, a violation of which could subject us to significant fines.
In May 2018, a new privacy regime, the General Data Protection Regulation, or GDPR, took effect across all member states of the European Economic Area. The new
regime increases our obligations with respect to clinical trials conducted in the member states by expanding the definition of personal data to include coded data, and requiring
changes to informed consent practices and more detailed notices for clinical trial subjects and investigators. In addition, it increases the scrutiny that clinical trial sites located in
the member states should apply to transfers of personal data from such sites to countries that are considered to lack an adequate level of data protection, such as the United
States. The regime imposes substantial fines for breaches of data protection requirements, which can be up to four percent of global turnover or 20 million Euros, whichever is
greater, and it also confers a private right of action on data subjects for breaches of data protection requirements. Compliance with these directives is a rigorous and time-
intensive process that may increase our cost of doing business, and the failure to comply with these laws could subject us to significant fines.
Our employees, consultants, or third-party partners may engage in misconduct or other improper activities, including but not necessarily limited to noncompliance with
regulatory standards and requirements or internal procedures, policies or agreements to which such employees, consultants and partners are subject, any of which could
have a material adverse effect on our business.
We are exposed to the risk of employee fraud or other misconduct. Misconduct by employees, consultants, or third party partners could include intentional failures to
comply with FDA regulations, to provide accurate information to the FDA, to comply with manufacturing standards, including those we have established, to comply with federal
and state healthcare fraud and abuse laws and regulations, to report financial information or data accurately, to comply with internal procedures, policies or agreements to which
such employees, consultants or partners are subject, or to disclose unauthorized activities to us. In particular, sales, marketing and business arrangements in the healthcare
industry are subject to extensive laws and regulations intended to prevent fraud, kickbacks, self-dealing and other abusive practices. These laws and regulations may restrict or
prohibit a wide range of pricing, discounting, marketing, promotion, sales commission, customer incentive programs and other business arrangements. Employee, consultant, or
third-party 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. 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.
We receive a large amount of proprietary information from potential or existing licensors of intellectual property and potential acquisition target companies, all
pursuant to confidentiality agreements. The confidentiality and proprietary invention assignment agreements that we have in place with each of our employees and consultants
prohibit the unauthorized disclosure of such information, but such employees or consultants may nonetheless disclose such information through negligence or willful
misconduct. Any such unauthorized disclosures could subject us to monetary damages and/or injunctive or equitable relief. The notes, analyses and memoranda that we have
generated based off such information are also valuable to our businesses, and the unauthorized disclosure or misappropriation of such materials by our employees and
consultants could significantly harm our strategic initiatives, especially if such disclosures are made to our competitor companies.
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We may use biological materials and hazardous materials, and any claims relating to improper handling, storage or disposal of these materials could be time consuming
and costly.
We may use hazardous materials, including chemicals and biological agents and compounds that could be dangerous to human health and safety or the environment.
Our operations may also produce hazardous waste products. Federal, state and local laws and regulations govern the use, generation, manufacture, storage, handling and
disposal of these materials and wastes. Compliance with applicable environmental laws and regulations may be expensive, and current or future environmental laws and
regulations may impair our product development efforts. In addition, we cannot entirely eliminate the risk of accidental injury or contamination from these materials or wastes.
We do not carry specific biological or hazardous waste insurance coverage, and our property and casualty and general liability insurance policies specifically exclude coverage
for damages and fines arising from biological or hazardous waste exposure or contamination. Accordingly, in the event of contamination or injury, we could be held liable for
damages or penalized with fines in an amount exceeding our respective resources, and clinical trials or regulatory approvals could be suspended.
Although we maintain workers’ compensation insurance to cover costs and expenses incurred due to injuries to our employees resulting from the use of hazardous
materials, this insurance may not provide adequate coverage against potential liabilities. We do not have insurance for environmental liability or toxic tort claims that may be
asserted in connection with the storage or disposal of biological or hazardous materials.
In addition, we may incur substantial costs in order to comply with current or future environmental, health and safety laws and regulations. These current or future laws
and regulations may impair our research, development or production efforts. Failure to comply with these laws and regulations also may result in substantial fines, penalties or
other sanctions.
We face potential product liability exposure, and if successful claims are brought against us, we could incur substantial liability.
The clinical use of our product candidates and, if any of our product candidates achieves regulatory approval, any future commercial use of the approved products,
exposes us to the risk of product liability claims. Any side effects, manufacturing defects, misuse, or abuse associated with our product candidates or any approved products
could result in injury to a patient or even death. In addition, a liability claim could be brought against us even if our product candidates or any approved products merely appear
to have caused an injury. These product liability claims could be brought against us by consumers, healthcare providers, pharmaceutical companies or others that come into
contact with our product candidates or any approved products.
Regardless of merit or potential outcome, product liability claims against us could result in, among other effects, the inability to continue clinical testing of our product
candidates or, for any approved products, commercialization of the products, impairment of our business reputation, withdrawal of clinical trial participants and distraction of
management’s attention from our primary business activities. In addition, if we cannot successfully defend against product liability claims, we could incur substantial liabilities,
including liabilities that may be beyond the scope or limits of any applicable insurance policies we may have in place. Any of these outcomes could severely harm our
business, financial condition and prospects.
Our business depends in large part on our ability to protect our proprietary rights and technologies, and we may be unsuccessful in these efforts.
We believe our success and ability to compete depends in large part on obtaining and maintaining patent, trademark and trade secret protection of our product
candidates and their respective components and underlying technologies, including devices, formulations, manufacturing methods and methods of treatment, as well as
successfully defending our intellectual property rights against third-party challenges. Our ability to stop third parties from making, using or selling products that infringe on our
intellectual property rights depends on the extent to which we have secured and properly safeguarded these rights under valid and enforceable patents or trade secrets.
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Although we previously owned patents protecting our ImmunoPulse® clinical device, our primary U.S. and foreign patents providing such protection expired in 2017,
and 2018, and the final foreign patents expire in late 2019. As a result, we may have limited ability to enforce these rights against third parties to prevent them from making or
selling competing products that rely upon the protected technology, which could harm our competitive position and prospects. In addition to these proprietary rights that are
expired or are expiring between 2017 and 2019, we also own or have exclusively licensed certain patents and applications that cover our current clinical methods. These patents
will expire between 2024 and 2036. These method patents protect the use of a product for a specified method under certain defined parameters. In addition, we recently received
a Notice of Allowance on a United States Patent application that could extend patent coverage of our current clinical methods until at least 2036. These types of method patents
do not prevent a competitor from making and marketing a product that is identical or similar to the protected product under parameters that are outside the scope of the patented
method claims. Moreover, even if competitors do not actively promote such a product for the indications protected by the method patent, physicians could prescribe the products
for these methods on an off-label basis. Although such off-label prescriptions may infringe or contribute to the infringement of method-of-use patents, the practice is common
and such infringement is difficult to detect, prevent or prosecute. Furthermore, our licensed patents expiring between 2024 and 2032 may not have as broad a scope as our
patents that are expiring or expired between 2017 and 2019, which in turn may limit our remedies against competitors making and marketing a product that is identical or
similar to ours.
To the extent our existing patents or pending or planned patent applications expire before we are able to commercialize product depending on the technology or do not
otherwise provide sufficient protection, we could be subject to substantially increased competition and our business and ability to commercialize or license our technology or
product candidates could be materially adversely affected.
Even if we secure patents that cover our proprietary technology, our efforts to protect our intellectual property rights with patents may prove inadequate. For instance,
the breadth of claims in a patent application is often restricted during patent prosecution, resulting in granted claims with a more limited scope than the claims in the original
application. Additionally, pending or future patent applications may not result in issued patents. Laws and regulations for the prosecution of patents are continuously evolving,
and the U.S. Supreme Court has, in the past several years, revised certain tests regarding both the grant and review of patents that could make it more difficult to obtain issued
patents. Also, any patents that are granted could be subject to post-grant proceedings that could limit their scope or enforceability, and claims that are amended during post-
grant proceedings may not be broad enough to provide meaningful protection. Moreover, any patents that are issued to us or any future collaborators may be circumvented or
invalidated by third-party efforts, may expire before or shortly after obtaining necessary regulatory approvals, or may not provide sufficient proprietary protection or
competitive advantage for other reasons. Such challenges could include third-party pre-issuance submissions of prior art to the PTO, or opposition, derivation, reexamination,
inter parties review, or post-grant review or interference proceedings challenging our patent rights or the patent rights of others. The cost of these proceedings could be
substantial and it is possible that our efforts to establish priority or validity of the invention would be unsuccessful, resulting in a material adverse effect on our U.S. patent
position. An adverse determination in any such submission, patent office trial, proceeding or litigation could reduce the scope of, render unenforceable, or invalidate, our patent
rights, allow third parties to commercialize our technology or products and compete directly with us, without payment to us, or result in our inability to manufacture or
commercialize products without infringing third-party patent rights. In addition, if the breadth or strength of protection provided by our patents and patent applications is
threatened, it could dissuade companies from collaborating with us to license, develop or commercialize current or future product candidates. Further, obtaining and maintaining
patent protection depends on compliance with various procedural, document submission, fee payment, and other requirements imposed by government patent agencies, and our
patent protection could be reduced or eliminated for non-compliance with these requirements. These risks may be amplified in some foreign jurisdictions, where patent
protection may not be as strong or as effective as it is in the United States.
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Our reliance on unpatented proprietary rights, including trade secrets and know-how, may also pose significant risks. For instance, it can be difficult to protect these
rights and they may lose their value if they are independently developed by a third party or if their secrecy is lost. Although we have taken measures to protect these rights,
including establishing confidentiality agreements with employees, consultants and other third parties, these measures may not sufficiently safeguard our unpatented proprietary
rights and may not provide adequate remedies in the event of unauthorized use or disclosure of the confidential information. Despite these efforts, any of these parties may
breach the agreements and may unintentionally or willfully disclose our proprietary information, including our trade secrets, and we may not be able to obtain adequate
remedies for such breaches. Enforcing a claim that a party illegally disclosed or misappropriated a trade secret is difficult, expensive and time-consuming, and the outcome is
unpredictable. In addition, some courts inside and outside the U.S. are less willing or unwilling to protect trade secrets. Moreover, if any of our trade secrets were to be lawfully
obtained or independently developed by a competitor, we would have no right to prevent them, or those to whom they communicate it, from using that technology or
information to compete with us. If any of our trade secrets were to be disclosed to or independently developed by a competitor, our competitive position would be harmed.
If we are unable to secure patent protection for our patentable technologies, if any of our issued patents are limited or found to be invalid or unenforceable, or if we are
otherwise unable to adequately protect our patented or unpatented proprietary rights, our business and prospects could be materially negatively affected.
If we fail to maintain an effective system of internal controls, we may not be able to accurately report our financial results and stockholders and the investment community
could lose confidence in our financial reporting, which could harm our business.
Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Although management has determined that our
internal control over financial reporting was effective as of July 31, 2019, our controls over financial processes and reporting may not continue to be effective, or we may
identify significant deficiencies or material weaknesses in our internal controls in the future. Any failure to maintain effective internal control over financial reporting, including
failures to implement new or improved controls as needed in a timely and effective manner or remediate any significant deficiency or material weakness that is identified in the
future, could cause noncompliance with our public reporting obligations, an inability to produce reliable financial reports or material misstatements in our financial statements
or other public disclosures. If any of these circumstances were to occur, investors could lose confidence in our financial and other reported information, our reputation could
otherwise be harmed, the investment of our stockholders in our company could be negatively affected and the costs to us of raising additional capital could materially increase,
any of which could harm our business and prospects.
Maintaining compliance with our reporting and other obligations as a public company could strain our resources and distract management.
As a public company, we experience significant demands that are not applicable to private companies. For example, the Sarbanes-Oxley Act of 2002 and related and
other rules implemented by the SEC and the Nasdaq Capital Market, which maintains the securities exchange on which our common stock is listed for trading, impose a number
of requirements on public companies, including with respect to corporate governance practices, periodic reporting and other disclosure requirements and financial and
disclosure controls and procedures. Further, the SEC and other regulators have continued to adopt new rules and make changes to existing regulations that require our
compliance, such as the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and the corporate governance and executive compensation-related disclosure
requirements of this legislation.
Maintaining compliance with the rules and regulations applicable to public companies involves significant legal, accounting and financial costs. Additionally, if we
grow as anticipated, we may need to hire additional personnel and implement new and more sophisticated financial and accounting systems and procedures to continue to meet
our public company obligations. Our management and other personnel devote substantial attention to maintaining our compliance with these obligations, which diverts attention
from other aspects of our business. Any failure to comply with these public company requirements could have a material adverse effect on our business and prospects and could
materially harm our stockholders’ investment in our Company.
48
We may not be able to realize value from, or otherwise preserve and utilize, our net operating loss carryforwards and certain other tax attributes.
If a corporation undergoes an “ownership change” within the meaning of Section 382 of the Internal Revenue Code of 1986, as amended, the corporation’s net
operating loss carryforwards and certain other tax attributes arising prior to the ownership change are subject to limitations on use after the ownership change. In general, an
ownership change occurs if there is a cumulative change in the corporation’s equity ownership by certain stockholders that exceeds 50% over a rolling three-year period.
Similar rules may apply under state tax laws. If we experience such an ownership change, our net operating loss carryforwards generated prior to the ownership change would
be subject to annual limitations that could reduce, eliminate or defer the utilization of these losses.
Moreover, the recognition and measurement of net operating loss carryforwards may include estimates and judgments by management, and the Internal Revenue
Service could, upon audit or other investigation, disagree with the amount of net operating loss carryforwards or the determination of whether an ownership change has
occurred. Additionally, legislative or regulatory changes or judicial decisions could further negatively impact the ability to use any tax benefits associated with net operating
loss carryforwards. Any inability to use net operating loss carryforwards to reduce our U.S. federal or state income tax liability could materially harm our financial condition
and results of operations.
Our tax position could be affected by recent changes in United States federal income tax laws.
On December 22, 2017, legislation commonly referred to as the “Tax Cuts and Jobs Act” was signed into law and is generally effective after December 31, 2017. The
Tax Cuts and Jobs Act makes significant changes to the United States federal income tax rules for taxation of individuals and business entities. Most of the changes applicable to
individuals are temporary and apply only to taxable years beginning after December 31, 2017 and before January 1, 2026. For corporations, the Tax Cuts and Jobs Act reduces
the top corporate income tax rate to 21% and repeals the corporate alternative minimum tax, limits the deduction for net interest expense, limits the deduction for net operating
losses and eliminates net operating loss carrybacks, modifies or repeals many business deductions and credits, shifts the United States toward a more territorial tax system, and
imposes new taxes to combat erosion of the United States federal income tax base. The Tax Cuts and Jobs Act makes numerous other large and small changes to the federal
income tax rules that may affect potential investors and may directly or indirectly affect us. We continue to examine the impact this tax reform legislation may have on our
business. However, the effect of the Tax Cuts and Jobs Act on us and our affiliates, whether adverse or favorable, is uncertain, and may not become evident for some period of
time. This document does not discuss such legislation or the manner in which it might affect us or purchasers of our common stock. Prospective investors are urged to consult
with their legal and tax advisors with respect to the Tax Cuts and Jobs Act and any other regulatory or administrative developments and proposals, and their potential effects on
them based on their unique circumstances.
Risks Related to our Growth Strategy
If we acquire, enter into joint ventures with or obtain a controlling interest in companies in the future, it could adversely affect our operating results and the value of our
Common Stock thereby diluting stockholder value and disrupting our business.
As part of our growth strategy, we might acquire, enter into joint ventures with, or obtain a significant ownership stake in other companies. Acquisitions of, joint
ventures with and investments in other companies involve numerous risks, including, but not necessarily limited to:
●
●
●
●
risk of entering new markets in which we have little to no experience;
diversion of financial and managerial resources from existing operations;
successfully negotiating a proposed acquisition or investment timely and at a price or on terms and conditions favorable to us;
the impact of regulatory reviews on a proposed acquisition or investment;
49
●
●
●
the outcome of any legal proceedings that may be instituted with respect to the proposed acquisitions or investment;
with respect to an acquisition, difficulties in integrating operations, technologies, services and personnel; and
potential inability to maintain relationships with customers of the companies we may acquire or invest in.
If we fail to properly evaluate potential acquisitions, joint ventures or investments, we might not achieve the anticipated benefits of any such transaction, we might
incur costs in excess of what we anticipate, and management resources and attention might be diverted from other necessary or valuable activities.
If we cannot continue to fund our research and development programs, we may be required to reduce product development, which will adversely impact our growth
strategy.
Our research and development (“R&D”) programs will require substantial additional capital to conduct research, preclinical testing and human studies, establish pilot
scale and commercial scale manufacturing processes and facilities, and establish and develop quality control, regulatory, marketing, sales and administrative capabilities to
support these programs. We expect to fund our R&D activities from a combination of cash generated from royalties and milestones from our partners in various past, ongoing
and future collaborations and additional equity or debt financings from third parties. These financings could depress our stock price. If additional funds are required to support
our operations and such funds cannot be obtained on favorable terms, we may not be able to develop products, which will adversely impact our growth strategy.
Risks Related to Our Common Stock
The price and trading volume of our common stock may be subject to extreme volatility, and stockholders could lose all or part of their investment in our company.
The trading volume and market price of our common stock has experienced, and is likely to continue to experience, significant volatility. This volatility could
negatively impact our ability to raise additional capital or utilize equity as consideration in any acquisition transactions we may seek to pursue, and could make it more difficult
for existing stockholders to sell their shares of our common stock at a price they consider acceptable or at all. This volatility is caused by a variety of factors, including, among
the other risks described in these risk factors:
●
●
●
●
●
●
●
adverse research and development or clinical trial results;
our liquidity and ability to obtain additional capital, including the market’s reaction to any capital-raising transaction we may pursue;
declining working capital to fund operations, or other signs of financial uncertainty;
any negative announcement by the FDA or comparable regulatory bodies outside the United States, including that it has denied any request to approve any of
our product candidates for commercialization;
conducting open-ended clinical trials, which could lead to results (either positive or negative) being available to the public prior to a formal announcement;
market assessments of any strategic transaction or collaboration arrangement we may pursue;
potential negative market reaction to the terms or volume of any issuance of shares of our common stock or other securities to new investors pursuant to
strategic or capital-raising transactions or to employees, directors or other service providers;
50
●
●
●
●
●
sales of substantial amounts of our common stock, or the perception that substantial amounts of our common stock may be sold, by stockholders in the public
market;
issuance of new or updated research or reports by securities analysts or changed recommendations for our common stock;
significant advances made by competitors that adversely affect our competitive position;
the loss of key personnel and the inability to attract and retain additional highly-skilled personnel; and
general market and economic conditions, including factors not directly related to our operating performance or the operating performance of our competitors,
such as increased uncertainty in the U.S. healthcare regulatory environment following the results of the 2016 U.S. presidential election.
In addition, the stock market in general, and the market for stock of companies in the life sciences and biotechnology industries in particular, has experienced extreme
price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of specific companies. In addition, in the past, following periods
of volatility in the overall market and the market price of a particular company’s securities, securities class action litigation has often been instituted against the company. This
type of litigation, if instituted against us, could result in substantial costs and a diversion of our management’s attention and resources.
Our failure to meet the continued listing requirements of the Nasdaq Capital Market could result in a delisting of our common stock.
If we fail to satisfy the continued listing requirements of the Nasdaq Capital Market, such as the corporate governance requirements or the minimum closing bid price
requirement, the exchange may take steps to delist our common stock. Such a delisting would likely have a negative effect on the price of our common stock and would impair
your ability to sell or purchase our common stock when you wish to do so. In the event of a delisting, we anticipate that we would take actions to restore our compliance with
applicable exchange requirements, such as stabilize our market price, improve the liquidity of our common stock, prevent our common stock from dropping below such
exchange’s minimum bid price requirement, or prevent future non-compliance with such exchange’s listing requirements.
On December 21, 2018, we received a letter from Nasdaq indicating that the Company has failed to comply with the minimum bid price requirement of Nasdaq Listing
Rule 5550(a)(2). Nasdaq Listing Rule 5550(a)(2) requires that companies listed on the Nasdaq Capital Market maintain a minimum closing bid price of at least $1.00 per share.
Our management determined that a Reverse Stock Split would allow us to satisfy such minimum closing price requirement and allow the Company to regain compliance with
the Nasdaq Capital Market. As such, on May 20, 2019, we effected a 1-for-10 reverse stock split, which has brought us back into compliance with Nasdaq Listing Rule 5550(a)
(2).
If our common stock is delisted from the Nasdaq Capital Market or we are found to be noncompliant with Nasdaq rules, the market price and liquidity of our common
stock could be materially negatively impacted.
The listing of our common stock on the Nasdaq Capital Market, or Nasdaq, is contingent upon our compliance with all of Nasdaq’s continued listing requirements. If
we are found to be noncompliant with these requirements, our common stock could be subject to delisting from Nasdaq. In such event, the market price of our common stock
could be negatively impacted, the liquidity of our common stock could be reduced and our ability to complete equity financings in the future may be limited or prevented.
51
If we issue additional equity securities in the future, our existing stockholders would be diluted.
Our articles of incorporation authorize the issuance of up to 26,000,000 shares of our common stock. In addition to capital-raising activities, on which we have
historically relied for cash to fund our operations, other possible business and financial uses for our authorized common stock include, among others, stock splits, acquiring
other businesses or assets in exchange for shares of our common stock, issuing shares of our common stock to collaborators in connection with strategic alliances, issuing
common stock to vendors for services performed, attracting and retaining employees with equity compensation or other transactions and corporate purposes that our Board of
Directors deems to be in the best interest of our Company. Additionally, issuances of common stock could be used for anti-takeover purposes or to delay or prevent changes in
control or management of our Company. Any future issuances of our common stock may be consummated on terms that are not favorable, may not enhance stockholder value
and may adversely affect the trading price of our common stock. Further, any such issuance will reduce the book value per share of our common stock and reduce the
proportionate ownership and voting power of our existing stockholders.
We have not paid dividends in the past and do not expect to pay dividends in the future, and any return on investment may be limited to the value of your stock.
We have never paid dividends on our common stock and do not anticipate paying any dividends for the foreseeable future. You should not rely on an investment in
our stock if you require dividend income. Further, you will only realize income on an investment in our stock in the event you sell or otherwise dispose of your shares at a price
higher than the price you paid for your shares. Such a gain would result only from an increase in the market price of our common stock, which is uncertain and unpredictable.
If outstanding options or warrants to purchase shares of our common stock are exercised or outstanding restricted stock units vest and settle, our existing stockholders
would be diluted.
As of July 31, 2019, we had outstanding (i) options to purchase 0.9 million shares of our common stock, (ii) warrants to purchase 3.6 million shares of our common
stock, and (iii) 0.1 million restricted stock units. In addition, as of July 31, 2019, there were approximately 0.1 million shares reserved for future issuance under our stock
incentive and stock purchase plans. The exercise of options and warrants, the vesting and settlement of restricted stock units or the issuance of additional equity awards under
our stock incentive and stock purchase plans could have an adverse effect on the market for our common stock, including the price that any stockholder could obtain for its
shares. Further, our existing stockholders could experience significant dilution in the net tangible book value of their investment upon the issuance of additional shares of our
common stock through the exercise of derivative securities that are currently outstanding or that we may issue in the future.
Sales of common stock by our stockholders, or the perception that such sales may occur, could depress the market price of our common stock.
The market price of our common stock could decline as a result of sales by, or the perceived possibility of sales by, our existing stockholders. Since March 2011, we
have completed a number of offerings of our common stock and warrants. Future sales of common stock by significant stockholders, including by those who acquired their
shares in our prior equity offerings, or the perception that such sales may occur, could depress the price of our common stock.
ITEM 1B. UNRESOLVED STAFF COMMENTS
None.
52
ITEM 2. PROPERTIES
On February 14, 2018, the Company entered into a lease agreement for approximately 3,100 rentable square feet located at 24 N. Main Street, Pennington, New
Jersey, 08534, which serves as the Company’s New Jersey corporate headquarters. The term of the lease commenced on March 1, 2018 and was to expire on April 30, 2020. In
November 2018, we entered into an amended lease agreement for the addition of approximately 2,800 rentable square feet. The term of the amended lease commenced on
January 15, 2019 and expires on December 31, 2020. Base rent under the amended lease agreement is $11,686 per month for each of the first two months, $11,929 per month
for each of the third through fifteenth months and $12,173 per month for each of the sixteenth through twenty-three months. The Company prepaid rent of approximately
$60,000 as per the terms of the amended agreement. The lease agreement also requires the Company to share in certain monthly operating expenses of the premises and required
the Company to pay a security deposit of $23,372.
In March 2018, we entered into a lease assignment agreement (the “Lease Assignment Agreement”) with Vividion Therapeutics, Inc. (“Vividion”) for a 34,054 square
foot location at 5820 Nancy Ridge Drive, San Diego, California, 92121 (the “NR Premises”), whereby we assigned the lease agreement with ARE-SD Region No. 18, LLC (the
“Landlord”) to Vividion. Under the Lease Assignment Agreement, Vividion pays directly to Landlord the base rent of $101,500 per month (based upon $2.98 per rentable
square foot of the NR Premises) plus operating expenses and property management fees attributable to the NR Premises currently estimated at $43,500 per month (including an
estimate for utilities) during the term of the Lease Assignment Agreement, which is the remaining term of the lease through October 2025.
While the lease and all of the related obligations were assigned to Vividion, we could ultimately have an obligation on the Lease Assignment Agreement if Vividion
defaulted on their obligation to the Landlord after all remedies were exhausted by the Landlord with regard to Vividion’s obligations. Such an event is not considered probable
and no obligation has been recorded at July 31, 2019 or 2018.
In conjunction with the Lease Assignment Agreement, we also entered into a sublease (the “Sublease”) with Vividion, for a 12,442 square-foot location at 3565
General Atomics Court, Suite 100, San Diego, CA, 92121, leased by Vividion from Landlord which serves as the Company’s California office (the “Sublease Premise”). Under
the Sublease, we are obligated to pay Vividion base rent of $49,768 per month, subject to an annual 3% increase, (based upon $4.00 per rentable square foot of the Sublease
Premises) plus operating expenses and property management fees attributable to the Sublease Premises currently estimated at $30,400 per month during the term of the
Sublease, which extends through September 2020. We moved to the new location in April 2018.
We have also entered into lease arrangements for vivarium space in San Diego, California to support our research and development department.
We believe our current facilities are adequate to meet our current operating needs and will remain adequate for the foreseeable future. Should we need additional space,
we currently do not foresee significant difficulties in obtaining additional facilities.
ITEM 3. LEGAL PROCEEDINGS
In the ordinary course of business, we may become a party to lawsuits involving various matters. The impact and outcome of litigation, if any, is subject to inherent
uncertainties, and an adverse result in these or other matters may arise from time to time that may harm our business. We are not currently a party, and our properties are not
currently subject, to any legal proceedings that, in the opinion of management, are expected to have a material adverse effect on our business, financial condition or results of
operations.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
53
PART II
ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY
SECURITIES
Trading Information
Our common stock began trading on the NASDAQ Capital Market tier under the symbol “ONCS” since May 29, 2015. Prior to that, our common stock was quoted on
the OTC Market Group, Inc.’s OTCQB tier.
The following table sets forth the range of reported high and low sales prices for our common stock for the fiscal quarters indicated, as reported on the NASDAQ:
Fiscal Year Ended July 31, 2019 *
First Quarter ended October 31, 2018
Second Quarter ended January 31, 2019
Third Quarter ended April 30, 2019
Fourth Quarter ended July 31, 2019
Fiscal Year Ended July 31, 2018 *
First Quarter ended October 31, 2017
Second Quarter ended January 31, 2018
Third Quarter ended April 30, 2018
Fourth Quarter ended July 31, 2018
High
Low
18.60
19.60
8.10
5.90
15.40
29.50
22.10
18.00
$
$
$
$
$
$
$
$
11.70
5.40
4.20
2.02
8.80
11.50
14.50
12.10
$
$
$
$
$
$
$
$
* prices reflect 1:10 reverse stock split effectuated by the Company on May 20, 2019
Holders
As of October 22, 2019, there were 45 holders of record of our common stock, plus an indeterminate number of additional stockholders whose shares of our common
stock are held on their behalf by brokerage firms or other agents.
Dividends
We have never declared or paid any cash dividends or distributions on our capital stock. We currently intend to retain future earnings, if any, to support operations and
to finance expansion and therefore we do not anticipate paying any cash dividends on our common stock in the foreseeable future.
Securities Authorized for Issuance under Equity Compensation Plans
The information included under Item 12 of Part III of this report, “Security Ownership of Certain Beneficial Owners and Management and Related Stockholder
Matters,” is hereby incorporated by reference into this Item 5 of Part II of this report.
ITEM 6. SELECTED FINANCIAL DATA
Not applicable.
54
ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This Management’s Discussion and Analysis of Financial Conditions and Results of Operations and other portions of this report contain forward-looking information
that involves risks and uncertainties. Our actual results could differ materially from those anticipated by the forward-looking information. Factors that may cause such
differences include, but are not limited to, availability and cost of financial resources, product demand, market acceptance and other factors discussed in this report under the
heading “Risk Factors”. This Management’s Discussion and Analysis of Financial Condition and Results of Operations should be read in conjunction with our financial
statements and the related notes included elsewhere in this report.
Overview
We are a late-stage biotechnology company focused on designing, developing and commercializing innovative therapies and proprietary medical approaches to
stimulate and to guide an anti-tumor immune response for the treatment of cancer. Our core platform technology, ImmunoPulse®, is a drug-device therapeutic modality
comprised of a proprietary intratumoral electroporation (“EP”) delivery device. The ImmunoPulse® platform is designed to deliver plasmid DNA-encoded drugs directly into a
solid tumor and promote an immunological response against cancer. The ImmunoPulse® device can be adapted to treat different tumor types, and consists of an electrical pulse
generator, a reusable handle and disposable applicators. Our lead product candidate is a DNA-encoded interleukin-12 (“IL-12”), called tavokinogene telseplasmid (“TAVO”).
The ImmunoPulse® EP platform is used to deliver TAVO intratumorally, with the aim of reversing the immunosuppressive microenvironment in the treated tumor. The
activation of the appropriate inflammatory response can drive a systemic anti-tumor response against untreated tumors in other parts of the body. In 2017, we received Fast
Track designation and Orphan Drug Designation from the U.S. Food and Drug Administration (“FDA”) for TAVO in metastatic melanoma, which could qualify TAVO for
expedited FDA review, a rolling Biologics License Application review and certain other benefits.
We have completed monotherapy and combination programs and our current focus is to pursue clinical development programs with TAVO, in combination with
checkpoint inhibitors, in metastatic melanoma, triple negative breast cancer (“TNBC”) and squamous cell carcinoma head and neck (“SCCHN”). The Company intends to
continue to pursue other ongoing or potential new trials and studies related to TAVO, in various tumor types. In addition to TAVO, we have identified and are developing new
DNA-encoded therapeutic candidates and tumor indications for use with our new Visceral Lesion Applicator (“VLA”), to target deep visceral lesions, such as liver, lung,
bladder, pancreatic and other difficult to treat visceral lesions.
Performance Outlook
We expect to use our available working capital in the near term primarily for the advancement of our existing and planned clinical programs, including performance of
the KEYNOTE-695 and KEYNOTE-890 studies and, to a lesser extent, the continuation of our other clinical trials and studies. We anticipate our spending on clinical programs
and the development of our next-generation EP device will continue throughout our current fiscal year, primarily in support of the KEYNOTE-695 and KEYNOTE-890 studies,
while our spending on research and development programs will be prioritized, based on our focus on the KEYNOTE-695 and KEYNOTE-890 studies. We expect our cash-
based general and administrative expenses to remain relatively flat in the near term, as we seek to continue to leverage internal resources and automate processes to decrease our
outside services expenses. See “Results of Operations” below for more information.
55
Results of Operations for the Year Ended July 31, 2019 Compared to the Year Ended July 31, 2018
The unaudited financial data for the years ended July 31, 2019 and July 31, 2018 is presented in the following table and the results of these two periods are included in
the discussion thereafter.
Revenue
Expenses
Research and development
General and administrative
Loss from operations
Other income, net
Interest expense
Loss on disposal of property and equipment
Warrant inducement expense
Foreign currency exchange loss, net
Realized loss on sale of securities, net
Loss before income taxes
Provision for income taxes
Net loss
Revenue
July 31, 2019
July 31, 2018
$ Change
% Change
$
-
$
-
$
-
18,445,199
11,971,479
(30,416,678)
440,037
(3,805)
(703)
-
(281,473)
(12,134)
(30,274,756)
1,297
$
(30,276,053)
$
17,415,520
18,689,839
(36,105,359)
374,045
-
(875,098)
(2,465,396)
(63,878)
-
(39,135,686)
680
(39,136,366)
$
1,029,679
(6,718,360)
(5,688,681)
(65,992)
3,805
(874,395)
(2,465,396)
217,595
12,134
(8,860,930)
617
(8,860,313)
-
6
(36)
(16)
(18)
100
(100)
(100)
341
100
(23)
91
(23)
We have not generated any revenue since our inception, and we do not anticipate generating meaningful revenue in the near term.
Research and Development Expenses
Our research and development expenses increased by $1.0 million, from $17.4 million in the year ended July 31, 2018 to $18.4 million in the year ended July 31,
2019. This increase was primarily due to the following approximate increases: (i) $1.6 million in higher payroll and related-benefits expense, of which $0.1 million was related
to bonus expense and $0.4 million was related to severance expense and (ii) $0.1 million in stock-based compensation expense for employees and consultants. These increases
were partially offset by a $0.5 million decrease in lower facility rent costs due to moving to a new facility in April 2018 as well as a $0.2 million reduction in clinical trial-
related costs year-over year to support our various clinical studies.
General and Administrative
Our general and administrative expenses decreased by $6.7 million, from $18.7 million in the year ended July 31, 2018 to $12.0 million in the year ended July 31,
2019. This decrease was largely due to the following approximate decreases: (i) $5.7 million in stock-based compensation expense primarily related to award cancellations,
fewer awards issued, a decrease in the fair value of our stock and the acceleration of certain RSU’s in the prior comparable period; (ii) $2.6 million in payroll and related-
benefits expense driven by a decrease in headcount, including severance expense for two former executives, and (iii) $0.2 million decrease in lower facility rent & utilities costs
due to moving to a new facility in April 2018. These decreases were partially offset by increases of (i) $0.9 million in general corporate and legal patent costs; (ii) $0.8 million
in consulting costs, and (iii) $0.1 million in travel and travel related expenses relating to corporate development activities.
56
Other Income, Net
Other income, net, increased by $0.1 million, during the year ended July 31, 2019 as compared to the year ended July 31, 2018 primarily as a result of higher yields on
interest-bearing cash and marketable securities investment accounts.
Loss on Disposal of Property and Equipment
Loss on disposal of property and equipment decreased by $0.9 million, from $0.9 in the year ended July 31, 2018 to $0 in the year ended July 31, 2019. This decrease
was due to the loss on disposal of property and equipment related to our move to a smaller facility in San Diego, California.
Warrant Inducement Expense
The warrants issued in connection with our November 2017 warrant exercise inducement offering were considered inducement warrants and the fair value of the
inducement warrants of $2.5 million is classified as equity and expensed as warrant inducement expense.
Foreign Currency Exchange Loss, Net
Foreign currency exchange loss, net, increased by approximately $0.2 million during the year ended July 31, 2019 as compared to the year ended July 31, 2018. This
increase was primarily due to unrealized foreign currency transaction losses recognized in connection with the Australian subsidiary’s intercompany loan.
Liquidity and Capital Resources
Working Capital
The following table and subsequent discussion summarize our working capital as of each of the periods presented:
Current assets
Current liabilities
Working capital
Current Assets
At
July 31, 2019
At
July 31, 2018
$
$
28,507,336 $
4,977,000
23,530,336 $
28,621,823
5,849,636
22,772,187
Current assets as of July 31, 2019 decreased by $0.1 million to $28.5 million, from $28.6 million as of July 31, 2018. This decrease was primarily due to a decrease in
cash, cash equivalents and short-term investment securities as a result of cash used to support our operations.
Current Liabilities
Current liabilities as of July 31, 2019 decreased to $5.0 million, from $5.8 million as of July 31, 2018. This decrease was primarily due to the timing of payments of
accrued expenses. This decrease was partially offset by a short-term note entered into during the year ended July 31, 2019.
57
Cash Flow
Cash Used in Operating Activities
Net cash used in operating activities for the year ended July 31, 2019 was $29.0 million, as compared to $23.2 million for the year ended July 31, 2018. The $5.8
million increase in cash used in operating activities was primarily attributable to an increase in cash used to support our operating activities, including but not limited to, our
clinical trials, an increase in R&D activities and general working capital requirements.
Cash Provided by (Used in) Investing Activities
Net cash provided by investing activities for the year ended July 31, 2019 was $23.2 million, as compared to $23.3 million used in investing activities for the year
ended July 31, 2018. The increase in cash provided by investing activities for the year ended July 31, 2019 was related to maturities and sales of certain investment securities.
Net cash used in investing activities for the year ended July 31, 2018 was primarily related to our movement of cash from a bank interest-earning account to two short-term
investment accounts. We have an investment policy which is administered by management and reviewed by the Board of Directors. We believe our investment policy is
conservative and maximizes returns, while minimizes risk, since we rely on the cash to fund operations.
Cash Provided by Financing Activities
Net cash provided by financing activities was $27.2 million for the year ended July 31, 2019, as compared to $38.9 million for the year ended July 31, 2018. Net
proceeds during the year ended July 31, 2019 was primarily attributable to the net proceeds received from the May 2019 Offering and the Alpha Holdings offering. Net proceeds
during the year ended July 31, 2018 was primarily attributable to the net proceeds received from our October 2017 offerings, November 2017 warrant exercise inducement
offering, and February 2018 offering (see “Sources of Capital” below).
Uses of Cash and Cash Requirements
Our primary uses of cash have been to finance clinical and research and development activities focused on the identification and discovery of new potential product
candidates, the development of innovative and proprietary medical approaches for the treatment of cancer, and the design and advancement of pre-clinical and clinical trials and
studies related to our pipeline of product candidates. We have also used our capital resources on general and administrative activities, including building and strengthening our
corporate infrastructure, programs and procedures to enable compliance with applicable federal, state and local laws and regulations.
Our primary objectives for the next 12 months are to continue the advancement of our KEYNOTE-695 and KEYNOTE-890 studies and, to a lesser extent, our other
ongoing clinical trials and studies, and to continue our research and development activities for our next-generation EP device and drug discovery efforts. In addition, we expect
to pursue capital-raising transactions, which could include equity or debt financings, in the near term to fund our existing and planned operations and acquire and develop
additional assets and technology consistent with our business objectives as opportunities arise.
Going Concern and Managements Plans
The Company has sustained losses in all reporting periods since inception, with an inception-to date-loss of $164.4 million as of July 31, 2019. These losses are
expected to continue for an extended period of time. Further, the Company has never generated any cash from its operations and does not expect to generate such cash in the
near term. The aforementioned factors raise substantial doubt about the Company’s ability to continue as a going concern within one year from the date of filing. The
accompanying financial statements have been prepared on a going concern basis, which contemplates the realization of assets and the satisfaction of liabilities in the normal
course of business. The financial statements do not include any adjustments relating to the recoverability and classification of asset amounts or the classification of liabilities
that might be necessary should the Company be unable to continue as a going concern within one year after the date the financial statements are issued.
58
As of July 31, 2019, the Company had cash and cash equivalents of $25.1 million, which consisted of cash of $6.0 million and cash equivalents of $19.1 million. Cash
flows from financing activities continued to provide the primary source of our liquidity. Net cash provided by financing activities was $27.2 million during the year ended July
31, 2019, which was primarily attributable to the net proceeds received from the Alpha Holdings agreement and the May 2019 offering We currently estimate our monthly
working capital requirements to be approximately $2.5 million, although we may modify or deviate from this estimate and it is likely that our actual operating expenses and
working capital requirements will vary from our estimate. Based on these expectations regarding future expenses, rate of consumption, as well as our current cash levels, we
believe our cash resources are insufficient to meet our anticipated needs for the 12 months following the issuance of this report.
Notwithstanding the foregoing, on October 10, 2019, the Company announced it entered into a strategic transaction, which, upon closing, would result in a $30 million
equity investment of newly issued common stock. The strategic transaction is subject to certain closing conditions, which include shareholder approval, and therefore, cannot be
included in the reporting of our cash runway. This strategic transaction is further described in Note 13 – Subsequent Events in the accompanying Notes to Consolidated
Financial Statements.
The Company recognizes it will need to raise additional capital to continue operating its business and fund its planned operations, including research and development,
clinical trials and, if regulatory approval is obtained, commercialization of its product candidates. In addition, the Company will require additional financing if it desires to in-
license or acquire new assets, research and develop new compounds or new technologies and pursue related patent protection, or obtain any other intellectual property rights or
other assets. There is no assurance that additional financing will be available when needed or that management will be able to obtain financing on terms acceptable to the
Company or whether the Company will become profitable and generate positive operating cash flow. If the Company is unable to raise sufficient additional funds, it will have to
scale back its operations.
Sources of Capital
We have not generated any revenue since our inception, and we do not anticipate generating meaningful revenue in the near term. Historically, we have raised the
majority of the funding for our business through offerings of our common stock and warrants to purchase our common stock. If we issue equity or convertible debt securities to
raise additional funds, our existing stockholders would experience further dilution, and the new equity or debt securities may have rights, preferences and privileges senior to
those of our existing stockholders. If we incur debt, our fixed payment obligations, liabilities and leverage relative to our equity capitalization would increase, which could
increase the cost of future capital. Further, the terms of any debt securities we issue or borrowings we incur, if available, could impose significant restrictions on our operations,
such as limitations on our ability to incur additional debt or issue additional equity or other operating restrictions that could adversely affect our ability to conduct our business,
and any such debt could be secured by any or all of our assets pledged as collateral. Additionally, we may incur substantial costs in pursuing future capital, including investment
banking, legal and accounting fees, printing and distribution expenses and other costs.
May 2019 Offering
On May 24, 2019, we completed our offer and sale of an aggregate of 3,492,063 shares of our common stock, together with 3,492,063 accompanying warrants to
purchase an aggregate of 2,619,047 shares of our common stock, at a combined purchase price of $3.15 per share of common stock and warrant. The warrants have an exercise
price of $3.45 per full share, became exercisable on May 24, 2019 and expire on May 24, 2024. The gross proceeds of the offering were approximately $11.0 million, and the
net proceeds, after deducting the placement agent’s fee and other offering fees and expenses paid by us, were approximately $10.0 million. In connection with the offering, we
paid the placement agent (i) a cash fee equal to 6.5% of the gross proceeds of the offering, as well as legal and other expenses equal to $90,000. In addition, pursuant to the
underwriting agreement, the Company granted the underwriters an option, exercisable for 45 days, to purchase up to an additional 523,809 shares of our common stock (the
“Option Shares”) and/or warrants to purchase up to 392,857 shares of common stock (the “Option Warrants”). On May 24, 2019, the underwriters partially exercised their
option and purchased 238,095 Option Warrants to purchase an aggregate of 178,571 shares of our common stock, at a purchase price of $0.01 per warrant before underwriting
discounts, or $2,381. The Option Warrants have an exercise price of $3.45 per full share, became exercisable on May 24, 2019 and expire on May 24, 2024.
59
Aspire Capital
On March 29, 2019, the Company entered into a common stock purchase agreement (the “Purchase Agreement”) with Aspire Capital Fund, LLC, (“Aspire Capital”)
pursuant to which the Company agreed to issue and sell to Aspire Capital shares of its common stock equal to an aggregate amount of up to $20.0 million at the Company’s
request from time to time during a 30-month period. The Company filed with the Securities and Exchange Commission a prospectus supplement to the Company’s effective
shelf registration statement on Form S-3 registering all the shares of common stock that have been offered to Aspire Capital from time to time. In consideration for entering into
the Purchase Agreement, the Company issued to Aspire Capital 120,201 shares of the Company’s common stock which represented 3% of the aggregate commitment.
Under the Purchase Agreement, on any trading day selected by the Company, the Company had the right, in its sole discretion, to present Aspire Capital with a
purchase notice, directing Aspire Capital to purchase up to 30,000 shares of the Company’s common stock per business day, up to $20.0 million of the Company’s common
stock in the aggregate at a per share price equal to the lesser of:
●
●
the lowest sale price of the Company’s common stock on the purchase date; or
the arithmetic average of the three (3) lowest closing sale prices for the Company’s common stock during the ten (10) consecutive trading days ending on the trading day
immediately preceding the purchase date.
Upon execution of the Purchase Agreement, the Company agreed to sell to Aspire Capital 400,674 shares of common stock for total proceeds, before expenses, of
$2,000,000. Additionally, in April 2019, the Company sold a total of 90,000 shares of its common stock to Aspire Capital resulting in the Company receiving total proceeds,
before expenses, of approximately $520,000 in cash. There were no underwriting or placement agent fees associated with the offering.
On May 27, 2019, the Company terminated the Purchase Agreement.
Alpha Holdings
On August 31, 2018, the Company entered into a stock purchase agreement with Alpha Holdings, Inc. (“Alpha Holdings”), pursuant to which the Company agreed to
issue and sell to Alpha Holdings shares of its common stock equal to an aggregate amount of up to $15.0 million at a market purchase price of $15.00 per share, which was the
closing price of the Company’s common stock the day immediately before the agreement was executed by the parties.
On October 9, 2018, the Company received total proceeds, before expenses, of $8.0 million in cash from the offering and issued Alpha Holdings 533,333 shares of
common stock. There were no underwriting or placement agent fees associated with the offering.
On December 6, 2018, the Company received total proceeds, before expenses, of $7.0 million in cash from the offering and issued Alpha Holdings 466,667 shares of
common stock. There were no underwriting or placement agent fees associated with the offering.
February 2018 Offering
On February 6, 2018, the Company completed a follow-on public offering, selling 1,333,333 shares at an offering price of $15.00 per share. Additionally, the
underwriters exercised in full their over-allotment option to purchase an additional 200,000 shares at an offering price of $15.00 per share. Aggregate gross proceeds from this
follow-on public offering, including the exercise of the over-allotment option, were approximately $23.0 million, and net proceeds received, after underwriting fees of
approximately $1.7 million and offering expenses of approximately $0.5 million, were approximately $20.8 million.
60
November 2017 Warrant Exercise Inducement Offering
On November 13, 2017, the Company entered into a warrant exercise agreement with certain holders of outstanding warrants (the “Original Warrants”) to purchase up
to an aggregate of 550,964 shares of the Company’s common stock at an exercise price of $16.90 per share. Pursuant to the terms of the warrant exercise agreement, each
holder agreed to exercise, from time to time and in accordance with the terms of the Original Warrants, including certain beneficial ownership limitations set forth therein, all
Original Warrants held by it for cash. As a result of the exercise of all of the Original Warrants, the Company received gross proceeds of approximately $9.3 million and net
proceeds, after deducting estimated expenses paid or payable by the Company, of approximately $9.1 million.
Pursuant to the terms of the warrant exercise agreement, and in order to induce each holder to exercise its Original Warrants, the Company issued 137,741 new
warrants to purchase a number of shares of its common stock which is equal to 25% of the number of shares of common stock received by such holders upon the cash exercise
of its Original Warrants. The terms of the inducement warrants are substantially similar to the terms of the Original Warrants, except that the inducement warrants: (i) have an
initial exercise price of $22.60 per share; (ii) become exercisable on May 13, 2018 and expire on November 13, 2019; and, (iii) contain certain additional transfer restrictions
and limitations due to their offer and sale in a private placement offering.
Also on November 13, 2017, and in connection with its entry into the warrant exercise agreement, the Company agreed to issue warrants to purchase up to an
aggregate of 113,830 shares of its common stock to the accredited investors that participated in the Company’s offerings completed in October 2017, in consideration for such
investors agreement to waive certain covenants made by the Company to such investors and as an inducement to such investors to exercise certain other warrants to purchase the
Company’s common stock. The terms of the October 2017 investor warrants are substantially similar to the terms of the new warrants, except that the October 2017 investor
warrants will become exercisable only if and when each October 2017 investor exercises in full and for cash the warrants to purchase the Company’s common stock that were
sold to such investors in the Company’s offerings completed in October 2017.
The warrants issued in connection with the warrant exercise agreement were considered inducement warrants and are classified in equity. The fair value of the warrants
issued was approximately $2.5 million (based on the Black-Scholes option valuation model assuming no dividend yield, a 2.0-year life, volatility of 73.12% and a risk-free
interest rate of 1.7%). The fair value of the inducement warrants of $2.5 million was expensed as warrant inducement expense in the accompanying consolidated statement of
operations for the year ended July 31, 2018.
October 2017 Offerings
On October 25, 2017, we completed our offer and sale to certain accredited investors of, in a registered public offering, 527,093 shares of our common stock and, in a
concurrent private placement, warrants to purchase an aggregate of up to 395,320 shares of our common stock, all at a purchase price of $13.4375 per share. The warrants have
an initial exercise price of $12.50 per share, became exercisable on October 25, 2017 and expire on April 25, 2022. The gross proceeds of the offering were $7.1 million and the
net proceeds, after deducting the placement agent’s fees and other estimated offering expenses paid by us (and excluding the proceeds, if any, from any cash exercise of the
warrants), were $6.2 million. In connection with the offering, the Company paid the placement agent (i) a cash fee equal to 5.5% of the gross proceeds of the offering, as well as
offering expenses in a nonaccountable sum of $60,000, and (ii) warrants to purchase up to an aggregate of 31,625 shares of its common stock. The warrants issued to the
placement agent are exercisable at an exercise price of $16.80 per share, became exercisable on their original issuance date and expire on October 21, 2022.
The fair value of the warrants issued to the purchasers in the offerings, based on their fair value relative to the common stock issued, was approximately $2.4 million
(based on the Black-Scholes option valuation model assuming no dividend yield, a 5.5-year life, volatility of 75.55% and a risk-free interest rate of 2.12%). The fair value of the
warrants issued to the placement agent in the offerings was $0.2 million (based on the Black-Scholes option valuation model assuming no dividend yield, a 5.0-year life,
volatility of 73.25% and a risk-free interest rate of 2.06%). The Company completed an evaluation of these warrants and determined they should be classified as equity within
the accompanying consolidated balance sheets.
61
On October 25, 2017, we also completed an offer and sale to one accredited investor of 80,000 shares of our common stock and warrants to purchase up to 60,000
shares of our common stock, all at a purchase price of $13.4375 per share and associated warrants. The warrants have an initial exercise price of $12.50 per share, become
exercisable on April 27, 2018 and expire on April 27, 2022. The gross proceeds of the offering were $1.1 million and the net proceeds, after deducting the placement agent’s fee
and other offering fees and expenses paid by the us (and excluding the proceeds, if any, from any cash exercise of the warrants), were approximately $1.0 million. In connection
with the offering, we paid the placement agent (i) a cash fee equal to 5.5% of the gross proceeds of the offering, as well as offering expenses in a non-accountable sum of
$15,000, and (ii) warrants to purchase up to an aggregate of 4,800 shares of its common stock. The warrants issued to the placement agent are exercisable at an exercise price of
$16.80 per share, became exercisable on their original issuance date and expire on October 25, 2022.
ATM Program
On July 25, 2017, we entered into an equity distribution agreement with Oppenheimer & Co. Inc., or Oppenheimer, to commence an “at the market” offering program,
or the ATM Program, under which we were permitted to offer and sell, from time to time through or to Oppenheimer, acting as sales agent or principal, shares of our common
stock having an aggregate gross sales price of up to $8.4 million. An aggregate of 89,731 shares of our common stock were sold in the ATM Program during the year ended
July 31, 2018, for net proceeds to us, after deducting Oppenheimer’s commissions and other expenses paid or payable by us, of $1.1 million. Effective as of October 22, 2017,
we terminated the ATM Program. As a result of such termination, no further offers or sales of our common stock will be made in the ATM Program.
Warrant Exercises
We did not receive any proceeds from warrant exercises during the year ending July 31, 2019. During the year ended July 31, 2018, we received gross proceeds of
$10.0 million related to the November 2017 Warrant Exercise Inducement Offering as well as an additional $0.7 million from other warrant exercises. If the holders of all our
warrants that are outstanding as of the issuance of this report were to exercise all such warrants in full on a cash basis, we would receive an aggregate of approximately $26.9
million in net proceeds. However, the holders of these warrants may choose to exercise only a portion of the warrants they hold, may choose not to exercise any of the warrants
they hold, or may choose to “net” exercise their warrants on a cashless basis to the extent permitted by the warrants. As a result, we may never receive meaningful, or any,
proceeds from the exercise of these warrants.
Critical Accounting Policies
Investment Securities
Securities held to maturity are recorded at amortized cost based on the Company’s intent and ability to hold these securities to maturity.
Management evaluates whether securities held to maturity are other-than-temporarily impaired (“OTTI”) on a quarterly basis. Debt securities with unrealized losses are
considered OTTI if the Company intends to sell the security or if it is more likely than not that the Company will be required to sell such security prior to any anticipated
recovery. If management determines that a security is OTTI under these circumstances, the impairment recognized in earnings is measured as the entire difference between the
amortized cost and the then-current fair value.
Accounting for Long-Lived Assets
We assess the impairment of long-lived assets, consisting of property and equipment, periodically and whenever events or circumstances indicate that the carrying
value may not be recoverable. Examples of such circumstances may include: (1) the asset’s ability to continue to generate income from operations and positive cash flow in
future periods; (2) loss of legal ownership or title to an asset; (3) significant changes in our strategic business objectives and utilization of the assets; and (4) the impact of
significant negative industry or economic trends. If a change were to occur in any of these or similar factors, the likelihood of a material change in our net loss would increase.
62
Recoverability of assets to be held and used in operations is measured by a comparison of the carrying amount of an asset to the future net cash flows expected to be
generated by the assets. Although we believe the factors used by management to evaluate future net cash flows are reasonable, this evaluation requires a high degree of
judgment, and results could vary if the actual amounts are materially different than management’s estimates. In addition, we base estimates of useful lives and related
amortization or depreciation expense on our subjective estimate of the period the assets will generate revenue or otherwise be used by us. If long-lived assets are considered
impaired, the impairment to be recognized is measured by the amount by which the carrying amount of the assets exceeds the fair value of the assets. Assets to be disposed of
are reported at the lower of the carrying amount or fair value, less selling costs.
Equity-Based Awards
The Company grants equity-based awards (typically stock options or restricted stock units) under our stock-based compensation plan and outside of our stock-based
compensation plan, with terms generally similar to the terms under our stock-based compensation plan. The Company estimates the fair value of stock option awards using the
Black-Scholes option valuation model. For employees, directors and consultants, the fair value of the award is measured on the grant date. Prior to the adoption of ASU 2018-07
on August 1, 2018, the fair value of the award for non-employees was generally re-measured on vesting dates and interim financial reporting dates until the service period was
complete. The fair value amount is then recognized over the period during which services are required to be provided in exchange for the award, usually the vesting period. The
Black-Scholes option valuation model requires the input of subjective assumptions, including price volatility of the underlying stock, risk-free interest rate, dividend yield, and
expected life of the option. The Company estimates the fair value of restricted stock unit awards based on the closing price of the Company’s common stock on the date of
issuance.
Employee Stock Purchase Plan
Employees may elect to participate in our stockholder approved employee stock purchase plan. The stock purchase plan allows for the purchase of our common stock
at not less than 85% of the lesser of (i) the fair market value of a share of stock on the beginning date of the offering period or (ii) the fair market value of a share of stock on the
purchase date of the offering period, subject to a share and dollar limit as defined in the plan and subject to the applicable legal requirements. There are two 6-month offering
periods during each fiscal year, ending on January 31 and July 31. In accordance with applicable accounting guidance, the fair value of awards under the stock purchase plan is
calculated at the beginning of each offering period. We estimate the fair value of the awards using the Black-Scholes option valuation model. The Black-Scholes option
valuation model requires the input of subjective assumptions, including price volatility of the underlying stock, risk-free interest rate, dividend yield, and the offering period.
This fair value is then amortized at the beginning of the offering period. Stock-based compensation expense is based on awards expected to be purchased at the beginning of the
offering period, and therefore is reduced when participants withdraw during the offering period.
Australia Research and Development Tax Credit
Our Australian, wholly-owned, subsidiary incurs research and development expenses, primarily in the course of conducting clinical trials. The Australian research and
development activities qualify for the Australian government’s tax credit program, which provides a 41.0 percent credit for qualifying research and development expenses. The
tax credit does not depend on our generation of future taxable income or ongoing tax status or position. Accordingly, the credit is not considered an element of income tax
accounting under ASC 740 and is recorded against qualifying research and development expenses in the Consolidated Statements of Operations.
Recent Accounting Pronouncements
Information regarding recent accounting pronouncements is contained in Note 2 to our consolidated financial statements included in this report.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our financial condition, changes in financial
condition, revenues or expenses, results of operations, liquidity, capital expenditure or capital resources that is material to investors.
63
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
Not applicable.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The information required by this Item 8 is incorporated by reference to our consolidated financial statements and the related notes and the report of our independent
registered public accounting firm beginning at page F-1 of this report.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
ITEM 9A. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our Exchange Act reports is recorded,
processed, summarized, and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to our
management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. In designing and
evaluating the disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only
reasonable assurance of achieving the desired control objectives. In addition, the design of disclosure controls and procedures reflects the fact that there are resource constraints
and that management is required to apply its judgment in evaluating the benefits of possible controls and procedures relative to their costs.
As required by Rule 13a-15(b) under the Exchange Act, our management, under the supervision and with the participation of our Chief Executive Officer and Chief
Financial Officer, conducted an evaluation of the effectiveness of our disclosure controls and procedures as of July 31, 2019. Based on such evaluation, our Chief Executive
Officer and Chief Financial Officer concluded that, as of July 31, 2019, our disclosure controls and procedures were effective.
Management’s Annual Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as defined in Rule 13a-15(f) under the Exchange
Act. With the participation of our Chief Executive Officer and Chief Financial Officer, our management conducted an evaluation of the effectiveness of our internal control
over financial reporting as of July 31, 2019. In conducting such evaluation, management used the criteria set forth in the report entitled “Internal Control — Integrated
Framework” published by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) to evaluate the effectiveness of our internal control over
financial reporting. Based on this evaluation, management has concluded that our internal control over financial reporting was effective as of July 31, 2019, based on those
criteria.
This report does not include an attestation report of our independent registered public accounting firm regarding our internal control over financial reporting, in
accordance with applicable SEC rules that permit us to provide only management’s report in this report.
64
Changes in Internal Control Over Financial Reporting
There was no change in our internal control over financial reporting during the year ended July 31, 2019, that has materially affected, or is reasonably likely to
materially affect, our internal control over financial reporting.
Internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial
statements prepared 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.
ITEM 9B. OTHER INFORMATION
None
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
PART III
The information required by this Item 10 is incorporated herein by reference from our Proxy Statement for our 2019 Annual Meeting of Stockholders.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item 11 is incorporated herein by reference from our Proxy Statement for our 2019 Annual Meeting of Stockholders.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The information required by this Item 12 is incorporated herein by reference from our Proxy Statement for our 2019 Annual Meeting of Stockholders.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
Director independence and other information required by this Item 13 is incorporated herein by reference from our Proxy Statement for our 2019 Annual Meeting of
Stockholders.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
The information required by this Item 14 is incorporated herein by reference from our Proxy Statement for our 2019 Annual Meeting of Stockholders.
65
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
PART IV
(a)(1) The following financial statements of OncoSec Medical Incorporated are filed as part of this report under Item 8 — Financial Statements and Supplementary Data:
Report of Independent Registered Public Accounting Firm
Consolidated Balance Sheets at July 31, 2019 and 2018
Consolidated Statements of Operations for the Years Ended July 31, 2019 and 2018
Consolidated Statements of Comprehensive Loss for the Years Ended July 31, 2019 and 2018
Consolidated Statements of Stockholders’ Equity for the Years Ended July 31, 2019 and 2018
Consolidated Statements of Cash Flows for the Years Ended July 31, 2019 and 2018
Notes to Consolidated Financial Statements
F-1
F-2
F-3
F-4
F-5
F-6
F-7
(a)(2) All financial statement schedules are omitted because they are not required, or are not applicable, or the required information is shown in the consolidated financial
statements or notes thereto included in this report.
(a)(3) The exhibits listed in the Exhibit Index, which appears immediately following the last page of this report and is incorporated herein by reference, are filed or incorporated
by reference as part of this report.
66
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and
Stockholders of OncoSec Medical Incorporated
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of OncoSec Medical Incorporated (the “Company”) as of July 31, 2019 and 2018, and the related consolidated
statements of operations, comprehensive loss, stockholders’ equity, and cash flows for each of the years in the two-year period ended July 31, 2019, and the related notes
(collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of
July 31, 2019 and 2018, and the results of their operations and their cash flows for each of the years in the two-year period ended July 31, 2019, in conformity with accounting
principles generally accepted in the United States of America.
Going Concern Uncertainty
The accompanying financial statements have been prepared assuming the Company will continue as a going concern. As discussed in Note 3 to the financial statements, the
Company has incurred recurring losses from operations, and is dependent on additional financing to fund operations. These conditions raise substantial doubt about the
Company’s ability to continue as a going concern. Management’s plans in regard to these matters are described in Note 3 to the financial statements. The financial statements do
not include any adjustments to reflect the possible future effects on the recoverability and classification of assets or the amounts and classification of liabilities that may result
from the outcome of this uncertainty.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our
audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with
respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the
PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an
audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting, but not for the
purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that
respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included
evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe
that our audits provide a reasonable basis for our opinion.
/s/ Mayer Hoffman McCann P.C.
We have served as the Company’s auditor since 2011.
San Diego, California
October 25, 2019
F-1
OncoSec Medical Incorporated
Consolidated Balance Sheets
July 31, 2019
July 31, 2018
Assets
Current assets
Cash and cash equivalents
Prepaid expenses and other current assets
Investment securities
Total Current Assets
Property and equipment, net
Other long-term assets
Total Assets
Liabilities and Stockholders’ Equity
Liabilities
Current liabilities
Accounts payable and accrued liabilities
Accrued compensation related
Note payable
Total Current Liabilities
Other long-term liabilities
Total Liabilities
Commitments and Contingencies (Note 10)
Stockholders’ Equity
Common stock authorized - 16,000,000 common shares with a par value of $0.0001, common stock issued
and outstanding — 10,633,043 and 5,351,290 common shares as of July 31, 2019 and July 31, 2018,
respectively
Additional paid-in capital
Warrants issued and outstanding – 3,631,953 and 895,805 warrants as of July 31, 2019 and July 31, 2018,
respectively
Accumulated other comprehensive income (loss)
Accumulated deficit
Total Stockholders’ Equity
Total Liabilities and Stockholders’ Equity
$
$
$
$
25,147,780
3,359,556
-
28,507,336
1,031,129
353,547
29,892,012
4,217,017
676,223
83,760
4,977,000
635,913
5,612,913
1,063
177,656,149
10,809,724
169,037
(164,356,874)
24,279,099
29,892,012
$
$
$
$
3,803,627
1,643,749
23,174,447
28,621,823
1,265,662
358,987
30,246,472
4,778,892
1,070,744
-
5,849,636
1,472,630
7,322,266
535
145,749,189
11,271,327
(16,024)
(134,080,821)
22,924,206
30,246,472
The accompanying notes are an integral part of these consolidated financial statements.
F-2
OncoSec Medical Incorporated
Consolidated Statements of Operations
Revenue
Expenses:
Research and development
General and administrative
Loss from operations
Other income, net
Interest expense
Loss on disposal of property and equipment
Warrant inducement expense
Foreign currency exchange loss, net
Realized loss on sale of securities, net
Loss before income taxes
Provision for income taxes
Net loss
Basic and diluted net loss per common share
Weighted average shares used in computing basic and diluted net loss per common share
Year Ended
July 31, 2019
Year Ended
July 31, 2018
-
$
-
18,445,199
11,971,479
(30,416,678)
440,037
(3,805)
(703)
-
(281,473)
(12,134)
(30,274,756)
1,297
(30,276,053)
(4.29)
7,053,279
$
$
17,415,520
18,689,839
(36,105,359)
374,045
-
(875,098)
(2,465,396)
(63,878)
-
(39,135,686)
680
(39,136,366)
(9.75)
4,012,337
$
$
$
The accompanying notes are an integral part of these consolidated financial statements.
F-3
Net Loss
Foreign currency translation adjustments
Comprehensive Loss
OncoSec Medical Incorporated
Consolidated Statements of Comprehensive Loss
Year Ended
July 31, 2019
Year Ended
July 31, 2018
$
$
(30,276,053)
185,061
(30,090,992)
$
$
(39,136,366)
(12,404)
(39,148,770)
The accompanying notes are an integral part of these consolidated financial statements.
F-4
OncoSec Medical Incorporated
Consolidated Statements of Stockholders’ Equity
Common Stock
Additional
Paid-In
Capital
$ 93,868,034
14,705,222
321,142
35,809
8,252,503
(181,550)
825,654
Warrants
Shares
904,474
(695,340)
Amount
$ 11,775,807
—
—
—
—
—
(4,705,307)
—
—
—
—
—
4,320,446
491,745
2,936,173
(195,431)
251,571
2,465,396
20,750,678
1,200,742
1,845,940
—
145,749,189
(567)
566,131
27,290
3,364,366
(101,480)
83,246
(32,505)
7,446,758
6,695,038
—
—
(56,645)
(1,200,742)
—
—
895,805
—
—
—
—
11,271,327
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
Amount
216
69
3
—
12
—
9
61
—
154
—
11
—
535
—
4
1
5
—
—
—
53
47
Balance, July 31, 2017
Exercise of common stock warrants
Exercise of common stock options
Common stock issued for employee stock purchase
plan
Stock-based compensation expense
Tax withholdings paid related to net share settlement of
equity awards
At-the-market offering program, net of issuance costs
of $299,963
Public offering on October 25, 2017, net of issuance
costs of $901,137
Warrant Exercise Inducement Offering on November
13, 2017
Public offering in February 2018, net of issuance costs
of $2,249,169
Cancellation of expired warrants
Common stock issued for services
Net loss and comprehensive loss
Balance, July 31, 2018
Repurchase of fractional shares
Exercise of common stock options
Common stock issued for employee stock purchase
plan
Stock-based compensation expense
Tax withholdings paid on equity awards
Tax shares sold to pay for tax withholdings on equity
awards
Tax withholdings paid related to net share settlement of
equity awards
Private placement on October 8, 2018, net of issuance
costs of $573,189
Private placement on December 6, 2018, net of
issuance costs of $304,916
Private placement on May 24, 2019, net of issuance
costs of $1,025,655
Private placement, net of issuance costs of $80,575
Cancellation of expired warrants
Common stock issued for services
Modification of equity award
Net loss and comprehensive loss
Balance, July 31, 2019
Shares
2,161,947
695,339
25,227
$
4,060
127,701
—
89,731
607,093
—
1,533,333
—
106,859
—
5,351,290
(1,456)
43,029
4,688
54,755
—
—
—
533,333
466,666
3,492,063
610,875
—
60,300
17,500
—
10,633,043
$
Accumulated
Other
Comprehensive
Income (Loss)
Accumulated
Deficit
$
(3,620) $ (94,944,455) $
Total
Stockholders’
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
(12,404)
(16,024)
(39,136,366)
(134,080,821)
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
(30,276,053)
$ (164,356,874) $
Equity
10,695,982
9,999,984
321,145
35,809
8,252,515
(181,550)
825,663
7,256,680
2,269,965
20,750,832
—
1,845,951
(39,148,770)
22,924,206
(567)
566,135
27,291
3,364,371
(101,480)
83,246
(32,505)
7,446,811
6,695,085
9,976,725
2,439,354
—
845,994
135,425
(30,090,992)
24,279,099
349
61
—
6
2
—
1,063
6,377,220
2,439,293
4,060,759
845,988
135,423
—
$ 177,656,149
2,797,618
—
3,599,156
—
(61,470)
(4,060,759)
—
—
—
3,631,953
—
—
—
$ 10,809,724
$
—
—
—
—
—
185,061
169,037
The accompanying notes are an integral part of these consolidated financial statements.
F-5
OncoSec Medical Incorporated
Consolidated Statements of Cash Flows
Operating activities
Net loss
Adjustments to reconcile net loss to net cash used in operating activities:
Year Ended
July 31, 2019
Year Ended
July 31, 2018
$
(30,276,053)
$
(39,136,366)
Depreciation and amortization
Loss on disposal of property and equipment
Warrant inducement expense
Amortization of discount on investments
Stock-based compensation
Common stock issued for services
Modification of equity award
Foreign currency exchange loss, net
Changes in operating assets and liabilities:
Prepaid expenses
Other current assets
Other long-term assets
Accounts payable and accrued liabilities
Accrued compensation related
Other long-term liabilities
Net cash used in operating activities
Investing activities
Purchases of property and equipment
Purchase of investment securities
Maturity of investment securities
Sale of investment securities
Net cash provided by (used in) investing activities
Financing activities
Proceeds from issuance of common stock through ESPP
Proceeds from issuance of common stock and warrants
Payment of financing and offering costs
Proceeds from exercise of options
Proceeds from exercise of warrants
Principal payments on note payable
Tax withholdings paid on equity awards
Tax withholdings paid related to net share settlement of equity awards
Tax shares sold to pay for tax withholdings on equity awards
Repurchase of fractional shares
Net cash provided by financing activities
Effect of exchange rate changes on cash
Net increase (decrease) in cash
Cash and cash equivalents, at beginning of year
Cash and cash equivalents, at end of year
Supplemental disclosure for cash flow information:
Cash paid during the period for:
Interest
Income taxes
Noncash investing and financing transactions:
Expiration of warrants
Amounts accrued for offering costs
Note issued for insurance premium
243,712
703
-
(51,481)
3,364,371
845,994
135,425
281,473
(1,209,064)
(357,351)
(9,035)
(741,444)
(394,521)
(836,714)
(29,003,985)
(9,882)
-
17,236,000
5,977,794
23,203,912
27,291
27,897,155
(1,159,180)
566,135
-
(81,577)
(101,480)
(32,505)
83,246
(567)
27,198,518
(54,292)
21,344,153
3,803,627
25,147,780
3,253
1,700
4,060,759
200,000
185,990
$
$
$
$
$
$
334,494
875,098
2,465,396
(28,948)
8,252,515
1,845,951
-
-
97,535
(593,141)
(49,800)
1,427,760
955,903
331,677
(23,221,926)
(65,156)
(25,474,695)
2,250,000
-
(23,289,851)
35,809
32,283,444
(3,575,699)
321,145
9,999,983
-
-
(181,550)
-
-
38,883,132
(12,404)
(7,641,049)
11,444,676
3,803,627
-
680
1,200,742
45,000
-
$
$
$
$
$
$
The accompanying notes are an integral part of these consolidated financial statements.
F-6
Note 1—Nature of Operations and Basis of Presentation
OncoSec Medical Incorporated
Notes to Consolidated Financial Statements
OncoSec Medical Incorporated (together with its subsidiaries, unless the context indicates otherwise, being collectively referred to as the “Company”) began its
operations as a biotechnology company in March 2011. The Company has not produced any revenues since its inception. The Company was incorporated in the State of Nevada
on February 8, 2008 under the name of Netventory Solutions, Inc. and changed its name in March 2011 when it began operating as a biotechnology company.
The Company is a late-stage biotechnology company focused on designing, developing and commercializing innovative therapies and proprietary medical approaches
to stimulate and guide an anti-tumor immune response for the treatment of cancer. Its core platform technology, ImmunoPulse®, is a drug-device therapeutic modality
comprised of a proprietary intratumoral electroporation (“EP”) delivery device. The ImmunoPulse® platform is designed to deliver plasmid DNA-encoded drugs directly into a
solid tumor and promote an immunological response against cancer. The ImmunoPulse® device can be adapted to treat different tumor types, and consists of an electrical pulse
generator, a reusable handle and disposable applicators. The Company’s lead product candidate is a DNA-encoded interleukin-12 (“IL-12”), called tavokinogene telseplasmid
(“TAVO”). The ImmunoPulse® EP platform is used to deliver TAVO intratumorally, with the aim of reversing the immunosuppressive microenvironment in the treated tumor.
The activation of the appropriate inflammatory response can drive a systemic anti-tumor response against untreated tumors in other parts of the body. In 2017, the Company
received Fast Track designation and Orphan Drug Designation from the U.S. Food and Drug Administration (“FDA”) for TAVO in metastatic melanoma, which could qualify
TAVO for expedited FDA review, a rolling Biologics License Application review and certain other benefits.
The Company’s current focus is to pursue its study of TAVO in combination with KEYTRUDA® (pembrolizumab) in melanoma, triple negative breast cancer
(“TNBC”), and squamous cell head and neck (“SCCHN”).
KEYNOTE-695 targets melanoma patients who are definitive anti-PD-1 non-responders. In May 2017, the Company entered into a clinical trial collaboration and
supply agreement with a subsidiary of Merck & Co., Inc. (“Merck”) in connection with the KEYNOTE-695 study. Pursuant to the terms of the agreement, both companies will
bear their own costs related to manufacturing and supply of their product, as well as be responsible for their own internal costs. The Company is the study sponsor and is
responsible for external costs. The KEYNOTE-695 study is currently enrolling and treating patients and the Company plans to complete enrollment in this study first half 2020.
This study is a registration-directed, Phase 2b open-label, single-arm, multicenter study in the United States, Canada, Australia and Europe.
In May 2018, the Company entered into a second clinical trial collaboration and supply agreement with Merck with respect to a Phase 2 study of TAVO in combination
with KEYTRUDA® to evaluate the safety and efficacy of the combination in patients with inoperable locally advanced or metastatic TNBC, who have previously failed at least
one systemic chemotherapy or immunotherapy. This study is referred to as KEYNOTE-890. Pursuant to the terms of the agreement, both companies will bear their own costs
related to manufacturing and supply of their product, as well as be responsible for their own internal costs. The Company is the study sponsor and is responsible for external
costs. The KEYNOTE-890 study is currently enrolling and treating patients. The Company plans to complete enrollment in fourth quarter 2019 and provide interim preliminary
data from this study at the San Antonio Breast Cancer Symposium (“SABCS”) in December 2019. The study is a Phase 2 open-label, single-arm, multicenter study in the
United States and Australia.
OMS-131 is an investigator-initiated clinical trial conducted by the University of California San Francisco Helen Diller Family Comprehensive Cancer Center. This
study targets patients with SCCHN and is a single-arm open-label clinical trial in which 35 evaluable patients will receive TAVO, KEYTRUDA® and epacadostat. OMS-131 is
currently enrolling and treating patients.
F-7
In June 2019, the Company entered into a collaboration with Dana-Farber Cancer Institute (“DFCI”), a world-leading cancer research and treatment institution, and
The Marasco Laboratory, a cutting-edge CAR T-cell research laboratory led by Wayne Marasco, M.D., Ph.D., a renowned cancer immunology researcher, to develop CAR T-
cell therapies for triple-negative breast cancer and ovarian cancer.
The Company intends to continue to pursue other ongoing or potential new trials and studies related to TAVO, in various tumor types. In addition, the Company is also
developing its next-generation EP device and applicator, including advancements toward prototypes, pursuing discovery research to identify other product candidates that, in
addition to IL-12, can be encoded into propriety plasmid-DNA, delivered intratumorally using EP. Specifically, the Company is developing a new, propriety technology to
potentially treat liver, lung, bladder, pancreatic and other difficult to treat visceral lesions through the direct delivery of plasmid-based IL-12 with a new Visceral Lesions
Applicator (“VLA”).
The VLA has been designed to work with the Company’s recently announced generator, APOLLO, to leverage plasmid-optimized EP, enhancing the depth and
frequency of transfection of immunologically relevant genes into cells located in deep visceral lesions. Using its next-generation technology, the Company’s goal is to reverse
the immunosuppressive mechanisms of a tumor, as well as to expand its pipeline. The Company believes that the flexibility of its propriety plasmid-DNA technology allows the
Company to deliver other immunologically relevant molecules into the tumor microenvironment in addition to the delivery of plasmid-DNA encoding for IL-12. In March 2019,
the Company had a poster presentation at the 2019 America Association for Cancer Research (“AACR”) where it presented pre-clinical data regarding its new anti-tumor
product candidate, which will amplify the power of intratumoral IL-12 through the addition of both CXCL9, a critical T cell chemokine, and anti-CD3, a membrane bound pan
T cell stimulator. These other immunologically relevant molecules may complement IL-12’s activity by limiting or enhancing key pathways associated with tumor immune
subversion.
The Company has established a collaboration with Emerge Health Pty (“Emerge”), the leading Australian company providing full registration, reimbursement, sales,
marketing and distribution services of therapeutic products in Australia and New Zealand, to commercialize TAVO and plan to make it available under Australia’s Special
Access Scheme (“SAS”) in 2019. As a specialized Australian pharmaceutical company focused on the marketing and sales of high-quality medicines to the hospital sector,
Emerge has previously made numerous other products successfully available under Australia’s SAS.
Reverse Stock Split
On May 20, 2019, the Company effected a one-for-ten reverse stock split of its authorized and outstanding common stock. All share and per share information has
been retroactively adjusted to reflect the reverse stock split. The par value was not adjusted as a result of the reverse stock split.
Reclassifications
Certain amounts in the accompanying consolidated statement of operations for the year ended July 31, 2018 have been reclassified to conform to the year ended July
31, 2019 presentation, but there was no effect on net loss for the year ended July 31, 2018.
Note 2—Significant Accounting Policies
Principles of Consolidation
The accompanying consolidated financial statements include the accounts of the Company and its wholly-owned subsidiary, OncoSec Medical Australia PTY LTD.
All significant intercompany accounts and transactions have been eliminated in consolidation.
F-8
Use of Estimates
The accompanying consolidated financial statements have been prepared in conformity with U.S. GAAP, which requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent liabilities at the date of the financial statements and the reported amounts of
expenses during the reporting period. Such estimates include stock-based compensation, accounting for long-lived assets and accounting for income taxes, including the related
valuation allowance on the deferred tax asset and uncertain tax positions. The Company bases its estimates on historical experience and on various other assumptions that it
believes are 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. On an ongoing basis, the Company reviews its estimates to ensure that they appropriately reflect changes in the business or as new information
becomes available. Actual results may differ from these estimates.
Segment Reporting
The Company operates in a single industry segment—the discovery and development of novel immunotherapeutic product candidates to improve treatment options for
patients and physicians, intended to treat a wide range of oncology indications.
Cash and Cash Equivalents
The Company considers all highly liquid investments that are readily convertible into cash and have an original maturity of three months or less at the time of purchase
to be cash equivalents.
Concentrations and Credit Risk
The Company maintains cash balances at a small number of financial institutions and such balances commonly exceed the $250,000 amount insured by the Federal
Deposit Insurance Corporation. The Company has not experienced any losses in such accounts and management believes that the Company does not have significant credit risk
with respect to such cash and cash equivalents.
Investment Securities
Securities held to maturity are recorded at amortized cost based on the Company’s intent and ability to hold these securities to maturity.
Management evaluates whether securities held to maturity are other-than-temporarily impaired (“OTTI”) on a quarterly basis. Debt securities with unrealized losses are
considered OTTI if the Company intends to sell the security or if it is more likely than not that the Company will be required to sell such security prior to any anticipated
recovery. If management determines that a security is OTTI under these circumstances, the impairment recognized in earnings is measured as the entire difference between the
amortized cost and the then-current fair value.
Property and Equipment
The Company’s capitalization threshold is $5,000 for property and equipment. The cost of property and equipment is depreciated on a straight-line basis over the
estimated useful lives of the related assets. The useful lives of property and equipment for the purpose of computing depreciation are as follows:
Computers and equipment:
Computer software:
Leasehold improvements:
3 to 10 years
1 to 3 years
Shorter of lease period or useful life
F-9
Impairment of Long-Lived Assets
The Company periodically assesses the carrying value of intangible and other long-lived assets, and whenever events or changes in circumstances indicate that the
carrying amount of an asset might not be recoverable. The assets are considered to be impaired if the Company determines that the carrying value may not be recoverable based
upon its assessment, which includes consideration of the following events or changes in circumstances:
●
●
●
●
the asset’s ability to continue to generate income from operations and positive cash flow in future periods;
loss of legal ownership or title to the asset;
significant changes in the Company’s strategic business objectives and utilization of the asset(s); and
the impact of significant negative industry or economic trends.
If the assets are considered to be impaired, the impairment recognized is the amount by which the carrying value of the assets exceeds the fair value of the assets. Fair
value is determined by the application of discounted cash flow models to project cash flows from the asset. In addition, the Company bases estimates of the useful lives and
related amortization or depreciation expense on its subjective estimate of the period the assets will generate revenue or otherwise be used by it. Assets to be disposed of are
reported at the lower of the carrying amount or fair value, less selling costs. The Company also periodically reviews the lives assigned to long-lived assets to ensure that the
initial estimates do not exceed any revised estimated periods from which the Company expects to realize cash flows from its assets.
Fair Value of Financial Instruments
The carrying amounts for cash, prepaid expenses, accounts payable and accrued expenses and notes payable approximate fair value due to the short-term nature of
these instruments. It is management’s opinion that the Company is not exposed to significant interest, currency, or credit risks arising from its other financial instruments and
that their fair values approximate their carrying values except where expressly disclosed.
The accounting standard for fair value measurements provides a framework for measuring fair value and requires disclosures regarding fair value measurements. Fair
value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date,
based on the Company’s principal or, in absence of a principal, most advantageous market for the specific asset or liability.
The Company uses a three-tier fair value hierarchy to classify and disclose all assets and liabilities measured at fair value on a recurring basis, as well as assets and
liabilities measured at fair value on a non-recurring basis, in periods subsequent to their initial measurement. The hierarchy requires the Company to use observable inputs when
available, and to minimize the use of unobservable inputs, when determining fair value.
The three tiers are defined as follows:
●
●
Level 1—Observable inputs that reflect quoted market prices (unadjusted) for identical assets or liabilities in active markets at the measurement date. Since
valuations are based on quoted prices that are readily and regularly available in an active market, valuation of these products does not entail a significant degree of
judgment. The Company’s Level 1 assets consist of bank deposits and money market funds.
Level 2—Observable inputs other than quoted prices in active markets that are observable either directly or indirectly in the marketplace for identical or similar
assets and liabilities. The Company’s Level 2 assets consist of U.S. government sponsored securities.
●
Level 3— Valuations based on inputs that are unobservable and significant to the overall fair value measurement.
F-10
The development and determination of the unobservable inputs for Level 3 fair value measurements and fair value calculations are the responsibility of the Company’s
Chief Financial Officer.
Changes in fair value measurements categorized within Level 3 of the fair value hierarchy are analyzed each period based on changes in estimates or assumptions and
recorded as appropriate.
No such items existed as of July 31, 2019 and 2018.
Financial instruments not recorded at fair value
Descriptions of the valuation methodologies and assumptions used to estimate the fair value of financial instruments not recorded at fair value are described below.
The Company’s financial instruments not recorded at fair value but for which fair value can be approximated and disclosed are securities held to maturity. The fair values of
securities held to maturity are obtained using an independent third-party financial institution.
Warrants
The Company assesses its warrants as either equity or a liability based upon the characteristics and provisions of each instrument. Warrants classified as equity are
recorded at fair value as of the date of issuance on the Company’s balance sheet and no further adjustments to their valuation are made. Warrants classified as derivative
liabilities and other derivative financial instruments that require separate accounting as liabilities are recorded on the Company’s balance sheet at their fair value on the date of
issuance and are re-measured on each subsequent balance sheet date until such instruments are exercised or expire, with any changes in the fair value between reporting periods
recorded as other income or expense. Management estimates the fair value of these liabilities using option pricing models and assumptions that are based on the individual
characteristics of the warrants or other instruments on the valuation date, as well as assumptions for future financings, expected volatility, expected life, yield and risk-free
interest rate. As of July 31, 2019 and 2018, all outstanding warrants issued by the Company were classified as equity.
Net Loss Per Share
The Company computes basic net loss per common share by dividing the applicable net loss by the weighted-average number of common shares outstanding during
the period. Diluted earnings per share is computed by dividing the applicable net loss by the weighted-average number of common shares outstanding during the period plus
additional shares to account for the dilutive effect of potential future issuances of common stock relating to stock options and other potentially dilutive securities using the
treasury stock method.
The Company did not include shares underlying stock options, restricted stock units and warrants issued and outstanding during any of the periods presented in the
computation of net loss per share, as the effect would have been anti-dilutive. The following potentially dilutive outstanding securities were excluded from diluted net loss per
share because of their anti-dilutive effect:
Stock options
Restricted stock units
Warrants
Total
July 31, 2019
July 31, 2018
921,572
77,956
3,631,953
4,631,481
891,252
64,750
895,805
1,851,807
F-11
Stock-Based Compensation
The Company grants equity-based awards (typically stock options or restricted stock units) under its stock-based compensation plan and outside of its stock-based
compensation plan, with terms generally similar to the terms under the Company’s stock-based compensation plan. The Company estimates the fair value of stock option awards
using the Black-Scholes option valuation model. For employees, directors and consultants, the fair value of the award is measured on the grant date. Prior to the adoption of
ASU 2018-07 on August 1, 2018, the fair value of the award for non-employees was generally re-measured on vesting dates and interim financial reporting dates until the
service period was complete. The fair value amount is then recognized over the period during which services are required to be provided in exchange for the award, usually the
vesting period. The Black-Scholes option valuation model requires the input of subjective assumptions, including price volatility of the underlying stock, risk-free interest rate,
dividend yield, and expected life of the option. The Company estimates the fair value of restricted stock unit awards based on the closing price of the Company’s common stock
on the date of issuance.
Employee Stock Purchase Plan
Employees may elect to participate in the Company’s stockholder approved employee stock purchase plan. The stock purchase plan allows for the purchase of the
Company’s common stock at not less than 85% of the lesser of (i) the fair market value of a share of common stock on the beginning date of the offering period or (ii) the fair
market value of a share of common stock on the purchase date of the offering period, subject to a share and dollar limit as defined in the plan and subject to the applicable legal
requirements. There are two six-month offering periods during each fiscal year, ending on January 31 and July 31.
In accordance with applicable accounting guidance, the fair value of awards under the stock purchase plan is calculated at the beginning of each offering period. The
Company estimates the fair value of the awards using the Black-Scholes option valuation model. The Black-Scholes option valuation model requires the input of subjective
assumptions, including price volatility of the underlying stock, risk-free interest rate, dividend yield, and the offering period. This fair value is then amortized at the beginning of
the offering period. Stock-based compensation expense is based on awards expected to be purchased at the beginning of the offering period, and therefore is reduced when
participants withdraw during the offering period.
Deferred Rent
Rent expense from leases is recorded on a straight-line basis over the lease period. The net excess of rent expense over the actual cash paid is recorded as deferred rent.
Foreign Currency Translation
The Company uses the U.S. Dollar as the reporting currency for its financial statements. Functional currency is the currency of the primary economic environment in
which an entity operates. The functional currency of the Company’s wholly owned subsidiary is the Australian dollar.
Assets and liabilities of the Company’s subsidiary are translated into U.S. Dollars at period-end foreign exchange rates, and revenues and expenses are translated at
average rates prevailing throughout the period. Translation adjustments are included in “Accumulated other comprehensive income (loss),” a separate component of
stockholders’ equity, and in the “Effect of exchange rate changes on cash and cash equivalents,” on the Company’s consolidated statements of cash flows. Transaction gains and
losses including intercompany transactions denominated in a currency other than the functional currency of the entity involved are included in “Foreign currency exchange gain
(loss), net” on the Company’s consolidated statements of operations.
Accumulated Other Comprehensive Income (Loss)
Accumulated other comprehensive income (loss) includes foreign currency translation adjustments related to the Company’s subsidiary in Australia and is excluded
from the accompanying consolidated statements of operations.
F-12
Australia Research and Development Tax Credit
The Company’s wholly-owned Australian subsidiary incurs research and development expenses, primarily in the course of conducting clinical trials. The Company’s
Australian research and development activities qualify for the Australian government’s tax credit program, which provides a 41.0 percent credit for qualifying research and
development expenses. The tax credit does not depend on the Company’s generation of future taxable income or ongoing tax status or position. Accordingly, the credit is not
considered an element of income tax accounting under ASC 740 “Income Taxes” and is recorded against qualifying research and development expenses.
Tax Reform
The Tax Cuts and Jobs Act (the “Act”) was enacted in December 2017. Among other things, the Act reduced the U.S. federal corporate tax rate from 34 percent to 21
percent as of January 1, 2018 and eliminated the alternative minimum tax (“AMT”) for corporations. Since the deferred tax assets are expected to reverse in a future year, it has
been tax effected using the 21% federal corporate tax rate. As a result of the reduction in the corporate tax rate, the Company decreased its gross deferred tax assets by
approximately $12.4 million which was offset by a corresponding decrease to the valuation allowance as of July 31, 2018, which had no impact on the Company’s consolidated
financial statements for the year ended July 31, 2018. The effects of the 2017 Tax Act did not have a significant impact on the Company’s consolidated financial statements for
the year ended July 31, 2019.
Recent Accounting Pronouncements
In May 2014, the Financial Accounting Standards Board (the “FASB”) issued Accounting Standards Update (“ASU”) 2014-09, Revenue from Contracts with
Customers (“ASU 2014-09”), to supersede previous revenue recognition guidance under current U.S. GAAP. The guidance presents a single five-step model for comprehensive
revenue recognition that requires an entity to recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to
which the entity expects to be entitled in exchange for those goods or services. Two options are available for implementation of the standard which is either the retrospective
approach or cumulative effect adjustment approach. The guidance becomes effective for annual reporting periods beginning after December 15, 2017, including interim periods
within that reporting period, with early adoption permitted. The Company adopted this standard on August 1, 2018 using the modified retrospective transition method. The
adoption of this standard did not have a material impact on the Company’s consolidated financial statements and related disclosures.
In January 2016, the FASB issued ASU 2016-01, Financial Instruments—Overall (Subtopic 825-10): Recognition and Measurement of Financial Assets and
Financial Liabilities (“ASU 2016-01”), which addresses certain aspects of recognition, measurement, presentation, and disclosure of financial instruments. ASU 2016-01 is
effective for annual reporting periods beginning after December 15, 2017 and interim periods within those annual periods, and earlier adoption is not permitted except for
certain provisions. The Company adopted this standard on August 1, 2018. The adoption of this standard did not have a material impact on the Company’s consolidated
financial statements and related disclosures.
In February 2016, the FASB issued Accounting Standards Update No. 2016-02, Leases (“ASU 2016-02”), which supersedes previous lease accounting guidance
(Topic 840) and establishes a right-of-use model that requires a lessee to record an asset and liability on the balance sheet for all leases with terms longer than 12 months. ASU
2016-02 is effective for fiscal years and interim periods beginning after December 15, 2018. A modified retrospective transition approach is required for lessees for capital and
operating leases existing at, or entered into after, the beginning of the earliest comparative period presented in the financial statements. In July 2018, the FASB issued ASU No.
2018-11, Leases (Topic 842): Targeted Improvements. In issuing ASU No. 2018-11, the FASB decided to provide another transition method in addition to the existing transition
method by allowing entities to initially apply the new leases standard at the adoption date and recognize a cumulative-effect adjustment to the opening balance of retained
earnings in the period of adoption. ASU 2016-02 also requires expanded financial statement disclosures on leasing activities. These changes will become effective for the
Company on August 1, 2019.
F-13
In adopting ASC 842, the new standard provides for several optional practical expedients in transition. The Company will adopt ASC 842 using the following practical
expedients:
●
●
●
The optional transition method set forth in ASU 2018-11 in connection with the adoption of ASC 842 on August 1, 2019. As a result, the effects of applying the
new standard will be recognized as a cumulative-effect adjustment to the opening balance of retained earnings without recasting comparative periods.
The “package of practical expedients”, which permits the Company not to reassess under the new standard prior conclusions on lease identification, lease
classification and initial direct costs
The practical expedient not to separate lease and non-lease components within the lease and account for all lease components as a single lease component
The Company has estimated the impact of right-to-use assets and liabilities on the consolidated balance sheet related to operating leases of approximately $1.4 million
and $2.1 million, respectively, which will represent a material increase to its total assets and liabilities. The adoption of ASC 842 is not expected to result in significant changes
to its statements of operations or cash flows.
In August 2016, the FASB issued ASU No. 2016-15, Statement of Cash Flows (“ASU 2016-15”), to reduce diversity in practice of how certain transactions are
classified in the statement of cash flows. The effective date for ASU 2016-15 is for annual periods beginning after December 15, 2017, and interim periods within those fiscal
years. The Company adopted this standard on August 1, 2018. The adoption of this standard did not have a material impact on the Company’s consolidated financial statements
and related disclosures.
In January 2017, the FASB issued guidance codified in ASU 2017-04, Intangibles—Goodwill and Other (Topic 350) Simplifying the Test for Goodwill Impairment
(“ASU 2017-04”). Under this guidance, an entity will no longer determine goodwill impairment by calculating the implied fair value of goodwill by assigning the fair value of a
reporting unit to all of its assets and liabilities as if that reporting unit had been acquired in a business combination. Instead, an entity will compare the fair value of a reporting
unit with its carrying amount and recognize an impairment charge for the amount by which the carrying amount exceeds the reporting unit’s fair value. The guidance is effective
for fiscal years beginning after December 15, 2019, including interim periods therein, with early adoption permitted. The Company adopted this standard on August 1, 2018.
The adoption of this standard did not have a material impact on the Company’s consolidated financial statements and related disclosures. The Company does not currently have
any intangible or goodwill balances.
In May 2017, the FASB issued ASU 2017-09, Compensation—Stock Compensation (Topic 718) (“ASU 2017-09”), which provides further guidance as to what
constitutes a modification to the terms of share-based compensation, in order to create consistency in practice among all entities. ASU 2017-09 becomes effective for annual
reporting periods beginning after December 15, 2017, including interim periods thereafter; early adoption is permitted. The Company adopted this standard on August 1, 2018.
The adoption of this standard did not have a material impact on the Company’s consolidated financial statements and related disclosures.
In July 2017, the FASB issued ASU 2017-11, Earnings Per Share (Topic 260), Distinguishing Equity from Liabilities (Topic 480) and Derivatives and Hedging
(Topic 815) (“ASU 2017-11”), which addresses the complexity of accounting for certain financial instruments with down-round features and finalizes pending guidance related
to mandatorily redeemable noncontrolling interests. Under ASU 2017-11, when determining whether certain financial instruments should be classified as liabilities or equity
instruments, a down-round feature no longer precludes equity classification when assessing whether the instrument is indexed to an entity’s own stock. ASU 2017-11 becomes
effective for annual reporting periods beginning after December 15, 2018, including interim periods thereafter; early adoption is permitted. The Company adopted this standard
on August 1, 2018. The adoption of this standard did not have a material impact on the Company’s consolidated financial statements and related disclosures.
F-14
In June 2018, the FASB issued ASU 2018-07, Compensation—Stock Compensation (Topic 718): Improvements to Nonemployee Share-Based Payment Accounting
(“ASU 2018-07”), which expands the scope of Topic 718 to include all share-based payment transactions for acquiring goods and services from nonemployees. ASU 2018-07
specifies that Topic 718 applies to all share-based payment transactions in which the grantor acquires goods and services to be used or consumed in its own operations by
issuing share-based payment awards. ASU 2018-07 also clarifies that Topic 718 does not apply to share-based payments used to effectively provide (1) financing to the issuer
or (2) awards granted in conjunction with selling goods or services to customers as part of a contract accounted for under ASC 606. ASU 2018-07 is effective for fiscal years
beginning after December 15, 2018, including interim periods within those fiscal years, with early adoption permitted, but no earlier than the Company’s adoption of ASC 606.
The Company chose to early adopt ASU 2018-07 on August 1, 2018. The adoption of this standard did not have a material impact on the Company’s consolidated financial
statements and related disclosures.
Note 3—Going Concern and Managements Plans
The Company has sustained losses in all reporting periods since inception, with an inception-to date-loss of $164.4 million as of July 31, 2019. These losses are
expected to continue for an extended period of time. Further, the Company has never generated any cash from its operations and does not expect to generate such cash in the
near term. The aforementioned factors raise substantial doubt about the Company’s ability to continue as a going concern within one year from the date of filing. The
accompanying financial statements have been prepared on a going concern basis, which contemplates the realization of assets and the satisfaction of liabilities in the normal
course of business. The financial statements do not include any adjustments relating to the recoverability and classification of asset amounts or the classification of liabilities
that might be necessary should the Company be unable to continue as a going concern within one year after the date the financial statements are issued.
As of July 31, 2019, the Company had cash and cash equivalents of $25.1 million, which consisted of cash of $6.0 million and cash equivalents of $19.1 million. Cash
flows from financing activities continued to provide the primary source of the Company’s liquidity. Net cash provided by financing activities was $27.2 million during the year
ended July 31, 2019, which was primarily attributable to the net proceeds received from the Alpha Holdings agreement and the May 2019 offering (See Note 7). The Company
currently estimates its monthly working capital requirements to be approximately $2.5 million, although the Company may modify or deviate from this estimate and it is likely
that the Company’s actual operating expenses and working capital requirements will vary from its estimate. Based on these expectations regarding future expenses, rate of
consumption, as well as its current cash levels, the Company believes its cash resources are insufficient to meet the Company’s anticipated needs for the 12 months following
the issuance of this report.
The Company recognizes it will need to raise additional capital to continue operating its business and fund its planned operations, including research and development,
clinical trials and, if regulatory approval is obtained, commercialization of its product candidates. In addition, the Company will require additional financing if it desires to in-
license or acquire new assets, research and develop new compounds or new technologies and pursue related patent protection, or obtain any other intellectual property rights or
other assets. There is no assurance that additional financing will be available when needed or that management will be able to obtain financing on terms acceptable to the
Company or whether the Company will become profitable and generate positive operating cash flow. If the Company is unable to raise sufficient additional funds, it will have to
scale back its operations.
F-15
Note 4—Investment Securities
The Company did not have any investment securities on its consolidated balance sheet as of July 31, 2019.
The amortized cost, gross unrealized gains and losses, and fair value of securities held to maturity are as follows as of July 31, 2018:
Description
Investment securities
U.S. treasury securities with maturities of one year or less
Total
Amortized Cost
Gross Unrealized
Gain/(Loss)
Fair Value
$
$
23,174,447 $
23,174,447 $
(20,212) $
(20,212) $
23,154,235
23,154,235
The fair values of held to maturity securities, excluding U.S. treasury securities, were obtained using an independent third-party financial institution. Management
made no adjustments to the fair value quotes that were provided by the third-party financial institution. The fair values of U.S. treasury securities were determined using quoted,
active market prices for identical securities.
During the year ended July 31, 2019, the Company sold investments, categorized as held to maturity, with a net carrying amount of $5,989,928 for gross proceeds of
$5,977,794 and realized a loss of $12,134. The sale of the securities was suggested by the Company’s investment advisors and the event is isolated.
Note 5—Balance Sheet Details
Property and Equipment
Property and equipment, net, is comprised of the following:
Equipment and furniture
Computer software
Leasehold improvements
Property and equipment, gross
Accumulated depreciation and amortization
Total
July 31, 2019
July 31, 2018
1,859,824 $
109,242
21,934
1,991,000
(959,871)
1,031,129 $
1,873,880
109,242
12,054
1,995,176
(729,514)
1,265,662
$
$
Depreciation and amortization expense recorded for the years ended July 31, 2019 and 2018 was approximately $244,000 and $334,000, respectively. In conjunction
with the move to a new facility, the Company wrote off approximately $860,000 in property and equipment during the year ended July 31, 2018.
Accounts Payable and Accrued Liabilities
Accounts payable and accrued liabilities are comprised of the following:
Research and development costs
Professional services fees
Other
Total
July 31, 2019
July 31, 2018
2,380,215 $
1,702,886
133,916
4,217,017 $
3,801,211
770,853
206,828
4,778,892
$
$
F-16
Accrued Compensation
Accrued compensation is comprised of the following:
Separation costs
Accrued payroll
401K payable
Total
Other Long-Term Liabilities
Other long-term liabilities are comprised of the following:
Deferred rent
Separation costs
Total
Note 6 – Note Payable
July 31, 2019
July 31, 2018
495,004 $
181,219
-
676,223 $
840,320
215,937
14,487
1,070,744
July 31, 2019
July 31, 2018
635,913 $
-
635,913 $
1,101,222
371,408
1,472,630
$
$
$
$
On March 22, 2019, the Company entered into a finance agreement with First Insurance Funding (“FIF”). Pursuant to the terms of the agreement, FIF loaned the
Company the principal amount of $185,990, which would accrue interest at 6.25% per annum, to partially fund the payment of the premium of the Company’s Director &
Officer insurance. The agreement requires the Company to make nine monthly payments of $21,207, including interest starting on April 18, 2019. At July 31, 2019, the
outstanding balance related to this finance agreement was $83,760.
Note 7—Stockholders’ Equity
Reverse Stock Split
On May 20, 2019, the Company effected a one-for-ten reverse stock split of its authorized and outstanding common stock. Under Nevada law, and in accordance with
NRS Section 78.207, the split was approved by the Board of Directors of the Company and shareholder approval was not required. Pursuant to this reverse stock split, the total
number of authorized common shares was reduced from 160,000,000 to 16,000,000 shares and the number of common shares outstanding was reduced from 71,216,082 shares
to 7,121,594 shares (which reflects adjustments for fractional share settlements). The par value was not adjusted as a result of the reverse stock split. All applicable share and
per share information contained in these consolidated financial statements has been retroactively adjusted to reflect the reverse stock split.
F-17
May 2019 Offering
On May 24, 2019, the Company completed the offer and sale of an aggregate of 3,492,063 shares of its common stock, together with 3,492,063 accompanying
warrants to purchase an aggregate of 2,619,047 shares of its common stock, at a combined purchase price of $3.15 per share of common stock and warrant. The warrants have
an exercise price of $3.45 per full share, became exercisable on May 24, 2019 and expire on May 24, 2024. The gross proceeds of the offering were approximately $11.0
million, and the net proceeds, after deducting the placement agent’s fee and other offering fees and expenses paid by the Company, were approximately $10.0 million. In
connection with the offering, the Company paid the placement agent (i) a cash fee equal to 6.5% of the gross proceeds of the offering, as well as legal and other expenses equal
to $90,000. In addition, pursuant to the underwriting agreement, the Company granted the underwriters an option, exercisable for 45 days, to purchase up to an additional
523,809 shares of its common stock (the “Option Shares”) and/or warrants to purchase up to 392,857 shares of common stock (the “Option Warrants”). On May 24, 2019, the
underwriters partially exercised their option and purchased 238,095 Option Warrants to purchase an aggregate of 178,571 shares of the Company’s common stock, at a
purchase price of $0.01 per warrant before underwriting discounts, or $2,381. The Option Warrants have an exercise price of $3.45 per share, became exercisable on May 24,
2019 and expire on May 24, 2024.
The fair value of the warrants issued to the purchasers in the offering, based on their fair value relative to the common stock issued, was approximately $3.6 million
(based on the Black-Scholes option valuation model assuming no dividend yield, a 5.0 year life, volatility of 82.99% and a risk-free interest rate of 2.12%). The Company
completed an evaluation of these warrants and determined they should be classified as equity within the accompanying consolidated balance sheets.
Aspire Capital
On March 29, 2019, the Company entered into a common stock purchase agreement (the “Purchase Agreement”) with Aspire Capital Fund, LLC, (“Aspire Capital”)
pursuant to which the Company agreed to issue and sell to Aspire Capital shares of its common stock equal to an aggregate amount of up to $20.0 million at the Company’s
request from time to time during a 30-month period. The Company filed with the Securities and Exchange Commission a prospectus supplement to the Company’s effective
shelf registration statement on Form S-3 registering all the shares of common stock that have been offered to Aspire Capital from time to time. In consideration for entering into
the Purchase Agreement, the Company issued to Aspire Capital 120,201 shares of the Company’s common stock which represented 3% of the aggregate commitment.
Under the Purchase Agreement, on any trading day selected by the Company, the Company had the right, in its sole discretion, to present Aspire Capital with a
purchase notice, directing Aspire Capital to purchase up to 30,000 shares of the Company’s common stock per business day, up to $20.0 million of the Company’s common
stock in the aggregate at a per share price equal to the lesser of:
●
●
the lowest sale price of the Company’s common stock on the purchase date; or
the arithmetic average of the three (3) lowest closing sale prices for the Company’s common stock during the ten (10) consecutive trading days ending on the trading day
immediately preceding the purchase date.
Upon execution of the Purchase Agreement, the Company agreed to sell to Aspire Capital 400,674 shares of common stock for total proceeds, before expenses, of
$2,000,000. Additionally, in April 2019, the Company sold a total of 90,000 shares of its common stock to Aspire Capital resulting in the Company receiving total proceeds,
before expenses, of approximately $520,000 in cash. There were no underwriting or placement agent fees associated with the offering.
On May 27, 2019, the Company terminated the Purchase Agreement.
F-18
Alpha Holdings
On August 31, 2018, the Company entered into a stock purchase agreement with Alpha Holdings, Inc. (“Alpha Holdings”), pursuant to which the Company agreed to
issue and sell to Alpha Holdings shares of its common stock equal to an aggregate amount of up to $15.0 million at a market purchase price of $15.00 per share, which was the
closing price of the Company’s common stock the day immediately before the agreement was executed by the parties.
On October 9, 2018, the Company received total proceeds, before expenses, of $8.0 million in cash from the offering and issued Alpha Holdings 533,333 shares of
common stock. There were no underwriting or placement agent fees associated with the offering.
On December 6, 2018, the Company received total proceeds, before expenses, of $7.0 million in cash from the offering and issued Alpha Holdings 466,667 shares of
common stock. There were no underwriting or placement agent fees associated with the offering.
Controlled Equity Offering Sales Agreement
On November 2, 2018, the Company entered into a controlled equity offering sales agreement (“Sales Agreement”) with Cantor Fitzgerald & Co, regarding an at-the-
market offering, pursuant to which the Company may, from time to time, issue and sell shares of common stock having an aggregate offering price of up to $30.0 million. The
Company is not obligated to make any sales of shares under the Sales Agreement. The Company did not make any sales of shares under the Sales Agreement.
On May 27, 2019, the Company terminated the Sales Agreement.
Common Stock Option Exercise
During the year ended July 31, 2019, shares of common stock issued related to option exercises totaled 43,029. The Company realized proceeds of $0.6 million from
the stock option exercises.
February 2018 Offering
On February 6, 2018, the Company completed a follow-on public offering, selling 1,333,333 shares at an offering price of $15.00 per share. Additionally, the
underwriters exercised in full their over-allotment option to purchase an additional 200,000 shares at an offering price of $15.00 per share. Aggregate gross proceeds from this
follow-on public offering, including the exercise of the over-allotment option, were approximately $23.0 million, and net proceeds received, after underwriting fees of
approximately $1.7 million and offering expenses of approximately $0.5 million, were approximately $20.8 million.
November 2017 Warrant Exercise Inducement Offering
On November 13, 2017, the Company entered into a warrant exercise agreement with certain holders of outstanding warrants (the “Original Warrants”) to purchase up
to an aggregate of 550,964 shares of the Company’s common stock at an exercise price of $16.90 per share. Pursuant to the terms of the warrant exercise agreement, each
holder agreed to exercise, from time to time and in accordance with the terms of the Original Warrants, including certain beneficial ownership limitations set forth therein, all
Original Warrants held by it for cash. As a result of the exercise of all of the Original Warrants, the Company received gross proceeds of approximately $9.3 million and net
proceeds, after deducting estimated expenses paid or payable by the Company, of approximately $9.1 million.
F-19
Pursuant to the terms of the warrant exercise agreement, and in order to induce each holder to exercise its Original Warrants, the Company issued 137,741 new
warrants to purchase a number of shares of its common stock which is equal to 25% of the number of shares of common stock received by such holders upon the cash exercise
of its Original Warrants. The terms of the inducement warrants are substantially similar to the terms of the Original Warrants, except that the inducement warrants: (i) have an
initial exercise price of $22.60 per share; (ii) become exercisable on May 13, 2018 and expire on November 13, 2019; and, (iii) contain certain additional transfer restrictions
and limitations due to their offer and sale in a private placement offering.
Also on November 13, 2017, and in connection with its entry into the warrant exercise agreement, the Company agreed to issue warrants to purchase up to an
aggregate of 113,830 shares of its common stock to the accredited investors that participated in the Company’s offerings completed in October 2017, in consideration for such
investors’ agreement to waive certain covenants made by the Company to such investors and as an inducement to such investors to exercise certain other warrants to purchase
the Company’s common stock. The terms of the October 2017 investor warrants are substantially similar to the terms of the new warrants, except that the October 2017 investor
warrants will become exercisable only if and when each October 2017 investor exercises in full and for cash the warrants to purchase the Company’s common stock that were
sold to such investors in the Company’s offerings completed in October 2017.
The warrants issued in connection with the warrant exercise agreement were considered inducement warrants and are classified in equity. The fair value of the warrants
issued was approximately $2.5 million (based on the Black-Scholes option valuation model assuming no dividend yield, a 2.0-year life, volatility of 73.12% and a risk-free
interest rate of 1.7%). The fair value of the inducement warrants of $2.5 million was expensed as warrant inducement expense in the accompanying consolidated statements of
operations for the year ended July 31, 2018.
First October 2017 Offerings
On October 25, 2017, the Company completed an offer and sale to certain accredited investors of, in a registered public offering, 527,093 shares of its common stock
and, in a concurrent private placement offering, warrants to purchase an aggregate of up to 395,320 shares of its common stock, all at a purchase price of $13.4375 per share.
The warrants have an initial exercise price of $12.50 per share, became exercisable on October 25, 2017 and expire on April 25, 2022. The gross proceeds of the offering were
$7.1 million and the net proceeds, after deducting the placement agent’s fee and other offering fees and expenses paid or payable by the Company (and excluding the proceeds,
if any, from any cash exercise of the warrants), were approximately $6.2 million. In connection with the offering, the Company paid the placement agent (i) a cash fee equal to
5.5% of the gross proceeds of the offering, as well as offering expenses in a nonaccountable sum of $60,000, and (ii) warrants to purchase up to an aggregate of 31,625 shares of
its common stock. The warrants issued to the placement agent are exercisable at an exercise price of $16.80 per share, became exercisable on their original issuance date and
expire on October 21, 2022.
The fair value of the warrants issued to the purchasers in the offerings, based on their fair value relative to the common stock issued, was approximately $2.4 million
(based on the Black-Scholes option valuation model assuming no dividend yield, a 5.5-year life, volatility of 75.55% and a risk-free interest rate of 2.12%). The fair value of the
warrants issued to the placement agent in the offerings was $0.2 million (based on the Black-Scholes option valuation model assuming no dividend yield, a 5.0-year life,
volatility of 73.25% and a risk-free interest rate of 2.06%). The Company completed an evaluation of these warrants and determined they should be classified as equity within
the accompanying consolidated balance sheets.
F-20
Second October 2017 Offering
On October 25, 2017, the Company completed an offer and sale to one accredited investor of 80,000 shares of its common stock and warrants to purchase up to 60,000
shares of its common stock, all at a purchase price of $13.4375 per share and associated warrant. The warrants have an initial exercise price of $12.50 per share, become
exercisable on April 27, 2018 and expire on April 27, 2022. The gross proceeds of the offering were $1.1 million and the net proceeds, after deducting the placement agent’s fee
and other offering fees and expenses paid or payable by the Company (and excluding the proceeds, if any, from any cash exercise of the warrants), were approximately $1.0
million. In connection with the offering, the Company paid the placement agent (i) a cash fee equal to 5.5% of the gross proceeds of the offering, as well as offering expenses in
a non-accountable sum of $15,000, and (ii) warrants to purchase up to an aggregate of 4,800 shares of its common stock. The warrants issued to the placement agent are
exercisable at an exercise price of $16.80 per share, became exercisable on their original issuance date and expire on October 25, 2022.
The fair value of the warrants issued to the purchasers in the offering, based on their fair value relative to the common stock issued, was approximately $0.4 million
(based on the Black-Scholes option valuation model assuming no dividend yield, a 5.5-year life, volatility of 75.51% and a risk-free interest rate of 2.12%). The fair value of the
warrants issued to the placement agent in the offering was $31,000 (based on the Black-Scholes option valuation model assuming no dividend yield, a 5.0-year life, volatility of
73.22% and a risk-free interest rate of 2.06%). The Company completed an evaluation of these warrants and determined they should be classified as equity within the
accompanying consolidated balance sheets.
ATM Program
On July 25, 2017, the Company entered into an equity distribution agreement with Oppenheimer & Co. Inc. (“Oppenheimer”) to commence an “at the market” offering
program (the “ATM Program”), under which the Company was permitted to offer and sell, from time to time through or to Oppenheimer, acting as sales agent or principal,
shares of the Company’s common stock having an aggregate gross sales price of up to $8.4 million. An aggregate of 89,731 shares of the Company’s common stock were sold
in the ATM Program during the year ended July 31, 2018, for net proceeds to the Company, after deducting Oppenheimer’s commissions and other expenses paid or payable by
the Company, of $1.1 million.
Effective as of October 22, 2017, the Company terminated the ATM Program. As a result of such termination, no further offers or sales of the Company’s common
stock will be made in the ATM Program.
Outstanding Warrants
At July 31, 2019, the Company had outstanding warrants to purchase 3,631,953 shares of its common stock, with exercise prices ranging from $3.45 to $45.00, all of
which were classified as equity instruments. These warrants expire at various dates between November 2019 and May 2024.
F-21
Note 8—Stock-Based Compensation
The OncoSec Medical Incorporated 2011 Stock Incentive Plan (as amended and approved by the Company’s stockholders (the “2011 Plan”)), authorizes the
Company’s Board of Directors to grant equity awards, including stock options and restricted stock units, to employees, directors and consultants. The 2011 Plan authorizes a
total of 750,000 shares for issuance thereunder, and includes an automatic increase of the number of shares of common stock reserved thereunder on the first business day of
each calendar year by the lesser of: (i) 3% of the shares of the Company’s common stock outstanding as of the last day of the immediately preceding calendar year; (ii) 100,000
shares; or (iii) such lesser number of shares as determined by the Company’s Board of Directors. As of July 31, 2019, there were an aggregate of 950,000 shares of the
Company’s common stock authorized for issuance pursuant to awards granted under the 2011 Plan. The 2011 Plan allows for an annual fiscal year per individual grant of up to
50,000 shares of its common stock. Under the 2011 Plan, incentive stock options are to be granted at a price that is no less than 100% of the fair value of the Company’s
common stock at the date of grant. Stock options vest over a period specified in the individual option agreements entered into with grantees, and are exercisable for a maximum
period of 10 years after the date of grant. Stock options granted to stockholders who own more than 10% of the outstanding stock of the Company at the time of grant must be
issued at an exercise price of no less than 110% of the fair value of the Company’s common stock on the date of grant.
Modification of Award
On August 22, 2018, the Company entered into a stock option cancellation agreement with an individual. As per the terms of the agreement, 30,000 fully vested stock
options were cancelled. On August 22, 2018, the Company issued 17,500 shares of restricted common stock. Upon modification, it is required under ASC 718 to analyze the
fair value of the instruments, before and after the modification, recognizing the increase as a charge to the statement of operations. The Company computed the fair value of the
cancelled award and compared the fair value to that of the restricted stock award. The Company recorded the excess of the fair value of the restricted stock award over the fair
value of the cancelled award, or $135,425, to compensation costs with an offsetting entry to common stock and additional paid in capital on the date of the modification.
Cancellation of Award
On October 23, 2018, the Company entered into stock option cancellation agreements with two consultants. As per the terms of the agreements, an aggregate of 53,500
stock options were cancelled. The consultants were not issued replacement awards under the cancellation agreements. Under ASC 718, a cancellation of an award that is not
accompanied by the concurrent grant of (or offer to grant) a replacement award or other valuable consideration shall be accounted for as a repurchase for no consideration.
Accordingly, any previously unrecognized compensation cost shall be recognized at the cancellation date. The Company recorded unrecognized compensation of the cancelled
awards, or $377,278, to compensation costs with an offsetting entry to additional paid in capital on the date of the cancellation.
Stock Options
During the year ended July 31, 2019, the Company granted options to purchase 154,249, 77,500 and 1,000 shares of its common stock to employees, directors and
consultants under the 2011 Plan, respectively. The stock options issued to employees have a ten-year term, vest over three years, and have exercise prices ranging from $2.57 to
$15.80. The stock options issued to directors have a 10-year term, vest over a period ranging from one to three years and have exercise prices ranging from $5.80 and $8.42.
The stock options issued to consultants have ten-year terms, vest in accordance with the terms of the applicable consulting agreement and have an exercise price of $6.26.
During the year ended July 31, 2019, the Company granted options to purchase 20,000 and 50,000 shares of its common stock to employees and consultants outside
the 2011 Plan. The stock options issued to employees have a ten-year term, vest over three years, and have an exercise price of $16.40. The stock options issued to consultants
have ten-year terms, vest in accordance with the terms of the applicable consulting agreement and have exercise prices ranging from $8.47 and $14.30.
F-22
During the fiscal year ended July 31, 2018, the Company granted options to purchase 528,150, 30,000 and 70,500 shares of its common stock to employees, directors
and consultants under the 2011 Plan, respectively. The stock options issued to employees have a ten-year term, vest over three years, and have exercise prices ranging from
$9.20 to $18.60. The stock options issued to directors have a ten-year term, vest monthly in equal increments over one year and have exercise prices ranging from $9.79 to
$19.40. The stock options issued to consultants have ten-year terms, vest in accordance with the terms of the applicable consulting agreement, and have exercise prices ranging
from $10.00 to $18.80.
During the year ended July 31, 2018, the Company granted its President and Chief Executive Officer, Mr. Daniel J. O’Connor, options to purchase 250,000 shares of
the Company’s common stock outside of the 2011 Plan. This grant was approved by stockholders at the Company’s annual meeting on January 12, 2018. Of the total grant,
options on 100,000 shares vested upon stockholder approval and options on 100,000 shares will vest over a two-year period from the date of grant. Mr. O’Connor also received
a performance stock option award to purchase up to 50,000 shares of the Company’s common stock, which is subject to vesting as to options on 25,000 shares on the date of the
Company’s achievement of 100% enrollment in the first cohort of its KEYNOTE-695 study and as to the remaining options on 25,000 shares in one installment on the one-year
anniversary of the date of achievement of such enrollment.
The Company accounts for stock-based compensation based on the fair value of the stock-based awards granted and records forfeitures as they occur. As such, the
Company recognizes stock-based compensation cost only for those stock-based awards that vest over their requisite service period, based on the vesting provisions of the
individual grants. The service period is generally the vesting period, with the exception of stock options granted pursuant to a consulting agreement, in which case the stock
option vesting period and the service period are defined pursuant to the terms of the consulting agreement. Prior to the adoption of ASU 2018-07, stock-based compensation
expense related to stock options granted to consultants in which the options were not entirely vested at the grant date were generally re-measured each month.
The following assumptions were used for the Black-Scholes calculation of the fair value of stock-based compensation related to stock options granted during the
periods presented:
Expected term (years)
Risk-free interest rate
Volatility
Dividend yield
Year Ended
July 31, 2019
Year Ended
July 31, 2018
5.00–6.50 years
1.74 -3.09%
72.88 – 83.87%
0%
5.00–6.50 years
1.66 – 2.90%
73.24 –91.99%
0%
The Company’s expected volatility is derived from the historical daily change in the market price of its common stock since its stock became available for trading, as
well as the historical daily changes in the market price of its peer group, based on weighting, as determined by the Company. The Company uses the simplified method to
calculate the expected term of options issued to employees, non-employees and directors. Prior to the adoption of ASU 2018-07, the Company’s estimation of the expected term
for stock options granted to parties other than employees or directors was the contractual term of the option award. The risk-free interest rate used in the Black-Scholes
calculation is based on the prevailing U.S. Treasury yield in effect at the time of grant, commensurate with the expected term. For the expected dividend yield used in the Black-
Scholes calculation, the Company has never paid any dividends on its common stock and does not anticipate paying dividends on its common stock in the foreseeable future.
F-23
The following is a summary of the Company’s 2011 Plan and non-Plan stock option activity for the years ended July 31, 2019 and 2018:
Outstanding - July 31, 2017
Granted
Exercised
Forfeited/Cancelled/Expired
Outstanding - July 31, 2018
Granted
Exercised
Forfeited/Cancelled
Expired
Outstanding – July 31, 2019
Exercisable – July 31, 2019
Options
Weighted
Average
Exercise
Price
363,941
628,650
(25,227)
(76,112)
891,252
302,749
(43,029)
(228,700)
(700)
921,572
633,727
$
$
$
$
$
$
$
$
$
$
$
19.40
13.80
12.70
26.60
15.00
7.88
13.16
15.32
57.60
12.63
14.12
As of July 31, 2019, the total intrinsic value of options outstanding and exercisable was approximately $0 and $0, respectively. As of July 31, 2019, the Company has
approximately $1.7 million in unrecognized stock-based compensation expense attributable to the outstanding options, which will be amortized over a period of approximately
1.49 years.
Stock-based compensation expense recorded in the Company’s consolidated statements of operations for the year ended July 31, 2019 resulting from stock options
awarded to the Company’s employees, directors and consultants was approximately $2.9 million. Of this balance, $1.2 million was recorded to research and development and
$1.7 million was recorded in general and administrative in the Company’s consolidated statement of operations for the year ended July 31, 2019.
Stock-based compensation expense recorded in the Company’s consolidated statements of operations for the year ended July 31, 2018 resulting from stock options
awarded to the Company’s employees, directors and consultants was approximately $6.2 million. Of this balance, $1.0 million was recorded to research and development and
$5.2 million was recorded in general and administrative in the Company’s consolidated statements of operations for the year ended July 31, 2018.
The weighted-average grant date fair value of stock options granted during the year ended July 31, 2019 was $5.29.
The weighted-average grant date fair value of stock options granted during the year ended July 31, 2018 was $12.40.
Restricted Stock Units
In December 2018, the Company granted its President and Chief Executive Officer 75,000 restricted stock unit awards (“RSUs”). The units vest as follows: 6,250
units vested on January 31, 2019, and the remaining 68,750 units vest in equal quarterly installments of 6,250 units beginning on April 30, 2019 and ending on October 31,
2021. The closing price of the Company’s common stock on the date of grant was $6.00 per share, which is the fair market value per unit of the RSUs.
In October 2018, the Company granted 5,000 RSUs to an employee. The units vest as follows: 1,250 units vested on October 29, 2018, and the remaining 3,750 units
vest according to the following vesting schedule: 1,250 units on October 29, 2019, 1,250 units on October 29, 2020 and 1,250 units on October 29, 2021. The closing price of
the Company’s common stock on the date of grant was $16.40 per share, which is the fair market value per unit of the RSUs.
F-24
On October 26, 2018, in accordance with a severance agreement with an employee, the Company’s Board of Directors approved the accelerated vesting of 25% of the
outstanding RSUs held by the employee. The RSUs, which originally vest on the third anniversary of the grant date, or March 29, 2020, were accelerated to vest on October 26,
2018. As per ASC 718, on the date of the modification the Company reversed the previously accrued expense on the unvested RSUs of $63,278 and recognized the fair value of
the modified grant of $44,250 on the date of the modification.
For the year ended July 31, 2019, the Company recorded approximately $0.4 million in stock-based compensation related to RSUs, which is reflected in the
consolidated statements of operations.
As of July 31, 2019, there were 77,956 RSUs outstanding.
In February 2018, the Company granted an aggregate of 30,000 restricted stock unit awards (“RSUs”) to two employees under the 2011 Plan. All RSUs vest in full
three years following the date of grant. The closing price of the Company’s common stock on the date of grant was $16.40 per share, which is the fair market value per unit of
the RSUs.
On February 8, 2018, the Company’s Board of Directors approved the accelerated vesting of outstanding restricted stock units (RSUs) held by certain executives and
board members. The RSUs, the majority of which vested on the third anniversary of the grant date, were accelerated to vest on June 15, 2018, resulting in stock compensation
expense of $1.1 million for the year ended July 31, 2018.
In May 2018, the Company granted 3,500 restricted stock unit awards (“RSUs”) to an employee under the 2011 Plan. All RSUs vest in full three years following the
date of grant. The closing price of the Company’s common stock on the date of grant was $15.90 per share, which is the fair market value per unit of the RSUs.
In July 2018, the Company granted 62,500 restricted stock unit awards (“RSUs”) to the Company’s current CFO. The units vest as follows: 31,250 units vested on July
16, 2018, and the remaining 31,250 units vest in equal quarterly installments over the 24 months following the date of grant. The closing price of the Company’s common stock
on the date of grant was $13.40 per share, which is the fair market value per unit of the RSUs.
For the year ended July 31, 2018, the Company recorded $2.0 million in stock-based compensation related to RSUs, which is reflected in the consolidated statements
of operations.
As of July 31, 2018, there were 64,750 RSUs outstanding.
Shares Issued to Consultants
During the year ended July 31, 2019, 60,300 shares of common stock valued at $857,730 were issued to consultants for services. The common stock share values were
based on the dates the shares were granted. The Company recorded compensation expense relating to the share issuances of $845,994 during the year ended July 31, 2019.
During the year ended July 31, 2018, 106,859 shares of common stock valued at $1,845,951, respectively, were issued to consultants for services. The common stock
share values were based on the dates the shares vested. The Company recorded compensation expense relating to the share issuances of $1,845,951 during the year ended July
31, 2018.
F-25
2015 Employee Stock Purchase Plan
Under the Company’s 2015 Employee Stock Purchase Plan (“ESPP”), the Company is authorized to issue 50,000 shares of the Company’s common stock. The first
offering period under the ESPP ended on July 31, 2016, with 1,778 shares purchased and distributed to employees. The second offering period under the ESPP ended on
January 31, 2017, with 1,863 shares purchased and distributed to employees, and the third offering period under the ESPP ended on July 31, 2017, with 2,164 shares purchased
and distributed to employees. The fourth offering period under the ESPP ended on January 31, 2018, with 1,896 shares purchased and distributed to employees, and the fifth
offering period under the ESPP ended on July 31, 2018, with 1,207 shares purchased and distributed to employees. The sixth offering period under the ESPP ended on January
31, 2019, with 1,428 shares purchased and distributed to employees, and the seventh offering period under the ESPP ended on July 31, 2019, with 2,053 shares purchased and
distributed to employees. At July 31, 2019, there were 37,608 shares remaining available for issuance under the ESPP.
The ESPP is considered a Type B plan under FASB ASC Topic 718 because the number of shares a participant is permitted to purchase is not fixed based on the stock
price at the beginning of the offering period and the expected withholdings. The ESPP enables the participant to “buy-up” to the plan’s share limit, if the stock price is lower on
the purchase date. As a result, the fair value of the awards granted under the ESPP is calculated at the beginning of each offering period as the sum of:
●
●
●
15% of the share price of an unvested share at the beginning of the offering period,
85% of the fair market value of a six-month call on the unvested share aforementioned, and
15% of the fair market value of a six-month put on the unvested share aforementioned.
The fair market value of the six-month call and six-month put are based on the Black-Scholes option valuation model. For the six-month offering period ended January
31, 2019, the following assumptions were used: six-month maturity, 2.22% risk free interest, 61.83% volatility, 0% forfeitures and $0 dividends. For the six-month offering
period ended July 31, 2019, the following assumptions were used: six-month maturity, 2.46% risk free interest, 126.35% volatility, 0% forfeitures and $0 dividends.
For the six-month offering period ended January 31, 2018, the following assumptions were used: six-month maturity, 1.15% risk free interest, 62.6% volatility, 0%
forfeitures and $0 dividends. For the six-month offering period ended July 31, 2018, the following assumptions were used: six-month maturity, 1.64% risk free interest, 97.86%
volatility, 0% forfeitures and $0 dividends.
Approximately $12,000 and $16,000 was recorded as stock-based compensation during the years ended July 31, 2019 and 2018, respectively.
Common Stock Reserved for Future Issuance
The following table summarizes all common stock reserved for future issuance at July 31, 2019:
Common Stock options outstanding (within the 2011 Plan and outside of the terms of the 2011 Plan)
Common Stock reserved for restricted stock unit release
Common Stock authorized for future grant under the 2011 Plan
Common Stock reserved for warrant exercise
Commons Stock reserved for future ESPP issuance
Total common stock reserved for future issuance
921,572
77,956
93,185
3,631,953
37,608
4,762,274
F-26
Note 9—Income Taxes
The FASB Topic on Income Taxes prescribes a recognition threshold and measurement attribute criteria for the financial statement recognition and measurement of
tax positions taken or expected to be taken in a tax return. For benefits to be recognized, a tax position must be more-likely-than-not to be sustained upon examination by taxing
authorities. An uncertain income tax position will not be recognized if it has less than a 50% likelihood of being sustained. The Company has had no unrecognized tax benefits.
The Company recognizes interest and/or penalties related to income tax matters in income tax expense. The Company has not recognized any interest and/or penalties
in the accompanying consolidated statements of operations for the year ended July 31, 2019 and 2018.
The Company is subject to taxation in the United States, various states and in Australia. The Company’s tax years for 2007 and forward, 2010 and forward and 2017
and forward are subject to examination by the United States federal tax authorities, California tax authorities and New Jersey tax authorities, respectively, due to the carry
forward of unutilized net operating losses and research and development credits.
At July 31, 2019, the Company had federal, New Jersey and California net operating loss carryforwards of approximately $129 million, $38 million and $119 million,
respectively. In addition, the Company has federal and California research and development tax credit carryforwards of approximately $1.74 million and $1.92 million,
respectively. The Company also has California Hiring Credits of approximately $9,300. The federal net operating loss, research tax credit carryforwards and New Jersey and
California net operating loss carryforwards will begin to expire in 2029 unless previously utilized. The California research and development credit carryforwards will carry
forward indefinitely until utilized. The Company has foreign net operating loss carryforwards in Australia of $1.7 million.
The Company has not completed a study to assess whether one or more ownership changes, as defined by IRC Section 382/383 of the Internal Revenue Code of 1986,
as amended (the “Code”), have occurred since the Company’s formation, due to the complexity and cost associated with such a study, and the fact that there may be additional
such ownership changes in the future. Based on a preliminary assessment, the Company believes that ownership changes have occurred. The Company estimates that if such an
ownership change had occurred, the federal and state net operating loss carry-forwards and research and development tax credits that can be utilized in the future will be
significantly limited. The Company may never be able to realize the benefit of some or all of the federal and state net loss carryforwards or research and development tax credit
carryforwards, either due to ongoing operating losses or due to ownership changes, which limits the usefulness of the loss carryforwards.
Significant components of the Company’s deferred tax assets as of July 31, 2019 and 2018 are listed below:
Net operating loss carryforwards
Credits
Start-up costs
Accumulated depreciation
Option and stock awards
Other
Net deferred tax assets
Valuation allowance for deferred tax assets
Net deferred taxes
$
$
2019
2018
35,361,000 $
3,257,000
23,000
122,000
4,825,000
241,000
43,829,000
(43,829,000)
-
28,313,000
2,408,000
24,000
162,000
5,703,000
591,000
37,201,000
(37,201,000)
-
A valuation allowance of $43.8 million and $37.2 million at July 31, 2019 and 2018, respectively, has been recognized to offset the net deferred tax assets as
realization of such assets is uncertain. The valuation allowance increased by $6.6 million and decreased by $0.8 million for the years ended July 31, 2019 and 2018,
respectively.
F-27
A reconciliation of income taxes using the statutory income tax rate, compared to the effective rate, is as follows:
Federal tax benefit at the expected statutory rate
State income tax, net of federal tax benefit
Non-deductible expenses
Impact of federal rate change
Impact of rate change on valuation allowance
Change in valuation allowance
Other
Income tax benefit - effective rate
Note 10—Commitments and Contingencies
Contingencies
2019
2018
21.00%
(0.01)%
(0.46)%
0.00%
0.00%
(21.32)%
0.79%
(0.00)%
26.47%
0.00%
(2.53)%
(32.14)%
32.14%
(24.72)%
0.78%
(0.00)%
In the ordinary course of business, the Company may become a party to lawsuits involving various matters. The Company is not currently a party, and its properties
are not currently subject, to any legal proceedings that, in the opinion of management, are expected to have a material adverse effect on the Company’s business, financial
condition or results of operations.
Employment Agreements
The Company has entered into employment agreements with each of its executive officers and certain other key employees. Generally, the terms of these agreements
provide that, if the Company terminates the officer or employee other than for cause, death or disability, or if the officer terminates his or her employment with the Company for
good cause, the officer shall be entitled to receive certain severance compensation and benefits as described in each such agreement.
On November 7, 2017, the Company entered into an executive employment agreement with Daniel J. O’Connor (the “O’Connor Employment Agreement”) pursuant to
which Mr. O’Connor will serve as the Chief Executive Officer (the “CEO”) of the Company through November 7, 2020, subject to extension as provided in the agreement. The
agreement calls for an annual salary of $400,000 per annum, an annual performance bonus in the amount of 50% of Mr. O’Connor’s then-current annual base salary and a living
allowance of up to $4,500 per month for the first 12 months of the agreement. In addition, pursuant to the O’Connor Employment Agreement, the Company granted to Mr. O’
Connor certain stock options (See Note 7).
On May 2, 2018, the Board of Directors of the Company consolidated the roles of Chief Executive Officer and President, with Daniel J. O’Connor to serve as both.
Accordingly, Punit Dhillon no longer serves as President of the Company, but remained as a member of the Board of Directors. The Company and Mr. Dhillon entered into a
separation agreement that triggers the compensation provisions pursuant to his Amended and Restated Executive Employment Agreement, dated November 7, 2017. As of July
31, 2019 and 2018, the Company had an accrued liability of $368,369 and $828,403, respectively, remaining under the agreement.
On July 16, 2018, the Company entered into an executive employment agreement with Sara M. Bonstein (the “Bonstein Employment Agreement”) pursuant to which
Ms. Bonstein will serve as the Chief Financial Officer / Chief Operating Officer (the “CFO / COO”) of the Company through July 16, 2021, subject to extension as provided in
the agreement. The agreement calls for an annual salary of $350,000 per annum, a cash signing bonus in the amount of $75,000 and an annual performance bonus in the amount
of 40% of Ms. Bonstein’s then-current annual base salary. In addition, pursuant to the Bonstein Employment Agreement, the Company granted to Ms. Bonstein an award of
62,500 restricted stock units convertible into shares of the Company’s common stock. The units vest as follows: 31,250 units vested on July 16, 2018 (date of grant), and the
remaining 31,250 units vest in equal quarterly installments over the 24 months following the date of grant.
F-28
On July 16, 2018, the Company and the Company’s former Chief Financial Officer entered into a separation and release agreement in connection with the former
CFO’s termination of employment with the Company. Pursuant to the agreement, the Company will pay the former CFO severance compensation of $300,000, less applicable
withholdings, in the form of salary continuation in accordance with the Company’s customary payroll practices. On July 16, 2018, the Company recorded a liability of $300,000
on its consolidated balance sheet, and the offsetting charge was recorded in general and administrative expense as salary expense. As of July 31, 2019 and 2018, the Company
had an accrued liability of $9,364 and $300,000, respectively, remaining under the agreement.
On October 26, 2018, the Company and an employee entered into a separation and release agreement in connection with the employee’s termination of employment
with the Company. Pursuant to the agreement, the Company will pay the former employee severance compensation of $415,000, less applicable withholdings, in the form of
salary and bonus continuation in accordance with the Company’s customary payroll practices. In addition, the Company agreed to pay the cost of health insurance for 12 months
from the date of separation and accelerate the vesting of 2,500 RSUs. On October 26, 2018, the Company recorded a liability of $451,112 on its consolidated balance sheet, and
the offsetting charge was recorded in research and development expense as salary expense. As of July 31, 2019, the Company had an accrued liability of $117,271 remaining
under the agreement.
Lease Agreements
On February 14, 2018, the Company entered into a lease agreement MawIt Inc., for approximately 3,100 rentable square feet located at 24 N. Main Street, Pennington,
New Jersey, which serves as the Company’s New Jersey corporate headquarters. The term of the lease commenced on March 1, 2018 and was to expire on April 30, 2020. In
November 2018, the Company entered into an amended lease agreement for the addition of approximately 2,800 rentable square feet. The term of the amended lease
commenced on January 15, 2019 and expires on December 31, 2020. Base rent under the amended lease agreement is $11,686 per month for each of the first two months,
$11,929 per month for each of the third through fifteenth months and $12,173 per month for each of the sixteenth through twenty-three months. The Company prepaid rent of
approximately $60,000 as per the terms of the amended agreement. The lease agreement also requires the Company to share in certain monthly operating expenses of the
premises and required the Company to pay a security deposit of $23,372.
In March 2018, the Company entered into a Lease Assignment Agreement (the “Lease Assignment Agreement”) with Vividion Therapeutics, Inc. (“Vividion”) for the
Company’s 34,054 square foot location at 5820 Nancy Ridge Drive, San Diego, California, 92121 (“NR Premises”), whereby the Company assigned its Lease Agreement with
ARE-SD Region No. 18, LLC (the “Landlord”) to Vividion. Under the Lease Assignment Agreement, Vividion pays directly to Landlord the base rent of $101,500 per month
(based upon $2.98 per rentable square foot of the NR Premises) plus operating expenses and property management fees attributable to the NR Premises currently estimated at
$43,500 per month (including an estimate for utilities) during the term of the Lease Assignment Agreement, which is the remaining term of the lease through October 2025.
While the lease and all of the related obligations were assigned to Vividion, the Company could ultimately have an obligation on the Lease Assignment Agreement if
Vividion defaulted on their obligation to the Landlord after all remedies were exhausted by the Landlord with regard to Vividion’s obligations. Such an event is not considered
probable and no obligation has been recorded as of July 31, 2019 and 2018.
In conjunction with the Lease Assignment Agreement, the Company and Vividion also entered into a sublease (the “Sublease”), with respect to the 12,442 square-foot
location at 3565 General Atomics Court, Suite 100, San Diego, CA, 92121 leased by Vividion from Landlord which serves as the Company’s California office (the “Sublease
Premise”). Under the Sublease, the Company shall pay to Vividion base rent of $49,768 per month subject to an annual 3% increase, (based upon $4.00 per rentable square foot
of the Sublease Premises) plus operating expenses and property management fees attributable to the Sublease Premises currently estimated at $30,400 per month during the term
of the Sublease, which extends through September 2020. The Company moved to the new location in April 2018.
F-29
At the time of the lease agreements noted above, the Company had a deferred rent liability recorded on the consolidated balance sheet of $1.1 million, of which $0.6
million is remaining as of July 31, 2019. The deferred rent liability associated with the lease/sublease are being amortized on a straight-line basis over their respective remaining
term.
The Company has also entered into lease arrangements for vivarium space in San Diego, California to support the Company’s research and development department.
Total rent expense for the years ended July 31, 2019 and 2018 was approximately $0.8 million and $1.4 million, respectively.
The Company believes its current facilities are adequate to meet its current operating needs and will remain adequate for the foreseeable future.
At July 31, 2019, future minimum lease payments under the Company’s non-cancelable operating leases are as follows:
Year Ending July 31, 2019
2020
2021
Total minimum payments
Operating Lease
1,356,000
308,000
1,664,000
$
$
Note 11—401(k) Plan
Effective May 15, 2012, the Company adopted a defined contribution savings plan pursuant to Section 401(k) of the Code. The plan is for the benefit of all qualifying
employees and permits voluntary contributions by employees of up to 100% of eligible compensation, subject to the maximum limits imposed by Internal Revenue Service. The
terms of the plan allow for discretionary employer contributions and the Company currently matches 100% of its employees’ contributions, up to 3% of their annual
compensation. The Company’s contributions are recorded as expense in the accompanying consolidated statements of operations and totaled approximately $94,000 and
$111,000 for the fiscal years ended July 31, 2019 and 2018, respectively.
Note 12—Related Party Transactions
The Company has subleased a portion of its office space to another company beginning April 1, 2017 and ending March 31, 2018. The Company’s former President
and two other members of the Company’s Board of Directors held positions as directors and/or officers of the sublessee. The Company had received payments totaling $27,900
related to the sublease as of July 31, 2018.
Note 13—Subsequent Events
Strategic Transaction Overview
On October 10, 2019, the Company announced that it entered into a strategic transaction (the “Transaction”) with Grand Decade Developments Limited, a direct,
wholly-owned subsidiary of China Grand Pharmaceutical and Healthcare Holdings Limited, a company formed under the laws of the British Virgin Islands (“CGP”), and its
affiliate, Sirtex Medical US Holdings, Inc., a Delaware corporation (“Sirtex”). Pursuant to stock purchase agreements entered into between the parties pursuant to the
Transaction, the Company will receive a $30 million equity investment from CGP and its affiliate Sirtex at $2.50 per share. Upon closing of the Transaction, CGP and Sirtex
together will hold approximately 53% of the Company’s outstanding common stock and will be entitled to three of nine seats on the Company’s Board of Directors. The closing
of the stock purchase is subject to stockholder approval and other customary closing conditions (the “Closing”).
F-30
Whether or not Closing occurs, but subject to certain conditions on effectiveness described below, the Company (1) will grant CGP and its affiliates an exclusive
license to develop, manufacture, commercialize, or otherwise exploit current and future products, including TAVO™ and the Company’s new Visceral Lesion Applicator
(“VLA”), in Greater China and 35 other Asian countries (the “Territory”) for which CGP will pay the Company up to 20% royalties on the net sales of such products in the
Territory and (2) will engage Sirtex to support and assist the Company with pre-marketing activities for TAVO and VLA in exchange for low single-digit royalties on TAVO
and VLA net sales outside the Territory.
Purchase Agreements
On October 10, 2019, the Company entered into Stock Purchase Agreements (the “Purchase Agreements”) with each of CGP and Sirtex pursuant to which the
Company agreed to sell and issue to CGP and Sirtex 10,000,000 shares and 2,000,000 shares, respectively, of the Company’s common stock at a purchase price of $2.50 per
share. The Purchase Agreements may be terminated if the Closing does not occur on or before March 31, 2020, or earlier as described further in the Purchase Agreements.
In addition, pursuant to the Purchase Agreements, beginning on the date of the Closing and ending on the first anniversary thereof (the “Option Period”), the Company
granted to CGP an option to make an offer to acquire the remaining outstanding common stock of the Company at a purchase price per share equal to the greater of (a) $4.50 or
(b) 110% of the last closing stock price for the common stock on the date prior to CGP delivering written notice to the Company of its intent to exercise such option along with
a proposal on all other material terms. The Purchase Agreements contain customary representations and warranties as well as certain operating covenants applicable to the
Company until the Closing. Additionally, the shares are subject to a lock-up provision restricting the sale or disposition of the shares for a period of six-months following the
Closing and a standstill provision prohibiting certain actions by CGP and Sirtex during the Option Period. In addition, upon the Closing, the Stockholders Agreements and
Registration Rights Agreements between the Company and each of CGP and Sirtex will become effective (all described further below).
License Agreement
Concurrently with the execution and delivery of the Purchase Agreements, the Company and CGP entered into a License Agreement (the “License Agreement”), which
will become effective upon the earlier of (a) the Closing and (b) the termination of the applicable Purchase Agreement by the Company (other than due to CGP’s material
breach). Pursuant to the License Agreement, the Company, among other things, granted CGP and its affiliates an exclusive, sublicensable, royalty-bearing license to develop,
manufacture, commercialize, or otherwise exploit the Company’s current and future products, including TAVO™ and the Company’s new Visceral Lesion Applicator (“VLA”),
in the following territories: China Mainland, Hong Kong, Macau, Taiwan, Armenia, Azerbaijan, Bahrain, Bangladesh, Bhutan, Brunei, Burma, Cambodia, East Timor, Georgia,
India, Indonesia, Jordan, Kazakhstan, Kuwait, Kyrgyzstan, Laos, Malaysia, Mongolia, Nepal, Oman, Pakistan, Papua New Guinea, Philippines, Qatar, Saudi Arabia, Singapore,
South Korea, Sri Lanka, Tajikistan, Thailand, Turkmenistan, United Arab Emirates, Uzbekistan and Vietnam (the “Territory”). Under the terms of the License Agreement, CGP
will pay the Company up to 20% royalties on the net sales (as defined in the License Agreement) of such products in the Territory during the applicable Royalty Term (as
defined in the License Agreement).
F-31
Services Agreement
In addition, the Company and Sirtex entered into a Services Agreement (the “Services Agreement”) which will become effective upon the earlier of (a) the Closing and
(b) the termination of the applicable Purchase Agreement by the Company (other than due to Sirtex’s material breach). Pursuant to the Services Agreement, the Company
agreed, among other things, to pay Sirtex low single-digit royalties on the Net Sales (as defined in the Services Agreement) of all Products (defined as TAVO and VLA products
and their accompanying generators, and any products (including, for clarity, combination products) incorporating or including such products and their accompanying
generators), in all countries other than those in the Territory. In exchange for the royalty fee, Sirtex will provide the Company with certain services for these products, including
key opinion leader management and engagement services, voice of customer (VOC) services, development of a go to market strategy, and pricing, reimbursement and market
access services.
Stockholder Agreements
Concurrently with the execution and delivery of the Purchase Agreements, the Company, CGP, and Sirtex entered into Stockholders Agreements (the “Stockholders
Agreements”), to be effective upon the Closing, pursuant to which, among other things, CGP and Sirtex will have the option to nominate a combined total of three (3) members
to the Board of Directors, initially at the Closing, and thereafter at every annual meeting of the stockholders of the Company in which directors are generally elected, including
at every adjournment or postponement thereof. CGP will also have the option to nominate two (2) independent directors to the Company’s Board of Directors if any
independent director currently serving on the Board of Directors ceases to serve as a director of the Company for any reason, provided that the independent director nominee
shall be satisfactory to a majority of the independent directors of the Company. If either CGP or Sirtex beneficially owns less than 40% of the shares acquired pursuant to the
Purchase Agreements, either (as applicable) shall have the right to nominate members to the Board of Directors in proportion with their ownership of the issued and outstanding
common stock.
In addition, CGP and Sirtex will have certain rights of participation in future financings as well as a right of first refusal related to future potential transactions. The
Stockholders Agreements implement a 70% supermajority approval by the Board of Directors for certain actions, as well as stockholder consent rights for CGP, all of which are
conditioned upon CGP and Sirtex maintaining certain ownership thresholds.
Registration Rights Agreements
Concurrently with the execution and delivery of the Purchase Agreements, the Company, CGP, and Sirtex agreed to enter, upon closing, Registration Rights
Agreements (the “Registration Rights Agreements”), pursuant to which, among other things, CGP and Sirtex will each have the right to deliver to the Company a written notice
requiring the Company to prepare and file with the Securities and Exchange Commission (the “SEC”), a registration statement with respect to resales of shares of some or all the
common stock of the Company held by CGP and Sirtex.
Amendment to Articles of Incorporation
On September 6, 2019, the Company filed with the Secretary of State of the State of Nevada an amendment to its Certificate of Incorporation increasing the number of
shares of common stock that the Company is authorized to issue from 16,000,000 shares of common stock, par value $0.0001 per share, to 26,000,000 shares of common stock,
par value $0.0001 per share.
On October 7, 2019, the Company’s Board of Directors approved an amendment to its Articles of Incorporation (the “Amendment”) to, among other things, increase
the number of shares of common stock authorized for issuance to 30,000,000 shares. Pursuant to the Amendment, the total number of authorized common shares will increase
from 26,000,000 to 30,000,000 shares. The increase in authorized shares is subject to stockholder approval.
Subsequent to July 31, 2019, shares of common stock issued to executives and employees related to vested RSU’s totaled 4,198.
Subsequent to July 31, 2019, shares of common stock issued to consultants for services totaled 35,687.
F-32
ITEM 16. FORM 10-K SUMMARY
The Company has elected not to provide summary information.
67
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
SIGNATURES
Date: October 25, 2019
ONCOSEC MEDICAL INCORPORATED
By:
/s/ Daniel J. O’Connor
Daniel J. O’Connor
President and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant in the
capacities and on the dates indicated.
SIGNATURE
/s/ Daniel J. O’Connor
Daniel J. O’Connor, J.D.
/s/ Sara M. Bonstein
Sara Bonstein
/s/ Avtar Dhillon
Dr. Avtar Dhillon
/s/ Margaret Dalesandro
Margaret Dalesandro, PhD
/s/ James DeMesa
Dr. James DeMesa
/s/ Joon Kim
Joon Kim
/s/ Punit Dhillon
Punit Dhillon
/s/ Robert Ward
Robert Ward
TITLE
DATE
President, Chief Executive Officer and Director
October 25, 2019
Chief Financial Officer and Chief Operating Officer
October 25, 2019
Chairman of the Board
October 25, 2019
Director
Director
Director
Director
Director
68
October 25, 2019
October 25, 2019
October 25, 2019
October 25, 2019
October 25, 2019
Exhibit
Number
EXHIBIT INDEX
Description of Exhibit
3.1
Articles of Incorporation of OncoSec Medical Incorporated, as amended (incorporated by reference to our Annual Report on Form 10-K, filed on October 25,
2017.)
3.2 Amended and Restated Bylaws (incorporated by reference to our Current Report on Form 8-K, filed on March 6, 2012)
3.3
Certificate of Change to amend the Articles of Incorporation of OncoSec Medical Incorporated, as filed with the Nevada Secretary of State on May 20, 2019
(incorporated by reference to Exhibit 3.1 on our Current Report on Form 8-K, filed on May 20, 2019)
3.4* Certificate of Change to amend the Articles of Incorporation of OncoSec Medical Incorporated, as filed with the Nevada Secretary of State on September 6, 2019
4.1 Form of Common Stock Purchase Warrant (incorporated by reference to our Current Report on Form 8-K, filed on December 19, 2012)
4.2 Form of Common Stock Purchase Warrant (incorporated by reference to our Current Report on Form 8-K, filed on September 19, 2013)
4.3 Form of Common Stock Purchase Warrant (incorporated by reference to our Current Report on Form 8-K, filed on June 5, 2014)
4.4 Form of Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.1 of our Current Report on Form 8-K, filed on November 5, 2015)
4.5 Form of Series A Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.1 of our Current Report on Form 8-K, filed on May 24, 2016)
4.6 Form of Series B Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.2 of our Current Report on Form 8-K, filed on May 24, 2016)
4.7 Form of Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.1 of our Current Report on Form 8-K, filed on October 24, 2017)
4.8 Form of Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.1 of our Current Report on Form 8-K, filed on October 26, 2017)
4.9 Form of Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.1 of our Current Report on Form 8-K, filed on November 13, 2017)
4.10 Form of Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.2 of our Current Report on Form 8-K, filed on November 13, 2017)
4.11 Form of Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.1 of our Current Report on Form 8-K, filed on May 23, 2019)
4.12 Form of Indenture (incorporated by reference to Exhibit 4.1 of Form S-3, filed on August 23, 2019)
4.13 Form of Registration Rights Agreement (incorporated by reference to Exhibit 4.1 of our Current Report on Form 8-K, filed on October 11, 2019)
4.14 Form of Registration Rights Agreement (incorporated by reference to Exhibit 4.2 of our Current Report on Form 8-K, filed on October 11, 2019)
10.1†
Cross-License Agreement, dated March 24, 2011 by and between OncoSec Medical Incorporated and Inovio Pharmaceuticals, Inc. (incorporated by reference to
our Quarterly Report on Form 10-Q, filed on June 14, 2011)
10.2# Employment Agreement with Punit Dhillon dated May 18, 2011 (incorporated by reference to our Quarterly Report on Form 10-Q, filed on June 14, 2011)
10.3# Form of Indemnification Agreement (incorporated by reference to our Current Report on Form 8-K, filed on October 29, 2015)
10.4#
Executive Employment Agreement, effective July 6, 2015, by and between the Company and Richard Slansky (incorporated by reference to our Quarterly Report
on Form 10-Q, filed on December 8, 2015)
69
Exhibit
Number
Description of Exhibit
10.5
Lease Agreement, dated December 31, 2014, by and between the Company and ARE-SD Region No. 18, LLC (incorporated by reference to Exhibit 10.1 of our
Current Report on Form 8-K, filed on January 2, 2015)
10.6
Securities Purchase Agreement, dated as of November 3, 2015, by and among the Company and signatories thereto (incorporated by reference to Exhibit 10.1 of
our Current Report on Form 8-K, filed on November 5, 2015)
10.7
Placement Agency Agreement, dated as of November 3, 2015, by and between the Company and H.C. Wainright & Co., LLC (incorporated by reference to
Exhibit 10.2 of our Current Report on Form 8-K, filed on November 5, 2015)
10.8
Securities Purchase Agreement, dated as of May 22, 2016, by and among the Company and signatories thereto (incorporated by reference to Exhibit 10.1 of our
Current Report on Form 8-K, filed on May 24, 2016)
10.9
Placement Agency Agreement, dated as of May 22, 2016, by and between the Company and H.C. Wainwright & Co., LLC (incorporated by reference to Exhibit
10.2 our Current Report on Form 8-K, filed on May 24, 2016)
10.10†
Clinical Trial Collaboration and Supply Agreement, dated as of May 10, 2017, by and between the Company and MSD International GmbH (incorporated by
reference to Exhibit 10.11 of our Current Report on Form 10-Q, filed on June 13, 2018)
10.11
Securities Purchase Agreement, dated October 22, 2017, by and between the Company and each purchaser named therein (incorporated by reference to Exhibit
10.1 of our Current Report on Form 8-K, filed on October 24, 2017)
10.12
Engagement Letter, dated October 20, 2017, by and between the Company and H.C. Wainwright & Co., LLC (incorporated by reference to Exhibit 10.2 of our
Current Report on Form 8-K, filed on October 24, 2017)
10.13
Securities Purchase Agreement, dated October 25, 2017, by and between the Company and the purchaser named therein (incorporated by reference to Exhibit 10.1
of our Current Report on Form 8-K, filed on October 26, 2017)
10.14#
Executive Employment Agreement, dated November 7, 2017, by and between the Company and Daniel J. O’Connor (incorporated by reference to Exhibit 10.1 of
our Current Report on Form 8-K, filed on November 9, 2017)
10.15#
Amended and Restated Executive Employment Agreement, dated November 7, 2017, by and between the Company and Punit Dhillon (incorporated by reference
to Exhibit 10.2 of our Current Report on Form 8-K, filed on November 9, 2017)
10.16#
Stock Option Award Agreement, dated November 7, 2017, by and between the Company and Daniel J. O’Connor (incorporated by reference to Exhibit 10.3 of
our Current Report on Form 8-K, filed on November 9, 2017)
10.17#
Stock Option Award Agreement, dated November 7, 2017, by and between the Company and Daniel J. O’Connor (incorporated by reference to Exhibit 10.4 of
our Current Report on Form 8-K, filed on November 9, 2017)
70
Exhibit
Number
Description of Exhibit
10.18
Form of Warrant Exercise Agreement, dated November 13, 2017, by and between the Company and such holder named therein (incorporated by reference to
Exhibit 10.1 of our Current Report on Form 8-K, filed on November 13, 2017)
10.19#
OncoSec Medical Incorporated 2011 Stock Incentive Plan, as amended and restated, dated January 12, 2018 (incorporated by reference to Exhibit 10.1 of our
Current Report on Form 8-K, filed on January 12, 2018)
10.20
Assignment of Lease, dated March 9, 2018, by and between OncoSec Medical Incorporated and Vividion Therapeutics, Inc. (incorporated by reference to Exhibit
10.1 of our Current Report on Form 8-K, filed on March 22, 2018)
10.21
Sublease, dated March 9, 2018, by and between OncoSec Medical Incorporated and Vividion Therapeutics, Inc. (incorporated by reference to Exhibit 10.3 of our
Current Report on Form 10-Q, filed on June 13, 2018)
10.22#
Confidential Separation Agreement, dated May 2, 2018, by and between OncoSec Medical Incorporated and Punit S. Dhillon (incorporated by reference to
Exhibit 10.4 of our Current Report on Form 10-Q, filed on June 13, 2018)
10.23
Clinical Trial Collaboration and Supply Agreement between OncoSec Medical Incorporated and Merck dated May 8, 2018 (incorporated by reference to Exhibit
10.5 of our Current Report on Form 10-Q, filed on June 13, 2018)
10.24#
Executive Employment Agreement, dated July 16, 2018, by and between the Company and Sara M. Bonstein (incorporated by reference to Exhibit 10.1 of our
Current Report on Form 8-K, filed on July 16, 2018)
10.25
Purchase Agreement, dated February 1, 2018, between OncoSec Medical Incorporated and Piper Jaffray & Co., as representatives of the several underwriters
named therein (incorporated by reference to Exhibit 1.1 of our Current Report on Form 8-K filed on February 1, 2018)
10.26
Stock Purchase Agreement, dated as of August 31, 2018, between OncoSec Medical Incorporated and Alpha Holdings, Inc. (incorporate by reference to Exhibit
10.1 on our Current Report on Form 8-K filed on August 31, 2018)
10.27
Lease Agreement, dated February 14, 2018, between OncoSec Medical Incorporated and Mawlt Incorporated (incorporated by reference to Exhibit 10.27 on our
Current Report on Form 10-K, filed on October 19, 2018)
10.28
Common Stock Purchase Agreement, dated March 29, 2019, between OncoSec Medical Incorporated and Aspire Capital Fund, LLC (incorporated by reference to
Exhibit 10.1 of our Current Report on Form 8-K, filed on March 29, 2019)
10.29
OncoSec Medical Incorporated Change in Control Plan, effective as of June 7, 2019 (incorporated by reference to Exhibit 10.1 of our Current Report on Form 8-
K, filed on June 10, 2019)
10.30 Stock Purchase Agreement, dated as of October 10, 2019 (incorporated by reference to Exhibit 10.1 of our Current Report on Form 8-K, filed on October 11, 2019
10.31 Stock Purchase Agreement, dated as of October 10, 2019 (incorporated by reference to Exhibit 10.2 of our Current Report on Form 8-K, filed on October 11, 2019
10.32+ License Agreement, dated as of October 10, 2019 (incorporated by reference to Exhibit 10.3 of our Current Report on Form 8-K, filed on October 11, 2019)
10.33+ Service Agreement, dated as of October 10, 2019 (incorporated by reference to Exhibit 10.4 of our Current Report on Form 8-K, filed on October 11, 2019)
10.34 Stockholder Agreement, dated as of October 10, 2019 (incorporated by reference to Exhibit 10.5 of our Current Report on Form 8-K, filed on October 11, 2019)
10.35 Stockholder Agreement, dated as of October 10, 2019 (incorporated by reference to Exhibit 10.6 of our Current Report on Form 8-K, filed on October 11, 2019)
21.1 Subsidiaries of the registrant (incorporated by reference to Exhibit 21.1 of our Annual Report on Form 10-K/A, filed on November 28, 2017)
23.1* Consent of Independent Registered Public Accounting Firm, Mayer Hoffman McCann P.C.
31.1* Certification of Chief Executive Officer pursuant to Rules 13a-14 and 15d-14 promulgated under the Securities Exchange Act of 1934
31.2* Certification of Chief Financial Officer pursuant to Rules 13a-14 and 15d-14 promulgated under the Securities Exchange Act of 1934
32.1* Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
32.2* Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
101.INS* XBRL Instant Document
101.SCH* XBRL Taxonomy Extension Schema Document
101.CAL* XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF* XBRL Taxonomy Extension Definition Linkbase Document
101.LAB* XBRL Taxonomy Extension Label Linkbase Document
101.PRE XBRL Taxonomy Extension Presentation Linkbase Document
* Filed herewith.
** Furnished herewith.
# Management contract or compensatory plan or arrangement.
† Confidential treatment has been granted or requested with respect to portions of this exhibit pursuant to Rule 24b-2 of the Securities Exchange Act of 1934 and these
confidential portions have been redacted from the filing that is incorporated by reference. A complete copy of this exhibit, including the redacted terms, has been separately
filed with the Securities and Exchange Commission.
+ Certain confidential portions of this exhibit have been omitted pursuant to Item 601(b) of Regulation S-K.
71
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
As independent registered public accountants, we hereby consent to the incorporation by reference in Registration Statement No. 333-233447 on Form S-3, Registration
Statement No. 333-213036 on Form S-3, Registration Statement No. 333-227910 on Form S-8, Registration Statement No. 333-224186 on Form S-8, Registration Statement
No. 333-218674 on Form S-8, Registration Statement No. 333-197678 on Form S-8, Registration Statement No. 333-194570 on Form S-8, Registration Statement No. 333-
192995 on Form S-8, Registration Statement No. 333-188726 on Form S-8, Registration Statement No. 333-176537 on Form S-8, Registration Statement No. 333-202752 on
Form S-8, Registration Statement No. 333-209154 on Form S-8, and Registration Statement No. 333-209948 on Form S-8, of our report dated October 25, 2019, with respect to
the consolidated financial statements of OncoSec Medical Incorporated for each of the years in the two year period ended July 31, 2019, included in this Annual Report on
Form 10-K of OncoSec Medical Incorporated for the year ended July 31, 2019.
/s/ Mayer Hoffman McCann P.C.
San Diego, California
October 25, 2019
Exhibit 31.1
I, Daniel J. O’Connor, certify that:
1.
I have reviewed this Annual Report on Form 10-K of OncoSec Medical Incorporated;
CERTIFICATIONS
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 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in
which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the
disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the
registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal
control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors
and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely
affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial
reporting.
October 25, 2019
/s/ Daniel J. O’Connor
Daniel J. O’Connor
President & Chief Executive Officer
Exhibit 31.2
I, Sara M. Bonstein, certify that:
1.
I have reviewed this Annual Report on Form 10-K of OncoSec Medical Incorporated;
CERTIFICATIONS
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 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in
which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the
disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the
registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal
control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors
and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely
affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial
reporting.
October 25, 2019
/s/ Sara M. Bonstein
Sara Bonstein
Chief Financial Officer & Chief Operating Officer
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.1
The undersigned, Daniel J. O’Connor, President & Chief Executive Officer of OncoSec Medical Incorporated (the “Company”) hereby certifies pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)
the Annual Report on Form 10-K of the Company for the period ended July 31, 2019 (the “Report”) fully complies with the requirements of Section 13(a) or Section
15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: October 25, 2019
By:
/s/ Daniel J. O’Connor
Daniel J. O’Connor
President & Chief Executive Officer
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.2
The undersigned, Sara M. Bonstein, Chief Financial Officer and Chief Operating Officer of OncoSec Medical Incorporated (the “Company”) hereby certifies pursuant
to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)
the Annual Report on Form 10-K of the Company for the period ended July 31, 2019 (the “Report”) fully complies with the requirements of Section 13(a) or Section
15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: October 25, 2019
By:
/s/ Sara M. Bonstein
Sara M. Bonstein
Chief Financial Officer & Chief Operating Officer