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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
☒
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2024
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 001-38293
SCPHARMACEUTICALS INC.
(Exact name of registrant as specified in its Charter)
Delaware
46-5184075
(State or other jurisdiction of
incorporation or organization)
(I.R.S. Employer
Identification No.)
25 Mall Road, Suite 203
Burlington, Massachusetts
01803
(Address of principal executive offices)
(Zip Code)
Registrant’s telephone number, including area code: (617) 517-0730
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common stock, par value $0.0001
SCPH
The Nasdaq Global Select Market
Securities registered pursuant to Section 12(g) of the Act:
None
(Title of class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. YES ☐ NO ☒
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. YES ☐ NO ☒
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12
months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YES ☒ NO ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T
(§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). YES ☒ NO ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth
company. See 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
☐
Accelerated filer
☐
Non-accelerated filer
☒
Smaller reporting company
☒
Emerging growth company
☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the
effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by
the registered public accounting firm that prepared or issued its audit report. ☐
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the
correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the
registrant’s executive officers during the relevant recovery period pursuant to § 240.10D-1(b). ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). YES ☐ NO ☒
The aggregate market value of the registrant’s voting and non-voting common equity held by non-affiliates of the registrant computed by reference to the price at which the
common equity was last sold as of the last business day of the registrant’s most recently completed second fiscal quarter (June 28, 2024) was $118,269,088. The number of
shares of the registrant’s common stock, par value $0.0001 per share, outstanding as of March 18, 2025 was 50,283,925.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant’s definitive proxy statement relating to its 2025 Annual Meeting of Stockholders, to be filed with the Securities and Exchange Commission within 120
days after the end of fiscal year ended December 31, 2024, are incorporated herein by reference in Part III.
i
Table of Contents
Page
PART I
Item 1.
Business
3
Item 1A.
Risk Factors
22
Item 1B.
Unresolved Staff Comments
74
Item 1C.
Cybersecurity
74
Item 2.
Properties
75
Item 3.
Legal Proceedings
76
Item 4.
Mine Safety Disclosures
76
PART II
Item 5.
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
77
Item 6.
Reserved
77
Item 7.
Management’s Discussion and Analysis of Financial Condition and Results of Operations
78
Item 7A.
Quantitative and Qualitative Disclosures About Market Risk
88
Item 8.
Financial Statements and Supplementary Data
89
Item 9.
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
118
Item 9A.
Controls and Procedures
118
Item 9B.
Other Information
119
Item 9C.
Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
119
PART III
Item 10.
Directors, Executive Officers and Corporate Governance
120
Item 11.
Executive Compensation
120
Item 12.
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
120
Item 13.
Certain Relationships and Related Transactions, and Director Independence
120
Item 14.
Principal Accounting Fees and Services
120
PART IV
Item 15.
Exhibits, Financial Statement Schedules
121
Item 16.
Form 10-K Summary
123
1
Summary Risk Factors
Our business is subject to numerous risks and uncertainties that you should be aware of in evaluating our business. The principal risks and
uncertainties affecting our business include, but are not limited to, the following:
•
We are heavily dependent on the success of our product candidates and our approved product, FUROSCIX® (furosemide injection).
We have only one approved product and we cannot give any assurance that we will receive regulatory approval for any other
product candidates, which is necessary before they can be commercialized.
•
If we fail to produce FUROSCIX in the volumes that we require on a timely basis, we may face delays in our commercialization
efforts.
•
The commercial success of FUROSCIX and any other product candidates, if approved, depends upon attaining market acceptance
by hospital networks, physicians, patients, third-party payers and the medical community.
•
If we are unable to expand our sales and marketing capabilities or continue to enter into agreements with third parties to market and
sell FUROSCIX, we may be unable to generate substantial revenue.
•
We have a limited operating history and no history of commercializing pharmaceutical products, which may make it difficult to
evaluate the prospects for our future success.
•
We have a history of significant operating losses and expect to incur significant and increasing losses for the foreseeable future; we
may never achieve or maintain profitability.
•
We may need additional funding and may be unable to raise capital when needed, which would force us to delay, reduce or
eliminate our product development programs or commercialization efforts.
•
Our success depends on our ability to manufacture, or the ability of third parties to deliver, sufficient quantities of supplies,
components and drug product for commercialization of FUROSCIX or any of our product candidates, if approved, including our
ability to monitor quality control issues related to the production of FUROSCIX and on-body infusors in the volumes that will be
required on a timely basis.
•
Our success depends on our ability to protect our intellectual property and proprietary technology, as well as the ability of our
collaborators to protect their intellectual property and proprietary technology.
•
If we fail to comply with our obligations under our existing and any future intellectual property license with third parties, we could
lose license rights that are important to our business.
•
We may be subject to product liability lawsuits related to our product candidates, if approved, which could divert our resources,
result in substantial liabilities and reduce the commercial potential of our products and product candidates.
•
Our failure to successfully identify, develop and market additional product candidates could impair our ability to grow.
•
We depend heavily on our executive officers, directors and principal consultants and the loss of their services would materially harm
our business.
The risks summarized above should be read together with the text of the full risk factors set forth in Part I, Item 1A. “Risk Factors” and in the
other information set forth in this Annual Report on Form 10-K, including our consolidated financial statements and the related notes, as well
as in other documents that we file with the SEC. If any such risks and uncertainties actually occur, our business, prospects, financial
condition and results of operations could be materially and adversely affected. The risks summarized above or described in full below are not
the only risks that we face.
2
FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K contains express or implied forward-looking statements within the meaning of the safe harbor provisions of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, or the
Exchange Act. All statements other than statements of historical fact contained in this Annual Report are forward-looking statements,
including, but not limited to, statements about the marketing and commercialization of FUROSCIX, including regarding the estimated market
size and opportunity for FUROSCIX in the United States in patients with chronic heart failure and CKD, the timing or likelihood of regulatory
filings and approvals, including the planned supplemental new drug application for the autoinjector, our plans to develop and commercialize
our product candidates, the success, cost and timing of our ongoing or planned clinical trials, the clinical utility of FUROSCIX or our product
candidates, expectations surrounding the pricing, reimbursement or pharmacoeconomic benefit of FUROSCIX, expectations surrounding
manufacturing capabilities and supply chain matters, our commercialization capabilities and strategy, the sufficiency of our cash, cash
equivalents and short-term investments and our ability to raise additional capital to fund our operations, our future financial performance, the
anticipated impact of general economic conditions on our business, and the plans and objectives of management for future operations,
capital needs and capital expenditures. In some cases, forward-looking statements can be identified by terminology such as “may,” “will,”
“should,” “expects,” “intends,” “plans,” “anticipates,” “believes,” “estimates,” “predicts,” “potential,” “continue” or the negative of these terms or
other comparable terminology.
The forward-looking statements in this Annual Report on Form 10-K are only predictions. We have based these forward-looking statements
on our management’s beliefs and assumptions and on information currently available to our management. Although we believe that the
expectations reflected in these forward-looking statements are reasonable, you should not place undue reliance on forward-looking
statements because they relate to future events or our future operational or financial performance, and involve known and unknown risks,
uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future
results, performance or achievements expressed or implied by these forward-looking statements. Important factors that may cause actual
results to differ materially from current expectations include those described under Part I, Item 1A. “Risk Factors” in this Annual Report on
Form 10-K. If one or more of these risks or uncertainties occur, or if our underlying assumptions prove to be incorrect, actual events or
results may vary significantly from those implied or projected by the forward-looking statements. No forward-looking statement is a guarantee
of future performance. While we may elect to update these forward-looking statements at some point in the future, we have no current
intention of doing so except to the extent required by applicable law. You should therefore not rely on these forward-looking statements as
representing our views as of any date subsequent to the date of this Annual Report on Form 10-K.
As used in this Annual Report on Form 10-K, unless otherwise stated or the context requires otherwise, references to “scPharmaceuticals
Inc.,” the “Company,” “we,” “us,” and “our,” refer to scPharmaceuticals Inc. and its subsidiary on a consolidated basis.
3
PART I
Item 1. Business.
OVERVIEW
We are a pharmaceutical company committed to revolutionizing cardiorenal healthcare through patient-centric innovations while developing
and commercializing products that have the potential to optimize the delivery of infused therapies, advance patient care and reduce
healthcare costs. Our strategy is to develop therapies for subcutaneous administration that have previously been limited to intravenous, or IV,
delivery. By moving delivery away from the high-cost healthcare settings typically required for IV administration, we believe our strategy has
the potential to reduce overall healthcare costs and advance the quality and convenience of care. Our approved product, FUROSCIX,
consists of our novel formulation of furosemide delivered via West Pharmaceutical Services, Inc.'s, or West’s, on-body infusor, which delivers
an 80 mg/10 mL dose over 5 hours. On October 10, 2022, we announced that the U.S. Food and Drug Administration, or FDA, approved
FUROSCIX for the treatment of congestion due to fluid overload in adults with New York Heart Association, or NYHA, Class II/III chronic
heart failure. Subsequently, we announced the approval of our supplemental drug application expanding the FUROSCIX indication in heart
failure on August 9, 2024 to include NYHA Class IV heart failure patients. FUROSCIX is the first and only FDA-approved subcutaneous loop
diuretic that delivers IV equivalent diuresis at home. IV equivalence was established in a clinical study in which FUROSCIX demonstrated
99.6% bioavailability (90% CI: 94.8%-104.8%) and 8-hour urine output of 2.7 L which was similar to subjects receiving intravenous
furosemide. The commercial launch of FUROSCIX for congestion in patients with chronic heart failure commenced in the first quarter of
2023.
In May 2024, we submitted an supplemental New Drug Application (sNDA), seeking to expand the indication of FUROSCIX to include the
treatment of edema due to fluid overload in adult patients with chronic kidney disease (CKD).The FDA had previously confirmed that no
additional clinical studies would be needed to expand the indication to CKD, provided that we can demonstrate an adequate
pharmacokinetic/pharmacodynamic (PK/PD) bridge to the listed drug, furosemide injection, 10mg/mL. The application was accepted for filing
by the FDA in July 2024 and approved on March 6, 2025. We anticipate formally launching the product in April 2025.
On October 7, 2024, we were notified that the FDA awarded 3-year exclusivity to FUROSCIX on the basis of clinical investigations conducted
by the Company that were essential to approval. As a result, the FDA may not approve a subsequent product for subcutaneous
administration of furosemide for 3 years from the date of approval of FUROSCIX, or October 7, 2025.
We are developing an 80mg/1mL autoinjector intended to provide an additional option to the on-body infusor for treatment of fluid overload in
eligible adult patients who do not require hospitalization. We believe that the development of an autoinjector, if approved, has the potential to
significantly reduce manufacturing costs compared to the current on-body infusor and confer certain environmental advantages. We
submitted an investigational new drug application (IND) in February 2024, initiated a pharmacokinetic/pharmacodynamic PK/PD study in April
2024, and completed enrollment in May 2024 with positive data announced in August 2024. We plan to submit a sNDA for the autoinjector in
2025.
We estimate that there is a $12.5 billion total addressable market opportunity for FUROSCIX in the United States in patients with chronic
heart failure and CKD. We believe FUROSCIX will allow eligible patients with chronic heart failure and chronic kidney disease with worsening
symptoms due to fluid overload despite oral diuretics to receive IV-strength diuresis outside the high-cost hospital setting. At a price of
approximately $947 per dose, we estimate the average cost of treatment with FUROSCIX for each episode to be approximately $5,685,
which can be significantly lower than the cost of a single hospitalization for worsening heart failure. Prevention of heart failure hospital
admissions and reduced readmission rates would result in fewer days patients spend in the hospital each year. By decreasing the number of
heart failure admissions and readmissions to hospitals and shortening hospital length of stay by completing diuresis post-discharge at home,
we believe we can drive significant cost savings to payers and hospitals and improve patients’ quality of life through outpatient management
of their fluid overload.
In June 2024, the U.S. Patent and Trade Office granted us another patent for furosemide, further strengthening our coverage of concentrated
formulations of furosemide. We have progressed our development on multiple
4
formulations described in the patent properties, have identified potential product candidates, and commenced a clinical study with our lead
formulation.
OUR PLATFORM AND OTHER PIPELINE PROGRAMS
FUROSCIX to Treat Congestion in Patients with Heart Failure and Edema in Patients with Chronic Kidney Disease
Water is a primary constituent of the human body and is responsible for many physiological processes. The balance between fluid gains and
fluid losses is regulated through various mechanisms such as neural regulation of thirst, hormonal regulation (vasopressin and natriuretic
peptides), management through the skin, hemodynamic changes, and renal control of salt and water excretion. The primary function of the
kidney is to maintain physiologically optimal fluid, electrolyte, and metabolic acid-base homeostasis by removing waste products and excess
fluid through the production of urine.
Chronic diseases that can lead to reduced functionality of organs such as the heart and kidney can result in an impaired ability to adequately
regulate body water and electrolytes. When this occurs, fluid can begin to slowly accumulate in the vascular system and tissues leading to
symptoms such as weight gain, swelling, exercise intolerance, dyspnea and fatigue. Diuretics are drugs that pharmacologically tilt the
regulation of fluid in favor of the excretion of water and electrolytes by increasing the production and volume of urine and thus affecting water
homeostasis. Loop diuretics such as furosemide, are the cornerstone of therapy for managing fluid overload in patients with congestive heart
failure and chronic kidney disease.
Heart failure (HF) is a chronic clinical syndrome with signs and symptoms caused by a structural and/or functional cardiac abnormality and
corroborated by elevated natriuretic peptide levels and/or objective evidence of fluid overload manifesting as pulmonary or systemic
congestion. Congestion is the accumulation of fluid in the intravascular compartment or the interstitial space, resulting from increased cardiac
filling pressures caused by maladaptive sodium and water retention by the kidneys.
Chronic Kidney Disease is defined as abnormalities of kidney structure or function that result in a progressive, gradual decline in kidney
function over time which causes alterations in homeostasis that results in fluid overload and other complications. As kidney function declines,
fluid overload can occur which results in worsening symptoms. When the excess fluid accumulates in spaces surrounding the body’s tissues,
this is referred to as edema. Edema can occur anywhere in the body; however, it most commonly presents in the legs and feet, hands and
abdomen. The swelling that can build up in the legs and feet can become painful, making it difficult to walk. When excess fluid accumulates
in the chest or the lungs, it is referred to as pulmonary edema.
Furosemide, a loop diuretic that was developed in the 1960s that is typically administered either orally or intravenously, is one of the
mainstays in the treatment and prevention of signs and symptoms of fluid overload in patients with heart failure and kidney disease.
However, on average, only 50% of an orally administered dose of furosemide is absorbed through the gastrointestinal tract, but absorption
ranges from 10% to 100%, making it a matter of clinical judgment as to how much furosemide to dose in an individual patient, especially in
patients with HF where absorption can become even further reduced and highly variable. In the event of worsening symptoms due to fluid
overload, IV loop diuretics, which bypass the gastrointestinal tract, are often needed to effectively decrease the excess fluid overload and the
associated signs and symptoms and are typically administered either in a hospital or an infusion center, if available.
FUROSCIX is our novel formulation of furosemide contained in a pre-filled, Crystal Zenith® cartridge and self- administered subcutaneously
via a single-use, disposable and wearable on-body delivery system. The user inserts the pre-filled cartridge into the wearable device, secures
it to the abdomen via a medical-grade adhesive, and a subcutaneous infusion of FUROSCIX is administered through a pre-programmed,
biphasic delivery profile with 30 mg administered over the first hour, followed by 12.5 mg per hour for the subsequent 4 hours (a total dose of
80 mg (10 mL) over 5 hours).
We believe FUROSCIX therefore offers an alternative outpatient route of administration for certain furosemide patients with chronic heart
failure and could offer certain patients with chronic kidney disease to alleviate the signs and symptoms associated with fluid overload when
responsiveness to oral diuretics is reduced and hospitalization is not indicated. We believe FUROSCIX can potentially avoid unnecessary
hospitalizations and reduce the days per year that patients spend in the hospital and thus reduce overall health care costs and improve
patients’ quality of life.
5
Clinical and Commercial Development of FUROSCIX
On October 10, 2022, we announced that the FDA approved FUROSCIX for the treatment of congestion due to fluid overload in adults with
NYHA Class II/III chronic heart failure. Subsequently, we announced the approval of our supplemental drug application expanding the
FUROSCIX indication in heart failure on August 9, 2024 to include NYHA Class IV heart failure patients. FUROSCIX is not indicated for
emergency situations or in patients with acute pulmonary edema. FUROSCIX is a drug-device combination product and was approved
pursuant to Section 505(b)(2) of the Federal Food, Drug and Cosmetic Act, or FDCA, in reliance on the FDA’s previous findings of safety
and efficacy for the Listed Drug Furosemide (Injection, USP, 10 mg/mL; NDA 18667; Hospira, Inc.), which is indicated for intravenous (IV)
and intramuscular (IM) injection for the treatment of edema in adult patients with congestive heart failure, cirrhosis of the liver and renal
disease, including nephrotic syndrome. FUROSCIX is the first and only FDA-approved subcutaneous loop diuretic that delivers IV equivalent
diuresis at home.
In May 2024 we submitted an sNDA seeking to expand the indication of FUROSCIX to include the treatment of edema due to fluid overload
in adult patients with CKD. The FDA had previously confirmed that no additional clinical studies would be needed to expand the indication to
CKD, provided that we can demonstrate an adequate PK/PD bridge to the listed drug, furosemide injection, 10mg/mL. The application was
accepted for filing by the FDA in July 2024 and was approved on March 6, 2025. We anticipate formally launching the product in April 2025.
FUROSCIX is a novel, pH neutral formulation of furosemide that is administered via a subcutaneous infusion using a proprietary, wearable,
pre-programmed on-body drug delivery system. Other currently available furosemide injection products are alkaline, with a pH of 8.0 – 9.3.
Subcutaneous administration of IV/IM furosemide, USP formulation has been associated with local skin reactions, some severe, requiring
discontinuation of treatment and local treatment of the complication which has been attributed to the alkaline pH of the furosemide
formulation, volume of fluid administered and the rapid injection.
Pharmacokinetic/Pharmacodynamic (PK/PD) Study
We conducted a pivotal, randomized, open-label crossover study from April to September 2015 to assess the relative bioavailability of
FUROSCIX in 17 patients with heart failure. In this study, FUROSCIX was delivered subcutaneously via the B. Braun Perfusor Space
Infusion Pump. This study also evaluated diuresis and the urinary sodium excretion over eight hours and 24 hours post-dosing as the
pharmacodynamic endpoints.
Treatment arms
In this study, the reference treatment was IV furosemide with two bolus injections of 40 mg dosed over two minutes, two hours apart. Our test
treatment was FUROSCIX with 80 mg infused subcutaneously, with 30 mg over the first hour followed by 12.5 mg per hour over the
subsequent four hours.
Comparative pharmacokinetic results
This study demonstrated bioequivalence in the concentration of drug delivered over time based upon the area under the curve, or AUC,
between our subcutaneous formulation of furosemide and IV furosemide. Although the maximum concentration, or Cmax, of furosemide
achieved was four-fold higher with IV injection compared to subcutaneous infusion, the bioavailability of subcutaneous infusion relative to
intravenous injection was 99.6%, with a 90% confidence interval of 94.8% to 104.8%, thus meeting the FDA’s defined bioequivalence criteria
limit of 80% to 125%. We believe that the observed difference in Cmax between IV injection and subcutaneous furosemide is attributable to
the two bolus IV injections administered at the initiation of IV therapy. Nevertheless, the 5-hour infusion of FUROSCIX resulted in nearly
complete bioavailability compared to two bolus IV injections of furosemide.
Comparative pharmacodynamic results
Total mean urine outputs for subcutaneous versus IV administration were 102% (2654 mL vs 2641 mL; p = 0.83) and 103% (3630 mL vs
3538 mL; p = 0.71) at 8 and 24 hours, respectively. Total mean urine sodium excretion for subcutaneous versus IV administration were
97.3% (284 mmol vs 292 mmol; p = 0.78) and 97.4% (341 mmol
6
vs 350 mmol; p = 0.80), at 8 and 24 hours, respectively. The total urine sodium excretion and urine output were comparable between our
subcutaneous formulation of furosemide and IV furosemide.
FREEDOM-HF - Furoscix Real-World Evaluation for Decreasing Hospital Admissions in Heart Failure
FREEDOM-HF was a health economic study designed to support the commercial reimbursement of FUROSCIX. Further, this multicenter,
prospective adaptive clinical trial was designed to evaluate differences in heart failure and overall costs between subjects receiving
FUROSCIX outside the hospital and patients receiving intravenous furosemide in the hospital setting for 30-days after being discharged from
the emergency department. Differences in costs were determined from a propensity-matched control arm derived from Truven Health
Analytics Market Scan databases. The study was designed to enroll up to 75 subjects in the FUROSCIX cohort to detect a statistically
significant difference in 30-day overall and heart-failure related costs. The study began enrollment in the fourth quarter of 2020 and
completed enrollment in May 2021.
Based on the results from a planned, prespecified interim analysis conducted to confirm the final sample size, and following input from
statisticians, principal investigators, payer advisors and Health Economics and Outcomes Research experts, enrollment was closed prior to
the enrollment target of 34 patients. This decision was made due to the statistically significant reduction observed in 30-day heart failure-
related costs in patients who received FUROSCIX in the interim analysis. The final analysis included 24 subjects treated with FUROSCIX
and 66 matched comparators based on seven variables associated with hospitalization. On July 13, 2021, we announced preliminary top-line
results from FREEDOM-HF, demonstrating that average 30-day heart failure-related costs were reduced by $17,753 per study subject in the
FUROSCIX arm compared to historically matched comparators (p < 0.0001). In September 2021, we announced additional results from
FREEDOM-HF, demonstrating that average 30-day total healthcare costs were reduced by $30,568 per study subject in the FUROSCIX arm
compared to historically matched comparators (p < 0.0001). Since the price for FUROSCIX was not established at the time of study
completion, the difference in costs did not include the cost of FUROSCIX. These results support our hypothesis that treating heart failure
patients presenting to the emergency department with worsening congestion with FUROSCIX outside of the hospital setting has the potential
to dramatically reduce the significant costs associated with hospital admissions and readmissions.
We conducted an analysis of additional secondary endpoints in FREEDOM-HF which provided additional insights into the clinical
effectiveness of FUROSCIX. In this analysis, it was determined that patients who received FUROSCIX had a median reduction of heart
failure peptide biomarkers from study entry to first visit, and to last visit, of 42.3% and 28%, respectively (p <0.01). In addition, patients who
received FUROSCIX had a 12.8-point improvement in the Kansas City Cardiomyopathy Questionnaire (KCCQ-12) Summary Score 30 days
after study entry.
AT HOME-HF PILOT - Avoiding Treatment in the Hospital with Furoscix for the Management of Congestion in Heart Failure – A Pilot Study
AT-HOME-HF PILOT was a multicenter, randomized pilot clinical trial designed to evaluate the clinical outcomes and safety of FUROSCIX
compared to a “treatment as usual” approach in patients presenting to a heart failure clinic with chronic heart failure and fluid overload
requiring augmented diuretic therapy. The objective of this pilot study was to evaluate prospective endpoints that could inform the design
and sample size of a clinical trial that could be used to seek expansion of the indication for FUROSCIX to include a reduction of
hospitalizations for heart failure or inclusion in treatment guidelines. The primary endpoint was a 30-day hierarchal composite of
cardiovascular death, heart failure hospitalizations, emergency department visits for heart failure and % change of NT-proBNP at day seven
from baseline, utilizing the Finkelstein-Schoenfeld win ratio. The Finkelstein-Schoenfeld win ratio is a statistical method used to compare
composite outcomes for every pair in a clinical trial from the treatment and control group. Pre-defined secondary endpoints were evaluated
from baseline across the 30-day study period and included the number of days alive and heart failure event free, global assessment via
visual analog scale, composite clinical congestion score, 5- and 7-point Likert dyspnea scores, health-related quality of life measured by the
Kansas City Cardiomyopathy Questionnaire, or KCCQ-12, serum creatinine, weight, six-minute walk test and ReDS® (Remote Dielectric
Sensing) lung fluid measurement. The study compared FUROSCIX to a “treatment as usual” approach, was descriptive only and did not
include a powered statistical
7
hypothesis test. The study completed enrollment in the first quarter of 2022. The study enrolled 51 subjects, of which 34 received FUROSCIX
and 17 received “treatment as usual”.
In July 2022, we announced top-line results from the AT HOME-HF Phase 2 Pilot study demonstrating a positive trend in the Finkelstein-
Schoenfeld win ratio in the FUROSCIX group compared to the “treatment as usual” group across multiple analysis populations. Subjects
randomized to FUROSCIX had a 37% reduction in the risk of a heart failure hospitalization relative to patients randomized to “treatment as
usual” at day 30. All pre-defined secondary endpoints measuring symptoms of congestion, quality of life and functional status favored the
FUROSCIX group and included a two kilogram greater weight loss at day three and a 12-point increase in the KCCQ-12 summary score at
day 7 and day 30. There were 11 subjects that experienced 21 adverse events during the 30-day study period that were determined by the
investigator to be related to FUROSCIX. The most common related adverse event was infusion site pain that was mild in severity. There was
one serious adverse event (dehydration) that was assessed by the investigator as possibly related to FUROSCIX, which resolved. During the
30-day study period, there was one death (sudden cardiac death) in the FUROSCIX group which occurred on study day 30 and was
assessed by the investigator to be not related to FUROSCIX.
In September 2022, we announced that subjects in the AT HOME-HF study who received FUROSCIX demonstrated augmented
decongestion compared with patients receiving enhanced oral diuretics as demonstrated by:
•
Improved diuresis as measured by a greater reduction in body weight from baseline at study day 3 (2.8 kg vs 0.8 kg, p=0.035);
•
Improvement from baseline in mean 5-point dyspnea score at day 3 (-0.5 vs. 0.1, p=0.019);
•
Greater number of patients with markedly or moderately better shortness of breath based on 7-point dyspnea at day 3 (44% vs
6%, p=0.006);
•
Clinically relevant improvement from baseline in quality of life as measured by Kansas City Cardiomyopathy questionnaire – 12
(KCCQ-12) summary score at study days 7 and 30 of 8.9 points and 9.3 points, respectively; and
•
An increase of 55.8 meters in the average six-minute walk distance at day 30 (36.7 vs -19.1 meters, p=.012).
The win-ratio for the hierarchical endpoint of cardiovascular death, heart failure hospitalization, urgent ED/clinic visit for heart failure and the
percentage change in NT-proBNP from baseline at day seven was 1.11 (95% Confidence Interval: 0.48-2.50) favoring the FUROSCIX group.
During the 30-day study period, subjects in the FUROSCIX group spent an average of 23.2 days heart failure event free compared to 14.3 in
subjects receiving enhanced oral diuretics.
In the FUROSCIX group, 14.7% of subjects had a serum potassium level that was less than 3.5 mEq/L during the 30-day study and was
managed effectively with oral potassium supplements.
The results of the AT HOME-HF study showed that subjects receiving subcutaneous FUROSCIX demonstrated augmented decongestion, as
evidenced by a greater reduction in body weight, better dyspnea scores, greater exercise capacity and improvement of health-related quality
of life compared with patients receiving enhanced oral diuretics, or standard treatment, in a Phase 2 pilot study.
Commercialization
The commercial launch of FUROSCIX commenced in the first quarter of 2023. We have built our own commercial infrastructure to
commercialize FUROSCIX in the United States, which includes our own sales force, clinical education research liaison team, key account
managers, and national account manager team. We are focusing our commercial efforts on the United States market, which we believe
represents the largest market opportunity for FUROSCIX. In addition, we plan to seek collaborations with third-party partners outside of the
United States to distribute our products in foreign markets, if approved by the relevant foreign regulatory authorities.
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We are continuing to build a highly concentrated commercial infrastructure focused on distribution, promotion and customer support to
healthcare providers affiliated with our key hospital targets and in office-based practices. Our target call points within these hospitals and
practices include heart failure specialists, cardiologists, heart failure nurse practitioners and physician assistants focused in cardiology. Our
quantitative market research with 309 healthcare professionals has indicated that 93% of our target prescribers would adopt FUROSCIX,
with 80% intending to adopt FUROSCIX in the first six months of product availability. Furthermore, within the prescriber group of heart failure
specialists, cardiologists and nurse practitioners that we intend to target, the intent to adopt is 93%, 96% and 94%, respectively, and 89%,
88% and 86%, respectively, of those prescribers intend to adopt in the first six months of product availability. Since launch there have been
approximately 3,900 unique prescribers. Based on our market research and feedback from prescribers in the last year, healthcare
professionals perceive the top potential advantages of FUROSCIX as the ability to treat in the home setting, prevention of hospitalization,
and avoidance of IV placement, while the lowest perceived barriers to adoption identified in the survey were the preference to monitor in a
hospital setting, sufficiency of current medications and hospital guidelines or protocols. In addition, based on a last two patient exercise
conducted in our quantitative market research with healthcare professionals, when given the option to change their prior treatment choice to
FUROSCIX, 65% of healthcare practitioners in a clinic setting and 40% in a hospital setting responded that they would prescribe our product
candidate. We have supplemented our outside sales force with inside sales representatives and people in the medical science, nursing and
reimbursement fields to support the proper training and utilization of FUROSCIX.
As part of our commercialization strategy, we continue to educate hospitals, healthcare practitioners, patients and caregivers of the benefits
of FUROSCIX and its proper use. We continue to work with national associations, such as the Heart Failure Society of America and the
American Association of Heart Failure Nurses, hospital networks and individual office based specialists to update treatment workflows and
protocols to include subcutaneous furosemide outpatient treatment plans, both pre-hospitalization and post-discharge.
Eligible patients with heart failure may receive FUROSCIX at the initial worsening signs and symptoms when the response to oral diuretics is
not adequate. In addition, patients can receive FUROSCIX after discharge, if they still are exhibiting some signs and symptoms of
congestion despite their oral diuretic regimen. FUROSCIX is packaged as individual, single use only on-body infusor kits. The Centers for
Medicare and Medicaid Services, or CMS and their designated Plan sponsors are reimbursing FUROSCIX with prior authorization as a
Medicare Part D benefit for patients diagnosed with heart failure. It is not only a transition of care drug at discharge, but is also used before
hospitalization.
By educating patients on the proper use of FUROSCIX during face-to-face or virtual visits, before the need for hospitalization or shortly after
discharge, health care professionals can ensure proper training, initiate treatment at the point of care, and ensure that patients can receive
additional days of treatment in the home setting.
Our Pipeline Programs
SCP-111 (furosemide injection) 80mg/mL is an investigational pH neutral aqueous furosemide formulation that is being developed for
subcutaneous administration outside of the hospital setting, including patient self-administration in the home. The SCP-111 Autoinjector is an
investigational single-entity, drug-device combination product candidate consisting of a prefilled syringe containing SCP-111, preloaded into
a commercially available, fixed single dose, disposable, two step mechanical autoinjector. We submitted an investigational new drug
application (IND) in February 2024, initiated a PK/PD study in April 2024, and completed enrollment in May 2024 with data received in
August 2024. We plan to submit a sNDA for the autoinjector later in 2025.
Additional Product Programs
We are leveraging our know-how for use in other clinical settings where subcutaneous delivery can improve IV treatments to develop a suite
of product candidates that, like FUROSCIX, we believe can decrease the cost of treatment by moving treatment out of the hospital setting
and eliminating the need for IV catheters. In addition, we also intend to identify other opportunities in the cardiovascular and nephrology
therapeutic areas that can potentially improve patient outcomes and reduce healthcare costs. We intend to evaluate market criteria to
systematically choose potential product programs for our pipeline. We plan to look for product candidates that we believe allow us to clearly
demonstrate value to patients and the healthcare system and that have large market
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potential and a concentrated specialty physician prescribing base. We expect to leverage our FUROSCIX sales force to promote additional
products that we develop and commercialize.
Our FUROSCIX On-Body Infusor
The FUROSCIX On-Body Infusor is a drug-device combination product consisting of FUROSCIX (furosemide injection, 80 mg per 10 mL), a
novel, pH neutral furosemide formulation optimized for subcutaneous administration and contained in a prefilled, Crystal Zenith® cartridge,
and a proprietary wearable, pre-programmed on-body delivery system, the FUROSCIX On-Body Infusor, based on West's proprietary on-
body infusor. The FUROSCIX On-Body Infusor is applied to the abdomen via a medical grade adhesive and delivers a subcutaneous infusion
of FUROSCIX through a pre-programmed, biphasic delivery profile over 5 hours.
MANUFACTURE OF OUR PRODUCTS AND PRODUCT CANDIDATES
We use a network of qualified suppliers or contract manufacturing organizations, or CMOs, to produce, manufacture, sterilize and assemble
the component parts of FUROSCIX and our product candidates. Our suppliers produce these component parts to our designs and
specifications. Certain processes utilized in the manufacture and test of our product candidates have been verified and validated as required
by the FDA and other regulatory bodies. The manufacturing facilities of our suppliers are subject to periodic inspection by the FDA and
certain corresponding state agencies, and we regularly audit our suppliers’ processes in an effort to ensure conformity with the specifications,
policies and procedures for our product candidates.
Affordable, high-quality raw materials are essential to the manufacture of FUROSCIX. Due to their technical specifications, these
components may be more limited, as they are available from one or only a few suppliers. We mitigate potential risk in sourcing these
materials through inventory and supplier management.
We believe that our current third-party manufacturers have capacity of FUROSCIX in quantities sufficient to meet our expected commercial
needs and to accommodate the manufacturing of materials for future clinical trials of candidates in our pipeline.
We use Cardinal Health, Inc., or Cardinal, as our third party logistics provider. Cardinal receives FUROSCIX units directly from our final
packager and ships commercial units to our specialty pharmacy (SP) network which consists currently of three SPs. The SPs ship directly to
patients. Cardinal also ships directly on our behalf to integrated delivery networks (IDNs) for distribution to patients.
In order to meet projected global demand for FUROSCIX, we plan to support an increase in production capacity at West’s and our
pharmaceutical manufacturing partners' facilities.
INTELLECTUAL PROPERTY
Proprietary protection
Our commercial success depends in part on our ability to obtain and maintain proprietary protection for our drug candidates, manufacturing
and process discoveries and other know-how, to operate without infringing the proprietary rights of others, and to prevent others from
infringing on our proprietary rights. We and our partners have been building and continue to build our intellectual property portfolio relating to
our product candidates and technology. Our policy is to seek to protect our proprietary position by, among other methods, filing U.S. and
certain foreign patent applications related to our proprietary technology, inventions and improvements that are important to the development
and implementation of our business. We also intend to rely on trade secrets, know-how, continuing technological innovation, and potential in-
licensing opportunities to develop and maintain our proprietary position. We cannot be sure that patents will be granted with respect to any of
our pending patent applications or with respect to any patent applications filed by us in the future, nor can we be sure that any of our existing
patents or any patents that may be granted to us or our partners in the future will be commercially useful in protecting our technology.
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Patent rights
Patent life determination depends on the date of filing of the application and other factors as promulgated under the patent laws. In most
countries, including the United States, the patent term is generally 20 years from the earliest claimed filing date of a non-provisional patent
application in the applicable country.
Furosemide formulations
As of February 2, 2025, we own a patent family directed to the composition of matter of our subcutaneous formulation of furosemide and
methods of treating edema, hypertension or heart failure using the formulation of furosemide having a concentration of about 2 mg/mL to
about 20 mg/mL. This patent family includes U.S. Patent Nos. 9,884,039 and 11,433,044, directed to methods of treatment, U.S. Patent No.
10,272,064, directed to liquid pharmaceutical formulations, one pending U.S. patent application, one granted patent in each of Canada,
China and Europe, two granted patents in Japan, one pending patent application in Europe, and eight granted patents and two pending
patent applications in other countries outside of the United States. Patents that issue from this patent family are generally expected to expire
in 2034, excluding any additional term in the United States for patent term adjustment. U.S. Patent Nos. 9,884,039; 10,272,064; and
11,433,044 are scheduled to expire in April 2034.
We also own a patent family directed to compositions of matter of liquid pharmaceutical formulations containing an increased concentration
of furosemide and methods of treating congestion, edema, fluid overload, or hypertension using these formulations of furosemide. This
patent family includes U.S. Patent Nos. 11,497,755; 11,559,535; 11,571,434; and 12,048,709, directed to liquid pharmaceutical formulations,
five pending U.S. patent applications, one granted patent in each of China and Japan, one pending patent application in each of Canada,
China, Europe and Japan, and four granted patents and 10 pending patent applications in other countries outside of the United States.
Patents that issue from this patent family are generally expected to expire in 2040, excluding any additional term in the United States for
patent term adjustment. U.S. Patent Nos. 11,497,755; 11,559,535; and 11,571,434 are scheduled to expire in January 2040.
Trade secret and other protection
In addition to patented intellectual property, we also rely on trade secrets and proprietary know-how to protect our technology and maintain
our competitive position. We take necessary and reasonable steps to protect such trade secrets and know-how, as appropriate. For example,
our policy is to require each of our employees, consultants and advisors to execute a confidentiality and inventions assignment agreement
before beginning their employment, consulting or advisory relationship with us. The agreements generally provide that the individual must
keep confidential and not disclose to other parties any confidential information developed or learned by the individual during the course of the
individual’s relationship with us except in limited circumstances. These agreements generally also provide that we shall own all inventions
conceived by the individual in the course of rendering services to us.
Other intellectual property rights
We file trademark applications and pursue trademark registrations in the United States and abroad when appropriate. We own federal
trademark registrations in the United States, the European Union, and the United Kingdom for the marks SCPHARMACEUTICALS,
FUROSCIX, and SC2WEAR. We also own a pending federal trademark application in the United States for the mark FUROSCIX DIRECT &
Design.
From time to time, we may find it necessary or prudent to obtain licenses from third-party intellectual property holders.
COMPETITION
Our industry is characterized by rapidly advancing technologies, intense competition and a strong emphasis on proprietary products. We face
competition and potential competition from a number of sources, including pharmaceutical and biotechnology companies, generic drug
companies, drug delivery companies and academic and research institutions. Some of these companies are developing therapies that are
directly competitive to our approach, and others are more generally developing therapies to treat heart failure. These companies include but
are not limited to: Abbott Laboratories, Amgen, AstraZeneca, Bayer, Bioheart, Boston Scientific, Boehringer
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Ingelheim, Corstasis, GlaxoSmithKline, Johnson & Johnson, Eli Lilly and Company, Merck & Co., Medtronic, Novartis, Pfizer, Roche, Sanofi,
Sarfez Pharmaceuticals, Servier Pharmaceuticals, SQ Innovation and Takeda Pharmaceutical Company. We believe the key competitive
factors that will affect the development and commercial success of our product candidates include ease of administration and convenience of
dosing, therapeutic efficacy, safety and tolerability profiles and cost. Many of our potential competitors have substantially greater financial,
technical and human resources than we do, as well as more experience in the development of product candidates, obtaining FDA and other
foreign regulatory approvals of products, and the commercialization of those products. Consequently, our competitors may develop similar
products for the treatment of heart failure or for other indications we may pursue in the future, and such competitors’ products may be more
effective, better tolerated and less costly than our product candidates. Our competitors may also be more successful in manufacturing and
marketing their products than we are. We will also face competition in recruiting and retaining qualified personnel and establishing clinical
trial sites and patient enrollment in clinical trials.
GOVERNMENT REGULATION
Government authorities in the United States, at the federal, state and local level, and other countries extensively regulate, among other
things, the research, development, testing, manufacture, quality control, approval, labeling, packaging, storage, record-keeping, promotion,
advertising, distribution, marketing and export and import of products such as those we are developing.
U.S. drug development process
In the United States, the FDA regulates drugs, medical devices and drug-device combination products under the FDCA and its implementing
regulations. The process of obtaining regulatory approvals and the subsequent compliance with appropriate federal, state and local statutes
and regulations require the expenditure of substantial time and financial resources. The process required by the FDA before a drug may be
marketed in the United States generally involves the following:
•
completion of certain preclinical laboratory tests, animal studies and formulation studies in accordance with Good Laboratory
Practice regulations, or GLPs, and other applicable regulations;
•
submission to the FDA of an IND, which must become effective before human clinical trials may begin;
•
approval by an independent institutional review board, or IRB or ethics committee at each clinical site before each trial may be
initiated;
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performance of adequate and well-controlled human clinical trials in accordance with Good Clinical Practice regulations, or
GCPs, to evaluate the safety and efficacy of the product candidate for its intended use;
•
submission to the FDA of a new drug application (NDA) after completion of all pivotal trials;
•
satisfactory completion of an FDA advisory committee review, if applicable;
•
satisfactory completion of an FDA inspection of the manufacturing facility or facilities at which the drug is produced to assess
compliance with current Good Manufacturing Practice requirements, or cGMPs to assure that the facilities, methods and
controls are adequate to preserve the drug’s identity, strength, quality and purity, and of potential inspection of selected clinical
investigation sites to assess compliance with GCPs; and
•
FDA review and approval of the NDA to permit commercial marketing of the product for particular indications for use in the
United States.
Once a product candidate is identified for development, it enters the preclinical testing stage. Preclinical tests include laboratory evaluations
of product chemistry, toxicity and formulation, as well as animal studies. An IND sponsor must submit the results of the preclinical tests,
together with manufacturing information, analytical data and a proposed trial protocol, to the FDA as part of an IND. An IND is a request for
allowance from the FDA to administer an investigational drug product to humans. The IND automatically becomes effective 30 days after
receipt by the FDA, unless the FDA, within the 30-day time period, places the clinical trial on a clinical hold. In
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such a case, the IND sponsor and the FDA must resolve any outstanding concerns before the clinical trial can begin.
All clinical trials must be conducted under the supervision of one or more qualified investigators in accordance with GCPs, which include,
among other things, the requirement that all research subjects provide their informed consent in writing for their participation in any clinical
trial. Clinical trials must be conducted under protocols detailing the objectives of the trial, dosing procedures, subject selection and exclusion
criteria and the safety and effectiveness criteria to be evaluated. Each protocol must be submitted to the FDA as part of the IND, and a
separate submission to the existing IND must be made for each successive clinical trial conducted during product development and for any
subsequent protocol amendments. While the IND is active, progress reports summarizing the results of the clinical trials and nonclinical
studies performed since the last progress report, among other information, must be submitted at least annually to the FDA, and written IND
safety reports must be submitted to the FDA and investigators for serious and unexpected suspected adverse events, findings from other
studies suggesting a significant risk to humans exposed to the same or similar drugs, findings from animal or in vitro testing suggesting a
significant risk to humans, and any clinically important increased incidence of a serious suspected adverse reaction compared to that listed in
the protocol or investigator brochure.
Furthermore, an independent IRB at each institution participating in the clinical trial must review and approve each protocol before a clinical
trial commences at that institution and must also approve the information regarding the trial and the consent form that must be provided to
each trial subject or his or her legal representative, monitor the study until completed and otherwise comply with IRB regulations. The FDA or
the sponsor may suspend a clinical trial at any time on various grounds, including a finding that the research subjects or patients are being
exposed to an unacceptable health risk. Similarly, an IRB can suspend or terminate approval of a clinical trial at its institution if the clinical
trial is not being conducted in accordance with the IRB’s requirements or if the drug has been associated with unexpected serious harm to
patients. In addition, some clinical trials are overseen by an independent group of qualified experts organized by the sponsor, known as a
data safety monitoring board or committee. Depending on its charter, this group may determine whether a trial may move forward at
designated check points based on access to certain data from the trial. There are also requirements governing the reporting of ongoing
clinical studies and clinical study results to public registries, including clinicaltrials.gov.
Human clinical trials are typically conducted in three sequential phases that may overlap or be combined:
•
Phase 1: The product candidate is initially introduced into healthy human subjects and tested for safety, dosage tolerance,
absorption, metabolism, distribution and excretion and, if possible, to gain an early indication of its effectiveness.
•
Phase 2: The product candidate is administered to a limited patient population with a specified disease or condition to identify
possible adverse effects and safety risks, to preliminarily evaluate the efficacy of the product candidate for specific targeted
diseases and to determine dosage tolerance and appropriate dosage.
•
Phase 3: The product candidate is administered to an expanded patient population to further evaluate dosage, to provide
substantial evidence of efficacy and to further test for safety, generally at multiple geographically dispersed clinical trial sites.
These clinical trials are intended to establish the overall risk-benefit ratio of the product candidate and provide an adequate
basis for product labeling.
Post-approval trials, sometimes referred to as Phase 4 studies, may be conducted after initial marketing approval. These trials are used to
gain additional experience from the treatment of patients in the intended therapeutic indication. In certain instances, the FDA may mandate
the performance of Phase 4 clinical trials as a condition of approval of a NDA.
Concurrent with clinical trials, companies usually complete additional animal studies and must also develop additional information about the
chemistry and physical characteristics of the drug and finalize a process for manufacturing the product in commercial quantities in
accordance with cGMPs. The manufacturing process must be capable of consistently producing quality batches of the product candidate
and, among other things, the manufacturer must develop methods for testing the identity, strength, quality and purity of the final drug,
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appropriate packaging must be selected and tested, and stability studies must be conducted to demonstrate that the product candidate does
not undergo unacceptable deterioration over its shelf life.
U.S. review and approval process
The results of product development, including results from preclinical and other non-clinical studies and clinical trials, along with descriptions
of the manufacturing process, analytical tests conducted on the chemistry of the drug, proposed labeling and other relevant information are
submitted to the FDA as part of a NDA requesting approval to market the product. The submission of a NDA is subject to the payment of
substantial user fees; a waiver of such fees may be obtained under certain limited circumstances.
The FDA conducts a preliminary review of all NDAs within the first 60 days after submission, before accepting them for filing, to determine
whether they are sufficiently complete to permit substantive review. The FDA may request additional information rather than accept a NDA
for filing. In this event, the NDA must be resubmitted with the additional information. The resubmitted application also is subject to review
before the FDA accepts it for filing. Once filed, the FDA reviews a NDA to determine, among other things, whether a product is safe and
effective for its intended use and whether its manufacturing is cGMP-compliant to assure and preserve the product’s identity, strength, quality
and purity. Under the Prescription Drug User Fee Act, or PDUFA, guidelines that are currently in effect, the FDA has a goal of ten months
from the date of “filing” of a standard NDA for a new molecular entity to review and act on the submission, or ten months from the date of
receipt for a drug that is not a new molecular entity.
The FDA may refer an application for a novel drug to an advisory committee. An advisory committee is a panel of independent experts,
including clinicians and other scientific experts, that reviews, evaluates and provides a recommendation as to whether the application should
be approved and under what conditions. The FDA is not bound by the recommendations of an advisory committee, but it considers such
recommendations carefully when making decisions. Before approving a NDA, the FDA will typically inspect the facility or facilities where the
product is manufactured. Additionally, before approving a NDA, the FDA may inspect one or more clinical trial sites to assure compliance
with GCPs.
After the FDA evaluates a NDA and conducts any inspections of manufacturing facilities where the investigational product and/or its drug
substance will be produced, the FDA may issue an approval letter or a Complete Response Letter, or CRL. An approval letter authorizes
commercial marketing of the drug with prescribing information for specific indications. A CRL indicates that the review cycle of the application
is complete, and the application will not be approved in its present form. A CRL usually describes the specific deficiencies in the NDA
identified by the FDA and may require additional clinical data, such as an additional clinical trial or other significant and time-consuming
requirements related to clinical trials, nonclinical studies or manufacturing. If a CRL is issued, the sponsor must resubmit the NDA or,
addressing all of the deficiencies identified in the letter, or withdraw the application. Even if such data and information are submitted, the FDA
may decide that the NDA does not satisfy the criteria for approval.
If a product receives regulatory approval, the approval may be significantly limited to specific diseases and dosages or the indications for use
may otherwise be limited, which could restrict the commercial value of the product. In addition, the FDA may require a sponsor to conduct
additional clinical testing or implement surveillance programs to monitor the safety of approved products which have been commercialized.
The FDA may also place other conditions on approval including the requirement for a risk evaluation and mitigation strategy, or REMS, to
assure the safe use of the drug, which could include medication guides, physician communication plans or elements to assure safe use, such
as restricted distribution methods, patient registries and other risk minimization tools.
In addition, the Pediatric Research Equity Act, or PREA, requires a sponsor to conduct pediatric clinical trials for most drugs, for a new active
ingredient, new indication, new dosage form, new dosing regimen or new route of administration. Under PREA, original NDAs and
supplements must contain a pediatric assessment unless the sponsor has received a deferral or waiver. The required assessment must
evaluate the safety and effectiveness of the product for the claimed indications in all relevant pediatric subpopulations and support dosing
and
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administration for each pediatric subpopulation for which the product is safe and effective. The sponsor or FDA may request a deferral of
pediatric clinical trials for some or all of the pediatric subpopulations. A deferral may be granted for several reasons, including a finding that
the drug is ready for approval for use in adults before pediatric clinical trials are complete or that additional safety or effectiveness data needs
to be collected before the pediatric clinical trials begin.
Regulation of Combination Products in the United States
Certain products may be comprised of components, such as drug components and device components that would normally be regulated
under different types of regulatory authorities, and frequently by different centers at the FDA. These products are known as combination
products, and include, among other things, products that combine drugs and medical devices.
Under the FDCA and its implementing regulations, the FDA is charged with assigning a center with primary jurisdiction, or a lead center, for
review of a combination product. The designation of a lead center generally eliminates the need to receive approvals from more than one
FDA component for combination products, although it does not preclude consultations by the lead center with other components of the FDA.
The determination of which center will be the lead center is based on the “primary mode of action” of the combination product. Thus, if the
primary mode of action of a drug-device combination product is attributable to the drug product, the FDA center responsible for premarket
review of the drug product would have primary jurisdiction for the combination product.
A combination product with a drug primary mode of action generally would be reviewed and approved pursuant to the drug approval
processes under the FDCA. In reviewing the NDA or 505(b)(2) application for such a product, however, FDA reviewers in the drug center
could consult with their counterparts in the device center to ensure that the device component of the combination product met applicable
requirements regarding safety, effectiveness, durability and performance. In addition, under FDA regulations, combination products are
subject to cGMP requirements applicable to both drugs and devices, including the Quality System Regulation, or QSR, currently applicable to
medical devices.
Post-approval requirements
Any products manufactured or distributed pursuant to FDA approvals are subject to pervasive and continuing regulation by the FDA,
including, among other things, requirements relating to record-keeping, reporting of adverse experiences, periodic reporting, product
sampling and distribution, and advertising and promotion of the product. After approval, most changes to the approved product, such as
adding new indications, certain manufacturing changes and additional labeling claims, are subject to further FDA review and approval. Drug
manufacturers and other entities involved in the manufacture and distribution of approved drugs are required to register their establishments
with the FDA and certain state agencies and are subject to periodic unannounced inspections by the FDA and certain state agencies for
compliance with cGMPs and other laws and regulations. Changes to the manufacturing process are strictly regulated, and, depending on the
significance of the change, may require prior FDA approval before being implemented. Accordingly, manufacturers must continue to expend
time, money and effort in the area of production and quality control to maintain compliance with cGMPs and other aspects of regulatory
compliance.
The FDA may withdraw approval if compliance with regulatory requirements and standards is not maintained or if problems occur after the
product reaches the market. Later discovery of previously unknown problems with a product, including adverse events of unanticipated
severity or frequency, or with manufacturing processes, or failure to comply with regulatory requirements, may result in revisions to the
approved labeling to add new safety information; imposition of requirements for post-market studies or clinical studies to assess new safety
risks; or imposition of distribution restrictions or other restrictions under a REMS program. Other potential consequences include, among
other things:
•
restrictions on the marketing or manufacturing of the product, complete withdrawal of the product from the market or product
recalls;
•
fines, warning letters, or untitled letters;
•
clinical holds on clinical studies;
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•
refusal of the FDA to approve pending applications or supplements to approved applications, or suspension or revocation of
product approvals;
•
product seizure or detention, or refusal to permit the import or export of products;
•
consent decrees, corporate integrity agreements, debarment or exclusion from federal healthcare programs;
•
mandated modification of promotional materials and labeling and the issuance of corrective information;
•
the issuance of safety alerts, Dear Healthcare Provider letters, press releases and other communications containing warnings or
other safety information about the product; or
•
injunctions or the imposition of civil or criminal penalties.
In addition, the FDA closely regulates the marketing, labeling, advertising and promotion of drug products. A company can make only those
claims relating to safety and efficacy that are consistent with FDA approved labeling. The FDA and other agencies actively enforce the laws
and regulations prohibiting the promotion of off-label uses. Failure to comply with these requirements can result in, among other things,
adverse publicity, warning letters, corrective advertising and potential civil and criminal penalties. Physicians may prescribe legally available
products for uses that are not described in the product’s labeling and that differ from those tested by us and approved by the FDA. Such off-
label uses are common across medical specialties. Physicians may believe that such off-label uses are the best treatment for many patients
in varied circumstances. The FDA does not regulate the behavior of physicians in their choice of treatments. The FDA does, however, restrict
manufacturer’s communications on the subject of off-label use of their products.
Marketing exclusivity
Market exclusivity provisions under the FDCA can delay the submission or the approval of certain marketing applications. The FDCA
provides a five-year period of non-patent data exclusivity within the United States to the first applicant to obtain approval of a NDA for a new
chemical entity. A drug is a new chemical entity if the FDA has not previously approved any other new drug containing the same active
moiety, which is the molecule or ion responsible for the action of the drug substance. During the exclusivity period, the FDA may not accept
for review an abbreviated new drug application, or ANDA, or a NDA submitted under Section 505(b)(2), or 505(b)(2) NDA, submitted by
another company for another drug based on the same active moiety, regardless of whether the drug is intended for the same indication as
the original innovative drug or for another indication, where the applicant does not own or have a legal right of reference to all the data
required for approval. However, an application may be submitted after four years if it contains a certification of patent invalidity or non-
infringement to one of the patents listed with the FDA by the innovator NDA holder.
The FDCA alternatively provides three years of non-patent exclusivity for a NDA, or supplement to an existing NDA if new clinical
investigations, other than bioavailability studies, that were conducted or sponsored by the applicant are deemed by the FDA to be essential
to the approval of the application. This three-year exclusivity covers only the modification for which the drug received approval on the basis of
the new clinical investigations and does not prohibit the FDA from approving ANDAs or 505(b)(2) NDAs for drugs containing the active agent
for the original indication or condition of use. Five-year and three-year exclusivity will not delay the submission or approval of a full NDA.
However, an applicant submitting a full NDA would be required to conduct, or obtain a right of reference to, all of the preclinical studies and
adequate and well-controlled clinical trials necessary to demonstrate safety and effectiveness.
Pediatric exclusivity is another type of marketing exclusivity available in the United States. Pediatric exclusivity provides for an additional six
months of marketing exclusivity attached to another existing period of regulatory
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exclusivity or patent term if a sponsor conducts clinical trials in children in response to a written request from the FDA. The issuance of a
written request does not require the sponsor to undertake the described clinical trials.
Other U.S. Healthcare Laws and Compliance Requirements
In the United States, our current and future operations are subject to regulation by various federal, state and local authorities in addition to
the FDA, including but not limited to, CMS, other divisions of the U.S. Department of Health and Human Services, or HHS (such as the Office
of Inspector General, Office for Civil Rights and the Health Resources and Service Administration), the U.S. Department of Justice, or DOJ,
and individual U.S. Attorney offices within the DOJ, and state and local governments. These laws include but are not limited to, the Anti-
Kickback Statute, the federal False Claims Act, the federal Physician Payments Sunshine Act, and other state and federal laws and
regulations.
The Anti-Kickback Statute makes it illegal for any person, including a prescription drug manufacturer (or a party acting on its behalf) to
knowingly and willfully solicit, receive, offer, or pay any remuneration that is intended to induce the referral of business, including the
purchase, order, or prescription of a particular drug, for which payment may be made under a federal healthcare program, such as Medicare
or Medicaid. Violations of this law are punishable by up to five years in prison, criminal fines, administrative civil money penalties, and
exclusion from participation in federal healthcare programs. In addition, a person or entity does not need to have actual knowledge of the
statute or specific intent to violate it in order to have committed a violation.
The federal False Claims Act prohibits anyone from knowingly presenting, or causing to be presented, for payment to federal programs
(including Medicare and Medicaid) claims for items or services, including drugs, that are false or fraudulent, claims for items or services not
provided as claimed, or claims for medically unnecessary items or services. Although we would not submit claims directly to payors,
manufacturers can be held liable under these laws if they are deemed to “cause” the submission of false or fraudulent claims by, for example,
providing inaccurate billing or coding information to customers or promoting a product off-label. In addition, our future activities relating to the
reporting of wholesaler or estimated retail prices for our products, the reporting of prices used to calculate Medicaid rebate information and
other information affecting federal, state, and third-party reimbursement for our products, and the sale and marketing of our products, are
subject to scrutiny under this law. Moreover, the government may assert that a claim including items or services resulting from a violation of
the federal Anti-Kickback Statute constitutes a false or fraudulent claim for purposes of the False Claims Act.
In addition, the Civil Monetary Penalties Law prohibits, among other things, the offering or giving of remuneration, which includes, without
limitation, any transfer of items or services for free or for less than fair market value (with limited exceptions), to a Medicare or Medicaid
beneficiary that the person knows or should know is likely to influence the beneficiary’s selection of a particular supplier of items or services
reimbursable by a federal or state governmental program.
HIPAA also created additional federal criminal statutes that prohibit, among other things, knowingly and willfully executing, or attempting to
execute, a scheme to defraud any healthcare benefit program or obtain, by means of false or fraudulent pretenses, representations, or
promises, any of the money or property owned by, or under the custody or control of, any healthcare benefit program, regardless of the payer
(e.g., public or private) and knowingly and willfully falsifying, concealing or covering up by any trick or device a material fact or making any
materially false statements in connection with the delivery of, or payment for, healthcare benefits, items or services relating to healthcare
matters; similar to the federal Anti-Kickback Statute, a person or entity does not need to have actual knowledge of the statute or specific
intent to violate it in order to have committed a violation. Many states also have similar fraud and abuse statutes or regulations that apply to
items and services reimbursed under Medicaid and other state programs, or, in several states, apply regardless of the payor.
Additionally, there has been a recent trend of increased foreign, federal, and state regulation of payments and transfers of value provided to
health care professionals or entities. The federal Physician Payments Sunshine Act imposes annual reporting requirements on certain drug,
biologics, medical supplies and device manufacturers for which payment is available under Medicare, Medicaid or CHIP for payments and
other transfers of value provided by them, directly or indirectly, to physicians (defined to include doctors, dentists, optometrists, podiatrists
and chiropractors), certain non-physician practitioners (physician assistants, nurse practitioners, clinical nurse specialists, certified nurse
anesthetists, anesthesiologist assistants and certified nurse midwives), and teaching hospitals, as well as ownership and investment interests
held by physicians and their immediate family members. Certain foreign countries and U.S. states also mandate implementation of
commercial compliance programs,
17
impose restrictions on device manufacturer marketing practices and require tracking and reporting of gifts, compensation and other
remuneration to health care professionals and entities.
Violations of any of such laws or any other governmental regulations that apply may result in penalties, including, without limitation,
administrative, civil and criminal penalties, damages, fines, disgorgement, the curtailment or restructuring of operations, reporting obligations
and integrity oversight, exclusion from participation in federal and state healthcare programs and imprisonment.
Coverage and Reimbursement
Significant uncertainty exists as to the coverage and reimbursement status of FUROSCIX and any product candidate for which we obtain
regulatory approval. In the United States and markets in other countries, sales of FUROSCIX and any product candidates for which we
receive regulatory approval for commercial sale depend, in part, on the availability of coverage and reimbursement from third-party payers.
Third-party payers include government authorities, such as Medicare and Medicaid, managed care providers, private health insurers and
other organizations. Our ability to commercialize any products successfully also depend in part on the extent to which coverage and
adequate reimbursement for these products and related treatments is available from third-party payers. Third-party payers decide which
therapeutics they will pay for and establish reimbursement levels. Coverage and reimbursement by a third-party payer may depend upon a
number of factors, including the third-party payer’s determination that use of a therapeutic is:
•
a covered benefit under its health plan;
•
safe, effective and medically necessary;
•
appropriate for the specific patient;
•
cost-effective; and
•
neither experimental nor investigational.
The process for determining whether a payer will provide coverage for a product may be separate from the process for setting the
reimbursement rate that the payer will pay for the product. Third-party payers may limit coverage to specific products on an approved list, or
formulary, which might not include all of the FDA-approved products for a particular indication. A decision by a third-party payer not to cover
FUROSCIX or a product candidate could reduce physician utilization of the product and have a material adverse effect on our sales, results
of operations and financial condition. Moreover, a payer’s decision to provide coverage for a product does not imply that an adequate
reimbursement rate will be approved. Adequate third-party reimbursement may not be available to enable us to maintain price levels
sufficient to realize an appropriate return on our investment in product development.
In addition, coverage and reimbursement for products can differ significantly from payer to payer. One third-party payer’s decision to cover a
particular medical product or service does not ensure that other payers will also provide coverage for the medical product or service, or will
provide coverage at an adequate reimbursement rate. As a result, the coverage determination process may require us to provide scientific
and clinical support for the use of FUROSCIX or our future products to each payer separately and will be a time-consuming process.
Third-party payers are increasingly challenging the price and examining the medical necessity and cost-effectiveness of medical products
and services, in addition to their safety and efficacy. Obtaining reimbursement for FUROSCIX or our future products may be particularly
difficult because of the higher prices often associated with branded drugs. We may need to conduct expensive pharmacoeconomic studies in
order to demonstrate the medical necessity and cost-effectiveness of our products, in addition to the costs required to obtain FDA approvals.
Our product candidates may not be considered medically necessary or cost-effective. Obtaining coverage and reimbursement approval of a
product from a government or other third-party payer is a time-consuming and costly process that could require us to provide supporting
scientific, clinical and cost-effectiveness data for the use of our product on a payer-by-payer basis, with no assurance that coverage and
adequate reimbursement will be obtained. A third-party payer’s decision to provide coverage for a product does not imply that an adequate
reimbursement rate will be approved. Further, in the United States, no uniform policy of coverage and reimbursement for products exists
among third-party payers. Private third-party payers tend to follow Medicare coverage and reimbursement limitations to a substantial degree,
but also have their own methods and approval process apart from Medicare determinations. Therefore, one payer’s determination to provide
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coverage for a product does not assure that other payers will also provide coverage for the product. Adequate third-party reimbursement may
not be available to enable us to maintain price levels sufficient to realize an appropriate return on our investment in product development. If
reimbursement is not available or is available only at limited levels, we may not be able to successfully commercialize any product candidate
that we successfully develop.
We participate in the Medicaid Drug Rebate Program and other governmental pricing programs, and have price reporting and payment
obligations under these programs.
Outside of the United States, the pricing of pharmaceutical products and medical devices is subject to governmental control in many
countries. For example, in the European Union, or EU, pricing and reimbursement schemes vary widely from country to country. Some
countries provide that products may be marketed only after a reimbursement price has been agreed. Some countries may require the
completion of additional studies that compare the cost-effectiveness of a particular therapy to currently available therapies or so-called health
technology assessments, in order to obtain reimbursement or pricing approval. Other countries may allow companies to fix their own prices
for products, but monitor and control product volumes and issue guidance to physicians to limit prescriptions. Efforts to control prices and
utilization of pharmaceutical products and medical devices will likely continue as countries attempt to manage healthcare expenditures.
The marketability of FUROSCIX and any product candidates for which we receive regulatory approval for commercial sale may suffer if third-
party payers fail to provide coverage and adequate reimbursement. In addition, emphasis on managed care, the increasing influence of
health maintenance organizations, and additional legislative changes in the United States has increased, and we expect will continue to
increase, the pressure on healthcare pricing. The downward pressure on healthcare costs in general, particularly prescription medicines,
medical devices and surgical procedures and other treatments, is likely to continue. Coverage policies and third-party reimbursement rates
may change at any time. Even if favorable coverage and reimbursement status is attained for FUROSCIX or other products for which we
receive regulatory approval, less favorable coverage policies and reimbursement rates may be implemented in the future.
Healthcare Reform
A primary trend in the U.S. healthcare industry and elsewhere is cost containment. Government authorities and other third-party payers have
attempted to control costs by limiting coverage and the amount of reimbursement for particular medical products. For example, in March
2010, the Patient Protection and Affordable Care Act ("ACA") was enacted, which, among other things, increased the minimum Medicaid
rebates owed by manufacturers under the Medicaid Drug Rebate Program; introduced a new methodology by which rebates owed by
manufacturers under the Medicaid Drug Rebate Program are calculated for drugs that are inhaled, infused, instilled, implanted or injected;
extended the manufacturer Medicaid rebate obligation to utilization of individuals enrolled in Medicaid managed care plans; and established
the Center for Medicare and Medicaid Innovation at the Centers for Medicare and Medicaid Services ("CMS") to test innovative payment and
service delivery models to lower Medicare and Medicaid spending.
Since its enactment, there have been judicial, executive and Congressional challenges to certain aspects of the ACA. On June 17, 2021, the
U.S. Supreme Court dismissed the most recent judicial challenge to the ACA brought by several states without specifically ruling on the
constitutionality of the ACA. Thus, the ACA will remain in effect in its current form.
Other legislative changes have been proposed and adopted since the ACA was enacted. On March 11, 2021, the American Rescue Plan Act
of 2021 was signed into law, which eliminated the statutory Medicaid drug rebate cap, beginning January 1, 2024. The rebate was previously
capped at 100% of a drug’s average manufacturer price. Moreover, there has recently been heightened governmental scrutiny over the
manner in which manufacturers set prices for their marketed products, which has resulted in several Congressional inquiries, and proposed
and enacted legislation designed, among other things, to bring more transparency to product pricing, review the relationship between pricing
and manufacturer patient programs, and reform government program reimbursement methodologies for drug products.
Most significantly, in August 2022, the Inflation Reduction Act of 2022 (IRA) was signed into law. This statute marks the most significant
action by Congress with respect to the pharmaceutical industry since adoption of the
19
ACA in 2010. Among other things, the IRA requires manufacturers of certain drugs to engage in price negotiations with Medicare, with prices
that can be negotiated subject to a cap; imposes rebates under Medicare Part B and Medicare Part D to penalize price increases that
outpace inflation (first due in 2023); redesigns the Medicare Part D benefit (beginning in 2024); and replaces the Part D coverage gap
discount program with a new manufacturer discount program (beginning in 2025). CMS has published the negotiated prices for the initial ten
drugs, which will first be effective in 2026, and has published the list of the subsequent 15 drugs that will be subject to negotiation. The IRA
permits the Secretary of the Department of Health and Human Services (HHS) to implement many of these provisions through guidance, as
opposed to regulation, for the initial years. HHS has and will continue to issue and update guidance as these programs are implemented,
although the Medicare drug price negotiation program is currently subject to legal challenges. The impact of the IRA on us and the
pharmaceutical industry cannot yet be fully determined, but is likely to be significant.
Under the IRA manufacturer discount program that replaced the coverage gap discount program as of January 1, 2025, manufacturers must
give a 10 percent discount on Part D drugs in the initial coverage phase, and a 20 percent discount on Part D drugs in the so-called
“catastrophic phase” (the phase after the patient incurs costs above the initial phase out-of-pocket threshold, which will be $2,000 beginning
in 2025). The IRA allows the 10 and 20 percent discounts to be phased in over time for certain drugs for “specified manufacturers.” In April
2024, CMS informed us that we are deemed a specified manufacturer. We are still evaluating the potential impact of this status on our future
revenues.
FUROSCIX is reimbursed under Medicare Part D, and the reimbursement amount will be impacted by the 10 and 20 percent discounts under
the IRA’s new discounting program. We anticipate that these increased discounts will impact FUROSCIX revenues, while also having an
industry-wide impact on the cost of Part D drugs. The impact on FUROSCIX revenues could be offset because the IRA’s redesign of certain
Part D components, some of which went into effect in 2024, resulted in an increase in the number of patients able to afford this therapy. The
amount of the offset, if any, is inherently uncertain and difficult to predict.
The IRA manufacturer discount program also increases financial obligations of Part D prescription drug plans with respect to beneficiaries in
the catastrophic coverage phase. This may incentivize Part D prescription drug plans to seek greater price concessions from us in order to
include FUROSCIX on their formularies.
Individual states in the United States have also increasingly passed legislation and implemented regulations designed to control
pharmaceutical product pricing, including price or patient reimbursement constraints, discounts, restrictions on certain product access and
marketing cost disclosure and transparency measures. Some state measures are designed to encourage importation from other countries
and bulk purchasing.
Additional legislative and regulatory changes that will affect our business are likely. For example, payment methodologies may be subject to
changes in healthcare legislation and regulatory challenges. It is unclear how future changes to the payment methodology may affect
pharmaceutical manufacturers and hospitals who purchase their products now and in the future. We expect that the other healthcare reform
measures that may be adopted in the future, may result in additional reductions in Medicare and other healthcare funding, more rigorous
coverage criteria, lower reimbursement, and new payment methodologies. This could lower the price that we receive for any approved
product. Any denial in coverage or reduction in reimbursement from Medicare or other government-funded programs may result in a similar
denial or reduction in payments from private payors, which may prevent us from being able to generate sufficient revenue, attain profitability
or commercialize our product candidates, if approved.
Data Privacy and Security Laws
Numerous state, federal and foreign laws, regulations and standards govern the collection, use, access to, confidentiality and security of
health-related and other personal information, and could apply now or in the future to our operations or the operations of our partners. In the
United States, numerous federal and state laws and regulations, including data breach notification laws, health information privacy and
security laws and consumer protection laws and regulations govern the collection, use, disclosure, and protection of health-related and other
personal information. In addition, certain foreign laws govern the privacy and security of personal data, including health-related data. Privacy
and security laws, regulations, and other obligations are constantly evolving, may conflict with each other to complicate compliance efforts,
and can result in investigations, proceedings, or actions that lead to significant civil and/or criminal penalties and restrictions on data
processing.
20
Human Capital Management
As of March 18, 2025, we had 164 total employees, 162 were full-time employees and two of which were part-time employees, including 13
in technical operations and product development, 21 in clinical development and medical affairs, regulatory affairs, and quality assurance, 30
in commercial, 83 sales representatives and 17 in finance, general administrative and executive administration. All of our employees are
located in the U.S., and none are currently represented by a labor union or are parties to a collective bargaining agreement. We believe our
efforts in managing our workforce have been effective.
Recruitment, Retention and Culture
We recognize that our future success depends on our ability to attract, develop and retain key personnel, maintain and continuously
strengthen our strong Company culture, and promote equity in our Board of Directors, management and broader workforce. Since the
February 2023 launch of FUROSCIX, we continue to strategically enhance our team to meet the demands of successful growth initiatives
that include a label expansion to include NYHA Class IV chronic heart failure patients, a label expansion to include patients with chronic
kidney disease, and development of an autoinjector program. We remain focused on our core values, performance excellence, and key
human capital-related objectives of recruiting, retaining, incentivizing and integrating our existing and new employees, maintaining and
growing an inclusive workforce from all backgrounds, and promoting a robust culture of compliance. A testament to our strong culture is the
recognition by the Boston Business Journal as a Best Place to Work for companies of our size in 2020, 2021, 2022, and 2024.
Workplace Culture
We are committed to fostering an inclusive workplace in compliance with all federal, state, and local employment laws. We promote equal
opportunity in hiring, training, and advancement based on merit and qualifications. We invest in workforce development initiatives that
enhance employee skills, promote career growth, and ensure a workplace that is welcoming to all, including veterans and individuals with
disabilities. We believe a diverse range of skills and experiences strengthens our ability to serve patients, providers, and other stakeholders
as well as drive innovation, and maintain a strong corporate culture.
Compensation and Benefits
We have a comprehensive compensation and health and welfare benefits program that is designed to attract, retain, and motivate our
employees. In addition to base salaries and annual bonuses, programs include a 401(k) plan with generous eligibility and matching features,
healthcare and insurance benefits which are extended to domestic partners, new hire and annual equity awards, an employee stock
purchase plan, and educational assistance. We evaluate our plans annually and prioritize well-being and employee preferences balanced
with the needs of the Company in designing our health and welfare benefits.
We are focused on providing fair and equitable pay to all of our employees including across genders and underrepresented groups. Our
Board of Directors and senior leadership team strongly support this focus.
Corporate Information
We were formed as a limited liability company under the laws of the State of Delaware in February 2013 under the name scPharmaceuticals
LLC and we converted to a corporation under the laws of the State of Delaware in March 2014 under the name scPharmaceuticals Inc. Our
website address is www.scpharmaceuticals.com.
Available Information
We file electronically with the Securities and Exchange Commission, or SEC, our annual reports on Form 10-K, quarterly reports on Form 10-
Q, current reports on Form 8-K, proxy statements and other information. Our SEC filings are available to the public over the Internet at the
SEC's website at www.sec.gov. We make available on our website at www.scpharmaceuticals.com, under “Investor Relations,” free of
charge, copies of these reports as soon as reasonably practicable after filing or furnishing these reports with the SEC. The information
contained in the websites referenced in this Annual Report on Form 10-K is not incorporated by reference into this Annual Report on Form
10-K.
INFORMATION ABOUT OUR EXECUTIVE OFFICERS AND DIRECTORS
21
The following information with respect to our Board of Directors and executive officers is presented as of the date of this Annual Report on
Form 10-K:
Name
Age
Position at scPharmaceuticals
Principal Employment
Executive Officers
John H. Tucker
62
President, Chief Executive Officer and
Director
Same
Rachael Nokes
50
Chief Financial Officer
Same
Non-Employee
Directors
Jack A. Khattar
63
Chairman of the Board and Director
President and Chief Executive Officer of Supernus
Pharmaceuticals, a public pharmaceutical company
William T. Abraham, M.D. 65
Director
Chief Medical Officer of V-Wave Ltd., a privately held
medical device company, and College of Medicine
Distinguished Professor at The Ohio State University
Mette Kirstine Agger
60
Director
Chief Executive Officer and Strategic Advisor of Ersum
Biotech
Minnie Baylor-Henry
77
Director
President of B-Henry & Associates, a regulatory and
compliance strategy consulting company
Sara Bonstein
44
Director
Chief Financial Officer of Insmed Incorporated, a public
biopharmaceutical company
Frederick Hudson
79
Director
Former Partner of KPMG, LLP
Leonard D. Schaeffer
79
Director
Partner of North Bristol Partners LLC, a privately held
consulting company
Klaus Veitinger, M.D.,
Ph. D.
63
Director
Venture Partner of OrbiMed Advisors LLC, a healthcare
investment firm
22
Item 1A. Risk Factors.
Investing in our common stock involves a high degree of risk. You should carefully consider the following risks and uncertainties, together
with all other information in this Annual Report on Form 10-K, including our consolidated financial statements and related notes and
“Management’s Discussion and Analysis of Financial Condition and Results of Operations,” before investing in our common stock. Any of the
risk factors we describe below could adversely affect our business, financial condition or results of operations. The market price of our
common stock could decline if one or more of these risks or uncertainties actually occur, causing you to lose all or part of the money you paid
to buy our common stock. Certain statements below are forward-looking statements. See “Forward-Looking Statements” in this Annual
Report on Form 10-K.
Risks Related to our Products and Product Candidates
Risks Related to Approval and Commercialization of our Products and Product Candidates
We are heavily dependent on the success of our product candidates and our approved product, FUROSCIX. We cannot give any
assurance that we will receive regulatory approval for any product candidates, which is necessary before they can be
commercialized.
To date, we have expended significant time, resources and effort on the development of our product candidates and our approved product,
FUROSCIX, which we announced in October 2022 was approved by the U.S. Food and Drug Administration, or FDA. A substantial majority
of our resources have also been focused on the commercial launch of FUROSCIX in the United States, which commenced in the first quarter
of 2023. Our business and future success are substantially dependent on our ability to continue to successfully commercialize FUROSCIX for
the treatment of congestion due to fluid overload in adults with chronic heart failure. All of our other product candidates are in early stages of
development and subject to the risks of failure inherent in developing drug products. Accordingly, our ability to generate significant product
revenues in the near term will depend almost entirely on our ability to successfully commercialize FUROSCIX.
We are not permitted to market any of our product candidates in the United States until we receive approval of a new drug application, or
NDA, from the U.S. Food and Drug Administration, or FDA, or in any foreign jurisdiction until we receive the requisite approvals from such
jurisdiction. There can be no assurance that the FDA will approve any of our product candidates, which is necessary before they can be
commercialized. Satisfaction of regulatory requirements can be protracted, is dependent upon the type, complexity and novelty of the product
candidate and requires the expenditure of substantial resources. The time required to obtain approval by the FDA and comparable foreign
regulatory authorities is unpredictable but typically takes many years following the commencement of clinical trials and depends upon
numerous factors, including the substantial discretion of the regulatory authorities. In addition, approval policies, regulations, or the type and
amount of clinical data necessary to gain approval may change during the course of a product candidate’s clinical development and may vary
among jurisdictions. The FDA has substantial discretion in the drug approval process, including the ability to delay, limit or deny approval of a
product candidate for many reasons. We cannot predict whether we will obtain regulatory approval to commercialize any of our product
candidates, and we cannot, therefore, predict the timing of any future revenues from these product candidates, if any. Any further delay or
setback in the regulatory approval or commercialization of any of these product candidates will adversely affect our business.
Even if we were to obtain approval of our product candidates, regulatory authorities may approve such product candidates for fewer or more
limited indications than we request, may not approve the price we intend to charge for our products, may grant approval contingent on the
performance of costly post-marketing clinical trials, may impose distribution or use restrictions, or may approve a product candidate with a
label that does not include the labeling claims necessary or desirable for the successful commercialization of that product candidate. Any of
the foregoing scenarios could materially harm the commercial prospects for our product candidates.
We expect to rely on third-party consultants to assist us in filing and supporting the applications necessary to gain marketing approvals.
Securing marketing approval requires the submission of extensive preclinical and clinical data and supporting information to regulatory
authorities for each therapeutic indication to establish a product candidate’s safety and efficacy for that indication. Securing marketing
approval also requires the submission of information about the manufacturing process to, and inspection of manufacturing facilities by, the
regulatory authorities. If we cannot successfully obtain approval of our product candidates, our business will be materially harmed and the
price of our common stock will be adversely affected.
23
There is no assurance that our commercialization efforts with respect to FUROSCIX will be successful or that we will be able to
generate revenues at the levels or within the timing we expect or at the levels or within the timing necessary to support our goals.
FUROSCIX and the activities associated with its development and commercialization, including its design, research, testing, manufacture,
safety, efficacy, recordkeeping, labeling, packaging, storage, approval, advertising, promotion, sale and distribution, are subject to
comprehensive regulation by the FDA and other regulatory agencies in the United States and similar foreign regulatory authorities outside
the United States. Failure to obtain marketing approval for FUROSCIX outside the United States will prevent us from commercializing it in
those jurisdictions.
Our ability to successfully commercialize FUROSCIX and any of our products candidates, if approved, will depend, among other things, on
our ability to:
•
receive marketing approvals from the FDA and similar foreign regulatory authorities;
•
produce, through a validated process, sufficiently large quantities of FUROSCIX and our product candidates, if approved, to
permit successful commercialization;
•
establish and maintain commercial manufacturing arrangements with third-party manufacturers;
•
build and maintain sales, distribution and marketing capabilities sufficient to launch and support commercial sales of FUROSCIX,
as well as, our product candidates, if and when approved;
•
successfully complete our clinical trials for our product candidates under clinical development;
•
establish collaborations with third parties for the commercialization of our product candidates in countries outside the United
States and such collaborators’ ability to obtain regulatory and reimbursement approvals in such countries;
•
secure acceptance of our product candidates from physicians, healthcare payers, patients and the medical community; and
•
manage our spending as costs and expenses increase due to clinical trials, regulatory approvals and commercialization.
There are no guarantees that we will be successful in completing these tasks. If we are unable to successfully complete these tasks, we may
not be able to successfully commercialize FUROSCIX or any of our product candidates, if approved, in a timely manner, or at all, in which
case we may be unable to generate sufficient revenues to sustain and grow our business.
Even though we obtained FDA approval for FUROSCIX in the United States, we may never obtain approval for or commercialize it
in any other jurisdiction, which would limit our ability to realize its full market potential.
In order to market products in any particular jurisdiction, we must establish and comply with numerous and varying regulatory requirements
on a country-by-country basis regarding safety and efficacy. Approval by the FDA in the United States does not ensure approval by
regulatory authorities in other countries or jurisdictions. In addition, the clinical standards of care may differ significantly such that clinical
trials conducted in one country may not be accepted by healthcare providers, third-party payers or regulatory authorities in other countries,
and regulatory approval in one country does not guarantee regulatory approval in any other country. Approval processes vary among
countries and can involve additional drug testing and validation and additional administrative review periods. Seeking foreign regulatory
approval could result in difficulties and costs for us and require additional preclinical studies or clinical trials which could be costly and time
consuming. Regulatory requirements can vary widely from country to country and could delay or prevent the introduction of our products in
those countries. We do not have any product candidates approved for sale in any international markets, and we do not have experience in
obtaining regulatory approval in international markets. If we fail to comply with regulatory requirements in international markets or to obtain
and maintain required approvals, or if regulatory approvals in international markets are delayed, our target market will be reduced and our
ability to realize the full market potential of any drug we develop will be unrealized.
Risks Related to Clinical Development
Clinical and preclinical development involves a lengthy and expensive process with an uncertain outcome. Any difficulties or
delays in the commencement or completion, or the termination or
24
suspension, of our current or planned clinical trials could result in increased costs to us, delay or limit our ability to generate
revenue or adversely affect our commercial prospects.
Before obtaining approval from regulatory authorities for the commercialization of any of our product candidates, we must conduct extensive
clinical trials to demonstrate the safety and efficacy of the product candidate in humans. Preclinical and clinical drug development is
expensive and can take many years to complete, and its outcome is inherently uncertain. Failure can occur at any time during the preclinical
study or clinical trial process. Despite promising preclinical or clinical results, any product candidate can unexpectedly fail at any stage of
preclinical or clinical development. The historical failure rate for product candidates in our industry is high.
The results from preclinical studies or early clinical trials of a product candidate may not predict the results of later clinical trials of the product
candidate, and interim results of a clinical trial are not necessarily indicative of final results. Product candidates in later stages of clinical trials
may fail to show the desired safety and efficacy characteristics despite having progressed through preclinical studies and initial clinical trials.
It is not uncommon to observe results in clinical trials that are unexpected based on preclinical studies and early clinical trials, and many
product candidates fail in clinical trials despite very promising early results. Moreover, preclinical and clinical data are often susceptible to
varying interpretations and analyses. A number of companies in the pharmaceutical and biotechnology industries have suffered significant
setbacks in clinical development even after achieving promising results in earlier studies.
Before we can initiate clinical trials for any product candidates, we must submit the results of preclinical studies to the FDA or comparable
foreign regulatory authorities along with other information, including information about product candidate chemistry, manufacturing and
controls and our proposed clinical trial protocol, as part of an Investigational New Drug Application, or IND, or similar regulatory submission.
The FDA or comparable foreign regulatory authorities may require us to conduct additional preclinical studies for any product candidate
before it allows us to initiate clinical trials under any IND or similar regulatory submission, which may lead to delays and increase the costs of
our preclinical development programs. Moreover, even if we commence clinical trials, issues may arise that could cause regulatory
authorities to suspend or terminate such clinical trials. Any such delays in the commencement or completion of our ongoing and planned
clinical trials for our product candidates could significantly affect our product development timelines and product development costs and harm
our financial position.
We do not know whether our planned clinical trials will begin on time or be completed on schedule, if at all. The commencement, data
readouts and completion of clinical trials can be delayed for a number of reasons, including delays related to:
•
inability to generate sufficient preclinical, toxicology, or other in vivo or in vitro data to support the initiation or continuation of
clinical trials;
•
obtaining allowance or approval from regulatory authorities to commence a trial or reaching a consensus with regulatory
authorities on trial design;
•
the FDA or comparable foreign regulatory authorities disagreeing as to the design or implementation of our clinical trials;
•
any failure or delay in reaching an agreement with CROs and clinical trial sites, the terms of which can be subject to extensive
negotiation and may vary significantly among different CROs and trial sites;
•
delays in identifying, recruiting and training suitable clinical investigators;
•
obtaining approval from one or more institutional review boards, or IRBs, or ethics committees at clinical trial sites;
•
IRBs refusing to approve, suspending or terminating the trial at an investigational site, precluding enrollment of additional
subjects, or withdrawing their approval of the trial;
•
changes or amendments to the clinical trial protocol;
•
clinical sites deviating from the trial protocol or dropping out of a trial;
•
failure by our CROs to perform in accordance with Good Clinical Practice, or GCP, requirements or applicable regulatory rules
and guidelines in other countries;
25
•
manufacturing sufficient quantities of our product candidates, or obtaining sufficient quantities of combination therapies for use
in clinical trials;
•
subjects failing to enroll or remain in our trials at the rate we expect, or failing to return for post-treatment follow-up, including
subjects failing to remain in our trials;
•
patients choosing an alternative product for the indications for which we are developing our product candidates, or participating
in competing clinical trials;
•
lack of adequate funding to continue a clinical trial, or costs being greater than we anticipate;
•
subjects experiencing severe or serious unexpected drug-related adverse effects;
•
occurrence of serious adverse events in trials of the same class of agents conducted by other companies that could be
considered similar to our product candidates;
•
selection of clinical endpoints that require prolonged periods of clinical observation or extended analysis of the resulting data;
•
transfer of manufacturing processes to larger-scale facilities operated by a contract manufacturing organization, or CMO, delays
or failure by our CMOs or us to make any necessary changes to such manufacturing process, or failure of our CMOs to produce
clinical trial materials in accordance with current Good Manufacturing Practice, or cGMP, regulations or other applicable
requirements; and
•
third parties being unwilling or unable to satisfy their contractual obligations to us in a timely manner.
Clinical trials must be conducted in accordance with the FDA and other applicable regulatory authorities’ legal requirements, regulations and
guidelines, and remain subject to oversight by these governmental agencies and ethics committees or IRBs at the medical institutions where
such clinical trials are conducted. We could also encounter delays if a clinical trial is suspended or terminated by us, by the IRBs of the
institutions in which such trials are being conducted, by a Data Safety Monitoring Board for such trial or by the FDA or comparable foreign
regulatory authorities. Such authorities may impose such a suspension or termination due to a number of factors, including failure to conduct
the clinical trial in accordance with regulatory requirements or applicable clinical trial protocols, adverse findings from inspections of clinical
trial sites by the FDA or comparable foreign regulatory authorities, unforeseen safety issues or adverse side effects, failure to demonstrate a
benefit from using a product candidate, changes in governmental regulations or administrative actions or lack of adequate funding to
continue the clinical trial. In addition, changes in regulatory requirements and policies may occur, and we may need to amend clinical trial
protocols to comply with these changes. Amendments may require us to resubmit our clinical trial protocols to regulators or to IRBs for
reexamination, which may impact the costs, timing or successful completion of a clinical trial.
Moreover, principal investigators for our clinical trials may serve as scientific advisors or consultants to us from time to time and receive
compensation in connection with such services. Under certain circumstances, we may be required to report some of these relationships to
the FDA or comparable foreign regulatory authorities. The FDA or comparable foreign regulatory authority may conclude that a financial
relationship between us and a principal investigator has created a conflict of interest or otherwise affected interpretation of the study. The
FDA or comparable foreign regulatory authority may therefore question the integrity of the data generated at the applicable clinical trial site
and the utility of the clinical trial itself may be jeopardized. This could result in a delay in approval, or rejection, of our marketing applications
by the FDA or comparable foreign regulatory authority, as the case may be, and may ultimately lead to the denial of marketing approval of
one or more of our product candidates.
In addition, many of the factors that cause, or lead to, the termination suspension of, or a delay in the commencement or completion of,
clinical trials may also ultimately lead to the denial of regulatory approval of a product candidate. Any resulting delays to our clinical trials
could shorten any period during which we may have the exclusive right to commercialize our product candidates. In such cases, our
competitors may be able to bring products to market before we do, and the commercial viability of our product candidates could be
significantly reduced. Any of these occurrences may harm our business, financial condition and prospects.
In addition, the FDA’s and other regulatory authorities’ policies with respect to clinical trials may change and additional government
regulations may be enacted. For instance, the regulatory landscape related to clinical trials
26
in the European Union, or EU, recently evolved. The EU Clinical Trials Regulation, or CTR, which was adopted in April 2014 and repeals the
EU Clinical Trials Directive, became applicable on January 31, 2022. While the EU Clinical Trials Directive required a separate clinical trial
application, or CTA, to be submitted in each member state in which the clinical trial takes place, to both the competent national health
authority and an independent ethics committee, the CTR introduces a centralized process and only requires the submission of a single
application for multi-center trials. The CTR allows sponsors to make a single submission to both the competent authority and an ethics
committee in each member state, leading to a single decision per member state. The assessment procedure of the CTA has been
harmonized as well, including a joint assessment by all member states concerned, and a separate assessment by each member state with
respect to specific requirements related to its own territory, including ethics rules. Each member state’s decision is communicated to the
sponsor via the centralized EU portal. Once the CTA is approved, clinical study development may proceed. The CTR transition period ended
on January 31, 2025, and all clinical trials (and related applications) are now fully subject to the provisions of the CTR. Compliance with the
CTR requirements by us and our third-party service providers, such as CROs, may impact our developments plans.
If we are slow or unable to adapt to changes in existing requirements or the adoption of new requirements or policies governing clinical trials,
our development plans may be impacted.
We may find it difficult to enroll patients in our clinical trials. If we encounter difficulties enrolling patients in our clinical trials, our
clinical development activities could be delayed or otherwise adversely affected.
Patient enrollment is a significant factor in the timing of clinical trials, and the timing of our clinical trials depends, in part, on the speed at
which we can recruit patients to participate in our trials, as well as completion of required follow-up periods. We may not be able to initiate or
continue clinical trials for our product candidates if we are unable to locate and enroll a sufficient number of eligible patients to participate in
these trials to such trial’s conclusion as required by the FDA or other comparable regulatory authorities. The eligibility criteria of our clinical
trials, once established, may further limit the pool of available trial participants.
Patient enrollment for any of our clinical trials may be affected by other factors, including:
•
size and nature of the targeted patient population;
•
severity of the disease or condition under investigation;
•
availability and efficacy of approved therapies for the disease or condition under investigation;
•
patient eligibility criteria for the trial in question as defined in the protocol;
•
perceived risks and benefits of the product candidate under study;
•
clinicians’ and patients’ perceptions as to the potential advantages of the product candidate being studied in relation to other
available therapies, including any products that may be approved for, or any product candidates under investigation for, the
indications we are investigating;
•
efforts to facilitate timely enrollment in clinical trials;
•
patient referral practices of physicians;
•
the ability to monitor patients adequately during and after treatment;
•
proximity and availability of clinical trial sites for prospective patients;
•
continued enrollment of prospective patients by clinical trial sites;
•
the risk that patients enrolled in clinical trials will drop out of such trials before completion; and
•
delays or difficulties in enrollment and completion of studies due to health emergencies or global events.
Additionally, other pharmaceutical companies targeting these same diseases are recruiting clinical trial patients from these patient
populations, which may make it more difficult to fully enroll our clinical trials. We also rely on, and will continue to rely on, CROs and clinical
trial sites to ensure proper and timely conduct of our clinical trials and preclinical studies. Though we have entered into agreements
governing their services, we will have limited influence over their actual performance. Our inability to enroll a sufficient number of patients for
our clinical trials
27
would result in significant delays or may require us to abandon one or more clinical trials altogether. Enrollment delays in our clinical trials
may result in increased development costs for our product candidates and jeopardize our ability to obtain regulatory approval for the sale of
our product candidates. Furthermore, even if we are able to enroll a sufficient number of patients for our clinical trials, we may have difficulty
maintaining enrollment of such patients in our clinical trials.
Our products and product candidates may have serious adverse, undesirable or unacceptable side effects which may delay or
prevent marketing approval. If such side effects are identified during the development of our product candidates or following
approval, if any, we may need to abandon our development of such product candidates, the commercial profile of any approved
label may be limited, or we may be subject to other significant negative consequences following marketing approval, if any.
Undesirable side effects that may be caused by our product candidates could cause us or regulatory authorities to interrupt, delay or halt
clinical trials and could result in a more restrictive label or the delay or denial of regulatory approval by the FDA or other comparable foreign
authorities. For example, the most common adverse events observed in clinical trials of FUROSCIX included the following administration site
and skin reactions: erythema, bruising, edema and infusion site pain, which are listed on the approved label for FUROSCIX. Results of our
trials could reveal a high and unacceptable severity and prevalence of these or other side effects. It is possible that there may be side effects
associated with our other product candidates’ use. In such an event, our trials could be suspended or terminated and the FDA or comparable
foreign regulatory authorities could order us to cease further development of or deny approval of our product candidates for any or all
targeted indications. The drug-related side effects could affect patient recruitment or the ability of enrolled patients to complete the trial or
result in potential product liability claims. Clinical trials by their nature utilize a sample of the potential patient population. With a limited
number of patients and limited duration of exposure, rare and severe side effects of our product candidates may only be uncovered with a
significantly larger number of patients exposed to the product candidate.
If our product candidates receive marketing approval and we or others identify undesirable side effects caused by such products (or any
other similar products) after such approval, a number of potentially significant negative consequences could result, including:
•
regulatory authorities may withdraw or limit their approval of such products;
•
regulatory authorities may require the addition of labeling statements, such as a REMS, “boxed” warning or a contraindication;
•
we may be required to change the way such products are distributed or administered, conduct additional clinical trials or
change the labeling of the products;
•
we may be subject to regulatory investigations and government enforcement actions;
•
we may decide to recall or remove such products from the marketplace; or
•
we could be sued and held liable for injury caused to individuals exposed to or taking our product candidates; or
•
we may fail to secure acceptance of our product candidates from physicians, healthcare payers, patients and the medical
community; and
•
our reputation may suffer.
We believe that any of these events could prevent us from achieving or maintaining market acceptance of the affected products, and could
substantially increase the costs of commercializing our products and significantly impact our ability to successfully commercialize our
products and generate revenues. Any of these occurrences may harm our business, financial condition and prospects.
Interim, “topline” and preliminary data from our clinical trials and preclinical studies that we announce or publish from time to time
may change as more patient data become available and are subject to audit and verification procedures that could result in
material changes in the final data.
From time to time, we may publicly disclose interim, topline, or preliminary data from our clinical trials and preclinical studies, which is based
on a preliminary analysis of then-available data, and the results and related
28
findings and conclusions are subject to change following a more comprehensive review of the data related to the particular study or trial. We
also make assumptions, estimations, calculations and conclusions as part of our analyses of data, and we may not have received or had the
opportunity to fully and carefully evaluate all data. As a result, the interim, topline, or preliminary results that we report may differ from future
results of the same studies or trials, or different conclusions or considerations may qualify such results, once additional data have been
received and fully evaluated. Topline and preliminary data also remain subject to audit and verification procedures that may result in the final
data being materially different from the topline or preliminary data we previously published. As a result, topline and preliminary data should
be viewed with caution until the final data are available.
Interim data from clinical trials that we may complete are further subject to the risk that one or more of the clinical outcomes may materially
change as patient enrollment continues and more patient data become available. Adverse differences between interim, topline, or preliminary
data and final data could significantly harm our business prospects. Further, disclosure of such data by us or by our competitors could result
in volatility in the price of our common stock.
Further, others, including regulatory agencies, may not accept or agree with our assumptions, estimates, calculations, conclusions or
analyses or may interpret or weigh the importance of data differently, which could impact the value of the particular program, the
approvability or commercialization of the particular product candidate or product and our company in general. In addition, the information we
choose to publicly disclose regarding a particular study or clinical trial is based on what is typically extensive information, and you or others
may not agree with what we determine is material or otherwise appropriate information to include in our disclosure, and any information we
determine not to disclose may ultimately be deemed significant with respect to future decisions, conclusions, views, activities or otherwise
regarding a particular product candidate or our business. If the interim, topline, or preliminary data that we report differ from actual results, or
if others, including regulatory authorities, disagree with the conclusions reached, our ability to obtain approval for, and commercialize, our
product candidates may be harmed, which could harm our business, operating results, prospects or financial condition.
Our failure to successfully identify, develop and market additional product candidates could impair our ability to grow.
As part of our growth strategy, we intend to identify, develop and market additional products beyond FUROSCIX. We may spend several
years completing our development of any particular current or future internal product candidates, and failure can occur at any stage. The
product candidates to which we allocate our resources may not end up being successful. In addition, because our internal research
capabilities are limited, we may be dependent upon pharmaceutical companies, academic scientists and other researchers to sell or license
product candidates, approved products or the underlying technology to us. The success of this strategy depends partly upon our ability to
identify, select, discover and acquire promising product candidates and products.
The process of proposing, negotiating and implementing a license or acquisition of a product candidate or approved product is lengthy and
complex. Other companies, including some with substantially greater financial, marketing and sales resources, may compete with us for the
license or acquisition of product candidates and approved products. We have limited resources to identify and execute the acquisition or in-
licensing of third-party products, businesses and technologies and integrate them into our current infrastructure. Moreover, we may devote
resources to potential acquisitions or in-licensing opportunities that are never completed, or we may fail to realize the anticipated benefits of
such efforts. We may not be able to acquire the rights to additional product candidates on terms that we find acceptable, or at all.
In addition, future acquisitions may entail numerous operational and financial risks, including:
•
exposure to unknown liabilities;
•
disruption of our business and diversion of our management’s time and attention to develop acquired products or technologies;
•
incurrence of substantial debt, dilutive issuances of securities or depletion of cash to pay for acquisitions;
•
higher than expected acquisition and integration costs;
29
•
difficulty in combining the operations and personnel of any acquired businesses with our operations and personnel;
•
increased amortization expenses;
•
impairment of relationships with key suppliers or customers of any acquired businesses due to changes in management and
ownership; and
•
inability to motivate key employees of any acquired businesses.
Further, any product candidate that we acquire may require additional development efforts prior to commercial sale, including extensive
clinical testing and approval by the FDA and other foreign regulatory authorities.
Risks Related to Acceptance, Sales, Marketing and Competition
The commercial success of FUROSCIX and any product candidates, if approved, depends upon attaining market acceptance by
hospital networks, physicians, patients, third-party payers and the medical community.
Even if our current and future product candidates are approved for commercialization by the appropriate regulatory authorities, physicians
may not prescribe our approved product candidates, in which case we would not generate the revenues we anticipate. Market acceptance of
FUROSCIX or any of our product candidates by physicians, patients, third-party payers and the medical community depends on, among
other things:
•
our ability to provide acceptable evidence of safety and efficacy, at least equivalent to IV-level treatments;
•
perceived advantages of FUROSCIX or our product candidates over alternative treatments, such as oral and IV formulations;
•
relative convenience as well as ease of administration of FUROSCIX or our product candidates compared to existing
treatments;
•
any labeling restrictions placed upon FUROSCIX or any product candidate in connection with its approval;
•
the prevalence and severity of the adverse side effects of FUROSCIX or our product candidates;
•
the clinical indications for which FUROSCIX or any of our product candidates is approved, including any potential additional
restrictions placed upon each product candidate in connection with its approval;
•
prevalence of the disease or condition for which FUROSCIX or any product candidate is approved;
•
the cost of treatment in relation to alternative treatments, including generic products;
•
the extent to which each product is approved for use at, or included on formularies of, hospitals and managed care
organizations;
•
any negative publicity related to our or our competitors’ products or other formulations of products that we administer
subcutaneously, including as a result of any related adverse side effects;
•
the effectiveness of our or any current or future collaborators’ sales, marketing and distribution strategies;
•
pricing and cost effectiveness; and
•
the availability of coverage and adequate reimbursement by third parties.
Successful commercialization will also depend on whether we can adequately protect against and effectively respond to any claims by
holders of patents and other intellectual property rights that our products infringe upon their rights, whether any unanticipated adverse effects
or unfavorable publicity develops in respect of our products, as well as the emergence of new or existing products as competition, which may
be proven to be more clinically effective and cost-effective.
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If we are unable to establish sales and marketing capabilities or enter into agreements with third parties to market and sell our
approved product, FUROSCIX, we may be unable to generate adequate revenue.
We are in the process of continuing to establish sufficient infrastructure for the sales, marketing or distribution of FUROSCIX and for our
product candidates, and the cost of establishing and maintaining such an organization may exceed the benefits of doing so. In order to
market FUROSCIX, we must continue to build our sales, marketing, managerial, and other non-technical capabilities or make arrangements
with third parties to perform these services.
We have established an initial in-house sales force to promote FUROSCIX to hospital networks, healthcare providers and third-party payers
in the United States. There are significant expenses and risks involved with establishing our own sales and marketing capabilities, including
our ability to hire, retain and appropriately incentivize qualified individuals, generate sufficient sales leads, provide adequate training to sales
and marketing personnel, and effectively manage a geographically dispersed sales and marketing team.
We cannot be sure that we will be able to hire and retain a sufficient number of sales representatives or that they will be effective at
promoting FUROSCIX. In addition, we will need to commit significant additional management and other resources to establish and grow our
sales organization. We may not be able to achieve the necessary development and growth in a cost-effective manner or realize a positive
return on our investment. We will also have to compete with other companies to recruit, hire, train and retain sales and marketing personnel.
Factors that may inhibit our efforts to commercialize FUROSCIX and our product candidates, if approved, on our own include:
•
our inability to recruit, train and retain adequate numbers of effective sales and marketing personnel;
•
the inability of sales personnel to obtain access to physicians in order to educate physicians about our product candidates,
once approved; and
•
unforeseen costs and expenses associated with creating an independent sales and marketing organization.
If we are unable to establish adequate sales, marketing and distribution capabilities, whether independently or with third parties, our
business, results of operations, financial condition and prospects will be materially adversely impacted.
Beyond FUROSCIX, we intend to leverage the sales and marketing capabilities that we establish for FUROSCIX to commercialize additional
product candidates, if approved by the FDA, in the United States. If we are unable to do so for any reason, we would need to expend
additional resources to establish commercialization capabilities for those product candidates, if approved.
In addition, we intend to establish collaborations to commercialize our product candidates, if approved by the relevant regulatory authorities,
outside of the United States. Therefore, our future success will depend, in part, on our ability to enter into and maintain collaborative
relationships for such efforts, the collaborator’s strategic interest in the product and such collaborator’s ability to successfully market and sell
the product. We cannot assure you that we will be able to establish or maintain such collaborative arrangements, or if able to do so, that they
will have effective sales forces. To the extent that we depend on third parties for marketing and distribution, any revenues we receive will
depend upon the efforts of such third parties, and there can be no assurance that such efforts will be successful.
We face substantial competition, which may result in others discovering, developing or commercializing drugs before or more
successfully than we do, or limit the market potential of FUROSCIX and our product candidates, if approved.
We face and will continue to face competition from other companies in the pharmaceutical and medical device industries. We believe our
technology and approach of developing proprietary formulations of medicines to be delivered subcutaneously will compete with the efforts of
other companies seeking to develop similar therapies. These and other pharmaceutical companies are applying significant resources and
expertise to the challenges of drug delivery. Some of these current and potential future competitors may be addressing the same therapeutic
31
areas or indications as we are. Many of our current and potential future competitors have significantly greater research and development
capabilities than we do, have substantially more marketing, manufacturing, financial, technical, human and managerial resources than we do,
and have more institutional experience than we do.
As a result of these factors, our competitors may obtain regulatory approval of their products more rapidly than we are able to or may obtain
patent protection or other intellectual property rights that allow them to develop and commercialize their products before us and limit our
ability to develop or commercialize our product candidates. Our competitors may also develop drugs or devices that are more effective, more
widely used and less costly than ours, and they may also be more successful than us in manufacturing and marketing their products.
In October 2024, the FDA awarded 3-year exclusivity to FUROSCIX, and, as a result, the FDA may not approve a subsequent product for
subcutaneous administration of furosemide for 3 years from the date of approval of FUROSCIX, or October 7, 2025. Exclusivity may be
revoked if the FDA determines that the request for designation was materially defective or if the manufacturer is unable to assure sufficient
quantity of the product to meet the needs of the patients with the rare disease or condition. If the FDA approves a competitor’s application for
a product candidate or drug-device combination product before our application for a similar product candidate or drug-device combination
product, and grants such competitor a period of exclusivity, the FDA may take the position that it cannot approve our 505(b)(2) application for
a similar product candidate until the exclusivity period expires. Additionally, even if our 505(b)(2) application for any of our product candidates
is approved first, we may still be subject to competition from other producers of heart failure and infectious disease therapies with approved
products or approved 505(b)(2) NDAs for different conditions of use that would not be restricted by any grant of exclusivity to us.
The widespread acceptance of currently available therapies with which FUROSCIX and our product candidates will compete may limit market
acceptance of FUROSCIX and our product candidates even if commercialized. Oral medication and IV drug delivery are currently available
treatments for heart failure and are widely accepted in the medical community and have a long history of use. For example, the use of IV
furosemide to treat decompensation in heart failure patients is well-established and has received widespread market acceptance. These
treatments will compete with FUROSCIX and the established use of IV furosemide may limit the potential for FUROSCIX to receive
widespread acceptance.
Risks Related to Manufacturing, Supply and Use
If we fail to produce FUROSCIX in the volumes that we require on a timely basis, we may face delays in our commercialization
efforts.
We do not currently own or operate manufacturing facilities for the production of FUROSCIX or any of our product candidates. We currently
depend on third parties to manufacture our product candidates, including the drug formulation and device components for FUROSCIX, and
continue to rely on such third parties to produce the final commercial product. Any future curtailment in the availability of materials could
result in production or other delays with consequent adverse effects on us. In addition, because regulatory authorities must generally approve
raw material sources for pharmaceutical products, changes in raw material suppliers may result in production delays or higher raw material
costs.
The manufacture of pharmaceutical products requires significant expertise and capital investment, including the development of advanced
manufacturing techniques and process controls. Pharmaceutical companies often encounter difficulties in production, particularly in scaling
up production, of their products. These problems include manufacturing difficulties relating to production costs and yields, quality control,
including stability of the product and quality assurance testing, shortages of qualified personnel, as well as compliance with federal, state and
foreign regulations. Any delays in the manufacturing of finished drug product or device components could delay our commercial supply,
which could delay, prevent or limit our ability to generate revenue and continue our business. Moreover, if we are unable to demonstrate
stability in accordance with commercial requirements, or if our manufacturers were to encounter difficulties or otherwise fail to comply with
their obligations to us, our ability to obtain or maintain FDA or foreign regulatory authorities approval and market our product candidates
would be jeopardized. In addition, any delay or interruption in the supply of clinical trial supplies could delay or prohibit the completion of our
bioequivalence and/or clinical trials, increase the costs associated with conducting our bioequivalence and/or clinical trials and, depending
upon the period of delay, require us to commence new trials at significant additional expense or to terminate a trial.
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Certain of our pharmaceutical products are manufactured outside of the United States. In certain years, the U.S. government has initiated
substantial changes in U.S. trade policy and U.S. trade agreements, including the initiation of tariffs on certain foreign goods. In response to
these tariffs, certain foreign governments, including Canada, China and Mexico, have instituted or are considering imposing tariffs on certain
U.S. goods. If the U.S. imposes additional tariffs on a broader range of imports from certain countries, and in response those countries take
further retaliatory trade measures, these actions could impose additional costs on our business. Increased tariffs could require us to increase
our prices which could decrease demand for our product, and in certain cases we may be unable to pass along increased costs to our
customers.
Manufacturers of drug-device combination products, such as FUROSCIX, need to comply with both pharmaceutical current good
manufacturing practice requirements, or cGMPs, and the FDA’s cGMP requirements for medical devices, known as the Quality System
Regulation, or QSR, which is enforced by the FDA through its facilities inspection programs. These requirements include, among other
things, quality control, quality assurance and the maintenance of records and documentation. Manufacturers of FUROSCIX and our product
candidates may be unable to comply with these cGMP and QSR requirements and with other FDA and foreign regulatory requirements. For
certain commercial prescription drug products, manufacturers and other parties involved in the supply chain must also meet chain of
distribution requirements and build electronic, interoperable systems for product tracking and tracing and for notifying the FDA of counterfeit,
diverted, stolen and intentionally adulterated products or other products that are otherwise unfit for distribution in the United States. A failure
to comply with these requirements may result in fines and civil penalties, suspension of production, suspension or delay in product approval,
product seizure or recall, or withdrawal of product approval. If the safety of FUROSCIX or any of our product candidates is compromised due
to failure to adhere to applicable laws or for other reasons, we may not be able to successfully commercialize FUROSCIX or such product
candidate, and we may be held liable for any injuries sustained as a result. Any of these factors could impact the commercialization of
FUROSCIX or cause a delay in the commercialization of our other product candidates, entail higher costs or even prevent us from effectively
commercializing FUROSCIX or our product candidates.
Even if we successfully produce and distribute FUROSCIX, its success will be dependent on the proper use of FUROSCIX by
patients, healthcare professionals and caregivers.
While we believe FUROSCIX can be self-administered by patients, caregivers and healthcare practitioners in a clinic and home environment,
we cannot control the successful use of the product by patients, caregivers and healthcare professionals. We make use of packaging and
instructions for use to provide guidance to users of FUROSCIX, but we cannot ensure that the product will be used properly.
If we are not successful in promoting the proper use of FUROSCIX by patients, healthcare professionals and caregivers, we may not be able
to achieve market acceptance or effectively commercialize FUROSCIX. Additionally, any potential negative impact on patients stemming
from the improper use of FUROSCIX may lead to reputational harm, result in negative press coverage, or increase the risk that we may be
sued.
Even in the event of proper use of FUROSCIX by patients, healthcare professionals and caregivers, individual devices may fail.
We have increased manufacturing capabilities for production of FUROSCIX, but increasing scale of production inherently creates increased
risk of manufacturing errors. We may not be able to adequately inspect every device that is produced, and it is possible that individual
devices may fail to perform as designed. Manufacturing errors could negatively impact market acceptance of FUROSCIX, result in negative
press coverage, or increase the risk that we may be sued.
Risks Related to Our Financial Position and Capital Requirements
Risks Related to Past Financial Condition
We have a history of significant operating losses and expect to incur significant and increasing losses for the foreseeable future;
we may never achieve or maintain profitability.
We do not expect to generate revenue or profitability that is necessary to finance our operations in the short term. We incurred net losses of
$54.8 million and $85.1 million for the years ended December 31, 2023 and 2024, respectively. In addition, our accumulated deficit as of
December 31, 2024 was $366.5 million. Absent the
33
realization of sufficient revenues from product sales of FUROSCIX or our current or future product candidates, if approved, we may never
attain profitability in the future. We have devoted substantially all of our financial resources and efforts to date to research and development,
including preclinical studies and our clinical trials, and preparation for commercialization of FUROSCIX.
We anticipate that our expenses will increase substantially if and as we:
•
continue to build our sales, marketing, distribution and other commercial infrastructure and manufacture commercial inventory
of FUROSCIX;
•
initiate and continue research, preclinical and clinical development efforts for any current or future product candidates;
•
seek to identify additional product candidates;
•
seek regulatory and marketing approvals for product candidates that successfully complete clinical trials;
•
manufacture larger quantities of product candidates for clinical development and commercialization;
•
maintain, expand and protect our intellectual property portfolio;
•
hire and retain additional personnel, such as clinical, quality control, commercial, scientific and sales and marketing personnel;
•
add operational, financial and management information systems and personnel, including personnel to support our product
development and help us comply with our obligations as a public company; and
•
add equipment and physical infrastructure to support our research and development.
Our ability to become and remain profitable depends on our ability to generate revenue. We do not expect to generate significant revenue
until we are able to successfully commercialize FUROSCIX or any other product candidates that we may develop. Successful
commercialization will require achievement of key milestones, including completing clinical trials of our product candidates that are under
clinical development, obtaining marketing approval for our product candidates, manufacturing, marketing and selling those products for which
we, or any of our future collaborators, may obtain marketing approval, satisfying any post-marketing requirements and obtaining
reimbursement for our products from private insurance or government payers. Because of the uncertainties and risks associated with these
activities, we are unable to accurately predict the timing and amount of revenues, and if or when we might achieve profitability. We and any
future collaborators may never succeed in these activities and, even if we or any future collaborators do, we may never generate revenues
that are large enough for us to achieve profitability. Even if we do achieve profitability, we may not be able to sustain or increase profitability
on a quarterly or annual basis.
Our failure to become and remain profitable would depress the market price of our common stock and could impair our ability to raise capital,
expand our business, diversify our product offerings or continue our operations. If we continue to suffer losses as we have in the past,
investors may not receive any return on their investment and may lose their entire investment.
We have a limited operating history and no history of commercializing pharmaceutical products, which may make it difficult to
evaluate the prospects for our future viability.
We commenced operations in 2013. Our operations up until very recently have primarily been limited to financing and staffing our company,
developing our technology and conducting preclinical research and clinical trials for our product candidates. We have only one product
approved for commercial sale, and have limited experience in obtaining marketing approvals, manufacturing products on a commercial scale
or arranging for a third party to do so on our behalf, and conducting sales and marketing activities necessary for successful
commercialization. Consequently, predictions about our future success or viability may not be as accurate as they could be if we had a longer
operating history or a history of successfully commercializing products.
We may encounter unforeseen expenses, difficulties, complications, delays and other known or unknown factors in achieving our business
objectives as we transition from a company with a development focus to a company capable of supporting commercial activities. We may not
be successful in such a transition.
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In addition, we expect our financial condition and operating results to continue to fluctuate significantly from quarter to quarter and year to
year due to a variety of factors, many of which are beyond our control.
We may not generate substantial revenue from FUROSCIX and may never be profitable.
Our ability to become profitable depends upon our ability to generate revenue. Our commercial launch of FUROSCIX commenced in the first
quarter of 2023, and there is no assurance that we will ever generate substantial revenues from FUROSCIX.
Our ability to generate revenue depends on a number of factors, including, but not limited to, our ability to:
•
continue to obtain commercial quantities of FUROSCIX at acceptable cost levels;
•
obtain third-party coverage or adequate reimbursement for FUROSCIX;
•
achieve market acceptance of FUROSCIX in the medical community, with patients and with third-party payers, including
placement in accepted clinical guidelines for the conditions for which FUROSCIX is intended to target; and
•
delay the introduction by competitors of alternate versions of FUROSCIX.
We have incurred and expect to continue to incur significant sales and marketing costs as we commercialize FUROSCIX. Even if we expend
these costs, FUROSCIX may not be a commercially successful product. We may not achieve profitability soon after generating product sales,
if ever. If we are unable to generate substantial product revenue, we will not become profitable and may be unable to continue operations
without continued funding.
Risks Related to Future Financial Condition
We may need additional funding and may be unable to raise capital when needed, which would force us to delay, reduce or
eliminate our product development programs or commercialization efforts.
Developing our product programs is a time-consuming, expensive and uncertain process that takes years to complete. In addition, we may
incur significant commercialization expenses for FUROSCIX or any of our product candidates, if approved, related to product sales,
marketing, manufacturing and distribution. Accordingly, we will need to obtain substantial additional funding in connection with our continuing
operations. If we are unable to raise capital when needed or on attractive terms, we may be forced to delay, reduce or eliminate our research
and development programs or any commercialization efforts.
We plan to continue to use our existing unrestricted cash primarily for development activities related to the advancement and
commercialization of FUROSCIX, automation necessary to increase capacity for our delivery technology, research and development, and for
working capital and other general corporate purposes. We will be required to expend significant funds in order to commercialize FUROSCIX,
as well as other product candidates we may seek to develop. In any event, our existing unrestricted cash may not be sufficient to fund all of
the efforts that we plan to undertake, including the development of any of our product candidates. Accordingly, we may be required to obtain
further funding through public or private equity offerings, debt financings, royalty-based financing arrangements, collaborations and licensing
arrangements or other sources. Adequate additional financing may not be available to us on acceptable terms, or at all. Our failure to raise
capital as and when needed would have a negative impact on our financial condition and our ability to pursue our business strategy. In
addition, we maintain our cash and cash equivalents at a number of financial institutions, and our deposits at one or more of these institutions
may exceed federally insured limits. Market conditions can impact the viability of one or more of these institutions and, in the event of failure
of any of the financial institutions where we maintain our cash and cash equivalents, there can be no assurance that we will be able to
access uninsured funds in a timely manner or at all.
Our future funding requirements, both short-term and long-term, will depend on many factors, including:
•
the outcome, timing and costs of completing development and seeking regulatory approvals for product candidates that we
may develop;
35
•
the costs of commercialization activities for FUROSCIX and any of our product candidates that receive marketing approval,
including the costs and timing of establishing product sales, marketing, distribution and manufacturing capabilities;
•
revenue, if any, received from commercial sales of FUROSCIX or any of our current and future product candidates;
•
the pricing and reimbursement of FUROSCIX and of any of our product candidates that may be approved;
•
the number of future product candidates that we pursue and their development requirements;
•
the scope, progress, timing, costs and results of clinical trials of, and research and preclinical development efforts for, our other
product candidates;
•
our ability to enter into, and the terms and timing of, any collaborations, licensing or other arrangements;
•
our headcount growth and associated costs as we establish a commercial infrastructure and continue our research and
development activities;
•
the costs of preparing, filing and prosecuting patent applications, maintaining and protecting our intellectual property rights
including enforcing and defending intellectual property related claims;
•
costs associated with any adverse market conditions or other macroeconomic factors; and
•
the costs of operating as a public company.
The terms of our credit facility and revenue participation financing facility place restrictions on our operating and financial
flexibility, and we may not have cash available to us in an amount sufficient to enable us to make interest or principal payments on
our indebtedness when due.
In August 2024, we entered into a Credit Agreement and Guaranty (the "Credit Agreement"), by and among us, the guarantors from time to
time party thereto, the lenders from time to time party thereto (the "Lenders"), and Perceptive Credit Holdings IV, LP, in its capacity as
administrative agent for the Lenders (in such capacity, the "Agent"). The Credit Agreement establishes a $75.0 million term loan facility,
consisting of (i) $50.0 million (the “Tranche A Loan”) funded on the closing date, (ii) $25.0 million (the “Tranche B Loan” and, together with
the Tranche A Loan, collectively, the “Term Loan”) that the we may borrow in a single borrowing on or prior to March 31, 2026; provided, in
the case of the Tranche B Loan, that we and our subsidiaries have obtained certain regulatory approval and achieved certain net sales
targets, each as described in the Credit Agreement.
Our obligations under the Credit Agreement and the other Loan Documents (as defined in the Credit Agreement) will be guaranteed by any
domestic subsidiaries of ours that become Guarantors (as defined in the Credit Agreement), subject to certain exceptions. Our obligations
under the Credit Agreement and the other Loan Documents are secured by first priority security interests in substantially all of our assets,
subject to certain customary thresholds and exceptions. As of the closing date, there were no Guarantors.
The Credit Agreement contains customary representations, warranties and affirmative and negative covenants, including financial covenants
requiring us to (i) maintain certain levels of cash and cash equivalents in accounts subject to a control agreement in favor of the Agent of at
least $5.0 million at all times after the closing date and (ii) meet minimum quarterly net sales targets described in the Credit Agreement.
In addition, the Credit Agreement contains customary events of default that entitle the Agent to cause our indebtedness under the Credit
Agreement to become immediately due and payable, and to exercise remedies against us and the collateral securing the Term Loan,
including cash. Under the Credit Agreement, an event of default will occur if, among other things, we fail to make payments under the Credit
Agreement (subject to specified periods), we or our subsidiaries breach any of the covenants under the Credit Agreement (subject to
specified cure periods with respect to certain breaches), a material adverse change occurs, we, our subsidiaries or their respective assets
become subject to certain legal proceedings, such as bankruptcy proceedings, we and/or our subsidiaries are unable to pay our debts as
they become due or default on contracts with third parties which would permit the holder of indebtedness in excess of a certain threshold to
accelerate the maturity of such indebtedness or that could cause a material adverse change. Upon the occurrence and for the duration of an
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event of default, an additional default interest rate equal to 3.0% per annum may apply to all obligations owed under the Credit Agreement.
We intend to satisfy our current and future debt service obligations with our then existing cash and cash equivalents. However, we may not
have sufficient funds, and may be unable to arrange for additional financing, to pay the amounts due under the Credit Agreement or any
other debt instruments. Failure to satisfy our current and future debt obligations, including covenants to take or avoid specific actions, under
the Credit Agreement could result in an event of default and, as a result, the Lenders could accelerate all of the amounts due. In the event of
an acceleration of amounts due under the Credit Agreement as a result of an event of default, we may not have sufficient funds or may be
unable to arrange for additional financing to repay our indebtedness while still pursuing our current business strategy. In addition, the
Lenders could seek to enforce their security interests in any collateral securing such indebtedness.
In August 2024, we also entered into a revenue participation right purchase and sale agreement (the "Revenue Purchase and Sale
Agreement") with Perceptive Credit Holdings IV, LP (the "Purchaser"). Under the terms of the Revenue Purchase and Sale Agreement, in
exchange for the Purchaser’s payment to us of a purchase price of $50.0 million, in the aggregate subject to certain conditions at closing (the
“Purchase Price”), we have agreed to sell to the Purchaser its right to receive payment in full of a tiered single digit percentage of net sales of
FUROSCIX (the “Revenue Payment”) for each calendar quarter commencing on the effective date of the Revenue Purchase and Sale
Agreement, subject to adjustments on June 30, 2028 and June 30, 2030 depending on the amount of Revenue Payments received by such
dates. The Purchaser’s right to receive the Revenue Payment terminates and we no longer have the obligation to pay Purchaser Revenue
Payments once the Purchaser receives 200.0% (subject to reductions on September 30, 2027 and September 30, 2029 depending on the
amount of Revenue Payments received by such dates) of the Purchase Price. We may also buy-out the Purchaser’s rights to receive the
Revenue Payments by paying Purchaser a tiered multiple on the Purchaser Price.
The Revenue Purchase and Sale Agreement contains various representations and warranties, including with respect to organization,
authorization, and certain other matters, certain covenants with respect to payment, reporting, intellectual property, in-licenses, out-licenses,
and certain other actions, indemnification obligations and other provisions customary for transactions of this nature.
Payment requirements under the Revenue Purchase and Sale Agreement will increase our cash outflows. Our future operating performance
is subject to market conditions and business factors that are beyond our control. If our cash inflows and capital resources are insufficient to
allow us to make required payments, we may have to reduce or delay capital expenditures, sell assets or seek additional capital. If we raise
funds by selling additional equity, such sale would result in dilution to our shareholders. There is no assurance that if we are required to
secure funding we can do so on terms acceptable to us, or at all. Failure to pay amounts owed to the Purchasers when due would result in a
default under the Revenue Purchase and Sale Agreement and could result in foreclosure on all or substantially all of our assets, which would
have a material adverse effect.
Risks Related to Government Regulation
Risks Related to Ongoing Regulatory Obligations
The regulatory approval processes of the FDA and comparable foreign authorities are lengthy, time consuming and inherently
unpredictable, and if we are ultimately unable to obtain regulatory approval for our product candidates, our business will be
substantially harmed.
The clinical development, manufacturing, labeling, storage, record-keeping, advertising, promotion, import, export, marketing and distribution
of our products and product candidates are subject to extensive regulation by the FDA in the U.S. and by comparable foreign regulatory
authorities in foreign markets. In the U.S., we are not permitted to market our product candidates in the U.S. until we receive regulatory
approval of a NDA from the FDA. The process of obtaining such regulatory approval is expensive, often takes many years following the
commencement of clinical trials and can vary substantially based upon the type, complexity and novelty of the product candidates involved,
as well as the target indications and patient population. Approval policies or regulations may change, and the FDA and comparable
regulatory have substantial discretion in the approval process, including the ability
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to delay, limit or deny approval of a product candidate for many reasons. Despite the time and expense invested in clinical development of
product candidates, regulatory approval of a product candidate is never guaranteed. Of the large number of drugs in development, only a
small percentage successfully complete the FDA or foreign regulatory approval processes and are commercialized.
Prior to obtaining approval to commercialize a product candidate in the U.S. or abroad, we must demonstrate with substantial evidence from
adequate and well-controlled clinical trials, and to the satisfaction of the FDA or comparable foreign regulatory authorities, that such product
candidates are safe and effective for their intended uses. Results from nonclinical studies and clinical trials can be interpreted in different
ways. Even if we believe available nonclinical or clinical data support the safety or efficacy of our product candidates, such data may not be
sufficient to obtain approval from the FDA and comparable foreign regulatory authorities. The FDA or comparable foreign regulatory
authorities, as the case may be, may also require us to conduct additional preclinical studies or clinical trials for our product candidates either
prior to or post-approval, or may object to elements of our clinical development program.
The FDA or comparable foreign regulatory authorities can delay, limit or deny approval of a product candidate for many reasons, including:
•
such authorities may disagree with the design or execution of our clinical trials;
•
negative or ambiguous results from our clinical trials or results may not meet the level of statistical significance required by the
FDA or comparable foreign regulatory agencies for approval;
•
serious and unexpected drug-related side effects may be experienced by participants in our clinical trials or by individuals using
drugs similar to our product candidates;
•
the population studied in the clinical trial may not be sufficiently broad or representative to assure safety in the full population for
which we seek approval;
•
such authorities may not accept clinical data from trials that are conducted at clinical facilities or in countries where the standard
of care is potentially different from that of their own country;
•
we may be unable to demonstrate that a product candidate’s clinical and other benefits outweigh its safety risks;
•
such authorities may disagree with our interpretation of data from preclinical studies or clinical trials;
•
such authorities may not agree that the data collected from clinical trials of our product candidates are acceptable or sufficient to
support the submission of a NDA or other submission or to obtain regulatory approval in the U.S. or elsewhere, and such
authorities may impose requirements for additional preclinical studies or clinical trials;
•
such authorities may disagree with us regarding the formulation, labeling and/or the product specifications of our product
candidates;
•
approval may be granted only for indications that are significantly more limited than those sought by us, and/or may include
significant restrictions on distribution and use;
•
such authorities may find deficiencies in the manufacturing processes or facilities of the third-party manufacturers with which we
contract for clinical and commercial supplies; or
•
such authorities may not accept a submission due to, among other reasons, the content or formatting of the submission.
With respect to foreign markets, approval procedures vary among countries and, in addition to the foregoing risks, may involve additional
product testing, administrative review periods and agreements with pricing authorities.
Additionally, the FDA regulates FUROSCIX as a combination product that consists of both a drug and a medical device, and we may develop
product candidates or additional presentations of FUROSCIX that are similarly regulated as combination products. Developing and obtaining
regulatory approval for combination products can pose unique challenges because they involve components that are regulated under
different types of regulatory requirements and potentially by different FDA centers. As a result, such product candidates may raise regulatory,
policy and review management challenges. Differences in regulatory pathways for each component of a combination product can impact the
regulatory processes for all aspects of product development and
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management, including clinical investigation, marketing applications, manufacturing and quality control, adverse event reporting, promotion
and advertising, user fees and post approval modifications. Although the FDA and similar foreign regulatory agencies have systems in place
for the review and approval of combination products such as ours, we may experience delays in the development and commercialization of
our product candidates due to regulatory timing constraints and uncertainties in the product development and approval process. For
example, we are developing an 80mg/1mL auto-injector designed to provide an additional option to the on-body infusor for FUROSCIX for
eligible adult patients who do not require hospitalization. We submitted an IND in February 2024, initiated a
pharmacokinetic/pharmacodynamic (PK/PD) study in April of 2024, and completed enrollment in May 2024 with positive data announced in
August 2024. In December 2024, we disclosed that we had observed variability during shelf-life testing in one lot of the combination product.
Even if we eventually complete clinical trials and receive approval of a NDA or comparable foreign marketing application for any of our
product candidates, the FDA or comparable foreign regulatory authority may grant approval contingent on the performance of costly
additional clinical trials and/or the implementation of a REMS, which may be required because the FDA believes it is necessary to ensure
safe use of the product after approval. Any delay in obtaining, or inability to obtain, applicable regulatory approval would delay or prevent
commercialization of that product candidate and would materially adversely impact our business and prospects.
Even though the FDA has approved FUROSCIX, we will remain subject to significant post-marketing regulatory requirements and
oversight.
In October 2022, the FDA approved FUROSCIX for the treatment of congestion due to fluid overload in adults with NYHA Class II/III chronic
heart failure. Subsequently, in August 2024, the FDA approved the expansion of the FUROSCIX indication to include NYHA Class IV heart
failure patients. In connection with these approvals, or any other approvals we may obtain for FUROSCIX or any of our product candidates,
we are required to submit reports to regulatory authorities and surveillance to monitor the safety and efficacy of the product. In addition,
approved labeling for our products may contain significant limitations related to use restrictions for specified age groups, warnings,
precautions or contraindications, and may include burdensome post-approval study or risk management requirements. For example, the
approved labeling for FUROSCIX includes contraindications for patients with anuria, hypersensitivity to furosemide and hepatic cirrhosis or
ascites, and is not approved for use in emergency situations or in patients with acute pulmonary edema.
In addition, the manufacturing processes, labeling, packaging, distribution, adverse event reporting, storage, advertising, promotion, import,
export and recordkeeping for our products are subject to extensive and ongoing regulatory requirements. These requirements include
submissions of safety and other post-marketing information and reports, registration, as well as on-going compliance with current good
manufacturing practices, or cGMPs, and GCPs for any clinical trials that we conduct post-approval. In addition, manufacturers of drug
products and their facilities are subject to continual review and periodic, unannounced inspections by the FDA and other regulatory
authorities for compliance with cGMP and comparable foreign regulations and standards. If we or a regulatory authority discover previously
unknown problems with a product, such as adverse events of unanticipated severity or frequency, or problems with the facilities where the
product is manufactured, a regulatory authority may impose restrictions on that product, the manufacturing facility or us, including requiring
recall or withdrawal of the product from the market or suspension of manufacturing.
In addition, failure to comply with FDA and other comparable foreign regulatory requirements may subject our company to administrative or
judicially imposed sanctions, including:
•
delays in or the rejection of product approvals;
•
restrictions on our ability to conduct clinical trials, including full or partial clinical holds on ongoing or planned trials;
•
restrictions on the products, manufacturers or manufacturing process;
•
warning or untitled letters;
•
civil and criminal penalties;
•
injunctions;
39
•
suspension or withdrawal of regulatory approvals;
•
product seizures, detentions or import bans;
•
voluntary or mandatory product recalls and publicity requirements;
•
total or partial suspension of production; and
•
imposition of restrictions on operations, including costly new manufacturing requirements.
The occurrence of any event or penalty described above may inhibit our ability to commercialize FUROSCIX and generate revenue and
could require us to expend significant time and resources in response and could generate negative publicity. In addition, the FDA’s and other
regulatory authorities’ policies may change, and additional government regulations may be enacted that could impair our business. If we are
slow or unable to adapt to changes in existing requirements or the adoption of new requirements or policies, or if we are not able to maintain
regulatory compliance, we may be subject to enforcement action, and we may not achieve or sustain profitability.
If we are unable to achieve and maintain coverage and adequate levels of reimbursement for FUROSCIX and any of our product
candidates, if approved, their commercial success may be severely hindered.
Successful sales of FUROSCIX and any product candidates that receive regulatory approval depend on the availability of adequate coverage
and reimbursement rates from third-party payers, including governmental healthcare programs, such as Medicare and Medicaid, commercial
payers, and health maintenance organizations. Patients who are prescribed medications for the treatment of their conditions generally rely on
third-party payers to reimburse all or part of the costs associated with their prescription drugs. Coverage and adequate reimbursement rates
from governmental healthcare programs and commercial payers is critical to new product acceptance. Coverage decisions may depend upon
clinical and economic standards that disfavor new products when more established or lower cost therapeutic alternatives are already
available or subsequently become available. Even if we obtain coverage for a given product, the resulting reimbursement rates might not be
sufficient to achieve or sustain profitability or may require co-payments that patients find unacceptably high, thereby discouraging their use of
our products. Additionally, third-party payers may not cover, or provide adequate reimbursement for, long-term follow-up evaluations required
following the use of our product candidates. Patients are unlikely to use our products unless coverage is provided and reimbursement is
adequate to cover a significant portion of the cost of our products.
In addition, the market for FUROSCIX and any product candidates that we attempt to commercialize will depend significantly on access to
third-party payers’ drug formularies, or lists of medications for which third-party payers provide coverage. The industry competition to be
included in such formularies often leads to downward pricing pressures on pharmaceutical companies. Also, third-party payers may refuse to
include a particular branded drug in their formularies, or may apply formulary controls (e.g., prior authorization or step therapy requirements,
higher co-payments) to restrict patient access to a branded drug when a less costly generic equivalent or other alternative is available.
Third-party payers, whether foreign or domestic, and whether governmental or commercial, are developing increasingly sophisticated
methods of controlling healthcare costs. In the United States, no uniform policy for coverage and reimbursement of products exists among
third-party payers. The Centers for Medicare & Medicaid Services, or CMS, an agency within the U.S. Department of Health and Human
Services, or HHS, decides whether and to what extent products will be covered and reimbursed under Medicare. Third-party payers often
rely upon Medicare coverage policy and payment limitations in setting their own coverage and reimbursement policies. Reimbursement by a
third-party payer may depend upon a number of factors, including the third-party payer’s determination that a medication is safe, effective
and medically necessary; appropriate for the specific patient; cost-effective; supported by peer-reviewed medical journals; included in clinical
practice guidelines; and neither cosmetic, experimental nor investigational. Therefore, coverage of and reimbursement rates for products can
differ significantly from payer to payer. As a result, the coverage determination process is often a time-consuming and costly process that will
require us to provide scientific, clinical, and cost-effectiveness data for the use of our products to each payer separately, with no assurance
that coverage will be applied consistently or obtained in the first instance.
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There may also be delays in obtaining coverage for newly approved drugs, and coverage may be more limited than the indications for which
the drug is approved by the FDA or comparable foreign regulatory authorities. Moreover, eligibility for reimbursement does not imply that any
drug will be paid for in all cases or at a rate that covers our costs, including research, development, manufacture, sale and distribution.
Reimbursement rates may vary, for example, according to the use of the product and the clinical setting in which it is used. Reimbursement
rates may also be based on reimbursement levels already set for lower cost drugs or may be incorporated into existing payments for other
services. We may also increasingly be required to provide discounts on our products to governmental healthcare programs, commercial
payers and health maintenance organizations.
Further, we believe that future coverage and reimbursement rates will likely be subject to increased restrictions both in the United States and
in international markets. Third-party coverage for our product candidates for which we may receive regulatory approval may not be available
or adequate in either the United States or international markets, which could have a material adverse effect on our business, results of
operations, financial condition and prospects.
If the FDA does not conclude that our product candidates satisfy the requirements for the Section 505(b)(2) regulatory approval
pathway, or if the requirements for such product candidates under Section 505(b)(2) are not as we expect, the approval pathway for
those product candidates will likely take significantly longer, cost significantly more and entail significantly greater complications
and risks than anticipated, and in either case may not be successful.
In October 2022, the FDA approved our NDA for FUROSCIX through the Section 505(b)(2) regulatory pathway, and we plan to develop
additional product candidates for which we plan to seek approval under the 505(b)(2) regulatory pathway. The Drug Price Competition and
Patent Term Restoration Act of 1984, also known as the Hatch-Waxman Act, added Section 505(b)(2) to the FDCA. Section 505(b)(2)
permits the submissions of a NDA where at least some of the information required for approval comes from studies that were not conducted
by or for the applicant and for which the applicant has not obtained a right of reference. Section 505(b)(2), if applicable to us under the
FDCA, would allow a NDA we submit to the FDA to rely in part on data in the public domain or the FDA’s prior conclusions regarding the
safety and effectiveness of approved compounds, which could expedite the development program for our future product candidates by
potentially decreasing the amount of nonclinical and/or clinical data that we would need to generate in order to obtain FDA approval.
If the FDA does not allow us to pursue the Section 505(b)(2) regulatory pathway for our product candidates, we may need to conduct
additional nonclinical studies and/or clinical trials, provide additional data and information, and meet additional standards for regulatory
approval. If this were to occur, the time and financial resources required to obtain FDA approval for such product candidates, and
complications and risks associated with such product candidates, would likely substantially increase. Moreover, inability to pursue the
Section 505(b)(2) regulatory pathway could result in new competitive products reaching the market more quickly than any product candidates
we developed, which could adversely impact our competitive position and prospects. Even if we are allowed to pursue the Section 505(b)(2)
regulatory pathway, we cannot assure you that any product candidates we develop will receive the requisite approval for commercialization.
In addition, the pharmaceutical industry is highly competitive, and Section 505(b)(2) NDAs are subject to certain requirements designed to
protect the patent rights of sponsors of previously approved drugs that are referenced in a Section 505(b)(2) NDA. These requirements may
give rise to patent litigation and mandatory delays in approval of our NDAs for up to 30 months or longer depending on the outcome of any
litigation. It is not uncommon for a manufacturer of an approved product to file a citizen petition with the FDA seeking to delay approval of, or
impose additional approval requirements for, pending competing products. If successful, such petitions can significantly delay, or even
prevent, the approval of a new product. Even if the FDA ultimately denies such a petition, the FDA may substantially delay approval while it
considers and responds to the petition. In addition, even if we are able to utilize the Section 505(b)(2) regulatory pathway, there is no
guarantee this would ultimately lead to streamlined product development or earlier approval.
If the FDA or other foreign regulatory authorities approve generic products that compete with FUROSCIX or any of our product
candidates, the sales of FUROSCIX or our product candidates, if approved, could be adversely affected.
Once a NDA, including a Section 505(b)(2) application, is approved, the product covered becomes a “listed drug” which can be cited by
potential competitors in support of approval of an abbreviated new drug application, or
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ANDA. FDA regulations and other foreign regulations and policies provide incentives to manufacturers to create modified versions of a drug
to facilitate the approval of an ANDA or other application for similar substitutes. If these manufacturers demonstrate that their product has the
same active ingredient(s), dosage form, strength, route of administration, and conditions of use, or labeling, as FUROSCIX or any of our
product candidates, they might only be required to conduct a relatively inexpensive study to show that their generic product is absorbed in
the body at the same rate and to the same extent as, or is bioequivalent to, FUROSCIX or our product candidate (and in some cases even
this limited bioequivalence testing can be waived by the FDA). Competition from generic equivalents to FUROSCIX or any of our product
candidates could substantially limit our ability to generate revenues and therefore to obtain a return on the investments we have made in
FUROSCIX and our product candidates.
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 have a material adverse effect on our business.
We are subject to numerous environmental, health and safety laws and regulations, including those governing laboratory procedures and the
handling, use, storage, treatment and disposal of hazardous materials and wastes. From time to time and in the future, our operations may
involve the use of hazardous and flammable materials, including chemicals and biological materials, and may also produce hazardous waste
products. Even if we contract with third parties for the disposal of these materials and waste products, we cannot completely eliminate the
risk of contamination or injury resulting from these materials. In the event of contamination or injury resulting from the use or disposal of our
hazardous materials, we could be held liable for any resulting damages, and any liability could exceed our resources. We also could incur
significant costs associated with civil or criminal fines and penalties for failure to comply with such laws and regulations.
We maintain workers’ compensation insurance to cover us for costs and expenses we may incur due to injuries to our employees resulting
from the use of hazardous materials, but this insurance may not provide adequate coverage against potential liabilities. However, we do not
maintain insurance for environmental liability or toxic tort claims that may be asserted against us.
In addition, we may incur substantial costs in order to comply with current or future environmental, health and safety laws and regulations.
Current or future environmental laws and regulations may impair our research, development or production efforts. In addition, failure to
comply with these laws and regulations may result in substantial fines, penalties or other sanctions.
We will need to obtain FDA approval of any proposed product names, and any failure or delay associated with such approval may
adversely impact our business.
Any name we intend to use for our product candidates will require approval from the FDA regardless of whether we have secured a
trademark registration from the U.S. Patent and Trademark Office, or USPTO. The FDA typically conducts a review of proposed product
names, including an evaluation of potential for confusion with other product names. The FDA may object to any product name we submit if it
believes the name inappropriately implies medical claims. If the FDA objects to any of our proposed product names, we may be required to
adopt an alternative name for our product candidates. If we adopt an alternative name, we would lose the benefit of any existing trademark
applications for such product candidate, and may be required to expend significant additional resources in an effort to identify a suitable
product name that would qualify under applicable trademark laws, not infringe the existing rights of third parties and be acceptable to the
FDA. We may be unable to build a successful brand identity for a new trademark in a timely manner or at all, which would limit our ability to
commercialize our product candidates.
Laws and regulations governing any international operations we may have in the future may preclude us from developing,
manufacturing and selling certain products outside of the United States and require us to develop and implement costly
compliance programs.
The Foreign Corrupt Practices Act, or FCPA, prohibits offering, promising, giving, or authorizing others to give anything of value, either
directly or indirectly, to a non-United States government official in order to influence official action, or otherwise obtain or retain business. The
FCPA also obligates companies whose securities are listed in the United States to comply with certain accounting provisions requiring the
company to maintain books and records that accurately and fairly reflect all transactions of the corporation, including international
42
subsidiaries, and to devise and maintain an adequate system of internal accounting controls for international operations.
Our business is heavily regulated and therefore involves significant interaction with public officials, which may in the future include officials of
non-United States governments. Additionally, in many other countries, the healthcare providers who prescribe pharmaceuticals are employed
by their government, and the purchasers of pharmaceuticals are government entities; therefore, our dealings with these prescribers and
purchasers would be subject to regulation under the FCPA. Recently the Securities and Exchange Commission, or SEC, and Department of
Justice have increased their FCPA enforcement activities with respect to biotechnology and pharmaceutical companies. There is no certainty
that all of our employees, agents, suppliers, manufacturers, contractors, or collaborators, or those of our affiliates, will comply with all
applicable laws and regulations, particularly given the high level of complexity of these laws.
Various laws, regulations and executive orders also restrict the use and dissemination outside of the United States, or the sharing with
certain non-U.S. nationals, of information classified for national security purposes, as well as certain products and technical data relating to
those products. If we expand our presence outside of the United States, it will require us to dedicate additional resources to comply with
these laws, and these laws may preclude us from developing, manufacturing, or selling certain products and product candidates outside of
the United States, which could limit our growth potential and increase our development costs.
The failure to comply with anti-bribery and anti-corruption laws, and other laws governing international business practices, may result in
substantial fines, criminal sanctions against us, our officers, or our employees, the closing down of facilities, including those of our suppliers
and manufacturers, requirements to obtain export licenses, cessation of business activities in sanctioned countries, implementation of
heightened monitoring by governmental authorities, and prohibitions on the conduct of our business. The SEC also may suspend or bar
issuers from trading securities on U.S. exchanges for violations of the FCPA’s accounting provisions.
Governments outside the United States tend to impose strict price controls, which may adversely affect our revenues, if any.
In some countries, such as the countries of the EU, the pricing of prescription pharmaceuticals is subject to governmental control. In these
countries, pricing negotiations with governmental authorities can take considerable time after the receipt of marketing approval for a product.
In addition, there can be considerable pressure by governments and other stakeholders on prices and reimbursement levels, including as
part of cost containment measures. Political, economic and regulatory developments may further complicate pricing negotiations, and pricing
negotiations may continue after coverage and reimbursement have been obtained. Reference pricing used by various countries and parallel
distribution or arbitrage between low-priced and high-priced countries, can further reduce prices. To obtain reimbursement or pricing approval
in some countries, we, or any future collaborators, may be required to conduct a clinical trial that compares the cost-effectiveness of our
product candidates to other available therapies, which is time-consuming and costly. If reimbursement of our product candidates is
unavailable or limited in scope or amount, or if pricing is set at unsatisfactory levels, our business could be harmed.
We may be liable if the FDA or other U.S. enforcement agencies determine we have engaged in the off-label promotion of our
products or have disseminated false or misleading labeling, advertising or promotional materials.
The FDA strictly regulates marketing, labeling, advertising and promotion of prescription drugs. These regulations include standards and
restrictions for direct-to-consumer advertising, industry-sponsored scientific and educational activities, promotional activities involving the
internet and off-label promotion. Any regulatory approval that the FDA grants is limited to those specific diseases and indications for which a
product is deemed to be safe and effective by the FDA. For example, the FDA-approved label for FUROSCIX is limited to the treatment of
congestion due to fluid overload in adults with chronic heart failure, and includes certain contraindications and limitations on use.
Our promotional materials and training methods must comply with the FDA and other applicable laws and regulations, including laws and
regulations prohibiting marketing claims that promote the off-label use of our products or that omit material facts or make false or misleading
statements about the safety or efficacy of our
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products. Healthcare providers may use our products, if approved, off-label, as the FDA does not restrict or regulate a physician’s choice of
treatment within the practice of medicine. The FDA also could conclude that a claim is misleading if it determines that there are inadequate
nonclinical and/or clinical data supporting the claim, or if a claim fails to reveal material facts about the safety or efficacy of our products. If
the FDA determines that our promotional labeling or advertising materials promote an off-label use or make false or misleading claims, it
could request that we modify our promotional materials or training content or subject us to regulatory or enforcement actions, including the
issuance of an untitled letter, a warning letter, injunction, seizure, civil fines and criminal penalties.
It is also possible that other federal, state or foreign enforcement authorities might take action if they determine that our promotional or
training materials promote an unapproved use or make false or misleading claims, which could result in significant fines or penalties. The
FDA or another regulatory agency could disagree with the manner in which we advertise and promote our products. Violations of the FDCA
may also lead to investigations alleging violations of federal and state health care fraud and abuse laws, as well as state consumer protection
laws, which may lead to costly penalties and may adversely impact our business. Recent court decisions have impacted FDA’s enforcement
activity regarding off-label promotion in light of First Amendment considerations; however, there are still significant risks in this area, in part
due to the potential for False Claims Act exposure. In addition, the off-label use of our products may increase the risk of product liability
claims. Product liability claims are expensive to defend and could result in substantial damage awards against us and harm our reputation.
Recently enacted and future legislation may increase the difficulty and cost for us to obtain marketing approval of any product
candidates and commercialize FUROSCIX and may affect the prices we may obtain.
In the United States and many foreign jurisdictions, there have been a number of legislative and regulatory changes and proposed changes
regarding the healthcare system that could prevent or delay marketing approval of any of our product candidates, restrict or regulate post-
approval activities and affect our ability to profitably sell FUROSCIX or any product candidates for which we obtain marketing approval.
Changes in regulations, statutes or the interpretation of existing regulations could impact our business in the future by requiring, for example:
(i) changes to our manufacturing arrangements; (ii) additions or modifications to product labeling; (iii) the recall or discontinuation of our
products; or (iv) additional record-keeping requirements. If any such changes were to be imposed, they could adversely affect the operation
of our business.
Among policy makers and payers in the United States and elsewhere, there is significant interest in promoting changes in healthcare
systems with the stated goals of containing healthcare costs, improving quality and/or expanding access. In the United States, the
pharmaceutical industry has been a particular focus of these efforts and has been significantly affected by major legislative initiatives. The
Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010, collectively referred to
as the ACA, is a sweeping law intended to broaden access to health insurance, reduce or constrain the growth of healthcare spending,
enhance remedies against fraud and abuse, add new transparency requirements for the healthcare and health insurance industries, impose
new taxes and fees on the health industry and impose additional health policy reforms.
Among the provisions of the ACA of importance to our products and product candidates are the following:
•
an annual, nondeductible fee on any entity that manufactures or imports certain branded prescription drugs and biologic
agents, apportioned among these entities according to their market share in certain government healthcare programs;
•
a new methodology by which rebates owed by manufacturers under the Medicaid Drug Rebate Program are calculated for
certain drugs and biologics that are inhaled, infused, instilled, implanted or injected;
•
an increase in the statutory minimum rebates a manufacturer must pay under the Medicaid Drug Rebate Program to 23.1%
and 13.0% of the average manufacturer price for branded and generic drugs, respectively;
•
expansion of potential liability under federal healthcare fraud and abuse laws, including the False Claims Act, or FCA, and the
Anti-Kickback Statute, or AKS;
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•
a new Medicare Part D coverage gap discount program, which was replaced by a new manufacturer discount program on
January 1, 2025 (as discussed below), in which manufacturers were required to offer 50% (70% as of January 1, 2019 due to
the Bipartisan Budget Act of 2018, or the BBA) point-of-sale discounts off negotiated prices of applicable brand drugs to
eligible beneficiaries during their coverage gap period, as a condition for the manufacturer’s outpatient drugs to be covered
under Medicare Part D;
•
extension of manufacturers’ Medicaid rebate liability to covered drugs dispensed to individuals who are enrolled in Medicaid
managed care organizations;
•
expansion of eligibility criteria for Medicaid programs by, among other things, allowing states to offer Medicaid coverage to
additional individuals, thereby potentially increasing manufacturers’ Medicaid rebate liability;
•
expansion of the entities eligible for discounts under the 340B drug pricing program;
•
new requirements to annually report to CMS certain data on payments and other transfers of value to physicians and teaching
hospitals;
•
a requirement to annually report drug samples that manufacturers and distributors provide to physicians; and
•
a new Patient-Centered Outcomes Research Institute to oversee, identify priorities in, and conduct comparative clinical
effectiveness research, along with funding for such research.
There have been a number of significant changes to the ACA and its implementation, as well as judicial, executive and Congressional
challenges to certain aspects of the ACA. On June 17, 2021, the U.S. Supreme Court dismissed the most recent judicial challenge to the
ACA brought by several states without specifically ruling on the constitutionality of the ACA.
In addition, other legislative changes have been proposed and adopted since the ACA was enacted. For example, the American Rescue
Plan Act of 2021 eliminated the statutory Medicaid drug rebate cap, beginning January 1, 2024. Previously, the Medicaid rebate was capped
at 100% of a drug’s average manufacturer price, or AMP.
Moreover, the federal government and the individual states in the United States have become increasingly active in developing proposals,
passing legislation and implementing regulations designed to control drug pricing, including price or patient reimbursement constraints,
discounts, formulary flexibility, marketing cost disclosure, drug price increase reporting, and other transparency measures. These types of
initiatives may result in additional reductions in Medicare, Medicaid, and other healthcare funding, and may otherwise affect the prices we
may obtain for FUROSCIX or the frequency with which FUROSCIX is prescribed or used.
Most significantly, in August 2022, the Inflation Reduction Act of 2022 (IRA) was signed into law. This statute marks the most significant
action by Congress with respect to the pharmaceutical industry since adoption of the ACA in 2010. Among other things, the IRA requires
manufacturers of certain drugs to engage in price negotiations with Medicare, with prices that can be negotiated subject to a cap; imposes
rebates under Medicare Part B and Medicare Part D to penalize price increases that outpace inflation (first due in 2023); redesigns the
Medicare Part D benefit (beginning in 2024); and replaces the Part D coverage gap discount program with a new manufacturer discount
program (beginning in 2025). CMS has published the negotiated prices for the initial ten drugs, which will first be effective in 2026, and has
published the list of the subsequent 15 drugs that will be subject to negotiation. The IRA permits the Secretary of the Department of Health
and Human Services (HHS) to implement many of these provisions through guidance, as opposed to regulation, for the initial years. HHS has
and will continue to issue and update guidance as these programs are implemented, although the Medicare drug price negotiation program is
currently subject to legal challenges. The impact of the IRA on us and the pharmaceutical industry cannot yet be fully determined, but is likely
to be significant. These laws and similar future initiatives may result in additional reductions in Medicare and other healthcare funding, which
could have an adverse effect on customers for FUROSCIX or our product candidates, if approved, and, accordingly, our financial operations.
There also has been increasing legislative and enforcement interest in the United States with respect to specialty drug pricing practices.
Specifically, there have been several recent U.S. Congressional inquiries and proposed federal and state legislation designed to, among
other things, bring more transparency to drug pricing, reduce the
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cost of prescription drugs under Medicare, review the relationship between pricing and manufacturer patient programs, and reform
government program reimbursement methodologies for drugs. In March 2021, the American Rescue Plan Act of 2021 was signed into law,
which eliminated the statutory Medicaid drug rebate cap for single source and innovator multiple source drugs, beginning January 1, 2024.
The rebate was previously capped at 100% of a drug’s average manufacturer price. In August 2022, the Inflation Reduction Act of 2022, or
IRA, was signed into law. Among other things, the IRA requires manufacturers of certain drugs to engage in price negotiations with Medicare
(beginning in 2026), with prices that can be negotiated subject to a cap; imposes rebates under Medicare Part B and Medicare Part D to
penalize price increases that outpace inflation (first due in 2023); and replaces the Part D coverage gap discount program with a new
discounting program (which began on January 1, 2025). The IRA permits the Secretary of the Department of Health and Human Services to
implement many of these provisions through guidance, as opposed to regulation, for the initial years. On August 15, 2024, HHS announced
the agreed-upon prices for the first ten drugs that are subject to price negotiations, which take effect in January 2026. HHS will select up to
fifteen additional products covered under Part D for negotiation in 2025. Each year thereafter, more Part B and Part D products will become
subject to the HHS price negotiation program, although the program is currently subject to legal challenges. For that and other reasons, it is
currently unclear how the IRA will be effectuated, or the impact of the IRA on our business.
In addition, there have been several changes to the 340B drug pricing program, which imposes ceilings on prices that drug manufacturers
can charge for medications sold to certain health care facilities. For the 2018 and 2019 fiscal years, CMS altered the reimbursement formula
from Average Sale Price, or ASP, plus 6 percent to ASP minus 22.5 percent on specified covered outpatient drugs, or SCODs, but did so
without issuing a formal notice of proposed rulemaking, which was subsequently challenged in court. In June 2022, the U.S. Supreme Court
held that although the Department of Health and Human Services, or HHS, has authority to set reimbursement rates based on average price
and discretion to “adjust” the price up or down, HHS may not vary the reimbursement rates by hospital group unless it conducts a survey of
hospitals’ acquisition costs. Accordingly, the U.S. Supreme Court held that HHS’s changes to the 2018 and 2019 reimbursement rates for
340B hospitals were unlawful. Based on the foregoing, CMS issued a final rule, effective January 1, 2023, pursuant to which CMS pays 340B
hospitals under Medicare Part B for certain outpatient drugs at the drug’s ASP, plus 6%, the same rate used for non-340B hospitals. It is
unclear how future changes to the payment methodology may affect pharmaceutical manufacturers and hospitals who purchase their
products now and in the future.
At the state level, legislatures have increasingly passed legislation and implemented regulations designed to control pharmaceutical and
biological product pricing, including price or patient reimbursement constraints, discounts, restrictions on certain product access and
marketing cost disclosure and transparency measures, and, in some cases, designed to encourage importation from other countries and bulk
purchasing.
We expect that these and other healthcare reform measures that may be adopted in the future may result in more rigorous coverage and
payment criteria and in additional downward pressure on the price that we receive for any approved drug. Any reduction in reimbursement
from Medicare or other government programs may result in a similar reduction in payments from private payors. The implementation of cost
containment measures or other healthcare reforms may prevent us from being able to generate revenue, attain profitability, or commercialize
our drugs. We expect that additional state and federal healthcare reform measures will be adopted in the future, any of which could limit the
amounts that federal and state governments will pay for healthcare products and services, which could result in reduced demand for our
product candidates or additional pricing pressures.
In addition, new and changing laws, regulations, executive orders and other governmental actions may also create uncertainty about how
laws and regulations will be interpreted and applied. Regulatory changes and other actions that materially affect our business may be
announced with little or no advance notice, and we may be unable to effectively mitigate all adverse impacts from such measures.
We cannot predict with certainty what impact any federal or state health reforms will have on us, but such changes could impose new or
more stringent regulatory requirements on our activities or result in reduced reimbursement for our products, any of which could adversely
affect our business, results of operations and financial condition.
If we fail to comply with our reporting and payment obligations under the Medicaid Drug Rebate Program or other governmental
pricing programs in which we participate, we could be subject to additional
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reimbursement requirements, penalties, sanctions and fines, which could have a material adverse effect on our business, financial
condition, results of operations and growth prospects.
Medicaid is a joint federal and state program administered by the states for low income and disabled beneficiaries. We participate in and
have certain price reporting obligations under the Medicaid Drug Rebate Program, or the MDRP, as a condition of having covered outpatient
drugs payable under Medicaid and, if applicable, under Medicare Part B. The MDRP requires us to pay a rebate to state Medicaid programs
every quarter for each unit of our covered outpatient drugs dispensed to Medicaid beneficiaries and paid for by a state Medicaid program.
The rebate is based on pricing data that we must report on a monthly and quarterly basis to the Centers for Medicare & Medicaid Services, or
CMS, the federal agency that administers the MDRP and other governmental healthcare programs. These data include the average
manufacturer price (AMP) for each drug and, in the case of innovator products, the best price, which in general represents the lowest price
available from the manufacturer to certain entities in the U.S. in any pricing structure, calculated to include all sales and associated rebates,
discounts and other price concessions. The Medicaid rebate consists of two components, the basic rebate and the additional rebate, which
is triggered if the AMP for a drug increases faster than inflation. If we become aware that our MDRP government price reporting submission
for a prior quarter was incorrect or has changed as a result of recalculation of the pricing data, we must resubmit the corrected data for up to
three years after those data originally were due. If we fail to provide information timely or are found to have knowingly submitted false
information to the government, we may be subject to civil monetary penalties and other sanctions, including termination from the MDRP. In
the event that CMS terminates our rebate agreement pursuant to which we participate in the MDRP, no federal payments would be available
under Medicaid or Medicare Part B for our covered outpatient drugs. Our failure to comply with our MDRP price reporting and rebate
payment obligations could negatively impact our financial results.
The IRA imposes rebates under Medicare Part B and Medicare Part D that are triggered by price increases that outpace inflation (first due in
2023), as described under the risk factor “Current and future healthcare reform legislation or regulation may increase the difficulty and cost
for us to commercialize FUROSCIX and may adversely affect the prices we may obtain and may have a negative impact on our business and
results of operations,” above. The Medicare Part D rebate will be calculated on the basis of the AMP figures we report pursuant to the
MDRP.
Federal law requires that any company that participates in the MDRP also participate in the Public Health Service’s 340B drug pricing
program in order for federal funds to be available for the manufacturer’s drugs under Medicaid and, if applicable, Medicare Part B. We
participate in the 340B program, which is administered by the Health Resources and Services Administration, or HRSA, and requires us to
charge statutorily defined covered entities no more than the 340B “ceiling price” for our covered outpatient drugs. These 340B covered
entities include a variety of community health clinics and other entities that receive health services grants from the Public Health Service, as
well as hospitals that serve a disproportionate share of low-income patients. The 340B ceiling price is calculated using a statutory formula
based on the AMP and rebate amount for the covered outpatient drug as calculated under the MDRP, and in general, products subject to
Medicaid price reporting and rebate liability are also subject to the 340B ceiling price calculation and discount requirement. We must report
340B ceiling prices to HRSA on a quarterly basis, and HRSA publishes those prices to 340B covered entities. In addition, HRSA has finalized
regulations regarding the calculation of the 340B ceiling price and the imposition of civil monetary penalties on manufacturers that knowingly
and intentionally overcharge covered entities for 340B-eligible drugs. HRSA has also finalized a revised regulation implementing an
administrative dispute resolution process through which 340B covered entities may pursue claims against participating manufacturers for
overcharges, and through which manufacturers may pursue claims against 340B covered entities for engaging in unlawful diversion or
duplicate discounting of 340B drugs. Our failure to comply 340B program requirements could negatively impact our financial results. Any
additional future changes to the definition of average manufacturer price and the Medicaid rebate amount under legislation or regulation
could affect our 340B ceiling price calculations and also negatively impact our financial results.
In order for FUROSCIX or any product candidates, if approved, to be paid for with federal funds under the Medicaid and Medicare Part B
programs and purchased by certain federal agencies and grantees, we also participate in the U.S. Department of Veterans Affairs, or VA,
Federal Supply Schedule, or FSS, pricing program. As part of this program, we are required to make our products available for procurement
on an FSS contract under which we must comply with standard government terms and conditions and charge a price that is no higher than
the statutory Federal Ceiling Price, or FCP, to four federal agencies (VA, U.S. Department of Defense, or DOD, Public Health Service, and
U.S. Coast Guard). The FCP is based on the Non-Federal Average
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Manufacturer Price, or Non-FAMP, which we must calculate and report to the VA on a quarterly and annual basis. Pursuant to applicable law,
knowing provision of false information in connection with a Non-FAMP filing can subject a manufacturer to significant civil monetary penalties
for each item of false information. The FSS pricing and contracting obligations also contain extensive disclosure and certification
requirements.
We also participate in the Tricare Retail Pharmacy program, under which we are required to pay quarterly rebates on utilization of innovator
products that are dispensed through the Tricare Retail Pharmacy network to Tricare beneficiaries. The rebates are calculated as the
difference between the annual Non-FAMP and FCP. We are required to list our innovator products on a Tricare Agreement in order for them
to be eligible for DOD formulary inclusion. If we overcharge the government in connection with our FSS contract or Tricare Agreement,
whether due to a misstated FCP or otherwise, we are required to refund the difference to the government. Failure to make necessary
disclosures and/or to identify contract overcharges could result in allegations against us under the False Claims Act and other laws and
regulations. Unexpected refunds to the government, and responding to a government investigation or enforcement action, would be
expensive and time-consuming, and could have a material adverse effect on our business, financial condition, results of operations and
growth prospects.
Individual states continue to consider and have enacted legislation to limit the growth of healthcare costs, including the cost of prescription
drugs and combination products. A number of states have either implemented or are considering implementation of drug price transparency
legislation. Requirements of pharmaceutical manufacturers under such laws include advance notice of planned price increases, reporting
price increase amounts and factors considered in taking such increases, wholesale acquisition cost information disclosure to prescribers,
purchasers, and state agencies, and new product notice and reporting. Such legislation could limit the price or payment for certain drugs, and
a number of states are authorized to impose civil monetary penalties or pursue other enforcement mechanisms against manufacturers who
fail to comply with drug price transparency requirements, including the untimely, inaccurate, or incomplete reporting of drug pricing
information.
Pricing and rebate calculations vary among products and programs. The calculations are complex and are often subject to interpretation by
us, governmental or regulatory agencies, and the courts. CMS, the Department of Health & Human Services Office of Inspector General, and
other governmental agencies have pursued manufacturers that were alleged to have failed to report these data to the government in a timely
or accurate manner. Governmental agencies may also make changes in program interpretations, requirements or conditions of participation,
some of which may have implications for amounts previously estimated or paid. We cannot assure you that any submissions we are required
to make under the MDRP, the 340B program, the VA/FSS program, the Tricare Retail Pharmacy Program, and other governmental drug
pricing programs will not be found to be incomplete or incorrect.
Our relationships with customers and payers will be subject to applicable anti-kickback, fraud and abuse, transparency, and other
healthcare laws and regulations, which could expose us to criminal sanctions, civil penalties, contractual damages, reputational
harm, administrative burdens, and diminished profits and future earnings.
Healthcare providers, including physicians, and third-party payers will play a primary role in the recommendation and prescription of any
products for which we obtain marketing approval. Our future arrangements with principal investigators, healthcare professionals, consultants,
third-party payers and customers, if any, will subject us to broadly applicable fraud and abuse and other healthcare laws and regulations.
These laws and regulations may constrain the business or financial arrangements and relationships through which we conduct our
operations, including how we research, market, sell and distribute any products for which we obtain marketing approval. The laws that will
affect our operations include, but are not limited to, the following:
•
the federal Anti-Kickback Statute, which makes it illegal for any person, including a prescription drug manufacturer (or a party
acting on its behalf), to knowingly and willfully solicit, receive, offer or pay any remuneration that is intended to induce the
referral of business, including the purchase, order or prescription of a particular drug for which payment may be made under a
federal healthcare program, such as Medicare or Medicaid. A person or entity does not need to have actual knowledge of this
statute or specific intent to violate it to have committed a violation;
•
False claims laws, which prohibit anyone from knowingly and willfully presenting or causing to be presented for payment to third-
party payers, including government payers, claims for reimbursed drugs or services that are false or fraudulent, claims for items
or services that were not provided as claimed,
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or claims for medically unnecessary items or services. Cases have been brought under false claims laws alleging that off-label
promotion of pharmaceutical products or the provision of kickbacks has resulted in the submission of false claims to
governmental healthcare programs. In addition, the government may assert that a claim, including items or services resulting
from a violation of the federal Anti-Kickback Statute, constitutes a false or fraudulent claim for purposes of the false claims laws.
Further, private individuals have the ability to bring actions on behalf of the government under the federal False Claims Act;
•
the Health Insurance Portability and Accountability Act of 1996, or HIPAA, which prohibits persons or entities from knowingly
and willfully executing a scheme to defraud any healthcare benefit program, including private payers, or knowingly and willfully
falsifying, concealing or covering up a material fact or making any materially false, fictitious or fraudulent statement in
connection with the delivery of or payment for healthcare benefits, items or services. Similar to the federal Anti- Kickback
Statute, a person or entity does not need to have actual knowledge of these statutes or specific intent to violate them to have
committed a violation;
•
federal civil monetary penalties laws, which impose civil fines for, among other things, the offering or transfer of remuneration to
a Medicare or state healthcare program beneficiary if the person knows, or should know, it is likely to influence the beneficiary’s
selection of a particular provider, practitioner, or supplier of services reimbursable by Medicare or a state healthcare program,
unless an exception applies;
•
federal consumer protection and unfair competition laws, which broadly regulate marketplace activities and activities that
potentially harm consumers;
•
the federal physician sunshine requirements under ACA, which requires certain manufacturers of drugs, devices, biologics, and
medical supplies to report annually to the U.S. Centers for Medicare & Medicaid Services information related to payments and
other transfers of value to physicians (defined to include doctors, dentists, optometrists, podiatrists and chiropractors), certain
non-physician practitioners (physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse
anesthetists, anesthesiologist assistants, and certified nurse midwives), and teaching hospitals, and ownership and investment
interests held by physicians and their immediate family members;
•
state law equivalents of each of the above federal laws, such as anti-kickback and false claims laws, which may apply to items
or services reimbursed by any third-party payor, including commercial insurers; state laws that require pharmaceutical
companies to comply with the pharmaceutical industry’s voluntary compliance guidelines and the applicable compliance
guidance promulgated by the federal government, or otherwise restrict payments that may be made to healthcare providers and
other potential referral sources; and state laws that require drug manufacturers to report information related to payments and
other transfers of value to physicians and other healthcare providers or marketing expenditures and pricing information; and
•
European and other foreign law equivalents of each of the laws, including reporting requirements detailing interactions with and
payments to healthcare providers.
Because of the breadth of these laws and the narrowness of the statutory exceptions and regulatory safe harbors available, it is possible that
our business practices, including our arrangements with physicians and other healthcare providers, some of whom received stock options as
compensation for services provided, may be subject to challenge under current or future statutes, regulations, agency guidance or case law
involving applicable fraud and abuse or other healthcare laws and regulations. Law enforcement authorities are increasingly focused on
enforcing fraud and abuse laws, and it is possible that some of our practices may be challenged under these laws. Efforts to ensure that our
business arrangements with third parties, and our business generally, will comply with applicable healthcare laws and regulations will involve
substantial costs. The risk of our being found in violation of these laws is increased by the fact that many of them have not been fully
interpreted by the regulatory authorities or the courts, and their provisions are open to a variety of interpretations. If our operations are found
to be in violation of any of these laws or any other governmental regulations that may apply to us, we may be subject to significant civil,
criminal and administrative penalties, damages, fines, individual imprisonment, exclusion from government funded healthcare programs,
such as Medicare and Medicaid, disgorgement, additional reporting requirements and oversight if we become subject to a corporate integrity
agreement or similar agreement to resolve allegations of non-compliance with these laws, contractual damages, diminished profits and future
earnings, reputational harm, and the curtailment or restructuring of our operations.
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Defending against any such actions can be costly, time-consuming and may require significant financial and personnel resources. Therefore,
even if we are successful in defending against any such actions that may be brought against us, our business may be impaired. Further, if
any of the physicians or other healthcare providers or entities with whom we expect to do business is found to be not in compliance with
applicable laws, they may be subject to criminal, civil or administrative sanctions, including exclusions from government funded healthcare
programs.
Actual or perceived failures to comply with applicable data protection, privacy and security laws, regulations, standards and other
requirements could adversely affect our business, results of operations, and financial condition.
The global data protection landscape is rapidly evolving, and we are or may become subject to numerous state, federal and foreign laws,
requirements and regulations governing the collection, use, disclosure, retention, and security of personal information. Implementation
standards and enforcement practices are likely to remain uncertain for the foreseeable future, and we cannot yet determine the impact future
laws, regulations, standards, or perception of their requirements may have on our business. This evolution may create uncertainty in our
business, affect our ability to operate in certain jurisdictions or to collect, store, transfer use and share personal information, necessitate the
acceptance of more onerous obligations in our contracts, result in liability or impose additional costs on us. Any failure or perceived failure by
us to comply with federal, state or foreign laws or regulations, our internal policies and procedures or our contracts governing our processing
of personal information could result in negative publicity, government investigations and enforcement actions, claims by third parties and
damage to our reputation, any of which could have a material adverse effect on our business, results of operation, and financial condition.
In the U.S., the Health Insurance Portability and Accountability Act, as amended by the Health Information Technology for Economic and
Clinical Health Act of 2009, and regulations implemented thereunder, or collectively HIPAA, imposes privacy, security and breach notification
obligations on certain healthcare providers, health plans, and healthcare clearinghouses, known as covered entities, as well as their business
associates that perform certain services that involve creating, receiving, maintaining or transmitting individually identifiable health information
for or on behalf of such covered entities, and their covered subcontractors. We may obtain health information from third parties (including
healthcare providers and research institutions from which we obtain patient health data) that are subject to privacy and security requirements
under HIPAA. Consequently, depending on the facts and circumstances, we could face substantial criminal penalties if we knowingly receive
individually identifiable health information from a HIPAA-covered healthcare provider or research institution that has not satisfied HIPAA’s
requirements for disclosure of individually identifiable health information.
Certain states have also adopted comparable privacy and security laws and regulations, which govern the privacy, processing and protection
of health-related and other personal information. Such laws and regulations will be subject to interpretation by various courts and other
governmental authorities, thus creating potentially complex compliance issues for us and our future customers and strategic partners. For
example, the California Consumer Privacy Act, as amended by the California Privacy Rights Act, or collectively, the CCPA, requires covered
businesses that process the personal information of California residents to, among other things: provide certain disclosures to California
residents regarding the business’s collection, use, and disclosure of their personal information; receive and respond to requests from
California residents to access, delete, and correct their personal information, or to opt out of certain disclosures of their personal information,
and enter into specific contractual provisions with service providers that process California resident personal information on the business’s
behalf. Similar laws have been passed in other states and are continuing to be proposed at the state and federal level, reflecting a trend
toward more stringent privacy legislation in the United States. The enactment of such laws could have potentially conflicting requirements
that would make compliance challenging. In the event that we are subject to or affected by HIPAA, the CCPA or other domestic privacy and
data protection laws, any liability from failure to comply with the requirements of these laws could adversely affect our financial condition.
Furthermore, the Federal Trade Commission, or FTC, also has authority to initiate enforcement actions against entities that make deceptive
statements about privacy and data sharing in privacy policies, fail to limit third-party use of personal health information, fail to implement
policies to protect personal health information or engage in other unfair practices that harm customers or that may violate Section 5(a) of the
FTC Act. According to the FTC, failing to take appropriate steps to keep consumers’ personal information secure can constitute unfair acts or
practices in or affecting commerce in violation of Section 5(a) of the FTC Act. The FTC expects a company’s data security measures to be
reasonable and appropriate in light of the sensitivity and volume of consumer information
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it holds, the size and complexity of its business, and the cost of available tools to improve security and reduce vulnerabilities. The FTC and
many state Attorneys General also continue to enforce federal and state consumer protection laws against companies for online collection,
use, dissemination and security practices that appear to be unfair or deceptive. These consumer protection laws are increasingly being
applied by FTC and state Attorneys General to regulate the collection, use, storage, and disclosure of personal or personally identifiable
information, through websites or otherwise, and to regulate the presentation of website content.
Disruptions at the FDA, the SEC and other government agencies caused by funding shortages or global health concerns could
hinder their ability to hire and retain key leadership and other personnel, prevent new products and services from being developed,
reviewed, approved or commercialized in a timely manner or otherwise prevent those agencies from performing normal business
functions on which the operation of our business may rely, which could negatively impact our business.
The ability of the FDA and foreign regulatory authorities to review and approve new products can be affected by a variety of factors, including
government budget and funding levels, statutory, regulatory, and policy changes, the FDA’s or foreign regulatory authorities’ ability to hire
and retain key personnel and accept the payment of user fees, and other events that may otherwise affect the FDA’s or foreign regulatory
authorities’ ability to perform routine functions. Average review times at the FDA and foreign regulatory authorities have fluctuated in recent
years as a result. In addition, government funding of other government agencies that fund research and development activities is subject to
the political process, which is inherently fluid and unpredictable. Disruptions at the FDA and other agencies may also slow the time
necessary for new drugs, medical devices and biologics or modifications to approved drugs, and biologics to be reviewed and/or approved by
necessary government agencies, which would adversely affect our business. For example, in recent years, the U.S. government has shut
down several times and certain regulatory agencies, such as the FDA, have had to furlough critical FDA employees and stop critical
activities. There currently also exists significant uncertainty regarding staffing-levels at the FDA.
Separately, in response to the global COVID-19 pandemic, the FDA postponed most inspections of domestic and foreign manufacturing
facilities at various points. If a prolonged government shutdown occurs, or if global health concerns prevent the FDA or other regulatory
authorities from conducting their regular inspections, reviews, or other regulatory activities, it could significantly impact the ability of the FDA
or other regulatory authorities to timely review and process our regulatory submissions, which could have a material adverse effect on our
business.
Risks Related to Our Intellectual Property
Risks Related to Protecting our Intellectual Property
Our success depends on our ability to protect our intellectual property and proprietary technology, as well as the ability of our
collaborators to protect their intellectual property and proprietary technology.
Our success depends in large part on our ability to obtain and maintain patent protection and trade secret protection in the United States and
other countries with respect to our proprietary products and product candidates. If we do not adequately protect our intellectual property
rights, competitors may be able to erode or negate any competitive advantage we may have, which could harm our business and ability to
achieve profitability. To protect our proprietary position, we file patent applications in the United States and abroad related to our novel
products and product candidates that are important to our business; we also may license or purchase patent applications filed by others. The
patent application and approval process is expensive and time-consuming. We may not be able to file and prosecute all necessary or
desirable patent applications at a reasonable cost or in a timely manner.
Agreements through which we license patent rights may not give us control over patent prosecution or maintenance, so that we may not be
able to control which claims or arguments are presented and may not be able to secure, maintain, or successfully enforce necessary or
desirable patent protection of those patent rights. We have not had and do not have primary control over patent prosecution and
maintenance for certain of the patents and patent applications we license, and therefore cannot guarantee that these patents and
applications will be prosecuted or maintained in a manner consistent with the best interests of our business. Failure by owners of this
intellectual property to enforce claims could have a negative impact on our business. We cannot be certain
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that patent prosecution and maintenance activities by our licensors have been or will be conducted in compliance with applicable laws and
regulations or will result in valid and enforceable patents.
If the scope of the patent protection we or our licensors obtain is not sufficiently broad, we may not be able to prevent others from developing
and commercializing technology and products similar or identical to ours. The degree of patent protection we require to successfully compete
in the marketplace may be unavailable or severely limited in some cases and may not adequately protect our rights or permit us to gain or
keep any competitive advantage. We cannot provide any assurances that any of our licensed patents have, or that any of our pending
licensed patent applications that mature into issued patents will include, claims with a scope sufficient to protect our current and future
products and product candidates or otherwise provide any competitive advantage, nor can we assure you that our licenses are or will remain
in force. In addition, the laws of foreign countries may not protect our rights to the same extent as the laws of the United States. Furthermore,
patents have a limited lifespan. In the United States, the natural expiration of a patent is generally twenty years after it is filed. Various
extensions may be available; however, the life of a patent, and the protection it affords, is limited. Given the amount of time required for the
development, testing and regulatory review of new product candidates, patents protecting such candidates might expire before or shortly
after such candidates are commercialized. As a result, our licensed patent portfolio may not provide us with adequate and continuing patent
protection sufficient to exclude others from commercializing products similar to our products and product candidates. In addition, the patent
portfolio licensed to us is, or may be, licensed to third parties, such as outside our field, and such third parties may have certain enforcement
rights. Thus, patents licensed to us could be put at risk of being invalidated or interpreted narrowly in litigation filed by or against another
licensee or in administrative proceedings brought by or against another licensee in response to such litigation or for other reasons.
Even if they are unchallenged, our owned and licensed patents and pending patent applications, if issued, may not provide us with any
meaningful protection or prevent competitors from designing around our patent claims to circumvent our or our licensors’ patents by
developing similar or alternative technologies or therapeutics in a non-infringing manner. For example, a third party may develop a
competitive therapy that provides benefits similar to one or more of our product candidates but that uses a formulation and/or a device that
falls outside the scope of our patent protection or license rights. If the patent protection provided by the patents and patent applications we
hold or pursue with respect to our products and product candidates is not sufficiently broad to impede such competition, our ability to
successfully commercialize our products and product candidates could be negatively affected, which would harm our business. Similar risks
would apply to any patents or patent applications that we may own or in-license in the future.
We, or any future partners, collaborators, or licensees, may fail to identify patentable aspects of inventions made in the course of
development and commercialization activities before it is too late to obtain patent protection on them. Therefore, we may miss potential
opportunities to strengthen our patent position.
It is possible that defects of form in the preparation or filing of our patents or patent applications may exist, or may arise in the future, for
example, with respect to proper priority claims, inventorship, claim scope, or requests for patent term adjustments. If we or our partners,
collaborators, licensees, or licensors, whether current or future, fail to establish, maintain or protect such patents and other intellectual
property rights, such rights may be reduced or eliminated. If our partners, collaborators, licensees, or licensors, are not fully cooperative or
disagree with us as to the prosecution, maintenance or enforcement of any patent rights, such patent rights could be compromised. If there
are material defects in the form, preparation, prosecution, or enforcement of our patents or patent applications, such patents may be invalid
and/or unenforceable, and such applications may never result in valid, enforceable patents. Any of these outcomes could impair our ability to
prevent competition from third parties, which may have an adverse impact on our business.
The patent position of biotechnology and pharmaceutical companies generally is highly uncertain. No consistent policy regarding the breadth
of claims allowed in biotechnology and pharmaceutical patents has emerged to date in the United States or in many foreign jurisdictions. In
addition, the determination of patent rights with respect to pharmaceutical compounds and formulations commonly involves complex legal
and factual questions, which have in recent years been the subject of much litigation. As a result, the issuance, scope, validity, enforceability
and commercial value of our patent rights are highly uncertain.
Moreover, because the issuance of a patent is not conclusive as to its inventorship, scope, validity or enforceability, our patents or pending
patent applications may be challenged in the courts or patent offices in the
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United States and abroad. There is no assurance that all of the potentially relevant prior art relating to our patents and patent applications
has been found. If such prior art exists, it may be used to invalidate a patent, or may prevent a patent from issuing from a pending patent
application. For example, such patent filings may be subject to a third-party preissuance submission of prior art to the USPTO or to other
patent offices around the world.
Patent applications are generally maintained in confidence until publication. In the United States, for example, patent applications are
typically maintained in secrecy for up to 18 months after their filing date. Similarly, publication of discoveries in scientific or patent literature
often lags behind actual discoveries. Consequently, we cannot be certain that we were the first to file patent applications on our products and
product candidates. Any of the foregoing could harm our competitive position, business, financial condition, results of operations, and
prospects.
Alternately or additionally, we may become involved in post-grant review procedures, oppositions, derivation proceedings, reexaminations,
inter partes review or interference proceedings, in the United States or elsewhere, challenging patents or patent applications in which we
have rights, including patents on which we rely to protect our business. An adverse determination in any such proceedings may result in loss
of exclusivity or in patent claims being narrowed, invalidated or held unenforceable, in whole or in part, which could limit our ability to stop
others from using or commercializing similar or identical technology and products, or limit the duration of the patent protection of our
technology and products.
Pending and future patent applications may not result in patents being issued which protect our business, in whole or in part, or which
effectively prevent others from commercializing competitive products. Changes in either the patent laws or interpretation of the patent laws in
the United States and other countries may diminish the value of our patents or narrow the scope of our patent protection. In addition, the laws
of foreign countries may not protect our rights to the same extent or in the same manner as the laws of the United States. For example,
patent laws in various jurisdictions, including significant commercial markets such as Europe, restrict the patentability of methods of
treatment of the human body more than United States law does.
The patent application process is subject to numerous risks and uncertainties, and there can be no assurance that we or any of our future
development partners will be successful in protecting our products and product candidates by obtaining and defending patents. These risks
and uncertainties include the following:
•
the USPTO and various foreign governmental patent agencies require compliance with a number of procedural, documentary,
fee payment and other provisions during the patent process. There are situations in which noncompliance can result in
abandonment or lapse of a patent or patent application, resulting in partial or complete loss of patent rights in the relevant
jurisdiction. In such an event, competitors might be able to enter the market earlier than would otherwise have been the case;
•
patent applications may not result in any patents being issued;
•
patents that may be issued or in-licensed may be challenged, invalidated, modified, revoked, circumvented, found to be
unenforceable or otherwise may not provide any competitive advantage;
•
our competitors, many of whom have substantially greater resources and many of whom have made significant investments in
competing technologies, may seek or may have already obtained patents that will limit, interfere with or eliminate our ability to
make, use, and sell our potential product candidates;
•
there may be significant pressure on the U.S. government and international governmental bodies to limit the scope of patent
protection both inside and outside the United States for disease treatments that prove successful, as a matter of public policy
regarding worldwide health concerns; and
•
countries other than the United States may have patent laws less favorable to patentees than those upheld by U.S. courts,
allowing foreign competitors a better opportunity to create, develop and market competing product candidates in such
countries.
Issued patents that we have or may obtain or license may not provide us with any meaningful protection, prevent competitors from competing
with us or otherwise provide us with any competitive advantage. Our competitors may be able to circumvent our or our licensors’ patents by
developing similar or alternative technologies or products in a non-infringing manner. Our competitors may also seek approval to market their
own products similar to or otherwise competitive with our products. Alternatively, our competitors may seek to market generic versions
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of any approved products by submitting ANDAs to the FDA in which they claim that patents owned or licensed by us are invalid,
unenforceable or not infringed. In these circumstances, we may need to defend or assert our patents, or both, including by filing lawsuits
alleging patent infringement. In any of these types of proceedings, a court or other agency with jurisdiction may find our patents invalid or
unenforceable, or that our competitors are competing in a non-infringing manner. Thus, even if we have valid and enforceable patents, these
patents still may not provide protection against competing products or processes sufficient to achieve our business objectives.
Pursuant to the terms of potential license agreements with third parties, some of our third-party licensors may have the right, but not the
obligation in certain circumstances to control enforcement of our licensed patents or defense of any claims asserting the invalidity of these
patents. Even if we are permitted to pursue such enforcement or defense, we will require the cooperation of our licensors, and cannot
guarantee that we would receive it and on what terms. We cannot be certain that our licensors will allocate sufficient resources or prioritize
their or our enforcement of such patents or defense of such claims to protect our interests in the licensed patents. If we cannot obtain patent
protection, or enforce existing or future patents against third parties, our competitive position and our financial condition could suffer.
In addition, we rely on the protection of our trade secrets and proprietary know-how. Although we have taken steps to protect our trade
secrets and unpatented know-how, including entering into confidentiality agreements with third parties, and confidential information and
inventions agreements with employees, consultants and advisors, we cannot provide any assurances that all such agreements have been
duly executed, and there is a risk that third parties may still obtain this information or may come upon this or similar information
independently. Additionally, if the steps taken to maintain our trade secrets are deemed inadequate, we may have insufficient recourse
against third parties for misappropriating our trade secrets. If any of these events occurs or if we otherwise lose protection for our trade
secrets or proprietary know-how, our business may be harmed.
It is difficult and costly to protect our intellectual property and our proprietary technologies, and we may not be able to ensure their
protection.
Our commercial success will depend, in part, on obtaining and maintaining patent protection and trade secret protection for the formulations
and compounds of our products and product candidates, the methods used to manufacture them, and associated methods of treatment as
well as on successfully defending these patents against potential third-party challenges. Our ability to protect our products and product
candidates from unauthorized making, using, selling, offering to sell or importing by third parties is dependent on the extent to which we have
rights under valid and enforceable patents that cover these activities.
The patent positions of pharmaceutical, biotechnology and other life sciences companies can be highly uncertain and involve complex legal
and factual questions for which important legal principles remain unresolved. Changes in either the patent laws or in interpretations of patent
laws in the United States and other countries may diminish the value of our intellectual property. Further, the determination that a patent
application or patent claim meets all of the requirements for patentability is a subjective determination based on the application of law and
jurisprudence. The ultimate determination by the USPTO or by a court or other trier of fact in the United States, or corresponding foreign
national patent offices or courts, on whether a claim meets all requirements of patentability cannot be assured. We have not conducted
extensive searches for third-party publications, patents and other information that may affect the patentability of claims in our various patent
applications and patents, so we cannot be certain that all relevant information has been identified. Accordingly, we cannot predict the breadth
of claims that may be allowed or enforced in our patents or patent applications, in our licensed patents or patent applications or in third-party
patents.
We cannot provide assurances that any of our patent applications will be found to be patentable, including over our own prior art patents, or
will issue as patents. Neither can we make assurances as to the scope of any claims that may issue from our pending and future patent
applications nor to the outcome of any proceedings by any potential third parties that could challenge the patentability, validity or
enforceability of our patents and patent applications in the United States or foreign jurisdictions. Any such challenge, if successful, could limit
patent protection for our product candidates and/or materially harm our business.
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The degree of future protection for our proprietary rights is uncertain because legal means afford only limited protection and may not
adequately protect our rights or permit us to gain or keep our competitive advantage. For example:
•
we may not be able to generate sufficient data to support full patent applications that protect the entire breadth of
developments in one or more of our programs;
•
it is possible that one or more of our pending patent applications will not become an issued patent or, if issued, that the
patent(s) will not: (a) be sufficient to protect our technology, (b) provide us with a basis for commercially viable products or (c)
provide us with any competitive advantages;
•
we may not be the first to make the inventions covered by each of our patents and pending patent applications;
•
we may not be the first to file patent applications for these inventions;
•
if our pending applications issue as patents, they may be challenged by third parties as not infringed, invalid or unenforceable
under U.S. or foreign laws; or
•
if issued, the patents under which we hold rights may not be valid or enforceable.
In addition, to the extent that we are unable to obtain and maintain patent protection for one of our product candidates or in the event that
such patent protection expires, it may no longer be cost-effective to extend our portfolio by pursuing additional development of a product
candidate for follow-on indications.
We also may rely on trade secrets to protect our technologies or product candidates, especially where we do not believe patent protection is
appropriate or obtainable. However, trade secrets are difficult to protect. Although we use reasonable efforts to protect our trade secrets,
there is a risk that our employees, consultants, contractors, outside scientific collaborators and other advisers may unintentionally or willfully
disclose our information to competitors. Enforcing a claim that a third-party entity illegally obtained and is using any of our trade secrets is
expensive and time-consuming, and the outcome is unpredictable. In addition, courts outside the United States are sometimes less willing to
protect trade secrets. Moreover, our competitors may independently develop equivalent knowledge, methods and know-how.
Obtaining and maintaining patent protection depends on compliance with various procedural, document submission, fee payment
and other requirements imposed by governmental patent agencies, and our patent protection could be reduced or eliminated for
non-compliance with these requirements.
Periodic maintenance fees, renewal fees, annuity fees and various other governmental fees on patents and patent applications are required
to be paid to the USPTO and various governmental patent agencies outside of the United States in several stages over the lifetime of the
patents and applications. The USPTO and various non-U.S. governmental patent agencies require compliance with a number of procedural,
documentary, fee payment and other similar provisions during the patent application process and after a patent has issued. There are
situations in which non-compliance can result in abandonment or lapse of the patent or patent application, resulting in partial or complete loss
of patent rights in the relevant jurisdiction. Under the terms of some of our licenses, we do not have the ability to maintain or prosecute
patents in the portfolio, and must therefore rely on third parties to comply with these requirements.
Patent terms may be inadequate to protect our competitive position on our product candidates for an adequate amount of time and
if we do not obtain protection under the Hatch-Waxman Act and similar non-U.S. legislation for extending the term of patents
covering each of our products and product candidates, our business may be materially harmed.
Given the amount of time required for the development, testing and regulatory review of new product candidates, patents protecting such
candidates might expire before or shortly after such candidates are commercialized. We expect to seek extensions of patent terms in the
United States, if available, and, if available, in other countries where we are prosecuting patents. In the United States, the Drug Price
Competition and Patent Term Restoration Act of 1984 (or Hatch-Waxman Act) permits a patent term extension of up to five years beyond the
normal expiration of the patent, which is limited to the approved indication. However, the applicable authorities, including the FDA and the
USPTO in the United States, and any equivalent regulatory authority in other countries, may not agree with our assessment of whether such
extensions are available, and may refuse to grant extensions to our
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patents, or may grant more limited extensions than we request. If this occurs, our competitors may be able to take advantage of our
investment in development and clinical trials by referencing our clinical and preclinical data and launch their product earlier than might
otherwise be the case.
Changes to the patent law in the United States and other jurisdictions could diminish the value of patents in general, thereby
impairing our ability to protect our products.
As is the case with other biotechnology and pharmaceutical companies, our success is heavily dependent on intellectual property, particularly
patents. Obtaining and enforcing patents in the biotechnology and pharmaceutical industries involves both technological and legal complexity
and is therefore costly, time consuming and inherently uncertain. Recent patent reform legislation in the United States, including the Leahy-
Smith America Invents Act, or the America Invents Act, could increase those uncertainties and costs. The America Invents Act was signed
into law on September 16, 2011, and many of the substantive changes became effective on March 16, 2013. The America Invents Act
reforms United States patent law in part by changing the U.S. patent system from a “first-to-invent” system to a “first-inventor-to-file” system,
expanding the definition of prior art, and developing a post-grant review system. This legislation changes United States patent law in a way
that may weaken our ability to obtain patent protection in the United States for those applications filed after March 16, 2013.
Further, the America Invents Act created new procedures to challenge the validity of issued patents in the United States, including post-grant
review and inter partes review proceedings, which some third parties have been using to cause the cancellation of selected or all claims of
issued patents. For a patent with an effective filing date of March 16, 2013 or later, a petition for post-grant review can be filed by a third party
in a nine month window from issuance of the patent. A petition for inter partes review can be filed immediately following the issuance of a
patent if the patent has an effective filing date prior to March 16, 2013. A petition for inter partes review can be filed after the nine month
period for filing a post-grant review petition has expired for a patent with an effective filing date of March 16, 2013 or later. Post-grant review
proceedings can be brought on any ground of invalidity, whereas inter partes review proceedings can only raise an invalidity challenge based
on published prior art including patents. In these adversarial actions, the USPTO reviews patent claims without the presumption of validity
afforded to U.S. patents in lawsuits in U.S. federal courts and uses a lower burden of proof than used in litigation in U.S. federal courts.
Therefore, it is generally considered easier for a competitor or third party to have a U.S. patent invalidated in a USPTO post-grant review or
inter partes review proceeding than invalidated in litigation in a U.S. federal court. If any of our or our licensors’ patents are challenged by a
third party in such a USPTO proceeding, there is no guarantee that we or our licensors or collaborators will be successful in defending the
patent, which would result in a loss of the challenged patent rights to us.
Depending on future actions by the U.S. Congress, the U.S. courts, the USPTO and the relevant law-making bodies in other countries, the
laws and regulations governing patents could change in unpredictable ways that would weaken our ability to obtain new patents or to enforce
our existing patents and patents that we might obtain in the future.
For example, a European Unified Patent Court (UPC) came into force during 2023. The UPC is a common patent court to hear patent
infringement and revocation proceedings effective for member states of the European Union. This could enable third parties to seek
revocation of any of our European patents in a single proceeding at the UPC rather than through multiple proceedings in each of the
jurisdictions in which the European patent is validated. Any such revocation and loss of patent protection could have a material adverse
impact on our business and our ability to commercialize or license our technology and products. Moreover, the controlling laws and
regulations of the UPC will develop over time and may adversely affect our ability to enforce our European patents or defend the validity
thereof. We may decide to opt out our European patents and patent applications from the UPC. If certain formalities and requirements are
not met, however, our European patents and patent applications could be challenged for non-compliance and brought under the jurisdiction
of the UPC. We cannot be certain that our European patents and patent applications will avoid falling under the jurisdiction of the UPC, if we
decide to opt out of the UPC.
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If we are unable to protect the confidentiality of our trade secrets, the value of our technology could be negatively impacted and
our business would be harmed.
In addition to the protection afforded by patents, we also rely on trade secret protection for certain aspects of our intellectual property. We
seek to protect these trade secrets, in part, by entering into non-disclosure and confidentiality agreements with parties who have access to
them, such as our employees, consultants, independent contractors, advisors, contract manufacturers, suppliers and other third parties. We
also enter into confidentiality and invention or patent assignment agreements with employees and certain consultants. There is a risk that any
party with whom we have executed such an agreement may breach that agreement and disclose our proprietary information, including our
trade secrets, and we may not be able to obtain adequate remedies for such breaches. Enforcing a claim that a party illegally disclosed or
misappropriated a trade secret is difficult, expensive and time-consuming, and the outcome is unpredictable. Additionally, if the steps taken
to maintain our trade secrets are deemed inadequate, we may have insufficient recourse against third parties for misappropriating such trade
secrets. Further, if any of our trade secrets were to be lawfully obtained or independently developed by a competitor, we would have no right
to prevent such third party, or those to whom they communicate such technology or information, 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 business and
competitive position could be harmed.
If our trademarks and trade names are not adequately protected, then we may not be able to build name recognition in our marks
of interest and our business may be adversely affected.
Our trademarks or trade names may be challenged, infringed, circumvented or declared generic or determined to be infringing on other
marks. We rely on both registration and common law protection for our trademarks. We may not be able to protect our rights to these
trademarks and trade names or may be forced to stop using these names, which we need for name recognition by potential partners or
customers in our markets of interest. During the trademark registration process, we may receive Office Actions from the USPTO objecting to
the registration of our trademark. Although we would be given an opportunity to respond to those objections, we may be unable to overcome
such rejections. In addition, in the USPTO and in comparable agencies in many foreign jurisdictions, third parties are given an opportunity to
oppose pending trademark applications and/or to seek the cancellation of registered trademarks. Opposition or cancellation proceedings may
be filed against our trademarks, and our trademarks may not survive such proceedings. If we are unable to establish name recognition based
on our trademarks and trade names, we may not be able to compete effectively and our business may be adversely affected.
A NDA submitted under 505(b)(2) may subject us to a patent infringement lawsuit that would delay or prevent product candidate
review or approval.
Section 505(b)(2) permits the submission of a NDA where at least some of the information required for approval comes from preclinical
studies and/or clinical trials that were not conducted by, or for, the applicant and for which the applicant has not obtained a right of reference.
A NDA under 505(b)(2) would enable us to reference published literature and/or the FDA’s previous findings of safety and effectiveness for a
previously approved drug.
For NDAs submitted under section 505(b)(2), the patent certification and related provisions of the Hatch-Waxman Act apply. Accordingly, if
we rely for approval on the safety or effectiveness information for a previously approved drug, referred to as a listed drug, we will be required
to include patent certifications in the 505(b)(2) NDA regarding any patents covering the listed drug. If there are patents listed in the FDA
publication Approved Drug Products with Therapeutic Equivalence Evaluations, commonly known as the Orange Book, for the listed drug,
and we seek to obtain approval prior to the expiration of one or more of those patents, we will be required to submit a Paragraph IV
certification indicating our belief that the relevant patents are invalid, unenforceable or will not be infringed by the manufacture, use or sale of
the product that is the subject of the 505(b)(2) NDA. Otherwise, a 505(b)(2) application cannot be approved by the FDA until the expiration of
any patents listed in the Orange Book for the listed drug.
In addition, a 505(b)(2) application will not be approved until any non-patent exclusivity listed in the Orange Book for the listed drug, or for
any other drug with the same, protected conditions of approval as the product candidate, has expired. These factors, among others, may limit
our ability to gain approval of or successfully commercialize our product candidates.
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Risks Related to Intellectual Property Claims or Litigation
Our drug development strategy relies heavily upon the 505(b)(2) regulatory approval pathway, which requires us to certify that we
do not infringe upon third-party patents covering approved drugs that we rely upon for approval if we want to obtain approval prior
to patent expiry. Such certifications typically result in third-party claims of intellectual property infringement, the defense of which
would be costly and time consuming, and an unfavorable outcome in any litigation may prevent or delay our development and
commercialization efforts which would harm our business.
Our commercial success depends in large part on our avoiding infringement of the patents and proprietary rights of third parties for existing
approved drug products. Because we utilize the 505(b)(2) regulatory approval pathway for the approval of our product candidates, we rely in
whole or in part on studies conducted by third parties related to those approved drug products. As a result, upon filing with the FDA for
approval of our product candidates, we will be required to certify to the FDA that either: (1) there is no patent information listed in the Orange
Book for the listed drug; (2) the patents listed in the Orange Book have expired; (3) the listed patents have not expired, but will expire on a
particular date and approval is sought after patent expiration; or (4) the listed patents are invalid or will not be infringed by the manufacture,
use or sale of our proposed drug product. We can avoid certifying to a method-of-use patent if we do not seek approval of the patented
condition of use. If we certify to the FDA that a patent is invalid or not infringed, or a Paragraph IV certification, a notice of the Paragraph IV
certification must also be sent to the patent owner and NDA holder shortly after our 505(b)(2) NDA is accepted for filing by the FDA. The third
party may then initiate a lawsuit against us asserting infringement of the patents identified in the notice. The filing of a patent infringement
lawsuit within 45 days of receipt of the notice automatically prevents the FDA from approving our 505(b)(2) application until the earliest of 30
months or the date on which the patent expires, the lawsuit is settled, or the court reaches a decision in the infringement lawsuit in our favor.
If the third party does not file a patent infringement lawsuit within the required 45-day period, our application will not be subject to the 30-
month stay. However, even if the third party does not sue within the 45-day time limit, thereby invoking the 30-month stay, it may still
challenge our right to market our product upon FDA approval; therefore, some risk of an infringement suit remains even after the expiry of the
45-day limit.
We may not be able to enforce our intellectual property rights throughout the world.
Filing, prosecuting, enforcing and defending patents on our products and product candidates in all countries throughout the world would be
prohibitively expensive, and our intellectual property rights in some countries outside the United States can be less extensive than those in
the United States. The requirements for patentability may differ in certain countries, particularly in developing countries; thus, even in
countries where we do pursue patent protection, there can be no assurance that any patents will issue with claims that cover our products
and product candidates.
Moreover, our ability to protect and enforce our intellectual property rights may be adversely affected by unforeseen changes in foreign
intellectual property laws. Additionally, laws of some countries outside of the United States and Europe do not afford intellectual property
protection to the same extent as the laws of the United States and Europe. Many companies have encountered significant problems in
protecting and defending intellectual property rights in certain foreign jurisdictions. The legal systems of some countries, including India,
China and other developing countries, do not favor the enforcement of patents and other intellectual property rights. This could make it
difficult for us to stop the infringement of our patents or the misappropriation of our other intellectual property rights. For example, many
foreign countries have compulsory licensing laws under which a patent owner must grant licenses to third parties. Consequently, we may not
be able to prevent third parties from practicing our inventions in certain countries outside the United States and Europe. Competitors may use
our technologies in jurisdictions where we have not obtained patent protection to develop and market their own products and, further, may
export otherwise infringing products to territories where we have patent protection, if our ability to enforce our patents to stop infringing
activities is inadequate. These products may compete with our products, and our patents or other intellectual property rights may not be
effective or sufficient to prevent them from competing.
Agreements through which we license patent rights may not give us sufficient rights to permit us to pursue enforcement of our licensed
patents or defense of any claims asserting the invalidity of these patents (or control of enforcement or defense) of such patent rights in all
relevant jurisdictions as requirements may vary.
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Proceedings to enforce our patent rights in foreign jurisdictions, whether or not successful, could result in substantial costs and divert our
efforts and resources from other aspects of our business. Moreover, such proceedings could put our patents at risk of being invalidated or
interpreted narrowly and our patent applications at risk of not issuing and could provoke third parties to assert claims against us. We may not
prevail in any lawsuits that we initiate and the damages or other remedies awarded, if any, may not be commercially meaningful.
Furthermore, while we intend to protect our intellectual property rights in major markets for our products, we cannot ensure that we will be
able to initiate or maintain similar efforts in all jurisdictions in which we may wish to market our products. Accordingly, our efforts to protect
our intellectual property rights in such countries may be inadequate.
Others may claim an ownership interest in our intellectual property which could expose us to litigation and have a significant
adverse effect on our prospects.
A third party may claim an ownership interest in one or more of our or our licensors’ patents or other proprietary or intellectual property rights.
A third party could bring legal actions against us and seek monetary damages and/or enjoin clinical testing, manufacturing and marketing of
the affected product or products. While we are presently unaware of any claims or assertions by third parties with respect to our patents or
other intellectual property, we cannot guarantee that a third party will not assert a claim or an interest in any of such patents or intellectual
property. If we become involved in any litigation, it could consume a substantial portion of our resources, and cause a significant diversion of
effort by our technical and management personnel. If any of these actions are successful, in addition to any potential liability for damages, we
could be required to obtain a license to continue to manufacture or market the affected product, in which case we may be required to pay
substantial royalties or grant cross-licenses to our patents. We cannot, however, assure you that any such license will be available on
acceptable terms, if at all. Ultimately, we could be prevented from commercializing a product candidate, or be forced to cease some aspect of
our business operations as a result of claims of patent infringement or violation of other intellectual property rights, Further, the outcome of
intellectual property litigation is subject to uncertainties that cannot be adequately quantified in advance, including the demeanor and
credibility of witnesses and the identity of any adverse party. This is especially true in intellectual property cases that may turn on the
testimony of experts as to technical facts upon which experts may reasonably disagree.
If we are sued for infringing intellectual property rights of third parties, such litigation could be costly and time consuming and
could prevent or delay us from developing or commercializing our product candidates.
Our commercial success depends, in part, on our ability to develop, manufacture, market and sell our product candidates without infringing
the intellectual property and other proprietary rights of third parties. Third parties may have U.S. and non-U.S. issued patents and pending
patent applications relating to compounds, formulations, methods of manufacturing compounds and/or formulations, and/or methods of use
for the treatment of the disease indications for which we are developing our product candidates. If any third-party patents or patent
applications are found to cover our products or product candidates or their methods of use or manufacture, we may not be free to
manufacture or market our product candidates as planned without obtaining a license, which may not be available on commercially
reasonable terms, or at all.
There is a substantial amount of intellectual property litigation in the biotechnology and pharmaceutical industries, and we may become party
to, or threatened with, litigation or other adversarial proceedings regarding intellectual property rights with respect to our product candidates,
including interference and post-grant proceedings before the USPTO. There may be third-party patents or patent applications with claims to
materials, formulations, methods of manufacture or methods for treatment related to the formulations, use or manufacture of our product
candidates. We cannot guarantee that any of our patent analyses including, but not limited to, the scope of patent claims or the expiration of
relevant patents are complete or thorough, nor can we be certain that we have identified each and every patent and pending application in
the United States and abroad that is relevant to or necessary for the commercialization of our products and product candidates in any
jurisdiction. Because patent applications can take many years to issue, there may be currently pending patent applications which may later
result in issued patents that our products or product candidates may be accused of infringing. In addition, third parties may obtain patents in
the future and claim that use of our technologies infringes upon these patents. Accordingly, third parties may assert infringement claims
against us based on intellectual property rights that exist now or arise in the future. The outcome of intellectual property litigation is subject to
uncertainties that cannot be adequately quantified in advance. The pharmaceutical and biotechnology industries have produced a significant
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number of patents, and it may not always be clear to industry participants, including us, which patents cover various types of products or
methods of use or manufacture. The scope of protection afforded by a patent is subject to interpretation by the courts, and the interpretation
is not always uniform. If we were sued for patent infringement, we would need to demonstrate that our products or product candidates, or
methods of use or of making either do not infringe the patent claims of the relevant patent or that the patent claims are invalid or
unenforceable, and we may not be able to do this. Proving invalidity is difficult. For example, in the United States, proving invalidity requires a
showing of clear and convincing evidence to overcome the presumption of validity enjoyed by issued patents. Even if we are successful in
these proceedings, we may incur substantial costs and the time and attention of our management and scientific personnel could be diverted
in pursuing these proceedings, which could significantly harm our business and operating results. In addition, we may not have sufficient
resources to bring these actions to a successful conclusion.
If we are found to infringe a third party’s intellectual property rights, we could be forced, including by court order, to cease developing,
manufacturing or commercializing the infringing product or product candidate. Alternatively, we may be required to obtain a license from such
third party in order to use the infringing technology and continue developing, manufacturing or marketing the infringing product or product
candidate. However, we may not be able to obtain any required license on commercially reasonable terms or at all. Even if we were able to
obtain a license, it could be non-exclusive, thereby giving our competitors access to the same technologies licensed to us; alternatively or
additionally, it could include terms that impede or destroy our ability to compete successfully in the commercial marketplace. In addition, we
could be found liable for monetary damages, including treble damages and attorneys’ fees if we are found to have willfully infringed a patent.
A finding of infringement could prevent us from commercializing our products or product candidates or force us to cease some of our
business operations, which could harm our business. Claims that we have misappropriated the confidential information or trade secrets of
third parties could have a similar negative impact on our business.
We may be subject to claims by third parties asserting that our employees or we have misappropriated their intellectual property,
or claiming ownership of what we regard as our own intellectual property.
Many of our current and former employees, including our senior management, were previously employed at universities or at other
biotechnology or pharmaceutical companies, including some which may be competitors or potential competitors. Some of these employees,
including each member of our senior management, executed proprietary rights, non-disclosure and non-competition agreements, or similar
agreements, in connection with such previous employment. Although we try to ensure that our employees do not use the proprietary
information or know-how of others in their work for us, we may be subject to claims that we or these employees have used or disclosed
intellectual property, including trade secrets or other proprietary information, of any such third party. Litigation may be necessary to defend
against such claims. If we fail in defending any such claims, in addition to paying monetary damages, we may lose valuable intellectual
property rights or personnel or sustain damages. Such intellectual property rights could be awarded to a third party, and we could be required
to obtain a license from such third party to commercialize our technology, products or product candidates. Such a license may not be
available on commercially reasonable terms or at all. Even if we are successful in defending against such claims, litigation could result in
substantial costs and be a distraction to management.
In addition, while we typically require our employees, consultants and contractors who may be involved in the development of intellectual
property to execute agreements assigning such intellectual property to us, we may be unsuccessful in executing such an agreement with
each party who in fact develops intellectual property that we regard as our own, which may result in claims by or against us related to the
ownership of such intellectual property. If we fail in prosecuting or defending any such claims, in addition to paying monetary damages, we
may lose valuable intellectual property rights. Even if we are successful in prosecuting or defending against such claims, litigation could
result in substantial costs and be a distraction to our senior management and scientific personnel.
We may become involved in lawsuits to protect or enforce our patents or other intellectual property, which could be expensive,
time consuming and unsuccessful.
Competitors may infringe our patents, trademarks, copyrights or other intellectual property. To counter infringement or unauthorized use, we
may be required to file infringement claims, which can be expensive and time consuming and divert the time and attention of our
management and scientific personnel. Any claims we assert against perceived infringers could provoke these parties to assert counterclaims
against us alleging that we
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infringe their patents, in addition to counterclaims asserting that our patents are invalid or unenforceable, or both. In any patent infringement
proceeding, there is a risk that a court will decide that a patent of ours is invalid or unenforceable, in whole or in part, and that we do not have
the right to stop the other party from using the invention at issue. There is also a risk that, even if the validity of such patents is upheld, the
court will construe the patent’s claims narrowly or decide that we do not have the right to stop the other party from using the invention at
issue on the grounds that our patent claims do not cover the invention. An adverse outcome in a litigation or proceeding involving one or
more of our patents could limit our ability to assert those patents against those parties or other competitors, and may curtail or preclude our
ability to exclude third parties from making and selling similar or competitive products. Similarly, if we assert trademark infringement claims, a
court may determine that the marks we have asserted are unenforceable, that the alleged infringing mark does not infringe our trademark
rights, or that the party against whom we have asserted trademark infringement has superior rights to the marks in question. In this last
instance, we could ultimately be forced to cease use of such trademarks.
Even if we establish infringement, the court may decide not to grant an injunction against further infringing activity and instead award only
monetary damages, which may or may not be an adequate remedy. Furthermore, because of the substantial amount of discovery required in
connection with intellectual property litigation, there is a risk that some of our confidential information could be compromised by disclosure
during litigation. There could also be public announcements of the results of hearings, motions or other interim proceedings or developments.
If securities analysts or investors perceive these results to be negative, it could adversely affect the price of shares of our common stock.
Moreover, there can be no assurance that we will have sufficient financial or other resources to file and pursue such infringement claims,
which typically last for years before they are concluded. Even if we ultimately prevail in such claims, the monetary cost of such litigation and
the diversion of the attention of our management and scientific personnel could outweigh any benefit we receive as a result of the
proceedings.
Additionally, for certain of our in-licensed patent rights, we do not have the right to bring suit for infringement and must rely on third parties to
enforce these rights for us. If we cannot or choose not to take action against those we believe infringe our intellectual property rights, we may
have difficulty competing in certain markets where such potential infringers conduct their business, and our commercialization efforts may
suffer as a result.
Risks Related to Our Reliance on Third Parties
Risks Related to Third Party Performance
Use of third parties to manufacture our products and product candidates may increase the risk that we will not have sufficient
quantities of our product candidates, products, or necessary quantities at an acceptable cost.
We do not own or operate manufacturing facilities for the production of clinical or commercial quantities of our products and product
candidates, and we lack the resources and the capabilities to do so. As a result, we currently rely on third parties for supply of the active
pharmaceutical ingredients, or API, in our products and product candidates, and our furosemide formulation, as well as the device
components of our drug-device combination products and product candidates. Our current strategy is to outsource all manufacturing of our
product candidates and products to third parties.
We currently engage third-party manufacturers to manufacture FUROSCIX and related supplies and packaging. For example, we have
engaged a third-party manufacturer for the manufacture of the furosemide formulation used in FUROSCIX and we have engaged a third
party designer and manufacturer to develop and manufacture the on-body infusor for FUROSCIX. There is no guarantee that we can
maintain our relationships with these manufacturers and we may incur added costs and delays in identifying and qualifying any replacements
for such manufacturers. There is no assurance that we will be able to timely secure further needed supply arrangements on satisfactory
terms, or at all. Our failure to secure these arrangements as needed could have a material adverse effect on our ability to commercialize
FUROSCIX. There may be difficulties and delays in obtaining sufficient commercial quantities of FUROSCIX and the costs of manufacturing
could be prohibitive. Beyond FUROSCIX, third parties also manufacture the materials that we require for the development of our product
candidates, and our reliance on these manufacturers for these activities carries similar risks as our reliance on third-party manufacturers in
connection with FUROSCIX.
Reliance on third-party manufacturers entails additional risks, including:
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•
reliance on third parties for manufacturing process development, regulatory compliance and quality assurance;
•
limitations on supply availability resulting from capacity and scheduling constraints of third parties;
•
the possible breach of manufacturing agreements by third parties because of factors beyond our control; and
•
the possible termination or non-renewal of the manufacturing agreements by the third party, at a time that is costly or
inconvenient to us.
If we do not maintain our key manufacturing relationships or if our third-party manufactures fail to comply with applicable regulations, we may
need to find replacement manufacturers or develop our own manufacturing capabilities, which could delay or impair our ability to obtain
regulatory approval for our product candidates. If we do find replacement manufacturers, we may not be able to enter into agreements with
them on terms and conditions favorable to us and there could be a substantial delay before new facilities could be qualified and registered
with the FDA and other foreign regulatory authorities.
If any third-party manufacturer with whom we contract fails to perform its obligations, we may be forced to manufacture the materials
ourselves, for which we may not have the capabilities or resources, or enter into an agreement with a different third-party manufacturer,
which we may not be able to do on reasonable terms, if at all. In either scenario, our product supply could be delayed significantly as we
establish alternative supply sources. In some cases, the technical skills required to manufacture our products or product candidates may be
unique or proprietary to the original third-party manufacturer and we may have difficulty, or there may be contractual restrictions prohibiting
us from, transferring such skills to a back-up or alternate supplier, or we may be unable to transfer such skills at all. In addition, if we are
required to change third-party manufacturers for any reason, we will be required to verify that the new manufacturer maintains facilities and
procedures that comply with quality standards and with all applicable regulations, and may need to obtain prior FDA approval with respect to
any manufacturing changes for any approved products. We will also need to verify, such as through a manufacturing comparability study,
that any new manufacturing process will produce our product candidate according to the specifications previously submitted to the FDA or
another foreign regulatory authority. The delays associated with the verification of a new manufacturer could negatively affect our ability to
develop product candidates or commercialize our products in a timely manner or within budget. Furthermore, a third-party manufacturer may
possess technology related to the manufacture of our product candidate that such manufacturer owns independently. This would increase
our reliance on such third-party manufacturer or require us to obtain a license from such manufacturer in order to have another third party
manufacture our products and product candidates. In addition, changes in manufacturers often involve changes in manufacturing procedures
and processes, which could require that we conduct bridging studies between our prior clinical supply used in our clinical trials and that of
any new manufacturer. We may be unsuccessful in demonstrating the comparability of clinical supplies which could require the conduct of
additional clinical trials.
Our approved product, FUROSCIX, is a drug-device combination product that is regulated under the drug regulations of the FDA based on its
primary mode of action as a drug. Third-party manufacturers may not be able to comply with the cGMP requirements applicable to drug-
device combination products, including applicable provisions of the FDA’s drug cGMP regulations, device cGMP requirements embodied in
the QSR or similar regulatory requirements outside the United States. Our failure, or the failure of our third-party manufacturers, to comply
with applicable regulations could result in sanctions being imposed on us, including clinical holds, fines, injunctions, civil penalties, delays,
suspension or withdrawal of approvals, license revocation, seizures or recalls of product candidates, operating restrictions and criminal
prosecutions, any of which could significantly affect supplies of our product candidates.
We do not control the manufacturing process of, and are completely dependent on, our contract manufacturing partners for compliance with
cGMPs and QSR requirements or comparable foreign regulatory requirements. If our contract manufacturers cannot successfully
manufacture material that conforms to our specifications and the strict regulatory requirements of the FDA or other foreign regulatory
authorities, they will not be able to secure and/or maintain regulatory approval for the use of their manufacturing facilities for our products. In
addition, we have no control over the ability of our contract manufacturers to maintain adequate quality control, quality assurance and
qualified personnel. If the FDA or a comparable foreign regulatory authority does not approve these facilities for the manufacture of our
product candidates or if it withdraws any such approval in the future, we may need to find
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alternative manufacturing facilities, which could cause significant delays in our operating timelines and would significantly impact our ability to
develop, obtain regulatory approval for or market our product candidates, if approved. Contract manufacturers may face manufacturing or
quality control problems causing drug substance production and shipment delays or a situation where the contractor may not be able to
maintain compliance with the applicable cGMP and QSR requirements. Any failure to comply with cGMP or QSR requirements or other FDA,
EMA and comparable foreign regulatory requirements could adversely affect our clinical research activities and our ability to develop our
product candidates and market our products following approval.
The FDA and other foreign regulatory authorities require manufacturers to register manufacturing facilities. The FDA and corresponding
foreign regulators also inspect these facilities to confirm compliance with applicable cGMPs and QSR requirements and comparable foreign
regulatory requirements. Contract manufacturers may face manufacturing or quality control problems causing drug substance or device
component production and shipment delays or a situation where the contractor may not be able to maintain compliance with the applicable
cGMP or QSR requirements or comparable foreign regulatory requirements. Any failure to comply with cGMP or QSR requirements or other
FDA and comparable foreign regulatory requirements could adversely affect our clinical research activities and our ability to develop our
product candidates and market our products following approval.
Separately, in February 2024, the FDA issued a final rule to amend and replace the QSR to align more closely with the International
Organization for Standardization standards. Specifically, this final rule, which the FDA currently expects to go into effect on February 2, 2026,
establishes the “Quality Management System Regulation,” (QMSR), which among other things, incorporates by reference the quality
management system requirements of ISO 13485:2016. Although the FDA has stated that the standards contained in ISO 13485:2106 are
substantially similar to those set forth in the QSR, it is unclear the extent to which this final rule, once effective, could impose additional or
different regulatory requirements on us or our contract manufacturers that could increase the costs of compliance or otherwise negatively
affect our business. If we or our contract manufacturers are unable to comply with the QMSR, once effective, such failures could have an
adverse effect on our business, financial condition and results of operations.
We rely on third parties to conduct our preclinical studies and clinical trials. If they do not perform satisfactorily or fail to meet
expected deadlines, our business could be harmed.
We do not independently conduct clinical trials of any of our product candidates. We rely on third parties, such as CROs, clinical data
management organizations, medical institutions and clinical investigators, to conduct these clinical trials and expect to rely on these third
parties to conduct clinical trials of any other product candidate that we develop. Any of these third parties may terminate their engagements
with us under certain circumstances. We may not be able to enter into alternative arrangements or do so on commercially reasonable terms.
In addition, there is a natural transition period when a new CRO begins work. As a result, delays would likely occur, which could negatively
impact our ability to meet our expected clinical development timelines and harm our business, financial condition and prospects.
Further, although our reliance on these third parties for clinical development activities limits our control over these activities, we remain
responsible for ensuring that each of our trials is conducted in accordance with the applicable protocol, legal, regulatory and scientific
standards. For example, notwithstanding the obligations of a CRO for a trial of one of our product candidates, we remain responsible for
ensuring that each of our clinical trials is conducted in accordance with the general investigational plan and protocols for the trial. Moreover,
the FDA and foreign regulatory authorities require us to comply with standards, commonly referred to as Good Clinical Practices, or GCPs,
for conducting, recording and reporting the results of clinical trials to assure that data and reported results are credible and accurate and that
the rights, integrity and confidentiality of trial participants are protected. The FDA enforces these GCPs through periodic inspections of trial
sponsors, principal investigators, clinical trial sites and IRBs. Similar requirements apply in other jurisdictions, such as the EU. If we or our
third-party contractors fail to comply with applicable GCPs, the clinical data generated in our clinical trials may be deemed unreliable and the
FDA or comparable foreign regulatory authorities may require us to perform additional clinical trials before approving our product candidates,
which would delay the marketing approval process. We cannot be certain that, upon inspection, the FDA or comparable foreign regulatory
authorities will determine that any of our clinical trials comply with GCPs. We are also required to register clinical trials and post the results of
completed clinical trials on a government-sponsored database, ClinicalTrials.gov, within certain timeframes. Failure to do so can result in
fines, adverse publicity and civil and criminal sanctions.
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Furthermore, the third parties conducting clinical trials on our behalf are not our employees, and except for remedies available to us under
our agreements with such contractors, we cannot control whether or not they devote sufficient time, skill and resources to our ongoing
development programs. These contractors may also have relationships with other commercial entities, including our competitors, for whom
they may also be conducting clinical trials or other drug development activities, which could impede their ability to devote appropriate time to
our clinical programs. If these third parties do not successfully carry out their contractual duties, meet expected deadlines or conduct our
clinical trials in accordance with regulatory requirements or our stated protocols, we may not be able to obtain, or may be delayed in
obtaining, marketing approvals for our product candidates. If that occurs, we will not be able to, or may be delayed in our efforts to,
successfully commercialize our product candidates. In such an event, our financial results and the commercial prospects for any product
candidates that we seek to develop could be harmed, our costs could increase and our ability to generate revenues could be delayed,
impaired or foreclosed.
Risks Related to Third Party Contracts
We enter into various contracts in the normal course of our business in which we indemnify the other party to the contract. In the
event we have to perform under these indemnification provisions, it could have a material adverse effect on our business, financial
condition and results of operations.
In the normal course of business, we periodically enter into academic, commercial, service, collaboration, licensing, consulting and other
agreements that contain indemnification provisions. With respect to our academic and other research agreements, we typically indemnify the
institution and related parties from losses arising from claims relating to the products, processes or services made, used, sold or performed
pursuant to the agreements for which we have secured licenses, and from claims arising from our or our sublicensees’ exercise of rights
under the agreement. With respect to our commercial agreements, we indemnify our vendors from any third-party product liability claims that
could result from the production, use or consumption of the product, as well as for alleged infringements of any patent or other intellectual
property right by a third party.
Should our obligation under an indemnification provision exceed applicable insurance coverage or if we were denied insurance coverage, our
business, financial condition and results of operations could be adversely affected. Similarly, if we are relying on a collaborator to indemnify
us and the collaborator is denied insurance coverage or the indemnification obligation exceeds the applicable insurance coverage and does
not have other assets available to indemnify us, our business, financial condition and results of operations could be adversely affected.
We expect to seek to establish collaborations and, if we are not able to establish them on commercially reasonable terms, we may
have to alter our development and commercialization plans.
We expect to seek one or more collaborators for the development and commercialization of one or more of our product candidates. For
example, we started collaborating with West Pharmaceutical Services, Inc. in 2019 for development of the FUROSCIX infusor. Likely
collaborators may include large and mid-size pharmaceutical companies, regional and national pharmaceutical companies and biotechnology
companies. In addition, if we are able to obtain marketing approval for product candidates from foreign regulatory authorities, we intend to
enter into strategic relationships with international biotechnology or pharmaceutical companies for the commercialization of such product
candidates outside of the United States.
We face significant competition in seeking appropriate collaborators. Whether we reach a definitive agreement for a collaboration will
depend, among other things, upon our assessment of the collaborator’s resources and expertise, the terms and conditions of the proposed
collaboration and the proposed collaborator’s evaluation of a number of factors. Those factors may include the potential differentiation of our
product candidate from competing product candidates, design or results of clinical trials, the likelihood of approval by the FDA or comparable
foreign regulatory authorities and the regulatory pathway for any such approval, the potential market for the product candidate, the costs and
complexities of manufacturing and delivering the product to patients and the potential of competing products. The collaborator may also
consider alternative product candidates or technologies for similar indications that may be available for collaboration and whether such a
collaboration could be more attractive than the one with us for our product candidate. If we elect to increase our expenditures to fund
development or commercialization activities on our own, we may need to obtain additional capital, which may not be available to us on
acceptable terms or at all. If we do not have sufficient funds, we may not be able to further develop our product candidates or bring them to
market and generate product revenue.
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Collaborations are complex and time-consuming to negotiate and document. Further, there have been a significant number of recent
business combinations among large pharmaceutical companies that have resulted in a reduced number of potential future collaborators. Any
collaboration agreements that we enter into in the future may contain restrictions on our ability to enter into potential collaborations or to
otherwise develop specified product candidates. We may not be able to negotiate collaborations on a timely basis, on acceptable terms, or at
all. If we are unable to do so, we may have to curtail the development of the product candidate for which we are seeking to collaborate,
reduce or delay its development program or one or more of our other development programs, delay its potential commercialization or reduce
the scope of any sales or marketing activities, or increase our expenditures and undertake development or commercialization activities at our
own expense.
Risks Related to Employee Matters, Managing Growth and Business Operations
Risks Related to Employee Matters
We will need to develop and expand our company, and we may encounter difficulties in managing this development and
expansion, which could disrupt our operations.
We expect to continue to increase our number of employees and the scope of our operations. In particular, we will need to continue
transitioning from a research and development company to a commercial company. To manage our anticipated development and expansion,
we must continue to implement and improve our managerial, operational and financial systems, expand our facilities and continue to recruit
and train additional qualified personnel. Also, our management may need to divert a disproportionate amount of its attention away from their
day-to-day activities and devote a substantial amount of time to managing these development activities. Due to our limited resources, we
may not be able to effectively manage the expansion of our operations or recruit and train additional qualified personnel. This may result in
weaknesses in our infrastructure, and give rise to operational mistakes, loss of business and commercial opportunities, loss of employees
and reduced productivity among remaining employees. If our management is unable to effectively manage our expected development and
expansion, our expenses may increase more than expected, our ability to generate or increase our revenue could be reduced and we may
not be able to implement our business strategy.
The physical expansion of our operations may lead to significant costs and may divert financial resources from other projects, such as the
development of our product candidates. Many of our suppliers and collaborative and clinical trial relationships are located outside the United
States, and we may in the future seek to hire employees located outside of the United States. Accordingly, our business may become subject
to economic, political, regulatory and other risks associated with international operations, such as compliance with tax, employment,
immigration and labor laws for employees living or traveling abroad, workforce uncertainty in countries where labor unrest is more common
than in the United States, as well as difficulties associated with staffing and managing international operations, including differing labor
relations. Any of these factors could materially affect our business, financial condition and results of operations. Our future financial
performance, our ability to commercialize FUROSCIX and compete effectively will depend, in part, on our ability to effectively manage the
future development and expansion of our company.
We depend heavily on our executive officers, directors, and principal consultants and the loss of their services would materially
harm our business.
Our success depends, and will likely continue to depend, upon our ability to hire, retain the services of our current executive officers,
directors, principal consultants and others. In addition, we have established relationships with universities and research institutions which
have historically provided, and continue to provide, us with access to research laboratories, clinical trials, facilities and patients. Our ability to
compete in the biotechnology and pharmaceuticals industries depends upon our ability to attract and retain highly qualified managerial,
scientific and medical personnel.
Our industry has experienced a high rate of turnover of management personnel in recent years. We are highly dependent on our executive
leadership team. We have employment agreements with these individuals but any individual may terminate his or her employment with us at
any time. The loss of their services might impede the achievement of our research, development and commercialization objectives. We also
do not have any key-person life insurance on any of these key employees. Departed personnel have sought to compete with us historically
and may continue to do so in the future. Furthermore, replacing executive officers or other key
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employees may be difficult and may take an extended period of time because of the limited number of individuals in our industry with the
breadth of skills and experience required to develop, gain marketing approval of and commercialize products successfully.
Competition to hire from this limited pool is intense, and we may be unable to hire, train, retain or motivate these additional key employees on
acceptable terms given the competition among numerous pharmaceutical and biotechnology companies for similar personnel. We also
experience competition for the hiring of scientific and clinical personnel from universities and research institutions. Additionally, failure to
succeed in clinical trials may make it more challenging to recruit and retain qualified scientific personnel.
We rely on consultants and advisors, including scientific and clinical advisors, to assist us in formulating our research and development and
commercialization strategy. Our consultants and advisors may be employed by other entities and may have commitments under consulting or
advisory contracts with those entities that may limit their availability to us. If we are unable to continue to attract and retain highly qualified
personnel, our ability to develop and commercialize our products and product candidates will be limited.
Our company lacks experience commercializing products, which may have a material adverse effect on our business.
We continue to transition from a company with a development focus to a company capable of supporting commercial activities. We
completed building our initial sales force and began the commercial launch of FUROSCIX in February 2023. Since FUROSCIX is our first
commercial product approved, we have not yet demonstrated long-term ability to commercialize a product candidate or to obtain marketing
approval for a product candidate outside of the U.S. Therefore, our clinical development, and commercialization processes and our
regulatory approval process in the U.S. or countries outside of the U.S. may involve more inherent risk, take longer, and cost more than it
would if we were a company with a more significant operating history and had experience obtaining approval and marketing approval for and
commercializing a product candidate.
Our employees, independent contractors, consultants, collaborators and contract research organizations may engage in
misconduct or other improper activities, including non-compliance with regulatory standards and requirements, which could cause
significant liability for us and harm our reputation.
We are exposed to the risk that our employees, independent contractors, consultants, collaborators, contract research organizations,
principal investigators, suppliers and vendors may engage in fraud or other misconduct, including intentional, reckless and/or negligent
conduct that fails to comply with FDA regulations or similar regulations of comparable non-U.S. regulatory authorities, to provide true,
complete and accurate information to the FDA or comparable non-U.S. regulatory authorities, to comply with manufacturing standards we
have established, to comply with federal and state healthcare fraud and abuse laws and regulations and similar laws and regulations
established and enforced by comparable non-U.S. regulatory authorities, to report financial information or data accurately or to disclose
unauthorized activities to us. Such misconduct could also involve the improper use or misrepresentation of information obtained in the course
of clinical trials, creating fraudulent data in our preclinical studies or clinical trials or illegal misappropriation of product materials, which could
result in regulatory sanctions and serious harm to our reputation.
We have adopted a Code of Business Conduct and Ethics to aid our directors, officers, employees and certain designated agents in making
ethical and legal decisions when conducting business on our behalf and performing their day-to-day duties. However, it is not always
possible to identify and deter misconduct, and the precautions we take to detect and prevent this activity may not be effective in controlling
unknown or unmanaged risks or losses or in protecting us from governmental investigations or other actions or lawsuits stemming from a
failure to be in compliance with such laws, standards or regulations. Additionally, we are subject to the risk that a private person or
governmental agency could allege such fraud or other misconduct, even if none occurred. If any such actions are instituted against us, and
we are not successful in defending ourselves or asserting our rights, those actions could have a significant impact on our business and
results of operations, including the imposition of significant fines or other sanctions.
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Risks Related to Business Operations and Growth
We expect to expand our organization and, as a result, we may encounter difficulties in managing our growth, which could disrupt
our operations.
We expect to experience significant growth in the number of our employees and the scope of our operations, particularly in the areas of drug
manufacturing, regulatory affairs and sales, marketing and distribution, as well as to support our public company operations. To manage
these growth activities, we must continue to implement and improve our managerial, operational and financial systems, expand our facilities
and continue to recruit and train additional qualified personnel. Our management may need to devote a significant amount of its attention to
managing these growth activities. Moreover, our expected growth could require us to relocate to a different geographic area of the country.
Due to our limited financial resources and the limited experience of our management team in managing a company with such anticipated
growth, we may not be able to effectively manage the expansion or relocation of our operations, retain key employees, or identify, recruit and
train additional qualified personnel. Our inability to manage the expansion or relocation of our operations effectively may result in
weaknesses in our infrastructure, give rise to operational mistakes, loss of business opportunities, loss of employees and reduced
productivity among remaining employees. Our expected growth could also require significant capital expenditures and may divert financial
resources from other projects, such as the commercialization and development of FUROSCIX or additional product candidates. If we are
unable to effectively manage our expected growth, our expenses may increase more than expected, our ability to generate revenues could
be reduced and we may not be able to implement our business strategy, including the successful commercialization of our products and
product candidates.
We might not be able to utilize a significant portion of our net operating loss carryforwards and research and development tax
credit carryforwards.
Our ability to use our U.S. federal and state net operating loss and tax credit carryforwards to offset potential future taxable income and
related income taxes that would otherwise be due is dependent upon our generation of future taxable income. These net operating loss and
tax credit carryforwards could expire unused and be unavailable to offset future income tax liabilities. In addition, under Section 382 of the
Internal Revenue Code of 1986, as amended, or the Code, and corresponding provisions of state law, if a corporation undergoes an
“ownership change,” which is generally defined as a greater than 50% cumulative change, by value, in its equity ownership by certain
significant shareholders over a rolling three-year period, the corporation’s ability to use its pre-change net operating loss carryforwards and
other pre-change tax attributes to offset its post-change income may be limited.
In 2017 we experienced an ownership change that we believe under Section 382 of the Code will result in limitations in our ability to utilize
net operating losses and credits. In addition, we may experience future ownership changes as a result of future offerings or other changes in
ownership of our stock. As a result, the amount of the net operating loss and tax credit carryforwards presented in our consolidated financial
statements could be limited and may expire unutilized.
Our business could be adversely impacted by climate change, extreme weather conditions and natural disasters.
The intensifying effects of climate change present physical, liability, and transition risks with both macro and micro implications for companies
and financial markets. There is increasing concern that a gradual increase in global average temperatures due to increased concentration of
carbon dioxide and other greenhouse gases in the atmosphere are causing significant changes in weather patterns around the globe and an
increase in the frequency and severity of natural disasters. Changes in weather patterns and an increased frequency, intensity and duration
of extreme weather events (such as floods, droughts, wildfires and severe storms), whether as a result of climate change or otherwise, could,
among other things, disrupt our operations, including by damaging or destroying our facilities or those of our suppliers or manufacturing
partners, which may cause us to suffer losses and additional costs to maintain or resume operations or as a result of supply chain-related
delays or cancellations, which could have an adverse impact on our business and results of operations. In addition, implementing changes to
mitigate risks associated with such events may result in substantial short- and long-term additional operational expenses, which may
materially affect our profitability.
General Risk Factors
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Our business and operations may suffer in the event of information technology system failures, cyberattacks or deficiencies in our
cybersecurity.
We collect and maintain information in digital form that is necessary to conduct our business, and we are increasingly dependent on
information technology systems and infrastructure to operate our business. In the ordinary course of our business, we collect, store and
transmit large amounts of confidential information, including intellectual property, proprietary business information, personal information of
customers and our employees and contractors and clinical data (collectively "Confidential Information"). It is critical that we do so in a secure
manner to maintain the confidentiality and integrity of such Confidential Information.
Our information technology systems and those of our third-party service providers, strategic partners and other contractors or consultants are
vulnerable to attack and damage or interruption from computer viruses and malware (e.g. ransomware), malicious code, misconfigurations,
“bugs” or other vulnerabilities, natural disasters, terrorism, war, telecommunication and electrical failures, hacking, cyberattacks, phishing
attacks and other social engineering schemes, employee theft or misuse, human error, fraud, denial or degradation of service attacks, and
sophisticated nation-state and nation-state-supported actors. We have also outsourced elements of our information technology infrastructure,
and as a result a number of third-party vendors may or could have access to our Confidential Information.
Further, attacks upon information technology systems are increasing in their frequency, levels of persistence, sophistication and intensity,
and are being conducted by sophisticated and organized groups and individuals with a wide range of motives and expertise. As a result of
the continued hybrid working environment, we may also face increased cybersecurity risks due to our reliance on internet technology and the
number of our employees who are working remotely, which may create additional opportunities for cybercriminals to exploit vulnerabilities.
Furthermore, because the techniques used to obtain unauthorized access to, or to sabotage, systems change frequently and often are not
recognized until launched against a target, we may be unable to anticipate these techniques or implement adequate preventative measures.
We may also experience security breaches that may remain undetected for an extended period. Even if identified, we may be unable to
adequately investigate or remediate incidents or breaches due to attackers increasingly using tools and techniques that are designed to
circumvent controls, to avoid detection, and to remove or obfuscate forensic evidence. There can also be no assurance that our and our
service providers’, strategic partners’ and other contractors’ or consultants’ cybersecurity risk management program and processes, including
policies, controls or procedures, will be fully implemented, complied with or effective in protecting our systems, networks and Confidential
Information.
We and certain of our service providers are from time to time subject to cyberattacks and security incidents. While we do not believe that we
have experienced any significant system failure, accident or security breach to date, if such an event were to occur and cause interruptions in
our operations, it could result in a material disruption of our development programs and our business operations, whether due to a loss,
corruption or unauthorized disclosure of our Confidential Information or other similar disruptions. If a security breach or other incident were to
result in the unauthorized access to or unauthorized use, disclosure, release or other processing of personal information, it may be
necessary to notify individuals, governmental authorities, supervisory bodies, the media and other parties pursuant to privacy and security
laws. We could also incur liability, including litigation exposure, penalties and fines, and we could become the subject of regulatory action or
investigation. Our competitive position could be harmed and the further development and commercialization of our products and services
could be delayed. We maintain cyber liability insurance; however, this insurance may not be sufficient to cover the financial, legal, business
or reputational losses that may result from an interruption or breach of our systems.
For example, in February 2024, UnitedHealth Group announced that its Change Healthcare information technology systems were being
taken offline for an undefined period, which has impacted and could continue to impact our operations, including the ability of third-party
pharmacies to fill electronic prescriptions our clinicians may write for patients. We have observed a disruption in claims being processed
resulting in delays in patients receiving shipments of FUROSCIX as a result of the Change Healthcare issue. Such failures or breaches of our
third-party vendors’ security measures, or our third-party vendors’ inability to effectively resolve such failures or breaches in a timely manner,
could adversely impact our financial results.
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Product liability lawsuits could divert our resources, result in substantial liabilities and reduce the commercial potential of our
products and product candidates.
The risk that we may be sued on product liability claims is inherent in the commercialization of and development of drug formulation and
device products. We face a risk of product liability exposure related to our marketed product and the testing of our product candidates in
clinical trials. Product liability claims might be brought against us by consumers, healthcare providers or others coming into contact with our
products and product candidates. These lawsuits may divert our management from pursuing our business strategy and may be costly to
defend. In addition, if we are held liable in any of these lawsuits, we may incur substantial liabilities and may be forced to limit or forego
further commercialization of one or more of our products which could adversely affect our stock price and our operations.
We may become involved in litigation or other proceedings with third parties, which may be time consuming, costly and could
result in delays in our development and commercialization efforts.
Any disputes with such third parties that lead to litigation or similar proceedings may result in us incurring legal expenses, as well as facing
potential legal liability. Such disputes, litigation or other proceedings are also time consuming and may cause delays in our development and
commercialization efforts. If we fail to resolve these disputes quickly and on favorable terms, our business, results of operations, and financial
condition may be harmed.
Unstable market and economic conditions may have serious adverse consequences on our business, financial condition and
share price.
The global economy, including credit and financial markets, has experienced extreme volatility and disruptions, including, for example,
severely diminished liquidity and credit availability, rising interest and inflation rates, tariffs and trade wars, crises involving banking and
financial institutions, declines in consumer confidence, declines in economic growth, increases in unemployment rates and uncertainty about
economic stability. If the equity and credit markets continue to deteriorate, or the United States enters a recession, it may make any
necessary debt or equity financing more difficult to obtain in a timely manner or on favorable terms, more costly or more dilutive. In addition,
there is a risk that one or more of our CROs, suppliers, CMOs, or other third-party providers may not survive an economic downturn or
recession. As a result, our business, results of operations and price of our common stock may be adversely affected.
Increased scrutiny of, and evolving expectations regarding, sustainability and environmental, social, and governance (“ESG”)
matters could increase our costs, harm our reputation and adversely impact our financial results.
Companies are facing increasing and evolving scrutiny related to ESG practices and disclosures. Stakeholders’ expectations continue to
evolve; moreover, they are not uniform, and at times are conflicting. Addressing these expectations comes with inherent costs and
complexity, and any failure to successfully navigate such matters may adversely result in increased costs, increased risk of litigation or
reputational damage relating to our ESG practices or performance, enhanced compliance or disclosure obligations, or other adverse impacts
on our business, financial condition or results of operations.
While we may at times engage in voluntary initiatives (such as voluntary disclosures or goals), such initiatives may be costly and may not
have the desired effect. Any efforts to improve our ESG profile or respond to stakeholder expectations can be costly and may not have the
desired effect. Our ability to achieve any ESG objective is subject to numerous risks, many of which are outside of our control. If our ESG
practices and reporting do not meet investor, regulator, customer, employee or other stakeholder or third party expectations, which continue
to evolve, our brand, reputation and/or business relationships may be negatively impacted, and we may be subject to investor or regulator
engagement regarding such matters. Certain market participants, including major institutional investors, use third-party benchmarks, ratings
or scores to measure our ESG practices in making investment and voting decisions. Unfavorable ratings or scores of us or our industry may
lead to negative investor sentiment and the diversion of investment to other companies or industries, which could have a negative impact on
our stock price and our access to and cost of capital.
As ESG best practices, reporting standards and disclosure requirements continue to develop, we may incur increasing costs related to ESG
monitoring and reporting. In addition, new ESG rules and regulations have been adopted and may continue to be introduced in various states
and other jurisdictions. Such laws are complex and at times divergent, which may increase costs and complexity of compliance and any
associated risks. Our failure
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to comply with any applicable rules or regulations could lead to penalties and adversely impact our reputation, customer attraction and
retention, access to capital and employee retention. Such ESG matters may also impact our suppliers, customers and business partners,
which may augment or cause additional impacts on our business, financial condition or results of operations.
Risks Related to Ownership of Our Common Stock
The trading price of our common stock may be highly volatile and fluctuate substantially.
Our stock price is likely to be highly volatile. The stock market in general and the market for smaller pharmaceutical and biotechnology
companies in particular have experienced extreme volatility that has often been unrelated to the operating performance of particular
companies. The market price for our common stock may be influenced by many factors, including:
•
regulatory actions with respect to our product candidates;
•
the pricing, reimbursement and commercialization of FUROSCIX and of other product candidates that may be approved;
•
regulatory actions with respect to our competitors’ products and product candidates;
•
the success of existing or new competitive products or technologies;
•
announcements by us or our competitors of significant acquisitions, strategic partnerships, joint ventures, collaborations or
capital commitments;
•
the timing and results of clinical trials of our pipeline product candidates;
•
commencement or termination of collaborations for our development programs;
•
failure or discontinuation of any of our development programs;
•
results of clinical trials of product candidates of our competitors;
•
regulatory or legal developments in the United States and other countries;
•
developments or disputes concerning patent applications, issued patents or other proprietary rights, including proprietary rights
that we in-license from third parties;
•
the recruitment or departure of key personnel;
•
the level of expenses related to any of our products or product candidates or clinical development programs;
•
the results of our efforts to develop additional product candidates or products;
•
actual or anticipated changes in estimates as to financial results or development timelines;
•
announcement or expectation of additional financing efforts;
•
sales of our common stock by us, our insiders or other stockholders;
•
variations in our financial results or those of companies that are perceived to be similar to us;
•
changes in estimates or recommendations by securities analysts, if any, that cover our stock;
•
changes in the structure of healthcare payment systems;
•
market conditions in the pharmaceutical and biotechnology sectors;
•
general economic, industry and market conditions; and
•
the other factors described in this “Risk Factors” section.
Additionally, in the past, securities class action litigation has often been brought against a company following a decline in the market price of
its securities. This risk is especially relevant for us because pharmaceutical companies have experienced significant stock price volatility in
recent years. If we face such litigation, it could result in substantial costs and a diversion of management’s attention and resources, which
could harm our business.
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Raising additional capital may cause dilution to our stockholders, restrict our operations or require us to relinquish rights to our
technologies or product candidates.
We expect our expenses to increase in connection with our planned operations. To the extent that we raise additional capital through the
sale of common stock, convertible securities or other equity securities, the ownership percentages of all our stockholders may be diluted, and
the terms of these securities could include liquidation or other preferences and anti-dilution protections that could adversely affect the rights
of our stockholders. In addition, royalty-based financing or debt financing, such as our Revenue Purchase and Sale Agreement, if available,
will result in our relinquishing rights to valuable future revenue streams or fixed payment obligations and may involve agreements that include
restrictive covenants that limit our ability to take specific actions, such as incurring additional debt, making capital expenditures, creating
liens, redeeming stock or declaring dividends, that could adversely impact our ability to conduct our business. In addition, securing financing
could require a substantial amount of time and attention from our management and may divert a disproportionate amount of their attention
away from day-to-day activities, which may adversely affect our management’s ability to oversee the commercialization of FUROSCIX and
the development of our product candidates.
If we raise additional funds through collaborations or marketing, distribution or licensing, or royalty-based financing arrangements with third
parties, we may have to relinquish valuable rights to our technologies, future revenue streams, products or product candidates or grant
licenses on terms that may not be favorable to us. If we are unable to raise additional funds when needed, we may be required to delay, limit,
reduce or terminate our product development or commercialization efforts or grant rights to develop and market products or product
candidates that we would otherwise prefer to develop and market ourselves.
We do not anticipate paying any cash dividends on our capital stock in the foreseeable future. Accordingly, stockholders must rely
on capital appreciation, if any, for any return on their investment.
We have never declared nor paid cash dividends on our capital stock. We currently plan to retain all of our future earnings, if any, to finance
the operation, development and growth of our business. In addition, the terms of any of our existing, and potentially future, debt or credit
agreements will restrict or preclude us from paying dividends. For example, under our Credit Agreement with Oaktree, we are restricted from
paying any dividends or making any distributions on account of our capital stock if we are in, or expected to be, in default. As a result, capital
appreciation, if any, of our common stock will be the sole source of gain for our stockholders for the foreseeable future.
Concentration of ownership of our common stock among our existing executive officers, directors and principal stockholders may
prevent new investors from influencing significant corporate decisions.
Based upon shares outstanding as of December 31, 2024, our executive officers and directors, combined with our stockholders who own
more than 5% of our outstanding common stock and their affiliates, in the aggregate, beneficially own shares representing approximately
41.8% of our common stock. As a result, if these stockholders were to choose to act together, they would be able to significantly influence all
matters submitted to our stockholders for approval, as well as our management and affairs. For example, these persons, if they choose to act
together, would exert significant influence over, and potentially control, the election of directors and approval of any merger, consolidation or
sale of all or substantially all of our assets. This concentration of ownership may:
•
delay, defer or prevent a change in control;
•
entrench our management or the board of directors; or
•
impede a merger, consolidation, takeover or other business combination involving us that other stockholders may desire.
Some of these persons or entities may have interests that are different than those of other stockholders. For example, because many of
these stockholders purchased their shares at prices substantially below the price at which shares were sold in our initial public offering and
have held their shares for a longer period, they may be more interested in selling our company to an acquirer than other investors or they
may want us to pursue strategies that deviate from the interests of other stockholders.
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We are a “smaller reporting company,” as defined in the Exchange Act, and the reduced disclosure requirements applicable to
smaller reporting companies may make our common stock less attractive to investors.
We are a “smaller reporting company” as defined in the Securities Exchange Act of 1934, as amended, or the Exchange Act. We may take
advantage of certain of the scaled disclosures available to smaller reporting companies until the fiscal year following the determination that
our voting and non-voting common stock held by non-affiliates is more than $250.0 million measured on the last business day of our second
fiscal quarter, or our annual revenues are more than $100.0 million during the most recently completed fiscal year and our voting and non-
voting common stock held by non-affiliates is more than $700.0 million measured on the last business day of our second fiscal quarter, which
we refer to as a low-revenue smaller reporting company.
Our independent registered public accounting firm will not be required to provide an attestation report on the effectiveness of our internal
control over financial reporting so long as we qualify as a low-revenue smaller reporting company, which may increase the risk that material
weaknesses or significant deficiencies in our internal control over financial reporting go undetected. Likewise, so long as we qualify as a
smaller reporting company we may elect not to provide you with certain information, including certain financial information and certain
information regarding compensation of our executive officers, that we would otherwise have been required to provide in filings we make with
the SEC, which may make it more difficult for investors and securities analysts to evaluate our company. We cannot predict if investors will
find our common stock less attractive because we may rely on these exemptions. If some investors find our common stock less attractive as
a result, there may be a less active trading market for our common stock, and our stock price may be more volatile and may decline.
As a public company, we must comply with public company reporting and other obligations. Continued compliance with these
requirements will increase our costs and require additional management resources, and do not ensure that we will be able to
satisfy them.
As a result of operating as a public company, compliance with the Sarbanes-Oxley Act of 2002, as well as other rules and regulations
promulgated by the SEC and the Nasdaq Stock Market LLC, or Nasdaq, results in significant legal, accounting, administrative and other
costs and expenses. The listing requirements of the Nasdaq Global Select Market require that we satisfy certain corporate governance
requirements relating to director independence, distributing annual and interim reports, stockholder meetings, approvals and voting, soliciting
proxies, conflicts of interest and a code of conduct. Our management and other personnel will need to continue to devote a substantial
amount of time to ensure that we continue to comply with all of these requirements.
We are subject to Section 404 of the Sarbanes-Oxley Act of 2002, or Section 404, and the related rules of the SEC that generally require our
management and independent registered public accounting firm to report on the effectiveness of our internal control over financial reporting.
Section 404 requires an annual management assessment of the effectiveness of our internal control over financial reporting. However, for so
long as we remain a low-revenue smaller reporting company, we intend to take advantage of certain exemptions from various reporting
requirements that are applicable to public companies that are not smaller reporting companies, including, but not limited to, not being
required to comply with the auditor attestation requirement of Section 404. Once we are no longer a low-revenue smaller reporting company
or, if before such date, we opt to no longer take advantage of the applicable exemption, we will be required to include an opinion from our
independent registered public accounting firm on the effectiveness of our internal control over financial reporting.
We have in the past and may in the future identify a material weakness in our internal control over financial reporting. If we are unable to
remediate any such material weakness, we may not be able to accurately or timely report our financial condition or results of operations,
which may adversely affect our business and stock price. For example, as previously disclosed in our Annual Report for the period ended
December 31, 2023, in connection with the preparation of our financial statements for that period, management previously identified a
material weakness related to the controls, processes and procedures over the fair value accounting associated with the embedded derivative
liability in connection with the Oaktree Agreement. This material weakness has since been remediated; however, we cannot assure you that
the measures we are taking will be sufficient to avoid the identification of additional material weaknesses in the future.
Furthermore, if we have a material weakness in our internal control over financial reporting, we may not detect errors on a timely basis and
our financial statements may be materially misstated, especially for so long as our
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independent registered public accounting firm is not required to provide an attestation report on the effectiveness of such internal controls
over financial reporting. We, as is the case in this Annual Report on Form 10-K, or our independent registered public accounting firm, once
we are no longer a lower-revenue small reporting company, may not be able to conclude on an ongoing basis that we have effective internal
control over financial reporting, which could harm our operating results, cause investors to lose confidence in our reported financial
information and cause the trading price of our stock to fall. In addition, as a public company we are required to timely file accurate quarterly
and annual reports with the SEC under the Exchange Act. Any failure to report our financial results on an accurate and timely basis could
result in sanctions, lawsuits, delisting of our shares from the Nasdaq Global Select Market or other adverse consequences.
Future sales of our common stock into the market could cause the market price of our common stock to decline significantly, even
if our business is doing well.
Sales of a substantial number of shares of our common stock in the public market could occur at any time. These sales, or the perception in
the market that the holders of a large number of shares of common stock intend to sell shares, could reduce the market price of our common
stock. Persons who were our stockholders prior to our IPO continue to hold a substantial number of shares of our common stock that many
of them are now able to sell in the public market. If these pre-IPO shares are sold, or if it is perceived that they will be sold, in the public
market, the trading price of our common stock could decline.
Moreover, certain holders of securities issued prior to our IPO have rights, subject to conditions, to require us to file registration statements
covering their shares or to include their shares in registration statements that we may file for ourselves or other stockholders.
Future issuances of our common stock or the issuance of shares of common stock upon the exercise or conversion of securities
that are exercisable or convertible into shares of common stock, such as our pre-funded warrants, or upon the exercise or vesting
of incentive awards, may result in dilution for our stockholders.
We have needed and anticipate we will need additional capital in the future to continue our planned operations. To the extent that we raise
additional capital by issuing equity securities, our stockholders may experience substantial dilution. We may sell common stock, convertible
securities, or other equity securities in one or more transactions at prices and in a manner we determine from time to time. We also expect to
issue common stock to employees, directors, and consultants pursuant to our equity incentive plans. If we sell common stock, convertible
securities, or other equity securities in subsequent transactions, or common stock is issued pursuant to equity incentive plans, investors may
be materially diluted. New investors in such subsequent transactions could gain rights, preferences, and privileges senior to those of holders
of our common stock.
As of December 31, 2024, we have outstanding pre-funded warrants to purchase 3,405,000 shares of common stock at an exercise price of
$0.001 per share, which may be paid by way of a cashless exercise, meaning that the holder may not pay a cash purchase price upon
exercise, but instead would receive upon such exercise the net number of shares of common stock determined according to the formula set
forth in the pre-funded warrant. Accordingly, we will not receive a significant amount, or potentially any, additional funds upon the exercise of
the pre-funded warrants. To the extent such pre-funded warrants are exercised, additional shares of common stock will be issued for nominal
or no additional consideration, which could result in substantial dilution to then existing holders of our common stock and will increase the
number of shares eligible for resale in the public market. Sales of substantial numbers of such shares in the public market could adversely
affect the market price of the common stock, causing our stock price to decline.
If securities or industry analysts do not continue to publish research or publish inaccurate or unfavorable research about our
business, our share price and trading volume could decline.
The trading market for our common stock depends in part on the research and reports that securities or industry analysts publish about us or
our business. We do not have any control over these analysts. In the event one or more analysts downgrade our stock or change their
opinion of our stock, our share price would likely decline. In addition, if one or more analysts cease coverage of our company or fail to
regularly publish reports on us, we could lose visibility in the financial markets, which could cause our share price or trading volume to
decline.
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An active trading market for our common stock may not be sustainable. If an active trading market is not sustained, our ability to
raise capital in the future may be impaired.
An active trading market for our shares of common stock may not be sustained. If an active market for our common stock is not sustained, it
may be difficult for our stockholders to sell shares of our common stock without depressing the market price for the shares or at all. An
inactive trading market may also impair our ability to raise capital to continue to fund operations by selling shares and may impair our ability
to acquire other companies or technologies by using our shares as consideration.
Provisions in our corporate charter documents and under Delaware law may prevent or frustrate attempts by our stockholders to
change our management or hinder efforts to acquire a controlling interest in us.
Provisions in our corporate charter and our bylaws may discourage, delay or prevent a merger, acquisition or other change in control of us
that stockholders may consider favorable. These provisions could also limit the price that investors might be willing to pay in the future for
shares of our common stock, thereby depressing the market price of our common stock. In addition, because our board of directors is
responsible for appointing the members of our management team, these provisions may frustrate or prevent any attempts by our
stockholders to replace or remove our current management by making it more difficult for stockholders to replace members of our board of
directors. Among other things, these provisions:
•
establish a classified board of directors such that all members of the board are not elected at one time;
•
allow the authorized number of our directors to be changed only by resolution of our board of directors;
•
limit the manner in which stockholders can remove directors from the board;
•
establish advance notice requirements for nominations for election to the board of directors or for proposing matters that can
be acted on at stockholder meetings;
•
require that stockholder actions must be effected at a duly called stockholder meeting and prohibit actions by our stockholders
by written consent;
•
limit who may call a special meeting of stockholders;
•
authorize our board of directors to issue preferred stock without stockholder approval, which could be used to institute a
“poison pill” that would work to dilute the stock ownership of a potential hostile acquirer, effectively preventing acquisitions that
have not been approved by our board of directors; and
•
require the approval of the holders of at least two-thirds of the votes that all our stockholders would be entitled to cast to amend
or repeal certain provisions of our charter or bylaws.
Moreover, because we are incorporated in Delaware, we are governed by the provisions of Section 203 of the General Corporation Law of
the State of Delaware, which prohibits a person who owns in excess of 15% of our outstanding voting stock from merging or combining with
us for a period of three years after the date of the transaction in which the person acquired in excess of 15% of our outstanding voting stock,
unless the merger or combination is approved in a prescribed manner. This could discourage, delay or prevent someone from acquiring us or
merging with us, whether or not it is desired by, or beneficial to, our stockholders. This could also have the effect of discouraging others from
making tender offers for our common stock. These provisions may also prevent changes in our management or limit the price that investors
are willing to pay for our stock.
Our bylaws designate specific courts as the exclusive forum for certain litigation that may be initiated by our stockholders, which
could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us.
Pursuant to our bylaws, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware
is the sole and exclusive forum for state law claims for any state law claim for (1) any derivative action or proceeding brought on our behalf;
(2) any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers, or other employees to us or our
stockholders; (3) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law or our certificate of
incorporation or bylaws; or (4) any action asserting a claim governed by the internal affairs doctrine, or the Delaware Forum Provision. The
Delaware Forum Provision will not apply to any causes of action arising under the Securities Act or the Exchange Act. Our bylaws further
provide that, unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States of America
are the sole and exclusive forum
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for resolving any complaint asserting a cause of action arising under the Securities Act, or the Federal Forum Provision, or the rules and
regulations promulgated thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by the
Securities Act or the rules and regulations thereunder. In addition, our bylaws provide that any person or entity purchasing or otherwise
acquiring any interest in shares of our Common Stock is deemed to have notice of and consented to the foregoing Delaware Forum Provision
and Federal Forum Provision; provided, however, that stockholders cannot and will not be deemed to have waived our compliance with the
U.S. federal securities laws and the rules and regulations thereunder.
The Delaware Forum Provision and the Federal Forum Provision may impose additional litigation costs on stockholders in pursuing any such
claims. Additionally, these forum selection clauses may limit our stockholders’ ability to bring a claim in a judicial forum that they find
favorable for disputes with us or our directors, officers or employees, which may discourage the filing of lawsuits against us and our directors,
officers and employees even though an action, if successful, might benefit our stockholders. While the Delaware Supreme Court and other
states have upheld the validity of federal forum selection provisions purporting to require claims under the Securities Act be brought in federal
court, there is uncertainty as to whether other courts will enforce our Federal Forum Provision. If the Federal Forum Provision is found to be
unenforceable, we may incur additional costs with resolving such matters. The Federal Forum Provision may also impose additional litigation
costs on us and/or our stockholders who assert that the provision is invalid or unenforceable. The Court of Chancery of the State of Delaware
or the federal district courts of the United States of America may also reach different judgments or results than would other courts, including
courts where a stockholder considering an action may be located or would otherwise choose to bring the action, and such judgments may be
more or less favorable to us than our stockholders.
Item 1B. Unresolved Staff Comments.
None.
Item 1C. Cybersecurity.
Cybersecurity Risk Management and Strategy
We have developed and implemented a cybersecurity risk management program intended to protect the confidentiality, integrity, and
availability of our critical systems and information.
We design and assess our program based on the National Institute of Standards and Technology Cybersecurity Framework (NIST CSF).
This does not imply that we meet any particular technical standards, specifications, or requirements, only that we use the NIST CSF as a
guide to help us identify, assess, and manage cybersecurity risks relevant to our business.
Our cybersecurity risk management program has recently undergone an effort to expand and mature our security controls and
documentation. These efforts include:
•
A security risk assessment conducted by an external supplier to help identify material cybersecurity risks to our critical systems,
information, products, services, and our broader enterprise IT environment. This assessment was completed in the fourth
quarter of 2024.
•
The implementation of revised information security program documentation and policies in the first quarter of 2024, including:
o
revision and implementation of a revised information security policy;
o
implementation of a revised incident response plan and policy;
o
implementation of a third-party risk management program that includes update procedures for third party vendor due
diligence;
o
implementation of additional periodic cybersecurity and awareness training for all of our employees, including
unannounced phishing simulations;
o
implementation of a managed security operations center (SOC) to provide 24/7 managed detection and response (MDR)
services for all corporate endpoints.
75
These efforts complement our current cybersecurity risk management program, which include a security team that is principally responsible
for managing (1) our cybersecurity risk assessment processes, (2) our security controls, and (3) our response to cybersecurity incidents. We
also conduct employee cybersecurity awareness training upon onboarding to the company and periodically thereafter. However, there can be
no assurance that our cybersecurity risk management program and processes, including our policies, controls or procedures, will be
complied with or effective in protecting our systems and information.
Our cybersecurity risk management program is integrated into our overall risk management program, and shares common methodologies,
reporting channels and governance processes that apply across the risk management program to other legal, compliance, strategic,
operational, and financial risk areas.
We have not identified risks from known cybersecurity threats, including as a result of any prior cybersecurity incidents, that have materially
affected us, including our operations, business strategy, results of operations, or financial condition. We face risks from cybersecurity threats
that, if realized, are reasonably likely to materially affect us, including our operations, business strategy, results of operations, or financial
condition. For more information, see the section titled “Risk Factor— Our business and operations may suffer in the event of information
technology system failures, cyberattacks or deficiencies in our cybersecurity.”
Cybersecurity Governance
Our Board considers cybersecurity risk as part of its risk oversight function and has delegated to the Audit Committee, or the Committee,
oversight of cybersecurity risks, including oversight of management’s implementation of our cybersecurity risk management program.
The Committee receives periodic reports from management on our cybersecurity risks. In addition, management updates the Committee,
where it deems appropriate, regarding any material cybersecurity incidents, as well as any incidents with lesser impact potential.
The Committee reports to the full Board regarding its activities, including those related to cybersecurity. The full Board also receives briefings
from management on our cyber risk management program. Board members receive presentations on cybersecurity topics from our Senior
Director of Information Technology and/or external experts as part of the Board’s continuing education on topics that impact public
companies.
Our Senior Director of Information Technology, who reports to our Vice President, Corporate Affairs and Human Resources, is primarily
responsible for assessing and managing our material risks from cybersecurity threats. Our Senior Director of Information Technology has
primary responsibility for our overall cybersecurity risk management program and supervises both our internal cybersecurity personnel and
our retained external cybersecurity consultants. Their experience includes 25 years of experience in information technology, and 8 years
specifically involved in cybersecurity matters, as well as experience in security program development and review, implementation of security
tools and software, security risk identification and remediation, incident identification and remediation, as well as managing enterprise risk. In
addition, we rely on third party cyber security consultants and legal counsel to supplement our expertise.
Our management team takes steps to stay informed about and monitor efforts to prevent, detect, mitigate, and remediate cybersecurity risks
and incidents through various means, which may include briefings from internal security personnel threat intelligence and other information
obtained from governmental, public or private sources, including external consultants engaged by us; and alerts and reports produced by
security tools deployed in our information technology environment.
Item 2. Properties.
Our principal executive offices are located in a 9,342 square foot facility in Burlington, Massachusetts. Pursuant to a sublease entered into in
August 2023, the term of the lease for our facility extends through August 2029. We lease 1,855 square feet in Salem, New Hampshire. The
term of the lease for our Salem, New Hampshire facility extends through August 2026. Our facilities house our research and development,
sales, marketing, finance and
76
administrative activities. We believe that our current facilities are adequate to meet our needs for the foreseeable future and that suitable
additional space will be available as and when needed.
Item 3. Legal Proceedings.
From time to time, we may be subject to legal proceedings and claims in the ordinary course of business. We are not currently aware of any
such proceedings or claims that we believe will have, individually or in the aggregate, a material adverse effect on our business, financial
condition or results of operations.
Item 4. Mine Safety Disclosures.
Not applicable.
77
PART II
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
Market Information and Holders
Our common stock is traded on the Nasdaq Global Select Market under the symbol “SCPH”.
As of March 18, 2025, there were 22 holders of record of our common stock, which excludes stockholders whose shares were held in
nominee or street name by brokers.
Dividend Policy
We have never declared or paid any cash dividends on our capital stock. We currently intend to retain all available funds and any future
earnings, if any, to fund the development and expansion of our business and we do not anticipate paying any cash dividends in the
foreseeable future. Any future determination to pay cash dividends will be made at the discretion of our board of directors. In addition, the
terms of our outstanding indebtedness restrict our ability to pay cash dividends, and any future indebtedness that we may incur could
preclude us from paying cash dividends.
Securities Authorized for Issuance Under Equity Compensation Plans
Information about our equity compensation plans and the securities authorized for issuance thereunder is set forth in Part III, Item 12 of this
Annual Report on Form 10-K.
Recent Sales of Unregistered Securities
None.
Issuer Purchases of Equity Securities
None.
Item 6. [RESERVED]
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Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
You should read the following discussion and analysis of our financial condition and results of operations together with our consolidated
financial statements and the related notes appearing at the end of this Annual Report on Form 10-K. This discussion includes forward-looking
statements that involve risks, uncertainties and assumptions such as our plans, objectives, expectations and intentions. You should read the
“Forward-Looking Statements” and “Risk Factors” sections of this Annual Report on Form 10-K for a discussion of important factors that
could cause actual results to differ materially from the results described in or implied by the forward-looking statements contained in the
following discussion and analysis.
OVERVIEW
We are a pharmaceutical company committed to revolutionizing cardiorenal healthcare through patient-centric innovations while developing
and commercializing products that have the potential to optimize the delivery of infused therapies, advance patient care and reduce
healthcare costs. Our strategy is to develop therapies for subcutaneous administration that have previously been limited to intravenous, or IV,
delivery. By moving delivery away from the high-cost healthcare settings typically required for IV administration, we believe our strategy has
the potential to reduce overall healthcare costs and advance the quality and convenience of care. Our approved product, FUROSCIX,
consists of our novel formulation of furosemide delivered via West Pharmaceutical Services, Inc.'s, or West’s, on-body infusor, which delivers
an 80 mg/10 mL dose over 5 hours. On October 10, 2022, we announced that the U.S. Food and Drug Administration, or FDA, approved
FUROSCIX for the treatment of congestion due to fluid overload in adults with New York Heart Association, or NYHA, Class II/III chronic
heart failure. Subsequently, we announced the approval of our supplemental drug application expanding the FUROSCIX indication in heart
failure on August 9, 2024 to include NYHA Class IV heart failure patients. FUROSCIX is the first and only FDA-approved subcutaneous loop
diuretic that delivers IV equivalent diuresis at home. IV equivalence was established in a clinical study in which FUROSCIX demonstrated
99.6% bioavailability (90% CI: 94.8%-104.8%) and 8-hour urine output of 2.7 L which was similar to subjects receiving intravenous
furosemide. The commercial launch of FUROSCIX for congestion in patients with chronic heart failure commenced in the first quarter of
2023.
In early May 2024 we submitted a supplemental New Drug Application (sNDA), seeking to expand the indication of FUROSCIX to include the
treatment of edema due to fluid overload in adult patients with chronic kidney disease (CKD).The FDA had previously confirmed that no
additional clinical studies would be needed to expand the indication to CKD, provided that we can demonstrate an adequate
pharmacokinetic/pharmacodynamic (PK/PD) bridge to the listed drug, furosemide injection, 10mg/mL. The application was accepted for filing
by the FDA in July 2024 and approved on March 6, 2025. We anticipate formally launching the product in April 2025.
On October 7, 2024, we were notified that the FDA awarded 3-year exclusivity to FUROSCIX on the basis of clinical investigations conducted
by the Company that were essential to approval. As a result, the FDA may not approve a subsequent product for subcutaneous
administration of furosemide for 3 years from the date of approval of FUROSCIX, or October 7, 2025.
We are developing an 80mg/1mL autoinjector intended to provide an additional option to the on-body infusor for treatment of fluid overload in
eligible adult patients who do not require hospitalization. We believe that the development of an autoinjector, if approved, has the potential to
significantly reduce manufacturing costs compared to the current on-body infusor and confer certain environmental advantages. We
submitted an investigational new drug application (IND) in February 2024, initiated a pharmacokinetic/pharmacodynamic PK/PD study in April
of 2024, and completed enrollment in May 2024 with positive data announced in August 2024. We plan to submit a sNDA for the autoinjector
in 2025.
We estimate that there is a $12.5 billion total addressable market opportunity for FUROSCIX in the United States in patients with chronic
heart failure and CKD. We believe FUROSCIX will allow eligible patients with chronic heart failure and chronic kidney disease with worsening
symptoms due to fluid overload despite oral diuretics to receive IV-strength diuresis outside the high-cost hospital setting. At a price of
approximately $947 per dose, we estimate the average cost of treatment with FUROSCIX for each episode to be approximately $5,685,
which can be significantly lower than the cost of a single hospitalization for worsening heart failure. Prevention of heart failure hospital
admissions and reduced readmission rates would result in reducing days patients spend in the hospital each year. By decreasing the number
of heart failure admissions and readmissions to hospitals and shortening the hospital length of stay by completing diuresis post-discharge at
home, we believe we can drive
79
significant cost savings to payers and hospitals and improve patients’ quality of life through outpatient management of their fluid overload.
In June 2024, another U.S. patent was granted, further strengthening our coverage of concentrated formulations of furosemide. We have
progressed our development on multiple formulations described in the patent properties, have identified potential product candidates, and
commenced a clinical study with our lead formulation.
We have funded our operations from inception through December 31, 2024 primarily through the sale of shares of our common stock and the
incurrence of debt and, prior to that, through the private placement of our preferred stock.
For the years ended December 31, 2023 and 2024, our net losses were $54.8 million and $85.1 million, respectively. We have not been
profitable since inception, and as of December 31, 2024, our accumulated deficit was $366.5 million. We expect to continue to incur net
losses for the foreseeable future as we support the commercialization efforts of FUROSCIX in the United States, including expanding our
sales and marketing organization, continuing research and development efforts, engaging in scale-up manufacturing and seeking regulatory
approval for new product candidates and enhancements. Our financial results may fluctuate from quarter to quarter and will depend on,
among other factors, the net sales of FUROSCIX, the scope and progress of our research and development efforts and timing of certain
expenses.
COMPONENTS OF OUR RESULTS OF OPERATIONS
Product Revenues
Product revenues, net, consist of net sales of FUROSCIX. We initiated shipments of FUROSCIX to customers in the United States, which
include specialty pharmacies, in February 2023. We recognize revenue for product received by our customers net of allowances for customer
discounts, service fees, estimated returns and rebates.
Cost of Product Revenues
Cost of product revenues include costs related to the manufacturing of FUROSCIX, including third party manufacturing costs, packaging and
freight, in addition to royalty expenses. We began capitalizing inventory upon FDA approval of FUROSCIX. All costs related to inventory for
FUROSCIX that was produced prior to FDA approval were expensed as incurred and therefore not included in cost of revenues.
Research and Development Expenses
Research and development ("R&D") expenses consist of the cost of engineering, clinical trials, regulatory and medical affairs and quality
assurance associated with developing our proprietary technology and product candidates. R&D expenses consist primarily of:
•
employee-related expenses, including salaries, benefits, travel expense and stock-based compensation expense;
•
cost of outside consultants who assist with technology development, regulatory affairs, clinical trials and medical affairs, and
quality assurance;
•
cost of clinical trial activities performed by third parties;
•
cost of pre-approval pharmaceutical batch manufacturing; and
•
cost of facilities and supplies used for internal research and development and clinical activities.
We expense R&D costs as incurred. Given the emphasis to date on our approved product FUROSCIX, our R&D expenses have not been
allocated on a program-specific basis. In the future, we expect R&D expenses to increase in absolute dollars as we continue to develop new
products and enhance existing products and technologies. We anticipate that our expenses will increase significantly as we:
•
continue to advance our pipeline programs beyond FUROSCIX;
•
continue our current research and development activity;
•
seek to identify additional research programs and additional product candidates;
80
•
initiate preclinical testing and clinical trials for any product candidates we identify and develop, maintain, expand and protect our
intellectual property portfolio; and
•
hire additional research, clinical and scientific personnel.
Selling, General and Administrative Expenses
Selling, general and administrative ("SG&A") expenses consist of employee-related expenses, including salaries, benefits, travel expense
and stock-based compensation expense for personnel in executive, finance, commercial, field sales, human resources, facility operations
and administrative functions. Other SG&A expenses include promotional activities, marketing, conferences and trade shows, professional
services fees, including legal, audit and tax fees, insurance costs, general corporate expenses and allocated facilities-related expenses.
We anticipate that our SG&A expenses will increase as we continue to expand our corporate and commercial infrastructure to support the
commercialization activities of FUROSCIX in the United States.
RESULTS OF OPERATIONS
Comparison of Years Ended December 31, 2023 and 2024
The following table summarizes our results of operations for the years ended December 31, 2023 and 2024 (in thousands):
YEAR ENDED
DECEMBER 31,
INCREASE
2023
2024
(DECREASE)
Product revenues, net
$
13,593 $
36,332 $
22,739
Operating expenses:
Cost of product revenues
3,811
11,361
7,550
Research and development
11,809
12,098
289
Selling, general and administrative
53,369
77,649
24,280
Total operating expenses
68,989
101,108
32,119
Loss from operations
(55,396)
(64,776)
9,380
Loss on extinguishment of debt
-
(13,032)
13,032
Change in fair value of term loan
-
(3,205)
3,205
Change in fair value of revenue purchase and sale liability
-
(3,642)
3,642
Other income
3,605
3,633
28
Interest income
5,104
3,444
(1,660)
Interest expense
(8,123)
(7,570)
(553)
Net loss
$
(54,810) $
(85,148) $
30,338
Product revenues. Product revenues were $36.3 million for the year ended December 31, 2024, compared to $13.6 million for the year ended
December 31, 2023. The increase of $22.7 million was due to an increase in demand of FUROSCIX further into commercial launch.
Cost of product revenues. Cost of product revenues were $11.4 million for the year ended December 31, 2024, compared to $3.8 million for
the year ended December 31, 2023. The increase of $7.6 million was due to an increase in demand of FUROSCIX further into commercial
launch, and related manufacturing costs.
Research and development expenses. R&D expenses increased $0.3 million to $12.1 million during the year ended December 31, 2024,
compared to $11.8 million during the year ended December 31, 2023. This increase was primarily attributable to a $0.8 million increase in
clinical study costs, a $0.6 million increase in device development costs, and a $0.2 million increase in patent costs. The increase was
partially offset by a $1.1 million decrease in pharmaceutical development costs, a $0.1 million decrease in quality consulting, and a $0.1
million decrease in shipping and storage.
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Selling, general and administrative expenses. SG&A expenses increased $24.3 million to $77.6 million during the year ended December 31,
2024, compared to $53.4 million during the year ended December 31, 2023. This increase was primarily attributable to a $9.8 million
increase in employee-related costs due to increased headcount, including compensation, benefits, travel and facilities allocations, a $7.8
million increase in commercial preparation costs, $4.4 million in costs associated with entering into the Credit Agreement and Revenue
Purchase and Sale Agreement in the third quarter of 2024, a $1.8 million increase in patient support costs, a $0.5 million increase in
professional service costs, and a $0.3 million increase in FDA user fees. The increase was offset by a $0.3 million decrease in insurance
costs.
Loss on extinguishment of debt. Loss on extinguishment of debt was $13.0 million for the year ended December 31, 2024. The loss was
related to the payoff of the Oaktree Agreement in August 2024.
Change in fair value of term loan. The change in fair value of the term loan, which is accounted for under the fair value option, was $3.2
million for the year ended December 31, 2024. The change in fair value was primarily due to changes in interest rates and volatility.
Change in fair value of revenue purchase and sale liability. The change in fair value of the revenue purchase and sale liability, which is
accounted for under the fair value option, was $3.6 million for the year ended December 31, 2024. The change in fair value was primarily
due to changes in market yields.
Other income. Other income was $3.6 million for the year ended December 31, 2024, compared to $3.6 million during the year ended
December 31, 2023. Other income primarily represents fair value adjustments to the derivative liability.
Interest income. Interest income decreased $1.7 million to $3.4 million during the year ended December 31, 2024 compared to $5.1 million
during the year ended December 31, 2023. This decrease was primarily attributable to higher interest rates on and larger investment
balances in our financial instruments during the year ended December 31, 2023.
Interest expense. Interest expense decreased $0.6 million to $7.6 million during the year ended December 31, 2024 compared to $8.1 million
during the year ended December 31, 2023. This decrease was due to the termination of the Oaktree Agreement and associated non-cash
interest charges previously incurred due to the amortization of the debt discount associated with the instrument.
LIQUIDITY AND CAPITAL RESOURCES
Overview
We have funded our operations from inception through December 31, 2024 primarily through the sale of shares of our common stock,
through the private placement of our preferred stock and the incurrence of debt. From inception through December 31, 2024, we received net
cash proceeds of $92.7 million from our initial public offering; $56.7 million from sales of our preferred stock; $81.6 million from borrowings
under our previous term loan with SLR Investment Corp. and Silicon Valley Bank, our previous term loan under the Credit Agreement and
Guaranty (the “Oaktree Agreement”) with Oaktree Fund Administration, LLC as administrative agent, and the lenders party thereto
(collectively “Oaktree”), and the Credit Agreement and Revenue Purchase and Sale Agreement with Perceptive Credit Holdings IV, LP; $13.5
million from sales of convertible notes; $50.2 million from our public offering of common stock in 2020; $46.6 million from our public offering
of common stock in 2022; $53.5 million from our public offering of common stock in 2024; $14.4 million from the sale of common stock in our
2019 at-the-market offering; and $15.2 million from the sale of common stock in our 2021 at-the-market offering. As of December 31, 2024,
we had cash and cash equivalents of $75.7 million. Our cash and cash equivalents are maintained at a number of financial institutions in
amounts that may exceed federally insured limits.
On March 23, 2021, we entered into an Open Market Sales Agreement (the "2021 ATM Agreement") with Cowen and Company LLC
("Cowen") to sell shares of our common stock, from time to time, with aggregate gross sales proceeds of up to $50.0 million, through an at-
the-market equity offering program under which Cowen will act as our sales agent (the "2021 ATM Program").
On March 13, 2024, we amended and restated the 2021 ATM Agreement where we entered into an Open Market Sales Agreement with
Cowen with respect to an at-the-market offering program under which we could offer and
82
sell the 2024 ATM Shares, having an aggregate offering price of up to $50.0 million through Cowen as its sales agent (the "2024 ATM
Program"). As of March 13, 2024, we had sold a total of 1,726,043 2021 ATM Shares under the 2021 ATM Program at a weighted average
gross selling price of $9.01 per share for net proceeds of $15.2 million. The offering and sale of the 2024 ATM Shares will be made pursuant
to our shelf registration statement on Form S-3, which was declared effective by the SEC on March 22, 2024. There were no shares issued
under the 2024 ATM Program as of December 31, 2024. Please see Note 11. Stockholders’ Equity to our consolidated financial statements
included elsewhere in this Annual Report on Form 10-K for additional information.
On August 9, 2024, we entered into the Credit Agreement and Revenue Purchase and Sale Agreement. The Credit Agreement established a
$75.0 million term loan facility, consisting of (i) $50.0 million funded immediately and (ii) $25.0 million that we may borrow in a single
borrowing on or prior to March 31, 2026. Under the Revenue Purchase and Sale Agreement, in exchange for the Purchaser's payment to us
of a purchase price of $50.0 million, in the aggregate, we have agreed to sell to the Purchaser its right to receive payment in full of a tiered
single digit percentage of net sales of FUROSCIX. In connection with the Credit Agreement, we paid off all unpaid borrowings under the
Oaktree Agreement on August 9, 2024, including the $1.0 million exit fee and a prepayment premium of $2.6 million.
On August 12, 2024, we entered into an underwriting agreement (the “Underwriting Agreement”) with Leerink Partners LLC and TD
Securities (USA) LLC, as representatives of the several underwriters named in Schedule A thereto (collectively, the “Underwriters”),relating
to an underwritten offering of 12,000,000 shares of our common stock and, in lieu of common stock to select investors, pre-funded warrants
to purchase 500,000 shares of common stock. Under the terms of the Underwriting Agreement, we also granted the Underwriters an option
exercisable for 30 days to purchase up to an additional 1,875,000 shares of common stock at a price of $4.00 per share, less underwriting
discounts and commissions. On August 12, 2024, the Underwriters exercised this option in full. The closing of the offering (including the sale
of the Shares subject to the Underwriters’ option to purchase additional shares) took place on August 13, 2024. The net proceeds from the
offering were $53.5 million, after deducting underwriting discounts and commissions and offering expenses. We do not intend to list the pre-
funded warrants on Nasdaq or any other nationally recognized securities exchange or trading system.
We expect to incur substantial additional expenditures in the near future to support our ongoing activities and our commercialization of
FUROSCIX. We believe our existing cash and cash equivalents will be sufficient to fund our operations through at least the next 12 months
from the date of this Annual Report on Form 10-K. We expect our costs and expenses to increase in the future as we continue U.S.
commercialization of FUROSCIX, including the expansion of our direct sales force, and as we continue to make substantial expenditures on
research and development, including to increase our manufacturing capacity and for conducting clinical trials of our product candidates.
Additionally, we continue to incur additional costs as a result of operating as a public company. We plan to continue to fund our operations
through cash and cash equivalents on hand. Additionally, we expect to have access to funds pursuant to our at-the-market offering program
with Cowen, or we could otherwise seek additional funding through a combination of public or private equity offerings, or debt financings, if
we believe additional resources are needed. Our future capital requirements will depend on many factors, including without limitation:
•
the costs and expenses of expanding our U.S. sales and marketing infrastructure;
•
the costs and expenses related to the manufacturing of FUROSCIX and our agreements with third-party manufacturers;
•
the degree of success we experience in commercializing FUROSCIX;
•
the revenue generated by sales of FUROSCIX and of other product candidates that may be approved;
•
the pricing and reimbursement of FUROSCIX and of other product candidates that may be approved;
•
the costs, timing and outcomes of clinical trials and regulatory reviews associated with our product candidates;
•
the emergence of competing or complementary technological developments;
•
the extent to which FUROSCIX is adopted by the healthcare community;
•
the number and types of future products we develop and commercialize;
83
•
the costs of preparing, filing and prosecuting patent applications and maintaining, enforcing and defending intellectual property-
related claims; and
•
the extent and scope of our general and administrative expenses.
Additional financing may not be available on a timely basis on terms acceptable to us, or at all. We may raise funds in equity, royalty-based
or debt financings or enter into additional credit facilities in order to access funds for our capital needs. If we raise additional funds through
further issuances of equity or convertible debt securities, our existing stockholders could suffer significant dilution in their percentage
ownership of our Company, and any new equity securities we issue could have rights, preferences and privileges senior to those of holders
of our common stock. If we raise additional funds through royalty-based financing arrangements, we will likely agree to relinquish rights to
potentially valuable future revenue streams and may agree to covenants that restrict our operations or strategic flexibility. Any debt financing
obtained by us in the future would cause us to incur additional debt service expenses and could include restrictive covenants relating to our
capital raising activities and other financial and operational matters, which may make it more difficult for us to obtain additional capital and
pursue business opportunities. If we are unable to obtain adequate financing or financing on terms satisfactory to us when we require it, we
may terminate or delay the development of one or more of our products, delay clinical trials necessary to market our products, or delay
establishment or expansion of sales and marketing capabilities or other activities necessary to commercialize our products. For example, the
trading prices for our and other biopharmaceutical companies’ securities have been highly volatile as a result of macroeconomic conditions
and developments in our industry. As a result, we may face difficulties raising capital through sales of our securities and any such sales may
be on unfavorable terms. Additionally, our ability to raise capital may be further impacted by global macroeconomic conditions including, for
example, as a result of international political conflict and/or instability, including due to war or terrorism, supply chain issues, tariffs and trade
wars, and fluctuating inflation and interest rates.
Perceptive Financing
On August 9, 2024 (the "Closing Date"), we entered into a Credit Agreement and Guaranty (the "Credit Agreement"), by and among us, the
guarantors from time to time party thereto, the lenders from time to time party thereto (the "Lenders"), and Perceptive Credit Holdings IV, LP,
in its capacity as administrative agent for the Lenders (in such capacity, the "Agent"). The Credit Agreement establishes a $75.0 million term
loan facility, consisting of (i) $50.0 million (the “Tranche A Loan”) funded on the Closing Date, (ii) $25.0 million (the “Tranche B Loan” and,
together with the Tranche A Loan, collectively, the “Term Loan”) that we may borrow in a single borrowing on or prior to March 31, 2026;
provided, in the case of the Tranche B Loan, that we and our subsidiaries have obtained certain regulatory approval and achieved certain net
sales targets, each as described in the Credit Agreement. The Term Loan has a maturity date of August 9, 2029 (the “Maturity Date”).
Borrowings under the Term Loan bear interest at a rate per annum equal to the one-month term SOFR (subject to a 3.25% floor), plus an
applicable margin of 6.75%, payable monthly in arrears. There will be no scheduled repayments of outstanding principal on the Term Loan
prior to the Maturity Date. We may voluntarily prepay the outstanding Term Loan, subject to a yield protection premium equal to (i) 5.0% of
the principal amount of the Term Loan prepaid, if prepaid on or prior to the first anniversary of the Closing Date, (ii) 3.0% of the principal
amount of the Term Loan if prepaid after the first anniversary of the Closing Date through and including the second anniversary of the
Closing Date, (iii) 1.0% of the principal amount of the Term Loan if prepaid after the second anniversary of the Closing Date through and
including the third anniversary of the Closing Date, with no prepayment premium due after the third anniversary of the Closing date through
the Maturity Date. On the Closing Date, we were required to issue to the Lenders of such Term Loan warrants to purchase 300,000 of shares
of our common stock, in the aggregate (the “Warrant”), at an exercise price of $4.5902. The Warrant is immediately exercisable, and the
exercise period will expire 6 years from the date of issuance. Upon the completion of the sale of common stock on August 13, 2024, the
exercise price of the Warrants was adjusted to $4.00 according to the terms of the agreement.
Our obligations under the Credit Agreement and the other Loan Documents (as defined in the Credit Agreement) will be guaranteed by any
domestic subsidiaries of ours that become Guarantors (as defined in the Credit Agreement), subject to certain exceptions. Our obligations
under the Credit Agreement and the other Loan Documents are secured by first priority security interests in substantially all of our assets,
subject to certain customary thresholds and exceptions. As of the Closing Date, there are no Guarantors.
84
The Credit Agreement contains customary representations, warranties and affirmative and negative covenants, including financial covenants
requiring us to (i) maintain certain levels of cash and cash equivalents in accounts subject to a control agreement in favor of the Agent of at
least $5.0 million at all times after the Closing Date and (ii) meet minimum quarterly net sales targets described in the Credit Agreement.
In addition, the Credit Agreement contains customary events of default that entitle the Agent to cause our indebtedness under the Credit
Agreement to become immediately due and payable, and to exercise remedies against us and the collateral securing the Term Loan,
including cash. Under the Credit Agreement, an event of default will occur if, among other things, we fail to make payments under the Credit
Agreement (subject to specified periods), we or our subsidiaries breach any of the covenants under the Credit Agreement (subject to
specified cure periods with respect to certain breaches), a material adverse change occurs, we, our subsidiaries or their respective assets
become subject to certain legal proceedings, such as bankruptcy proceedings, we and/or our subsidiaries are unable to pay our debts as
they become due or default on contracts with third parties which would permit the holder of indebtedness in excess of a certain threshold to
accelerate the maturity of such indebtedness or that could cause a material adverse change. Upon the occurrence and for the duration of an
event of default, an additional default interest rate equal to 3.0% per annum may apply to all obligations owed under the Credit Agreement.
On the Closing Date, we entered into a revenue participation right purchase and sale agreement (the "Revenue Purchase and Sale
Agreement") with Perceptive Credit Holdings IV, LP (the "Purchaser"). Under the terms of the Revenue Purchase and Sale Agreement, in
exchange for the Purchaser’s payment to us of a purchase price of $50.0 million, in the aggregate subject to certain conditions at closing (the
“Purchase Price”), we have agreed to sell to the Purchaser its right to receive payment in full of a tiered single digit percentage of net sales of
FUROSCIX (the “Revenue Payment”) for each calendar quarter commencing on the effective date of the Revenue Purchase and Sale
Agreement, subject to adjustments on June 30, 2028 and June 30, 2030 depending on the amount of Revenue Payments received by such
dates. The Purchaser’s right to receive the Revenue Payment terminates and we no longer have the obligation to pay Purchaser Revenue
Payments once the Purchaser receives 200.0% (subject to reductions on September 30, 2027 and September 30, 2029 depending on the
amount of Revenue Payments received by such dates) of the Purchase Price. We may also buy-out the Purchaser’s rights to receive the
Revenue Payments by paying Purchaser a tiered multiple on the Purchaser Price.
The Revenue Purchase and Sale Agreement contains various representations and warranties, including with respect to organization,
authorization, and certain other matters, certain covenants with respect to payment, reporting, intellectual property, in-licenses, out-licenses,
and certain other actions, indemnification obligations and other provisions customary for transactions of this nature.
In conjunction with the closing of the Perceptive Financing, we used a portion of the proceeds to prepay all outstanding loans under the
Oaktree Agreement, including the exit fee, on the Closing Date.
Oaktree Loan and Security Agreement
On October 13, 2022 (“Oaktree Closing Date”), we entered into a Credit Agreement and Guaranty (the “Oaktree Agreement”) with Oaktree
Fund Administration, LLC as administrative agent, and the lenders party thereto (collectively “Oaktree”) to borrow up to $100.0 million in
three tranches with a maturity date of October 13, 2027.
The first tranche of $50.0 million was drawn immediately. In connection with entering into the Oaktree Agreement, we granted warrants to
Oaktree to purchase up to an aggregate of 516,345 shares of the Company’s common stock at an exercise price of $5.40 per share. The
warrants are immediately exercisable and the exercise period expires on October 13, 2029.
In connection with the Credit Agreement, we paid off all unpaid borrowings under the Oaktree Agreement on August 9, 2024, including the
$1.0 million exit fee and a prepayment premium of $2.6 million.
Prepayments of the term loan, in whole or in part, were subject to a prepayment fee. We were also required to pay an exit fee upon any
payment or prepayment equal to 2.0% of the aggregate principal amount of the loans funded under the Oaktree Agreement.
85
CASH FLOWS
The following table summarizes our sources and uses of cash for each of the periods presented:
YEAR ENDED
DECEMBER 31,
(in thousands)
2023
2024
Net cash (used in) provided by:
Operating activities
$
(59,244 ) $
(70,538 )
Investing activities
19,965
29,299
Financing activities
14,850
70,080
Net (decrease) increase in cash and cash equivalents
$
(24,429 ) $
28,841
Net Cash Used in Operating Activities
During the year ended December 31, 2024, net cash used in operating activities was $70.5 million, consisting primarily of a net loss of $85.1
million and a $13.1 million increase in net operating assets. This was offset by non-cash charges of $23.2 million and $4.5 million in debt
issuance costs. The increase in net operating assets is related to accounts receivable and inventory to support the ongoing commercial
operations of FUROSCIX. The non-cash charges primarily consisted of depreciation, amortization related to our right-of-use leased assets,
stock-based compensation expense, non-cash interest expense related to amortization of debt discount associated with the Oaktree
Agreement, the fair value adjustments to the derivative liability, term loan and revenue purchase and sale liability, and the loss on the
extinguishment of the Oaktree Agreement and accretion of premium on investments.
During the year ended December 31, 2023, net cash used in operating activities was $59.2 million, consisting primarily of a net loss of $54.8
million and a $6.3 million increase in net operating assets. This was offset by non-cash charges of $1.9 million. The increase in net operating
assets is related to accounts receivable and inventory to support the launch of FUROSCIX. The non-cash charges primarily consisted of
depreciation, amortization related to our right-of-use leased assets, stock-based compensation expense, non-cash interest expense related
to amortization of debt discount associated with the Oaktree Agreement, the fair value adjustment to the derivative liability and accretion of
premium on investments.
Net Cash Provided by Investing Activities
During the year ended December 31, 2024, net cash provided by investing activities was $29.3 million, consisting primarily of maturities of
short-term investments, net of purchases.
During the year ended December 31, 2023, net cash provided by investing activities was $20.0 million, consisting primarily of maturities of
short-term investments, net of purchases.
Net Cash Provided by Financing Activities
During the year ended December 31, 2024, net cash provided by financing activities was $70.1 million, consisting of proceeds from the
Perceptive Financing, proceeds from the sale of common stock, purchases pursuant to our 2017 Employee Stock Purchase Plan and stock
option exercises, offset by the payoff of the Oaktree Agreement, and related fees, and amounts paid to settle restricted stock unit tax
withholding obligations.
During the year ended December 31, 2023, net cash provided by financing activities was $14.9 million, consisting of proceeds from the 2021
ATM Agreement, purchases pursuant to our 2017 Employee Stock Purchase Plan and stock option exercises.
86
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
Management’s discussion and analysis of our financial condition and results of operations is based on our consolidated financial statements,
which have been prepared in accordance with U.S. generally accepted accounting principles, or U.S. GAAP. The preparation of these
consolidated financial statements requires us to make estimates and assumptions for the reported amounts of assets, liabilities, revenue,
expenses and related disclosures. Our estimates are based on our historical experience and on various other factors that we believe are
reasonable under the circumstances, the results of which form the basis for making judgments about the carrying value of assets and
liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or
conditions and any such differences may be material.
While our significant accounting policies are more fully described in the notes to our consolidated financial statements appearing elsewhere
in this Annual Report on Form 10-K, we believe the following discussion addresses our most critical accounting policies, which are those that
are most important to our financial condition and results of operations and require our most difficult, subjective and complex judgments.
Revenue Recognition
We recognize revenue when our customer obtains control of promised goods or services, in an amount that reflects the consideration which
the entity expects to receive in exchange for those goods or services. To determine revenue recognition for arrangements that we determine
are within the scope of Accounting Standards Codification ("ASC") Topic 606, Revenue from Contracts with Customer (“Topic 606”), we
perform the following five steps: (i) identify the contract(s) with a customer; (ii) identify the performance obligations in the contract; (iii)
determine the transaction price; (iv) allocate the transaction price to the performance obligations in the contract; and (v) recognize revenue
when we satisfy a performance obligation. We only apply the five-step model to contracts when it is probable that we will collect the
consideration we are entitled to in exchange for the goods or services we transfer to the customer. At contract inception, once the contract is
determined to be within the scope of Topic 606, we assess the goods or services promised within each contract and determine those that are
performance obligations and assess whether each promised good or service is distinct. We then recognize as revenue the amount of the
transaction price that is allocated to the respective performance obligation when the performance obligation is satisfied. We have identified
one performance obligation, the delivery of FUROSCIX to our customers. We have not incurred any incremental costs associated with
obtaining contracts with customers. Our revenues consist solely of the sale of FUROSCIX to customers in the United States.
Product Net Sales: FUROSCIX was approved by the FDA on October 7, 2022. We launched sales of FUROSCIX in the first quarter of 2023
and our customers consist of specialty pharmacies (“SPs”) and specialty distributors ("SDs"). We recognize revenue from product sales at a
point in time, typically upon receipt of product at the SPs and the SDs, the date at which the rights, title, interest and risk of loss are
transferred. Revenues from product sales are recorded at the net sales price, which includes estimates of variable consideration that result
from (a) prompt pay discounts, (b) rebates (c) co-pay assistance, and (d) product returns. Reserves are established for the estimates of
variable consideration based on the amounts earned or to be claimed on the related sales. The reserves for variable consideration are
reflected as either as a reduction to the related account receivable or as an accrued liability, depending on how the consideration is settled.
The amount of variable consideration that is included in the transaction price may be constrained and is included in net product revenues
only to the extent that it is probable that a significant reversal in the amount of the cumulative revenue recognized will not occur in a future
period. Actual amounts of consideration ultimately received may differ from our estimates. If actual results vary from its estimates, we adjust
these estimates, which would affect net product revenue and earnings in the period such variances become known. There have not been
material changes in these estimates or assumptions pertaining to constraints on revenue recognition over the reporting periods presented. In
the future, if there are material changes in the underlying estimates and assumptions pertaining to constraints on revenue recognition, the
financial statements could be materially impacted.
Sales Discounts: Sales discounts are agreed-upon discounts, from negotiated contracts, taken directly off our sales invoices. Sales
discounts are recorded as an offset to revenue based on contractual terms at the time revenue from the sale is recognized.
Rebates: Allowance for rebates include mandated discounts under the Medicaid Drug Rebate Program and the Medicare Part D prescription
drug benefit, TRICARE program and contractual rebates with commercial payers. Rebates are amounts owed after the final dispensing of the
product to a benefit plan participant and are based
87
upon contractual agreements or statutory requirements. The allowance for rebates is based on contracted or statutory discount rates and
expected utilization by benefit plan participants. Our estimates for expected utilization of rebates are based on utilization data received from
the SPs since product launch. Rebates are generally invoiced and paid in arrears so that the accrual balance consists of an estimate of the
amount expected to be incurred for the current quarter’s activity, plus an accrual balance for prior quarters’ unpaid rebates. If actual future
rebates vary from estimates, we may need to adjust prior period accruals, which would affect revenue in the period of adjustment.
Co-Payment Assistance: We offer co-payment assistance to commercially insured patients meeting certain eligibility requirement. Co-
payment assistance is accrued at the time of product sale to SPs based on estimated patient participation and average co-pay benefit to be
paid per a claim. Our estimated amounts are compared to actual program participation and co-pay amounts paid using data provided by
third-party administrators. If actual amounts differ from the original estimates the assumptions being applied are updated and adjustment for
prior period accruals will be adjusted in the current period.
Product Returns: Consistent with industry practice, we offer SPs and SDs limited product return rights for damages, shipment errors, and
expiring product, provided that the return is within a specified period around the product expiration date as set forth in the applicable
individual distribution agreement. We do not allow product returns for product that has been dispensed to a patient. As we receive inventory
reports from the SPs and have the ability to control the amount of product that is sold to the SPs, we are able to make a reasonable estimate
of future potential product returns based on this on-hand channel inventory data and sell-through data obtained from the SPs. Currently,
sales to SDs are limited and there is no access to on-hand inventory or sell through data. As these arrangements mature, we will be able to
utilize any data our SDs provide as part of this analysis. In arriving at our estimate, we also consider historical product returns, the underlying
product demand, and industry data specific to the specialty pharmaceutical distribution industry.
Research and Development Expenses
As part of the process of preparing our consolidated financial statements, we are required to estimate our accrued R&D expenses as of each
balance sheet date. This process involves reviewing open contracts and purchase orders, communicating with our personnel to identify
services that have been performed on our behalf and estimating the level of service performed and the associated cost incurred for the
service when we have not yet been invoiced or otherwise notified of the actual cost. The majority of our service providers invoice us monthly
in arrears for services performed or when contractual milestones are met. We make estimates of our accrued expenses as of each balance
sheet date based on facts and circumstances known to us at that time. We periodically confirm the accuracy of our estimates with the service
providers and make adjustments if necessary. The significant estimates in our accrued R&D expenses include the costs incurred for services
performed by our vendors in connection with R&D activities for which we have not yet been invoiced.
We base our expenses related to R&D activities on our estimates of the services received and efforts expended pursuant to quotes and
contracts with vendors that conduct R&D on our behalf. The financial terms of these agreements are subject to negotiation, vary from
contract to contract and may result in uneven payment flows. There may be instances in which payments made to our vendors will exceed
the level of services provided and result in a prepayment of the R&D expense. In accruing service fees, we estimate the time period over
which services will be performed and the level of effort to be expended in each period. If the actual timing of the performance of services or
the level of effort varies from our estimate, we adjust the accrual or prepaid accordingly. Advance payments for goods and services that will
be used in future R&D activities are expensed when the activity has been performed or when the goods have been received rather than
when the payment is made.
Although we do not expect our estimates to be materially different from amounts actually incurred, if our estimates of the status and timing of
services performed differ from the actual status and timing of services performed, it could result in us reporting amounts that are too high or
too low in any particular period. To date, there have been no material differences between our estimates of such expenses and the amounts
actually incurred.
Financial Liabilities
Our Term Loan and our revenue purchase and sale liability are accounted for under the fair value option in the accompanying consolidated
balance sheets, as permitted under Accounting Standards Codification Topic 825, Financial Instruments. The fair values of our Term Loan
and our revenue purchase and sale liability are based on
88
significant inputs which are not observable in the market and which causes them to be classified as a Level 3 measurement within the fair
value hierarchy. These valuations use assumptions and estimates we believe would be made by a market participant in making the same
valuation. We assess these assumptions and estimates on an on-going basis as additional data impacting the assumptions and estimates
are obtained.
The Term Loan was recorded using a binomial lattice model to account for the dynamic nature of interest rate fluctuations and the strategic
exercise of the certain optional prepayment features. The Term Loan is re-measured at each financial reporting period with any changes in
fair value being recognized as a component of other income (expense) in the accompanying consolidated statements of operations.
The fair value of the revenue purchase and sale liability was measured using the Monte Carlo simulation method (“MCS”), utilizing future
cash flow projections and assumptions of the timing and probability of certain contingent events, such as the occurrence of a change of
control and the exercise of call and put options.
The fair values of the term loan and the revenue purchase and sale liability may change significantly as additional data is obtained, impacting
our assumptions regarding probabilities of outcomes used to estimate the fair value of the liabilities. The estimates of fair value may not be
indicative of the amounts that could be realized in a current market exchange. Accordingly, the use of different market assumptions and/or
different valuation techniques may have a material effect on the estimated fair value amounts, and such changes could materially impact the
our results of operations in future periods.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
We are exposed to market risks related to changes in foreign currency exchange rates and interest rates.
We contract with vendors in foreign countries. As such, we have exposure to adverse changes in exchange rates of foreign currencies,
principally the Swiss franc and the Euro, associated with our foreign transactions. We believe this exposure to be immaterial. We currently do
not hedge against this exposure to fluctuations in exchange rates.
Our exposure to market risk also relates to interest rate sensitivity, which is affected by changes in the general level of U.S. interest rates.
We have elected the fair value option for certain liabilities. The fair value of the liabilities related to the Credit Agreement and the Revenue
Purchase and Sale Agreement will increase as market interest rates decrease. In addition, the fair value of the liabilities may fluctuate based
upon changes in the Company's credit rating. Changes in the interest rate environment and the credit rating of the Company could have an
effect on our future earnings.
We do not believe that inflation has had a material effect on our business. However, if our costs, in particular costs related to manufacture
and supply, were to become subject to significant inflationary pressures, it may adversely impact our business, operating results and financial
condition.
89
Item 8. Consolidated Financial Statements and Supplementary Data.
Index to Consolidated Financial Statements
PAGE
Report of Independent Registered Public Accounting Firm
90
Consolidated Financial Statements:
Consolidated Balance Sheets as of December 31, 2023 and 2024
93
Consolidated Statements of Operations and Comprehensive Loss for the Years Ended December 31, 2023 and 2024
94
Consolidated Statements of Stockholders’ Equity for the Years Ended December 31, 2023 and 2024
95
Consolidated Statements of Cash Flows for the Years Ended December 31, 2023 and 2024
96
Notes to Consolidated Financial Statements
97
90
Report of Independent Registered Public Accounting Firm
To the Stockholders and the Board of Directors of scPharmaceuticals Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of scPharmaceuticals Inc. and its subsidiary (the Company) as of
December 31, 2024 and 2023, the related consolidated statements of operations and comprehensive loss, stockholders’ equity and cash
flows for the years then ended, and the related notes to the consolidated financial statements (collectively, the financial statements). In our
opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2024 and
2023, and the results of its operations and its cash flows for the years then ended, in conformity with accounting principles generally
accepted in the United States of America.
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 U.S. federal
securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The
Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our
audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion
on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or
fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the
amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant
estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits
provide a reasonable basis for our opinion.
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current period audit of the financial statements that were
communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the
financial statements and (2) involved our especially challenging, subjective or complex judgments. The communication of critical audit
matters does not alter in any way our opinion on the financial statements, taken as a whole, and we are not, by communicating the critical
audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.
Revenue Recognition
As described in Note 2 to the financial statements, revenue from product sales are recorded at the net sales price, which requires estimates
for variable consideration, including rebates for the Medicaid Drug Rebate Program (“Medicaid”) and the Medicare Part D prescription drug
benefit (“Medicare”). Provisions for these allowances are recorded in the period in which the related revenue is recorded and are presented
as an accrued liability in the Company’s consolidated balance sheet.
We identified the estimates for variable consideration in revenue relating to Medicaid and Medicare rebates as a critical audit matter due to
their significance and the judgmental nature of the assumptions used by management in preparing the estimates. In particular, management
is required to make estimates that include consideration of its history of paying rebates, historical and anticipated dispensing of product to
eligible benefit plan patients and period end inventory held at its customers. The Company has a limited history upon which to base such
estimates and changes in the estimated dispensing mix can have a material effect on the amount of estimates recorded. Auditing
management’s assumptions was complex and required a high degree of auditor judgment and subjectivity when performing audit procedures
and evaluating the audit evidence obtained.
91
Our audit procedures related to the Company’s variable consideration adjustments to revenue for rebates included the following, among
others:
•
We tested the completeness and accuracy of the information used by management in calculating Medicaid and Medicare
rebates by testing a sample of products sold to the underlying revenue transaction details
•
We confirmed the dispensing history and the December 31, 2024 inventory held by the Company’s customers directly with
customers on a sample basis
•
We traced rebate percentages used to calculate the Medicaid and Medicare rebate allowances to related statutory or contractual
rates
•
We evaluated the reasonableness of the Medicaid and Medicare rebate allowances by reviewing actual history of rebates paid
through December 31, 2024, the historical dispensing mix and the Medicaid and Medicare rebates billed to the Company
subsequent to the balance sheet date to determine consistency with management’s estimates
Valuation of Financial Liabilities
As described in Notes 9 and 10 to the financial statements, on August 9, 2024, the Company entered into a Credit Agreement (“Term Loan”)
and into a Revenue Participation Right Purchase and Sale Agreement (“Revenue Purchase and Sale Liability”). The Company elected the
fair value option to account for both the Term Loan and the Revenue Purchase and Sale Liability. The Company estimates the fair value of
the Term Loan using a binomial lattice model and estimates the fair value of the Revenue Purchase and Sale Liability using a Monte Carlo
simulation method.
We identified the fair value estimates related to the Term Loan and the Revenue Purchase and Sale Liability as a critical audit matter
because of the complexity of the valuation models, including the judgements made by management in estimating the fair value of the
instruments. The valuation models used in determining the fair value of the financial liabilities include inputs subject to management’s
judgment, including estimates of volatility, credit spreads, probability of a change of control, probability of prepayment, and net sales
projections. This required a high degree of auditor judgment and subjectivity when performing audit procedures, including the involvement of
valuation professionals with specialized skills and knowledge.
Our audit procedures related to the Company’s evaluation and valuation of the fair value of the Term Loan facility and the Revenue Purchase
and Sale Liability included the following, among others:
•
Inspected the terms of all relevant legal documents supporting the transaction and ensured agreement to the source data used
by management in determining the fair value of the instruments
•
Assessed the Company’s technical accounting documentation regarding their election of the fair value option
•
Evaluated the reasonableness of significant assumptions used to calculate the fair value of the Term Loan and the Revenue
Purchase and Sale Liability including the estimate of the probability of a change of control, probability of prepayment and net
sales projections
•
With the assistance of our fair value specialists, we evaluated the appropriateness of the methodology used in estimating the fair
value of the Term Loan facility and the Revenue Purchase and Sale Liability, including testing the reasonableness of the
estimates for volatility, discount rates and credit spreads and tested the mathematical accuracy of the resulting valuations
92
/s/ RSM US LLP
We have served as the Company’s auditor since 2015.
Boston, Massachusetts
March 19, 2025
93
SCPHARMACEUTICALS INC.
Consolidated Balance Sheets
(in thousands, except share and per share data)
DECEMBER 31,
2023
DECEMBER 31,
2024
Assets
Current assets
Cash and cash equivalents
$
46,814 $
75,655
Short-term investments
29,199
—
Accounts receivable, net
4,489
11,721
Inventory, net
8,840
13,903
Prepaid expenses
2,436
3,549
Deposits and other current assets
1,160
1,021
Total current assets
92,938
105,849
Property and equipment, net
58
56
Right-of-use lease assets - operating, net
1,401
1,273
Deposits and other assets
82
341
Total assets
$
94,479 $
107,519
Liabilities and Stockholders’ Equity
Current liabilities
Accounts payable
$
4,001 $
3,883
Accrued expenses
8,901
10,702
Lease obligation - operating, short-term
176
239
Other current liabilities
56
52
Total current liabilities
13,134
14,876
Term loan, long-term
38,811
51,350
Revenue purchase and sale liability
—
26,869
Derivative liability
3,857
—
Lease obligation - operating, long-term
1,282
1,104
Other liabilities
177
—
Total liabilities
57,261
94,199
Commitments and contingencies (Note 13)
Stockholders’ Equity
Preferred stock, $0.0001 par value; 10,000,000 shares authorized
and no shares issued and outstanding
—
—
Common stock; $0.0001 par value; 150,000,000 shares
authorized at December 31, 2023; 35,968,510 and
50,095,689 shares issued and outstanding at December 31,
2023 and December 31, 2024, respectively
4
5
Additional paid-in capital
318,561
379,809
Accumulated deficit
(281,346)
(366,494)
Accumulated other comprehensive loss
(1)
-
Total stockholders’ equity
37,218
13,320
Total liabilities and stockholders’ equity
$
94,479 $
107,519
The accompanying notes are an integral part of these consolidated financial statements.
94
SCPHARMACEUTICALS INC.
Consolidated Statements of Operations and Comprehensive Loss
(in thousands, except share and per share data)
YEARS ENDED DECEMBER 31,
2023
2024
Product revenues, net
$
13,593 $
36,332
Operating expenses:
Cost of product revenues
3,811
11,361
Research and development
11,809
12,098
Selling, general and administrative
53,369
77,649
Total operating expenses
68,989
101,108
Loss from operations
(55,396)
(64,776)
Loss on extinguishment of debt
—
(13,032)
Change in fair value of term loan
—
(3,205)
Change in fair value of revenue purchase and sale liability
—
(3,642)
Other income
3,605
3,633
Interest income
5,104
3,444
Interest expense
(8,123)
(7,570)
Net loss
$
(54,810) $
(85,148)
Net loss per share, basic and diluted
$
(1.42) $
(1.91)
Weighted—average common shares outstanding, basic and
diluted
38,513,747
44,519,669
Other comprehensive loss:
Unrealized loss on short-term investments
$
(33) $
1
Comprehensive loss
$
(54,843) $
(85,147)
The accompanying notes are an integral part of these consolidated financial statements.
95
SCPHARMACEUTICALS INC.
Consolidated Statements of Stockholders’ Equity
(in thousands, except share data)
COMMON STOCK
ADDITIONA
L
OTHER
TOTAL
SHARES
AMOUNT
PAID-IN
CAPITAL
ACCUMULATE
D
DEFICIT
COMPREHENSIV
E INCOME
(LOSS)
STOCKHOLDER
S’
EQUITY
At December 31, 2022
34,257,916 $
3 $
298,934 $
(226,536 ) $
32 $
72,433
Net loss
—
—
—
(54,810 )
—
(54,810 )
Issuance of common stock under at-the-market
offering, net of issuance costs (Note 11)
1,544,490
1
13,959
—
—
13,960
Issuance of common stock upon exercise
of stock options
75,979
—
354
—
—
354
Issuance of common stock purchased through
employee stock purchase plan
90,125
—
458
—
—
458
Stock-based compensation
—
—
4,856
—
—
4,856
Unrealized loss on short term investments
—
—
—
—
(33 )
(33 )
At December 31, 2023
35,968,510
4
318,561
(281,346 )
(1 )
37,218
Net loss
—
—
—
(85,148 )
—
(85,148 )
Issuance of warrants (Note 10)
—
—
1,744
—
—
1,744
Issuance of common stock and pre-funded warrants in
common stock offering, net of issuance costs (Note 11)
13,875,000
1
53,546
—
—
53,547
Issuance of common stock upon exercise
of stock options
54,546
—
228
—
—
228
Vesting of restricted stock
56,685
—
(166 )
—
—
(166 )
Issuance of common stock through
employee stock purchase plan
140,948
—
454
—
—
454
Stock-based compensation
—
—
5,442
—
—
5,442
Unrealized gain on short term investments
—
—
—
—
1
1
At December 31, 2024
50,095,689 $
5 $
379,809 $
(366,494 ) $
— $
13,320
The accompanying notes are an integral part of these consolidated financial statements.
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SCPHARMACEUTICALS INC.
Consolidated Statements of Cash Flows
(in thousands)
FOR THE YEAR ENDED DECEMBER 31,
2023
2024
Cash flows from operating activities
Net loss
$
(54,810 )
$
(85,148 )
Adjustments to reconcile net loss to net cash used in operating activities
Depreciation expense
24
20
Loss on disposal of property and equipment
11
4
Reduction in carrying value of operating right-of-use lease assets
602
128
Accretion on short-term investments
(2,112 )
(120 )
Allowance for doubtful accounts
—
57
Allowance for excess, damaged and obsolete inventory
—
100
Stock-based compensation
4,856
5,442
Non-cash interest expense
2,166
1,562
Fair value adjustment to term loan
—
3,205
Fair value adjustment to revenue purchase and sale liability
—
3,642
Fair value adjustment to derivative liability
(3,660 )
(3,857 )
Debt issuance costs
—
4,487
Loss on extinguishment of debt
—
13,032
Changes in operating assets and liabilities
Accounts receivable
(4,489 )
(7,289 )
Inventory
(7,609 )
(5,162 )
Prepaid expenses and other assets
221
(1,233 )
Accounts payable, accrued expenses and other liabilities
5,556
592
Net cash flows used in operating activities
(59,244 )
(70,538 )
Cash flows from investing activities
Purchases of property and equipment
(40 )
(21 )
Maturities of short-term investments
70,600
29,320
Purchases of short-term investments
(50,595 )
—
Net cash flows provided by investing activities
19,965
29,299
Cash flows from financing activities
Proceeds from common stock offering, net of underwriter discounts
and offering costs
—
53,547
Proceeds from term loan, net
—
46,772
Proceeds from revenue participation agreement, net
—
23,629
Proceeds from employee stock purchase plan
458
454
Proceeds from the exercise of vested stock options
354
228
Proceeds from at-the-market offering, net
14,038
—
Principal payments on term loan
—
(50,000 )
Prepayment and legal fees
—
(2,582 )
Payment of term loan final fee
—
(1,000 )
Payments on revenue participation agreement
—
(802 )
Settlement of restricted stock units for tax withholding obligations
—
(166 )
Net cash flows provided by financing activities
14,850
70,080
Net (decrease) increase in cash
(24,429 )
28,841
Cash and cash equivalents, beginning of year
71,243
46,814
Cash and cash equivalents, end of year
$
46,814
$
75,655
Supplemental cash flow information
Interest paid
$
5,940
$
6,043
Taxes paid
248
211
Supplemental disclosure of non-cash activities
Fair value of warrants issued
—
1,855
Operating right-of-use asset received in exchange for lease obligations
1,437
71
Transfer of issuance costs from other noncurrent assets to equity
79
—
The accompanying notes are an integral part of these consolidated financial statements.
97
SCPHARMACEUTICALS INC.
Notes to Consolidated Financial Statements
For the Years Ended December 31, 2023 and 2024
1. Description of Business and Basis of Presentation
Description of Business
scPharmaceuticals LLC was formed as a Limited Liability Company under the laws of the State of Delaware on February 19, 2013. On March
24, 2014, scPharmaceuticals LLC was converted to a Delaware Corporation and changed its name to scPharmaceuticals Inc. (“the
Company”). The Company is a pharmaceutical company focused on developing and commercializing products that have the potential to
optimize the delivery of infused therapies, advance patient care and reduce healthcare costs. The Company’s strategy is designed to enable
the subcutaneous administration of therapies that have previously been limited to intravenous (“IV”) delivery. The Company’s headquarters
and primary place of business is Burlington, Massachusetts.
Basis of Presentation
The accompanying consolidated financial statements have been prepared in conformity with accounting principles generally accepted in the
United States (“U.S. GAAP”) and have been prepared on a basis which assumes that the Company will continue as a going concern, which
contemplates the realization of assets and the satisfaction of liabilities and commitments in the normal course of business. The consolidated
financial statements reflect the operations of the Company and its wholly-owned subsidiary, scPharmaceuticals Securities Corporation. All
significant intercompany balances and transactions have been eliminated in consolidation.
Liquidity
At December 31, 2024, the Company had cash and cash equivalents of $75.7 million and working capital of $91.0 million. During the year
ended December 31, 2024, the Company incurred a net loss totaling $85.1 million and used cash in operating activities totaling $70.5 million.
The Company expects to continue to incur losses and use cash in operating activities in 2025.
On October 13, 2022, the Company entered into a Credit Agreement and Guaranty (the "Oaktree Agreement") with, among others, the
lenders from time to time party thereto and Oaktree Fund Administration, LLC, in its capacity as administrative agent for the lenders (Note
10). On August 9, 2024 (the "Closing Date"), the Company entered into a Credit Agreement and Guaranty (the "Credit Agreement") with the
guarantors from time to time party thereto, the lenders from time to time party thereto (the "Lenders"), and Perceptive Credit Holdings IV, LP,
in its capacity as administrative agent for the Lenders (in such capacity, the "Agent") (Note 10). On the Closing Date, the Company also
entered into a Revenue Participation Right Purchase and Sale Agreement (the "Revenue Purchase and Sale Agreement") with Perceptive
Credit Holdings IV, LP (the "Purchaser") (Note 10). The Company used the proceeds of the Credit Agreement and the Revenue Purchase
and Sale Agreement to, on the Closing Date, prepay all outstanding obligations under the Oaktree Agreement, including the payment of fees
and expenses associated with the Oaktree Agreement. In addition, on August 13, 2024, the Company completed an underwritten public
offering of shares of its common stock (and, in lieu of such shares of common stock to selected investors, pre-funded warrants to purchase
shares of its common stock) with net proceeds of $53.5 million (Note 11).
The Company believes that, based on its current development plans and activities, its resources will be sufficient to satisfy its liquidity
requirements for more than one year from the issuance date of these consolidated financial statements.
2. Significant Accounting Policies
Use of Estimates
The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect
the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements and
the reported amounts of expenses during the reporting periods. Significant items subject to such estimates and assumptions include the
determination of fair value of
98
financial instruments, accounting policies for revenue recognition, accruals related to development costs and clinical activities, and the
establishment of the tax valuation allowance. Actual results could differ from those estimates.
Foreign Currency Transactions
The functional currency of the Company is the U.S. dollar. Accordingly, gains and losses resulting from translating transactions denominated
in currencies and balances of assets and liabilities outstanding at the balance sheet date, other than U.S. dollars, are included in net loss in
the Statements of Operations and Comprehensive Loss.
Cash and Cash Equivalents
Cash and cash equivalents consist of bank deposits and money market accounts with financial institutions. Cash equivalents are carried at
cost which approximates fair value due to their short-term nature and which the Company believes do not have a material exposure to credit
risk. The Company considers all highly liquid investments with maturities of three months or less from the date of purchase to be cash
equivalents. The Company places its cash and cash equivalents with institutions with high credit quality. However, at certain times such cash
and cash equivalents may be in excess of Federal Deposit Insurance Corporation and Securities Investor Protection Corporation insurance
limits. The Company has not experienced any losses with respect to these accounts.
Accounts Receivable
Accounts receivable are recorded net of any estimated expected credit losses. The Company's measurement of expected credit losses is
based on relevant information about past events, current conditions, and reasonable and supportable forecasts that affect the collectability of
the reported amount. The Company's credit loss allowance for uncollectible trade receivables was $0 and $57,000 at December 31, 2023
and 2024, respectively.
Concentration of Credit Risk
Financial instruments that subject the Company to credit risk primarily consist of cash and cash equivalents. The Company maintains its cash
and cash equivalent balances with high-quality financial institutions and, consequently, the Company believes that such funds are subject to
minimal credit risk. The Company has adopted an investment policy that limits the amounts the Company may invest in any one type of
investment and requires all investments held by the Company to hold a minimum rating, thereby reducing credit risk exposure.
Customer and Supplier Concentration
The Company has a limited number of specialty pharmacy customers and distributors. As of December 31, 2023 and December 31, 2024,
three customers represent 99% and two customers represent 96% of accounts receivable, respectively. For the year ended December 31,
2023 and December 31, 2024, two customers represent 93% and two customers represent 88% of revenue, respectively.
The Company has a limited number of suppliers and contract manufacturers utilized in the production of its product. As of December 31,
2023 and December 31, 2024, one supplier represented 47% and three suppliers represented 71% of accounts payable, respectively. For
the year ended December 31, 2023 and December 31, 2024, two suppliers represented 38% and two suppliers represented 46% of
purchases, respectively.
The Company depends on suppliers for raw materials, API, and other components that are subject to stringent FDA requirements. Some of
these materials may only be available from one or a limited number of sources. Establishing additional or replacement suppliers may take a
substantial period of time, as suppliers must be approved by the FDA. If the Company is unable to secure, on a timely basis, sufficient
quantities of the materials it depends on to manufacture its products, it could have a materially adverse effect on the Company's business,
financial condition and results of operations.
Investments
The Company invests excess cash balances in available-for-sale debt securities. The Company determines the appropriate classification of
these securities at the time they are acquired and evaluates the appropriateness of such classifications at each balance sheet date. The
Company reports available-for-sale investments at fair value at each balance sheet date and includes any unrealized gains and losses in
accumulated other comprehensive
99
income (loss), a component of stockholders’ equity. Realized gains and losses are determined using the specific identification method and
are included in other income (expense). If any adjustment to fair value reflects a decline in the value of the investment, the Company
considers all available evidence to evaluate the extent to which the decline is “other than temporary,” including the intention to sell and, if so,
marks the investment to market through a charge to the Company’s consolidated statements of operations and comprehensive loss.
Inventory
Inventory is stated at the lower of cost and net realizable value and consists of raw materials, work-in-process and finished goods. The
Company began capitalizing inventory costs following U.S. Food and Drug Administration ("FDA") approval of FUROSCIX on October 7,
2022. Inventory is valued on a first in, first out ("FIFO") basis. The Company periodically reviews inventory for expiry and obsolescence and
writes it down accordingly, if necessary. Prior to FDA approval of FUROSCIX, the Company expensed all inventory-related costs, including
that used for clinical development, to research and development ("R&D") costs in the period incurred.
Leases
The Company determines if an arrangement is a lease at inception. Operating leases are included in right-of-use (“ROU”) lease assets,
current portion of lease obligations, and long term lease obligations on the Company’s balance sheets.
ROU lease assets represent the Company’s right to use an underlying asset for the lease term and lease obligations represent the
Company’s obligation to make lease payments arising from the lease. Operating ROU lease assets and obligations are recognized at the
commencement date based on the present value of lease payments over the lease term. As most of the Company’s leases do not provide an
implicit rate, the Company uses its incremental borrowing rate based on the information available at the commencement date in determining
the present value of lease payments. The ROU lease asset excludes lease incentives. The Company’s lease terms include options to extend
or terminate the lease when it is reasonably certain that the Company will exercise that option. Lease expense for lease payments is
recognized on a straight-line basis over the lease term.
Debt Issuance Costs
Debt issuance costs are amortized to interest expense using the effective interest rate method over the term of the debt. Debt issuance costs
paid to the lender and third parties are reflected as a discount to the debt in the consolidated balance sheet as of December 31, 2023.
Fair Value Option
As permitted under Financial Accounting Standards Board's ("FASB") Accounting Standards Codification ("ASC") Topic 825, Financial
Instruments (“ASC 825”), the Company elected the fair value option to account for the Credit Agreement and the Revenue Purchase and
Sale Agreement (collectively, the "Perceptive Financing"). In accordance with ASC 825, the Company records these instruments at fair value
with changes in fair value recorded in the Condensed Consolidated Statement of Operations and Comprehensive Loss. As a result of
applying the fair value option, direct costs and fees related to the Perceptive Financing were expensed as incurred and were not deferred.
The Company elected to account for the Perceptive Financing using the fair value option, which allows for valuing the Credit Agreement and
the Revenue Purchase and Sale Agreement in their entirety rather than bifurcation of the embedded derivatives.
Revenue Recognition
The Company recognizes revenue when its customer obtains control of promised goods or services, in an amount that reflects the
consideration which the entity expects to receive in exchange for those goods or services. To determine revenue recognition for
arrangements that the Company determines are within the scope of ASC Topic 606, Revenue from Contracts with Customer (“Topic 606”),
the Company performs the following five steps: (i) identify the contract(s) with a customer; (ii) identify the performance obligations in the
contract; (iii) determine the transaction price; (iv) allocate the transaction price to the performance obligations in the contract; and (v)
recognize revenue when the Company satisfies a performance obligation. The Company only applies the five-step model to contracts when it
is probable that it will collect the consideration it is entitled to in exchange for the
100
goods or services it transfers to the customer. At contract inception, once the contract is determined to be within the scope of Topic 606, the
Company assesses the goods or services promised within each contract and determines those that are performance obligations and
assesses whether each promised good or service is distinct. The Company then recognizes as revenue the amount of the transaction price
that is allocated to the respective performance obligation when the performance obligation is satisfied. The Company has identified one
performance obligation, the delivery of FUROSCIX to its customers. The Company has not incurred any incremental costs associated with
obtaining contracts with customers. The Company’s revenues consist solely of the sale of FUROSCIX to customers in the United States.
Product Net Sales
FUROSCIX was approved by the FDA on October 7, 2022. The Company launched sales of FUROSCIX in the first quarter of 2023 and its
customers consist of specialty pharmacies (“SPs”) and specialty distributors ("SDs"). The Company recognizes revenue from product sales
at a point in time, typically upon receipt of product at the SPs and SDs, the date at which the rights, title, interest and risk of loss are
transferred. Revenues from product sales are recorded at the net sales price, which includes estimates of variable consideration that result
from (a) prompt pay discounts, (b) rebates (c) co-pay assistance, and (d) product returns. Reserves are established for the estimates of
variable consideration based on the amounts earned or to be claimed on the related sales. The reserves for variable consideration are
reflected as either as a reduction to the related account receivable or as an accrued liability, depending on how the consideration is settled.
The amount of variable consideration that is included in the transaction price may be constrained and is included in net product revenues
only to the extent that it is probable that a significant reversal in the amount of the cumulative revenue recognized will not occur in a future
period. Actual amounts of consideration ultimately received may differ from the Company's estimates. If actual results vary from its estimates,
the Company adjusts these estimates, which would affect net product revenue and earnings in the period such variances become known.
Sales Discounts: Sales discounts are agreed-upon discounts, from negotiated contracts, taken directly off the Company’s sales invoices.
Sales discounts are recorded as an offset to revenue based on contractual terms at the time revenue from the sale is recognized.
Rebates: Allowance for rebates include mandated discounts under the Medicaid Drug Rebate Program and the Medicare Part D prescription
drug benefit, TRICARE program and contractual rebates with commercial payers. Rebates are amounts owed after the final dispensing of the
product to a benefit plan participant and are based upon contractual agreements or statutory requirements. The allowance for rebates is
based on contracted or statutory discount rates and expected utilization by benefit plan participants. The Company’s estimates for expected
utilization of rebates are based on utilization data received from the SPs since product launch. Rebates are generally invoiced and paid in
arrears so that the accrual balance consists of an estimate of the amount expected to be incurred for the current quarter’s activity, plus an
accrual balance for prior quarters’ unpaid rebates. If actual future rebates vary from estimates, the Company may need to adjust prior period
accruals, which would affect revenue in the period of adjustment.
Co-Payment Assistance: The Company offers co-payment assistance to commercially insured patients meeting certain eligibility
requirements. Co-payment assistance is accrued at the time of product sale to SPs based on estimated patient participation and average co-
pay benefit to be paid per a claim. The Company’s estimated amounts are compared to actual program participation and co-pay amounts
paid using data provided by third-party administrators. If actual amounts differ from the original estimates the assumptions being applied are
updated and adjustment for prior period accruals will be adjusted in the current period.
Product Returns: Consistent with industry practice, the Company offers SPs and SDs limited product return rights for damages, shipment
errors, and expiring product, provided that the return is within a specified period around the product expiration date as set forth in the
applicable individual distribution agreement. The Company does not allow product returns for product that has been dispensed to a patient.
As the Company receives inventory reports from the SPs and has the ability to control the amount of product that is sold to the SPs, it is able
to make a reasonable estimate of future potential product returns based on this on-hand channel inventory data and sell-through data
obtained from the SPs. Currently, sales to SDs are limited and there is no access to on-hand channel inventory or sell through data. As these
arrangements mature, the Company will utilize any data that they can provide as part of this analysis. In arriving at its estimate, the Company
also considers historical product returns, the underlying product demand, and industry data specific to the specialty pharmaceutical
distribution industry.
101
Research and Development Costs
Research and development costs are expensed as incurred. Nonrefundable advance payments, if any, for goods or services used in
research and development are initially recorded as an asset and then recognized as an expense as the related goods are delivered or
services are performed. Research and development expenses include contract services, consulting, salaries, materials and supplies and
overhead.
Selling, General, and Administrative Costs
Selling, general, and administrative costs consist primarily of employee-related expenses, promotional activities, marketing, conferences and
trade shows, professional services fees, including legal, audit and tax fees, insurance costs, general corporate expenses and allocated
facilities-related expenses. Advertising costs are expensed as incurred in accordance with ASC 720-35, “Other Expense – Advertising
Costs”, other than trade show expenses which are deferred until occurrence of the future event. Advertising costs for the years ended
December 31, 2023 and 2024 were $79,000 and $1.1 million, respectively.
Income Taxes
The Company accounts for income taxes in accordance with ASC 740 Income Taxes (“ASC 740”). Deferred tax assets and liabilities are
recorded to reflect the impact of temporary differences between amounts of assets and liabilities for financial reporting purposes and such
amounts as measured under enacted tax laws. A valuation allowance is required to offset any net deferred tax assets if, based upon the
available evidence, it is more likely than not that some or all of the deferred tax asset will not be realized.
The Company provides reserves for potential payments of tax to various tax authorities related to uncertain tax positions. The tax benefits
recorded are based on a determination of whether and how much of a tax benefit taken by the Company in its tax filings or positions is “more
likely than not” to be realized following resolution of any uncertainty related to the tax benefit, assuming that the matter in question will be
raised by the tax authorities. Potential interest and penalties associated with such uncertain tax positions are recorded as a component of
income tax expense. At December 31, 2023 and 2024, the Company had no such accruals.
Stock-Based Compensation
Stock-based compensation expense for stock options is recognized based on the grant-date fair value using the Black-Scholes valuation
model. Restricted stock units are valued at the fair market value per share of the Company’s common stock on the date of grant. The
Company recognizes compensation expense only for those stock-based awards expected to vest after considering expected forfeitures.
Cumulative compensation expense is at least equal to the compensation expense for vested awards. Stock-based compensation is
recognized on a straight-line basis over the service period of each award.
Segments
Operating segments are identified as components of an enterprise about which separate discrete financial information is available for
evaluation by the chief operating decision-maker (“CODM”) in making decisions regarding resource allocation and assessing performance.
The Company’s chief executive officer is the CODM, and he uses consolidated financial information in determining how to allocate resources
and assess performance. The Company has determined that it operates in one segment.
Recently Issued Accounting Standards
In December 2023, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update ("ASU") 2023-09, Income
Taxes ("ASU 2023-09"), requiring entities to provide additional information in the income tax rate reconciliation and additional disclosures
about income taxes paid. The new accounting guidance requires entities to disclose in their rate reconciliation table additional categories of
information about federal, state and foreign income taxes and to provide more details about the reconciling items in some categories if the
items meet a quantitative threshold. This guidance is effective for annual periods beginning after December 15, 2024, and should be applied
prospectively, but entities have the option to apply it retrospectively for each period presented. Early adoption is permitted for annual financial
statements that have not yet been issued or made available for issuance. The Company is currently evaluating the impact of the adoption of
ASU 2023-09 and does not expect adoption to have a material effect on the Company’s consolidated financial statements or disclosures.
102
In November 2023, the FASB issued ASU 2023-07, Segment Reporting (Topic 280): Improvements to Reportable Segment Disclosures. The
amendments in the ASU provide new segment disclosure requirements for entities with a single reportable segment among other disclosure
requirements. In addition, the amendments enhance interim disclosure requirements. The Company adopted this standard on a retrospective
basis for the fiscal 2024 annual period, and for interim periods beginning December 29, 2024. The impact is limited to financial statement
disclosures. See Note 15. Segments.
In November 2024, the FASB issued ASU 2024-03, Income Statement (Subtopic 220-40): Reporting Comprehensive Income-Expense
Disaggregation Disclosures, which requires disaggregated disclosure of income statement expenses. ASU 2024-03 does not change the
expense captions an entity presents on the face of the income statement; rather, it requires disaggregation of certain expense captions into
specified categories in disclosures within the footnotes to the financial statements. This guidance is effective for annual periods beginning
after December 15, 2026, with early adoption permitted. The Company is currently evaluating the impact of the adoption of ASU 2024-03 on
the Company’s consolidated financial statements and disclosures.
3. Net Loss per Share
Basic net loss per share is calculated by dividing the net loss by the weighted-average number of shares of common stock outstanding
during the period without consideration of dilutive common stock equivalents. Diluted net loss per share is the same as basic net loss per
common share, since the effects of potentially dilutive securities are anti-dilutive. Basic and diluted weighted average shares of common
stock outstanding include the weighted average effect of outstanding pre-funded warrants for the purchase of shares of common stock for
which the remaining unfunded exercise price is $0.001 per share.
Dilutive common stock equivalents are comprised of unexercised stock options outstanding under the Company’s equity plan, unexercised
warrants and unvested restricted stock.
The following table sets forth the computation of basic and diluted net loss per share of common stock (in thousands, except shares and per
share data):
For the year ended
December 31,
2023
December 31,
2024
Net loss
$
(54,810 ) $
(85,148 )
Weighted—average common shares
outstanding, basic and diluted
38,513,747
44,519,669
Net loss per share, basic and diluted
$
(1.42 ) $
(1.91 )
The following table sets forth the outstanding potentially dilutive securities that have been excluded in the calculation of diluted net loss per
share because their inclusion would be anti-dilutive (in common stock equivalent shares):
For the year ended
December 31,
2023
December 31,
2024
Stock options to purchase common stock
4,681,326
5,530,823
Warrants to purchase common stock
516,345
1,016,345
Unvested restricted stock
368,411
736,229
5,566,082
7,283,397
4. Investments
Cash in excess of the Company’s immediate requirements is invested in accordance with the Company’s investment policy that
primarily seeks to maintain adequate liquidity and preserve capital.
A summary of the Company’s available-for-sale classified investments as of December 31, 2023 and 2024 consisted of the following (in
thousands):
103
At December 31, 2023
Investments - Current:
Cost Basis
Accumulated
Unrealized
Gains
Accumulated
Unrealized
Losses
Fair Value
United States Treasury securities
$
13,967 $
2 $
- $
13,969
Commercial paper
9,427
-
(2)
9,425
Corporate bonds
3,815
-
-
3,815
United States Government Agency securities
1,991
-
(1)
1,990
Total
$
29,200 $
2 $
(3) $
29,199
The Company did not have any investments as of December 31, 2024.
5. Inventory
The Company's inventory balance consists of the following (in thousands):
As of December 31,
2023
2024
Raw materials
$
4,256 $
4,784
Work-in-process
4,188
7,012
Finished goods
396
2,107
$
8,840 $
13,903
Inventory is stated at the lower of cost and net realizable value and consists of raw materials, work-in-process and
finished goods. The Company began capitalizing inventory costs following FDA approval of FUROSCIX in October 2022 and has not
recorded any significant inventory write-downs since that time. At December 31, 2023 and December 31, 2024, the Company had an
allowance for excess, damaged, and obsolete inventory in the amount of $0 and $100,000, respectively. The Company currently uses a
limited number of third-party contract manufacturing organizations ("CMOs") to produce its inventory.
6. Property and Equipment
Purchased property and equipment consist of the following as of December 31, 2023 and 2024 (in thousands):
ESTIMATED
USEFUL LIFE
2023
2024
Office equipment
5 years
$
31 $
27
Office furniture
7 years
64
85
Computer equipment
3 years
15
15
Leasehold improvements
Life of lease
9
9
119
136
Less: Accumulated depreciation
(61)
(80)
Property and equipment, net
$
58 $
56
Depreciation expense for the years ended December 31, 2023 and 2024 was $24,000 and $20,000, respectively, and is included in
operating expenses.
104
7. Accrued Expenses
Accrued expenses at December 31, 2023 and 2024 consist of (in thousands):
2023
2024
Employee compensation and related costs
$
4,375 $
5,203
Sales allowances and related costs
1,418
2,690
Revenue purchase and sale agreement
—
971
Contract research and development
1,202
644
Consulting and professional service fees
945
529
Manufacturing costs
434
330
Royalty
249
317
Inventory in transit
150
-
Other
128
18
Total accrued expenses
$
8,901 $
10,702
8. Income Taxes
The Company accounts for income taxes in accordance with ASC 740, which requires an asset and liability approach for measuring deferred
taxes based on temporary differences between the financial statement and tax bases of assets and liabilities existing at each balance sheet
date using enacted tax rates for the years in which taxes are expected to be paid or recovered. The tax benefit arising from the Company’s
net loss has been offset by an increase in the valuation allowance.
Accordingly, the Company had no net income tax provision or benefit during the years ended December 31, 2023 and 2024. Components of
the net deferred tax assets at December 31, 2023 and 2024 are as follows (in thousands):
2023
2024
Deferred tax assets:
Federal net operating loss carryforwards
$
30,405 $
41,549
State net operating loss carryforwards
8,216
10,526
Research and development tax credits
4,729
5,304
Accrued liabilities
1,088
1,488
Stock-based compensation
1,814
2,311
Depreciation and amortization
3
2
Capitalized research and development costs
27,720
24,381
Lease liabilities
370
352
Other
—
683
Inventory and bad debt reserve
—
74
Charitable contributions
—
459
Revenue purchase and sale liability
—
7,298
Total deferred tax assets
74,345
94,427
Deferred tax liabilities:
Right-of-use lease assets
(355)
(334)
Other
(833)
—
Total deferred tax liabilities
$
(1,188) $
(334)
Valuation allowance
$
(73,157) $
(94,093)
Net deferred tax assets
$
— $
—
105
At December 31, 2024, the Company had available federal net operating loss carryforwards of $17.5 million, which expire at various dates
through 2037, and $180.3 million, which may be carried forward indefinitely. At December 31, 2024, the Company had available state net
operating loss carryforwards of $185.5 million, which expire at various dates through 2044, and $3.5 million, which may be carried forward
indefinitely. In assessing the realizability of net deferred tax assets, management considers whether it is more likely than not that the net
deferred tax assets will be realized. The ultimate realization of net deferred tax assets is dependent upon the generation of future taxable
income during the periods in which temporary differences representing future deductible amounts become deductible. Management has
established a full valuation allowance against the net deferred tax assets at December 31, 2023 and 2024 since it is more likely than not that
these future tax benefits will not be realized. During 2024, the valuation allowance increased by $20.9 million.
A reconciliation of the beginning and ending amount of the valuation allowance is as follows (in thousands):
2023
2024
Beginning valuation allowance
$
59,086 $
73,157
Current year - increases
14,071
20,936
Ending valuation allowance
$
73,157 $
94,093
At December 31, 2024, the Company had federal and state research and development credit carryforwards of $4.5 million and $1.1 million,
respectively. The net credit carryforwards may be used to offset future income taxes and expire at various dates through 2044. Under the
provisions of the Internal Revenue Code ("IRC"), the net operating loss and tax credit carryforwards are subject to review and possible
adjustment by the Internal Revenue Service and state tax authorities. Net operating loss and tax credit carryforwards may become subject to
an annual limitation in the event of certain cumulative changes in the ownership interest of significant shareholders over a three-year period
in excess of 50%, as defined under Sections 382 and 383 of the Internal Revenue Code, respectively, as well as similar state provisions. The
Company had performed an IRC 382 study during 2017 which resulted in identifying an ownership change had occurred on the initial public
offering date of 11/21/2017. For these reasons, in the event the Company experiences a change of control, they may not be able to utilize a
material portion of the net operating losses or research and development credit carryforwards even if they attain profitability.
The Tax Cuts and Jobs Act ("TCJA") requires taxpayers to capitalize and amortize research and experimental ("R&D") expenditures under
section 174 for tax years beginning after December 31, 2021. These rules became effective for the Company during the year ended
December 31, 2022. As a result, for tax purposes, the Company has capitalized R&D costs of $11.6 million and $10.7 million for the years
ended December 31, 2023 and 2024, respectively. The Company will amortize these costs for tax purposes over 5 years if the R&D was
performed in the U.S. and over 15 years if the R&D was performed outside the U.S.
A reconciliation of income tax (expense) benefit at the statutory federal income tax rate and income taxes as reflected in the consolidated
financial statements at December 31, 2023 and 2024 are as follows:
2023
2024
Federal income tax at statutory rate
21.00%
21.00%
State income tax, net of federal benefit
8.65%
4.08%
Research and development credits
0.96%
0.69%
Book compensation related to stock options
(1.00)%
(0.80)%
Change in income tax rate
(3.16)%
1.19%
Other
(0.01)%
—
Increase in valuation allowance
(25.68)%
(24.59)%
Permanent differences
(0.76)%
(1.57)%
Effective tax rate
—%
0.00%
The Company files tax returns in the United States, Massachusetts and other states. The tax years 2020 through 2024 remain open to
examination by major taxing jurisdictions to which the Company is subject, which are primarily the United States federal and Massachusetts.
Carryforward attributes generated in years past may still be adjusted upon examination by the Internal Revenue Service or state tax
authorities if they have or will be used in a future period. The Company is currently not under examination by the Internal Revenue Service or
any other jurisdictions for any tax years. The Company recognizes both accrued interest and penalties related to
106
unrecognized benefits in income tax expense. The Company has not recorded any interest or penalties on any unrecognized tax benefits
since its inception.
A reconciliation of the beginning and ending amount of uncertain tax benefits is as follows (in thousands):
2023
2024
Beginning uncertain tax benefits
$
1,106 $
1,236
Prior year - increases
28
-
Current year - increases
102
147
Ending uncertain tax benefits
$
1,236 $
1,383
9. Fair Value of Financial Instruments
The FASB ASC Topic, Fair Value Measurements and Disclosures (“ASC 820”), provides a fair value hierarchy, which classifies fair value
measurements based on the inputs used in measuring fair value. Observable inputs are inputs that market participants would use in pricing
the asset or liability based on market data obtained from sources independent of the Company. Unobservable inputs are inputs that reflect
the Company’s assumptions about the inputs that market participants would use in pricing the asset or liability and are developed based on
the best information available in the circumstances. The fair value hierarchy applies only to the valuation inputs used in determining the
reported fair value of the investments and is not a measure of the investment credit quality. The three levels of the fair value hierarchy are
described below:
Level 1—Valuations based on unadjusted quoted prices in active markets for identical assets or liabilities that the Company has the
ability to access at the measurement date.
Level 2—Valuations based on quoted prices for similar assets or liabilities in markets that are not active or for which all significant
inputs are observable, either directly or indirectly.
Level 3—Valuations that require inputs that reflect the Company’s own assumptions that are both significant to the fair value
measurement and observable.
To the extent that valuation is based on models or inputs that are less observable or unobservable in the market, the determination of fair
value requires more judgment. Accordingly, the degree of judgment exercised by the Company in determining fair value is greatest for
instruments categorized in Level 3. A financial instrument’s level within the fair value hierarchy is based on the lowest level of any input that
is significant to the fair value measurement.
The carrying values of the Company’s cash, prepaid expenses and deposits approximate their fair values due to their short-term nature.
The following tables summarize the Company’s assets and liabilities that are measured at fair value on a recurring basis and indicates the
level of the fair value hierarchy utilized to determine such fair values (in thousands):
107
As of December 31, 2023
TOTAL
Quoted Prices
in Active
Markets
(Level 1)
Significant
Other
Observable
Inputs
(Level 2)
Significant
Unobservable
Inputs
(Level 3)
Assets:
Cash equivalents
$
44,202 $
44,202 $
— $
—
Total cash equivalents
44,202
44,202
—
—
United States Treasury securities
13,969
13,969
—
—
Commercial paper
9,425
—
9,425
—
Corporate bonds
3,815
—
3,815
—
United States Government Agency securities
1,990
—
1,990
—
Investments
29,199
13,969
15,230
—
Total
$
73,401 $
58,171 $
15,230 $
—
Liabilities:
Derivative liability
$
3,857 $
— $
— $
3,857
Total
$
3,857 $
— $
— $
3,857
As of December 31, 2024
TOTAL
Quoted Prices
in Active
Markets
(Level 1)
Significant
Other
Observable
Inputs
(Level 2)
Significant
Unobservable
Inputs
(Level 3)
Assets:
Cash equivalents
$
73,910 $
73,910 $
— $
—
Total
$
73,910 $
73,910 $
— $
—
Liabilities:
Term loan
$
51,350 $
— $
— $
51,350
Revenue purchase and sale liability
27,840
—
—
27,840
Total
$
79,190 $
— $
— $
79,190
The Company measures the term loan and the revenue purchase and sale liability from the Perceptive Financing at fair value based on
significant inputs not observable in the market, which causes them to be classified as Level 3 measurements within the fair value hierarchy.
These valuations use assumptions and estimates the Company believes would be made by a market participant in making the same
valuation. The Company assesses these assumptions and estimates on an on-going basis as additional data impacting the assumptions and
estimates are obtained. Changes in the fair value of the Perceptive Financing related to updated assumptions and estimates are recognized
within the Consolidated Statements of Operations and Comprehensive Loss.
The fair value of the term loan was measured as of December 31, 2024, using a binomial lattice model to account for the dynamic nature of
interest rate fluctuations and the strategic exercise of the certain optional prepayment features.
The fair value of the revenue purchase and sale liability was measured as of December 31, 2024, using the Monte Carlo simulation method
(“MCS”), utilizing future cash flow projections and assumptions of the timing and probability of certain contingent events, such as the
occurrence of a change of control and the exercise of call and put options. A discount rate of 21.0% was used.
108
The fair values of the term loan and the revenue purchase and sale liability may change significantly as additional data is obtained, impacting
the Company’s assumptions regarding probabilities of outcomes used to estimate the fair value of the liabilities. The estimates of fair value
may not be indicative of the amounts that could be realized in a current market exchange. Accordingly, the use of different market
assumptions and/or different valuation techniques may have a material effect on the estimated fair value amounts, and such changes could
materially impact the Company’s results of operations in future periods.
Changes in the fair value of the Company’s Level 3 liabilities for the year ended December 31, 2024 are as follows:
Derivative Liability
Term Loan
Revenue purchase
and sale liability
At December 31, 2023
$
3,857
$
—
$
—
Initial fair value
—
48,145
25,000
Change in fair value
(3,857)
3,205
3,642
Repayments
—
—
(802)
At December 31, 2024
$
—
$
51,350
$
27,840
10. Financial Liabilities
Perceptive Financing
The following table presents the fair value of the Company's debt balance as of December 31, 2024 (in thousands):
DECEMBER 31,
2024
Par value of the term loan
$
50,000
Initial fair value adjustment
(1,855)
Fair value of the term loan at issuance
48,145
Change in fair value of the term loan
3,205
Total fair value of the term loan
$
51,350
On the Closing Date, the Company entered into the Credit Agreement. The Credit Agreement establishes a $75.0 million term loan facility,
consisting of (i) $50.0 million funded on the Closing Date ("Tranche A Loan") and (ii) subject to satisfaction of certain conditions, $25.0 million
(together with the Tranche A Loan, collectively, the "Term Loan") that the Company may borrow in a single borrowing on or prior to March 31,
2026.
Borrowings under the Term Loan bear interest at a rate per annum equal to the one-month term SOFR (subject to a 3.25% floor), plus an
applicable margin of 6.75%, payable monthly in arrears. There will be no scheduled repayments of outstanding principal on the Term Loan
prior to August 9, 2029 (the “Maturity Date”). The Company may voluntarily prepay the outstanding Term Loan, subject to a yield protection
premium equal to (i) 5.0% of the principal amount of the Term Loan prepaid, if prepaid on or prior to the first anniversary of the Closing Date,
(ii) 3.0% of the principal amount of the Term Loan if prepaid after the first anniversary of the Closing Date through and including the second
anniversary of the Closing Date, (iii) 1.0% of the principal amount of the Term Loan if prepaid after the second anniversary of the Closing
Date through and including the third anniversary of the Closing Date, with no prepayment premium due after the third anniversary of the
Closing date through the Maturity Date.
On the Closing Date, the Company was required to issue to the Lenders of such Term Loan warrants to purchase 300,000 of shares of the
Company’s common stock, in the aggregate (the “Warrant”), at an exercise price of $4.5902. Upon the completion of the sale of common
stock on August 13, 2024 (Note 11), the exercise price of the warrants was adjusted to $4.00 according to the terms of the agreement. Upon
inception, the Company
109
evaluated the warrants and determined that they met all the requirements for equity classification under ASC Topic 815 Derivatives and
Hedging ("ASC 815"). This transaction was accounted for as a detachable warrant at its fair value, using the residual method, and is
recorded as an increase to additional paid-in-capital on the consolidated statement of stockholder’s equity in the amount of $1.6 million. The
Company used the Black-Scholes option pricing model to determine the fair value of the warrants. Assumptions included the fair market
value per share of common stock on the valuation date of $4.33, the exercise price per warrant equal to $4.00, the expected volatility of
87.5%, the risk-free interest rate of 3.83%, the contractual term of 6 years and the absence of a dividend. The Warrant is immediately
exercisable, and the exercise period will expire 6 years from the date of issuance.
In addition to the Warrant, the Company will be required to issue to the Lenders warrants to purchase 200,000 of shares of the Company's
common stock (the "Tranche B Warrant") upon the draw down of the second tranche of the Term Loan on or prior to March 31, 2026. These
warrants were accounted for using the residual method and were recorded on a relative fair value basis, resulting in an increase to additional
paid-in capital on the consolidated statement of stockholder's equity in the amount of $0.2 million. The Company used the Black-Scholes
option pricing model to determine the fair value of the warrants. Assumptions included the fair market value per share of common stock on
the valuation date of $4.33, the exercise price per warrant equal to $4.00, the expected volatility of 82.5%, the risk-free interest rate of 3.87%,
the contractual term of 7.64 years and the absence of a dividend. The Tranche B Warrant will expire 6 years from the date of issuance.
The Company's obligations under the Credit Agreement and the other Loan Documents (as defined in the Credit Agreement) will be
guaranteed by any domestic subsidiaries of ours that become Guarantors (as defined in the Credit Agreement), subject to certain exceptions.
The Borrowers’ and the Guarantors’ (collectively, the “Loan Parties”) respective obligations under the Credit Agreement and the other Loan
Documents are secured by first priority security interests in substantially all assets of the Loan Parties, subject to certain customary
thresholds and exceptions.
The Credit Agreement contains customary representations, warranties and affirmative and negative covenants, including financial covenants
requiring the Company to (i) maintain certain levels of cash and cash equivalents in accounts subject to a control agreement in favor of the
Agent of at least $5.0 million at all times after the Closing Date and (ii) meet minimum quarterly net sales targets described in the Credit
Agreement.
In addition, the Credit Agreement contains customary events of default that entitle the Agent to cause the Company's indebtedness under the
Credit Agreement to become immediately due and payable, and to exercise remedies against the Loan Parties and the collateral securing
the Term Loan, including cash. Under the Credit Agreement, an event of default will occur if, among other things, the Company fails to make
payments under the Credit Agreement (subject to specified periods), the Company or its subsidiaries breach any of the covenants under the
Credit Agreement (subject to specified cure periods with respect to certain breaches), a material adverse change occurs, the Company, its
subsidiaries or its respective assets become subject to certain legal proceedings, such as bankruptcy proceedings, the Company and/or its
subsidiaries are unable to pay its debts as they become due or default on contracts with third parties which would permit the holder of
indebtedness in excess of a certain threshold to accelerate the maturity of such indebtedness or that could cause a material adverse change.
Upon the occurrence and for the duration of an event of default, an additional default interest rate equal to 3.0% per annum may apply to all
obligations owed under the Credit Agreement.
On the Closing Date, the Company also entered into the Revenue Purchase and Sale Agreement with the Purchaser. Under the Revenue
Purchase and Sale Agreement, in exchange for the Purchaser's payment to the Company of a purchase price of up to $50.0 million, in the
aggregate, the Company has agreed to sell to the Purchaser its right to receive payment in full of a tiered single digit percentage of net sales
of FUROSCIX. The initial sale of the Revenue Payment under the Revenue Purchase and Sale Agreement in the amount of $25.0 million
took place on the Closing Date. The Purchaser’s right to receive the Revenue Payment terminates and the Company no longer has the
obligation to pay Purchaser Revenue Payments once the Purchaser receives 200.0% (subject to reductions on September 30, 2027 and
September 30, 2029 depending on the amount of Revenue Payments received by such dates) of the Purchase Price. The Company may
also buy-out the Purchaser’s rights to receive the Revenue Payments by paying Purchaser a tiered multiple on the Purchaser Price.
The Revenue Purchase and Sale Agreement contains various representations and warranties, including with respect to organization,
authorization, and certain other matters, certain covenants with respect to payment,
110
reporting, intellectual property, in-licenses, out-licenses, and certain other actions, indemnification obligations and other provisions customary
for transactions of this nature.
Certain conversion and redemption features of the Perceptive Financing would typically be considered derivatives that would require
bifurcation. In lieu of bifurcating various features in the agreements, the Company has elected the fair value option for the Perceptive
Financing and will record the changes in the fair value within the accompanying condensed consolidated statements of operations at the end
of each reporting period. The initial fair value of the Term Loan and the Revenue Purchase and Sale Agreement were $48.1 million and
$25.0 million, respectively. As of December 31, 2024, the fair value of the Term Loan and the Revenue Purchase and Sale Agreement were
$51.4 million and $27.8 million, respectively. Refer to Note 9, “Fair Value of Financial Instruments” for additional details regarding the fair
value measurement. The Revenue Payment payable in connection with the Revenue Purchase and Sale Agreement was $971,000 and was
recorded within accrued expenses on the consolidated balance sheet at December 31, 2024.
In conjunction with the closing of the Perceptive Financing, the Company used a portion of the proceeds to prepay all outstanding loans
under the Oaktree Agreement (as defined below), including the exit fee, on the Closing Date.
As of December 31, 2024, future principal payments due under the Perceptive Agreement are as follows (in thousands):
Year ended:
December 31, 2025
$
—
December 31, 2026
—
December 31, 2027
—
December 31, 2028
—
December 31, 2029
50,000
Thereafter
—
Total minimum principal payments
50,000
Oaktree Agreement
The following table presents the carrying value of the Company's Oaktree term loan as of December 31, 2023 (in thousands):
DECEMBER 31,
2023
Face value
$
50,000
Discount
(11,189)
Total
$
38,811
Less: short-term debt
—
Long-term debt
$
38,811
On October 13, 2022 (“Oaktree Closing Date”), the Company entered into a Credit Agreement and Guaranty (the “Oaktree Agreement”) with
Oaktree Fund Administration, LLC as administrative agent, and the lenders party thereto (collectively “Oaktree”) to borrow up to $100.0
million in three tranches with a maturity date of October 13, 2027.
The first tranche of $50.0 million was drawn immediately. In connection with entering into the Oaktree Agreement, the Company granted
warrants to Oaktree to purchase up to an aggregate of 516,345 shares of the Company’s common stock at an exercise price of $5.40 per
share. Upon inception, the Company evaluated the warrants and determined that they met all the requirements for equity classification under
ASC Topic 815 Derivatives and Hedging ("ASC 815"). This transaction was accounted for as a detachable warrant at its fair value, using the
relative fair value method, which is based on a number of unobservable inputs and is recorded as an increase to additional paid-in-capital on
the consolidated statement of stockholder’s equity. The relative fair value of the warrants, $2.0 million, was reflected as a discount to the term
loan and was amortized using the effective interest method. The Company used the Black-Scholes option pricing model to determine the fair
value of the warrants.
111
Assumptions included the fair market value per share of common stock on the valuation date of $5.50, the exercise price per warrant equal to
$5.40, the expected volatility of 77%, the risk-free interest rate of 4.11%, the contractual term of 7 years and the absence of a dividend. The
warrants are immediately exercisable and the exercise period expires on October 13, 2029.
The Company identified a number of embedded derivatives that required bifurcation from the term loan and that were separately accounted
for in the consolidated financial statements as one compound derivative liability. Certain of these embedded features include contingent
interest rate reset upon event of default, contingent put options, including change in control and going concern provisions, and additional
costs as a result of changes in law. These embedded features met the criteria requiring these to be bifurcated because they were not clearly
and closely related to the host instrument in accordance with ASC 815-15. The fair value of the embedded derivative liabilities associated
with the term loan was estimated using a hybrid between the discounted cash flow and Monte Carlo simulation methods. This involved
significant Level 3 inputs and assumptions including an estimated probability and timing of a change in control. The initial recognition of the
embedded derivative liability upon issuance of the Term Loan was $8.9 million.
Prepayments of the term loan, in whole or in part, were subject to a prepayment fee. The Company was also required to pay an exit fee upon
any payment or prepayment equal to 2.0% of the aggregate principal amount of the loans funded under the Oaktree Agreement.
In connection with the Credit Agreement, the Company paid off all unpaid borrowings under the Oaktree Agreement on August 9, 2024,
including the $1.0 million exit fee and a prepayment premium of $2.6 million. For the years ended December 31, 2023 and 2024, the
Company recorded $2.0 million and $1.5 million related to the amortization of the debt discount associated with the Oaktree Agreement,
respectively. For the years ended December 31, 2023 and 2024, the Company recorded $149,000 and $107,000 related to the amortization
of the exit fee associated with the Oaktree Agreement, respectively.
11. Stockholders’ Equity
Common Stock
At December 31, 2023 and 2024, the Company had 150,000,000 shares of common stock authorized with a par value of $0.0001. There
were 35,968,510 and 50,095,689 shares issued and outstanding at December 31, 2023 and 2024, respectively. Voting, dividend and
liquidation rights of the holders of the common stock are subject to the Company’s articles of incorporation, corporate bylaws and underlying
shareholder agreements.
Reserved Shares
The Company has reserved 5,530,823 and 736,229 shares of common stock for the exercise of outstanding options to purchase common
stock and for the vesting of RSUs respectively.
2021 At-the-Market Issuance Sales Agreement
On March 23, 2021, the Company entered into an Open Market Sale Agreement (the “2021 ATM Agreement”) with Cowen and Company,
LLC (“Cowen”) with respect to an at-the-market offering program under which the Company could offer and sell shares of its common stock
(the “2021 ATM Shares”), having an aggregate offering price of up to $50.0 million through Cowen as its sales agent. The Company agreed
to pay Cowen a commission up to 3.0% of the gross sales proceeds of such 2021 ATM Shares. On March 13, 2024, the Company amended
and restated the 2021 ATM Agreement and entered into a new $50.0 million Open Market Sales Agreement with Cowen (the "2024 ATM
Agreement"). As of March 13, 2024, the Company had sold a total of 1,726,043 2021 ATM Shares under the 2021 ATM Program at a
weighted average gross selling price of $9.01 per share for net proceeds of $15.2 million.
2024 At-the-Market Issuance Sales Agreement
Pursuant to the 2024 ATM Agreement, the Company could offer and sell shares of its common stock (the “2024 ATM Shares”), having an
aggregate offering price of up to $50.0 million through Cowen as its sales agent (the
112
"2024 ATM Program"). The offering and sale of the 2024 ATM Shares will be made pursuant to the Company's shelf registration statement
on Form S-3, which was declared effective by the SEC on March 22, 2024 (the "2024 Registration Statement"). There were no shares issued
under the 2024 ATM Program as of December 31, 2024.
Sale of Common Stock
On August 13 2024, the Company completed an underwritten public offering of 13,875,000 shares of its common stock, $0.0001 par value
per share (the "2024 Offering Shares"), and, in lieu of shares of common stock to certain select investors, pre-funded warrants to purchase
up to an aggregate of 500,000 shares of common stock at an exercise price equal to $0.001 per share, pursuant to the 2024 Registration
Statement.
The 2024 Offering Shares were sold at an offering price of $4.00 per share. The pre-funded warrants were sold at an offering price of $3.999
per underlying share, which was equal to the price per share of common stock being sold in the public offering, minus $0.001, which is the
exercise price per share of the pre-funded warrants. The pre-funded warrants were accounted for as equity instruments. Net proceeds of the
offering were $53.5 million, after deducting underwriting discounts, commissions and offering expenses.
Preferred Stock
At December 31, 2023 and 2024, the Company had 10,000,000 shares of preferred stock authorized with a par value of $0.0001 and no
shares of preferred stock were issued or outstanding.
12. Stock-Based Compensation
Stock Options
In October 2017, the board of directors approved the 2017 Stock Option and Incentive Plan (the “2017 Stock Plan”) which became effective
in November 2017, upon the closing of the Company’s IPO. The 2017 Stock Plan will expire in October 2027. Under the 2017 Stock Plan,
the Company may grant incentive stock options, non-statutory stock options, restricted stock awards, RSUs and other stock-based awards.
The Company’s 2014 Stock Incentive Plan (the “2014 Stock Plan”) terminated in November 2017 effective upon the completion of the
Company’s IPO. No additional options will be granted under the 2014 Stock Plan. At December 31, 2024, there were 555,427 options
outstanding under the 2014 Stock Plan.
At December 31, 2024, there were 8,769,977 shares of the Company’s common stock authorized for issuance under the 2017 Stock Plan,
including 366,823 options that have been forfeited from the 2014 Stock Plan.
At December 31, 2024, there were 3,079,779 options available for issuance under the 2017 Stock Plan and 4,887,744 options outstanding
and 736,229 RSUs outstanding.
On February 1, 2023, the Board of Directors of the Company adopted the 2023 Employment Inducement Award Plan (the "Inducement
Plan") and, subject to the adjustment provisions of the Inducement Plan, reserved 500,000 shares of the Company’s common stock for
issuance pursuant to equity awards granted under the Inducement Plan. At December 31, 2024, there were 412,348 options available for
issuance under the Inducement Plan, and 87,652 options outstanding.
113
Awards granted under the 2017 Stock Plan and the Inducement Plan have a term of ten years. Vesting of awards under the 2017 Stock Plan
and the Inducement Plan is determined by the compensation committee of the board of directors but is generally over one to four-year terms.
The fair value of options at date of grant was estimated using the Black-Scholes option-pricing model with the following assumptions:
2023
2024
Risk-free interest rate
3.40%—4.67%
3.53%—4.59%
Expected dividend yield
0%
0%
Expected life
5.5—7.0 years
5.5—6.7 years
Expected volatility
77%—85%
76%—79%
Weighted-average grant date
fair value
$
5.26 $
3.67
The expected life of the awards is estimated based on the simplified method, which calculates the expected life based upon the midpoint of
the term of the award and the vesting period. The Company uses the simplified method because it does not have sufficient option exercise
data to provide a reasonable basis upon which to estimate the expected term. The Company has no history of paying dividends nor does
management expect to pay dividends over the contractual terms of these options. The risk-free interest rates are based on the United States
Treasury yield curve in effect at the time of grant, with maturities approximating the expected life of the stock options.
The following table summarizes information about stock option activity during 2023 and 2024 (in thousands, except share and per share
data):
NUMBER OF
SHARES
WEIGHTED-
AVERAGE
EXERCISE
PRICE
WEIGHTED-
AVERAGE
REMAINING
CONTRACTUA
L
TERM
AGGREGATE
INTRINSIC
VALUE
Outstanding, December 31, 2022
4,008,177 $
5.76
Granted
1,004,632
7.38
Exercised
(100,322)
4.94
Forfeited
(231,161)
6.44
Outstanding, December 31, 2023
4,681,326
6.09
Granted
1,295,737
5.25
Exercised
(30,203)
2.85
Forfeited
(416,037)
6.46
Outstanding, December 31, 2024
5,530,823 $
5.89
6.63 $
29
Vested and exercisable, December 31, 2024
3,646,629 $
6.14
5.57 $
29
Vested and expected to vest, December 31, 2024
5,207,255 $
5.92
6.49 $
29
114
The following table summarizes information about RSU activity during 2023 and 2024:
RSUs
AVERAGE GRANT
DATE FAIR VALUE
(IN DOLLARS PER
SHARE)
RSUs outstanding, December 31, 2022
— $
—
Granted
387,950
6.33
Vested
—
—
Forfeited
(19,539)
6.28
RSUs outstanding, December 31, 2023
368,411
6.33
Granted
493,535
5.63
Vested
(82,818)
6.33
Forfeited
(42,899)
6.18
RSUs outstanding, December 31, 2024
736,229 $
5.87
The number of RSUs vested includes shares of common stock withheld on behalf of employees to satisfy the minimum statutory tax
withholding requirements.
During 2023 and 2024, the Company received $354,000 and $87,000, respectively, upon exercise of stock options. The intrinsic value of the
options exercised in 2023 and 2024 was $244,000 and $65,000, respectively. 24,343 options were exercised on December 29, 2023 and
the shares settled on January 2, 2024. Cash received on January 2, 2024 related to this exercise totaled $141,000. This share issuance was
recognized on the Company's Condensed Consolidated Statements of Stockholders' Equity for the quarter ending March 31, 2024.
Unrecognized compensation expense related to unvested options as of December 31, 2024 was $4.7 million and will be recognized over the
remaining vesting periods of the underlying awards. The weighted-average period over which such compensation is expected to be
recognized is 2.3 years. Unrecognized compensation expense related to unvested RSUs as of December 31, 2024 was $2.3 million and will
be recognized over the remaining vesting periods of the underlying awards. The weighted-average period over which such compensation is
expected to be recognized is 2.7 years.
During the three months ended June 30, 2023, as part of a severance arrangement, the Company extended the exercise period to six
months for 111,532 vested options, with a weighted exercise price of $6.25, and recorded incremental stock-based compensation of
$87,000.
Employee Stock Purchase Plan
In October 2017, the board of directors approved the 2017 Employee Stock Purchase Plan (“the ESPP”) which became effective in
November 2017, upon the closing of the Company’s IPO. As part of the ESPP, eligible employees may acquire an ownership interest in the
Company by purchasing common stock, at a discount, through payroll deductions. Eligible employees who elected to participate were able to
participate in the ESPP beginning September 1, 2021.
During 2023 and 2024, 90,125 and 140,948 shares of common stock were issued under the ESPP, respectively. As of December 31, 2024,
there were 1,321,618 shares of common stock available for issuance under the ESPP.
The Company recorded stock-based compensation expense in the following expense categories of its accompanying consolidated
statements of operations and comprehensive loss for employees, directors and non-employees during the years ended December 31, 2023
and 2024 as follows (in thousands):
115
2023
2024
Research and development
$
1,446
$
1,538
Selling, general and administrative
3,410
3,904
Total
$
4,856
$
5,442
13. Commitments and Contingencies
Operating Leases
The Company entered into noncancelable operating leases for office facilities located in Lexington, Massachusetts and Burlington,
Massachusetts through December 31, 2022 and November 30, 2023, respectively. These leases were terminated as of December 31, 2023.
In September 2023, the Company entered into a sublease agreement, pursuant to which the Company agreed to sublease office space for
its new headquarters in Burlington, Massachusetts, under a non-cancelable operating lease, which expires on August 31, 2029.
Rent expense under the operating leases totaled $0.6 million and $0.4 million for the years ended December 31, 2023 and 2024,
respectively.
Certain leases provide for increases in future minimum annual rental payments as defined in the lease agreements. The leases generally
also include real estate taxes and common area maintenance charges in the annual rental payments.
Short-term leases are leases having a term of twelve months or less. The Company recognizes short-term leases on a straight-line basis and
does not record a related lease asset or liability for such leases.
The following is a maturity analysis of the annual undiscounted cash flows reconciled to the carrying value of the operating lease liabilities as
of December 31, 2024 (in thousands):
Year ended:
December 31, 2025
$
381
December 31, 2026
376
December 31, 2027
358
December 31, 2028
367
December 31, 2029
249
Thereafter
-
Total minimum lease payments
1,731
Less imputed interest
(388)
Total
$
1,343
2023
2024
Lease cost:
Operating lease cost
$
692 $
367
Short-term lease cost
22
26
Sublease income
-
-
Total lease cost
$
714 $
393
Other information
Cash paid for amounts included in the
measurement of liabilities
$
625 $
355
Operating cash flows from operating leases
$
50 $
11
Weighted-average remaining lease term -
operating leases
5.6 years
4.5 years
Weighted-average discount rate -
operating leases
11.7%
11.8%
116
Research and Development Agreements
As part of the Company’s research and development efforts, the Company enters into research and development agreements with unrelated
companies. These agreements contain varying terms and provisions which include fees and milestones to be paid by the Company. Some of
these agreements also contain provisions which require the Company to make payments for exclusivity in the development of products in the
area of loop diuretics.
Contingencies
The Company follows subtopic 450-20 of the FASB ASC to report accounting for contingencies.
Certain conditions may exist as of the date the financial statements are issued, which may result in a loss to the Company but which will only
be resolved when one or more future events occur or fail to occur. The Company assesses such contingent liabilities, and such assessment
inherently involves an exercise of judgment.
If the assessment of a contingency indicates that it is probable that a material loss has been incurred and the amount of the liability can be
estimated, then the estimated liability would be accrued in the Company’s financial statements. If the assessment indicates that a potential
material loss contingency is not probable but is reasonably possible, or is probable but cannot be estimated, then the nature of the contingent
liability, and an estimate of the range of possible losses, if determinable and material, would be disclosed. Loss contingencies considered
remote are generally not disclosed unless they involve guarantees, in which case the guarantees would be disclosed.
14. 401(k) Savings Plan
In July 2014, the Company established a defined contribution savings plan under Section 401(k) of the Internal Revenue Code covering all of
its employees. Employees may make contributions by withholding a percentage of their salary. The plan includes an employer match equal
to 100% on the first 3% of deferred compensation and an additional 50% on the next 2% of deferred compensation. During the years ended
December 31, 2023 and 2024, the Company has recognized compensation expense of $712,000 and $934,000, respectively, for the
employer match contribution.
15. Segment
The Company operates in a single segment. The accounting policies of the segment are the same as those described in the summary of
significant accounting policies. The chief operating decision maker assesses performance for the segment and decides how to allocate
resources based on the net income (loss) that also is reported on the consolidated statement of operations as consolidated net income
(loss). Net income (loss) is used to monitor budget versus actual results. monitoring of budgeted versus actual results are used in assessing
performance of the segment and in establishing management’s compensation. The Company’s chief operating decision maker is the chief
executive officer.
Segment net loss for the years ended December 31, 2023 and 2024 is as follows (in thousands):
117
YEARS ENDED DECEMBER 31,
2023
2024
Product revenues, net
$
13,593 $
36,332
Less:
Cost of product revenues
3,811
11,361
Research and development expenses
9,836
10,168
Selling, general and administrative expenses
48,905
72,581
Other segment items
6,437
6,998
Loss on extinguishment of debt
—
13,032
Change in fair value of term loan
—
3,205
Change in fair value of revenue purchase and sale liability
—
3,642
Other income
(3,605)
(3,633)
Interest income
(5,104)
(3,444)
Interest expense
8,123
7,570
Segment net loss
$
(54,810) $
(85,148)
(1) Other segment items include stock-based compensation expense, facility-related costs and depreciation.
16. Subsequent Events
The Company considers events or transactions that occur after the balance sheet date but prior to the issuance of the financial statements to
provide additional evidence relative to certain estimates or to identify matters that require additional disclosure. The Company evaluated
subsequent events through the issuance date of the financial statements and concluded that no subsequent events have occurred that would
require recognition in the consolidated financial statements or disclosure in the notes to the consolidated financial statements.
(1)
118
Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure.
None.
Item 9A. Controls and Procedures.
Limitations on Effectiveness of Controls and Procedures
We maintain disclosure controls and procedures (as that term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) that are
designed to ensure that information required to be disclosed in the reports that we file or submit under the Exchange Act 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 principal executive officer and principal financial officer, as appropriate, to
allow timely decisions regarding required disclosures. In designing and evaluating our 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 must reflect the fact that there are
resource constraints, and that management is required to apply judgment in evaluating the benefits of possible controls and procedures
relative to their costs.
Evaluation of Disclosure Controls and Procedures
Our management, with the participation of our principal executive and financial officers, evaluated, as of the end of the period covered by this
Annual Report on Form 10-K, the effectiveness of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e)
under the Exchange Act). Based on such evaluation, our principal executive officer and principal financial officer have concluded that our
disclosure controls and procedures were effective at the reasonable assurance level as of December 31, 2024.
Remediation of Material Weakness
A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a
reasonable possibility that a material misstatement of the annual or interim financial statements will not be prevented or detected on a timely
basis. As previously disclosed, beginning with the preparation of our financial statements in our Annual Report on Form 10-K for the year
ended December 31, 2023, management identified a material weakness related to the controls, processes and procedures over the fair value
accounting associated with its financial liabilities measured at fair value. See Note 10, Financial Liabilities, to our consolidated financial
statements included elsewhere in this Annual Report on Form 10-K for a description of the financial liabilities. Specifically, the calculations
performed by our third-party valuation specialist during the fourth quarter of fiscal 2023 and third quarter of fiscal 2024 as it relates to fair
value accounting for the liabilities included errors resulting in an overstatement in the fair values. We made adjustments necessary to
properly reflect the fair value of the instruments in the financial statements, as applicable, included in our Annual Report on Form 10-K for
the year ended December 31, 2023 and in our Quarterly Report on Form 10-Q for the period ended September 30, 2024.There were no
changes to previously released financial results as a result of this material weakness.
Our management, with the oversight of our audit committee, initiated steps and took additional measures to remediate the underlying causes
of the material weakness, which included revising the precision level of management review controls, gaining additional assurance regarding
our outside service providers’ quality control procedures, and ultimately changing to a new third-party valuation specialist.
Management has concluded that the material weakness described above has been remediated. The applicable controls have been in place
for a sufficient period of time and management has concluded, through testing, that the controls operated effectively.
Management’s Annual Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in
Rule 13a-15(f) and 15d-15(f) under the Exchange Act. Our management assessed the effectiveness of our internal control over financial
reporting as of the end of the period covered by this Annual Report on Form 10-K. In making this assessment, management used the criteria
set forth by the Committee of Sponsoring Organizations of the Treadway Commission in Internal Control—Integrated Framework (2013
framework). Based on its assessment, management concluded that, as of December 31, 2024, our internal control over financial reporting
was effective based on those criteria.
119
Attestation Report of the Independent Registered Public Accounting Firm
This Annual Report on Form 10-K does not include an attestation report of our registered public accounting firm because we are a non-
accelerated filer.
Changes in Internal Control over Financial Reporting
Other than as described above, there were no changes in our internal control over financial reporting identified in management’s evaluation
pursuant to Rules 13a-15(d) or 15d-15(d) of the Exchange Act during the quarter ended December 31, 2024 that have materially affected, or
are reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information.
(a)
Disclosure in lieu of reporting on a Current Report on Form 8-K
None.
(b)
Insider Trading Arrangements and Policies.
During the three months ended December 31, 2024, no director or officer of the Company adopted or terminated a “Rule 10b5-1 trading
arrangement” or “non-Rule 10b5-1 trading arrangement,” as each term is defined in Item 408(a) of Regulation S-K.
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections.
Not applicable.
120
PART III
Item 10. Directors, Executive Officers and Corporate Governance.
Certain information relating to our executive officers and directors is included in Part I, Item 1, of this Annual Report on Form 10-K. The
remaining information with respect to this item will be contained in our definitive proxy statement to be filed with the SEC in connection with
the 2025 Annual Meeting of Stockholders within 120 days after the conclusion of our fiscal year ended December 31, 2024, or the Proxy
Statement, and is incorporated in this Annual Report on Form 10-K by reference.
Code of Business Conduct and Ethics
We are committed to the highest standards of integrity and ethics in the way we conduct our business. Our board of directors adopted a
Code of Business Conduct and Ethics, which applies to our directors, officers and employees, including our principal executive officer,
principal financial officer, principal accounting officer or controller, or persons performing similar functions. Our Code of Business Conduct
and Ethics establishes our policies and expectations with respect to a wide range of business conduct, including the preparation and
maintenance of our financial and accounting information, our compliance with laws, and possible conflicts of interest.
Under our Code of Business Conduct and Ethics, each of our directors and employees is required to report suspected or actual violations to
the extent permitted by law. In addition, we have adopted separate procedures concerning the receipt and investigations of complaints
relating to accounting or audit matters. These procedures have been adopted by the board of directors and are administered by our audit
committee.
A current copy of our Code of Business Conduct and Ethics is posted on the Corporate Governance section of our website, which is located
at www.scpharmaceuticals.com. If we make any amendments to, or grant any waivers from, the Code of Business Conduct and Ethics for
any officer or director, we will disclose the nature of such amendment or waiver as required by law or the rules of Nasdaq on our website or
in a current report on Form 8-K.
Item 11. Executive Compensation.
The information required by this item will be contained in the Proxy Statement and is incorporated in this Annual Report on Form 10-K by
reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
The information required by this item will be contained in the Proxy Statement and is incorporated in this Annual Report on Form 10-K by
reference.
Item 13. Certain Relationships and Related Transactions, and Director Independence.
The information required by this item will be contained in the Proxy Statement and is incorporated in this Annual Report on Form 10-K by
reference.
Item 14. Principal Accounting Fees and Services.
Our independent public accounting firm is RSM US LLP, Boston, MA PCAOB Auditor ID 49.
The information required by this item will be contained in the Proxy Statement and is incorporated in this Annual Report on Form 10-K by
reference.
121
PART IV
Item 15. Exhibits, Financial Statement Schedules.
(a) Documents filed as a part of this Report:
(1) Consolidated Financial Statements—Included in Item 8 of this Annual Report on Form 10-K.
Report of Independent Registered Public Accounting Firm
90
Consolidated Financial Statements:
Consolidated Balance Sheets as of December 31, 2022 and 2023
93
Consolidated Statement of Operations and Comprehensive Loss for the Years Ended December 31, 2022 and 2023
94
Consolidated Statements of Stockholders’ Equity for the Years Ended December 31, 2022 and 2023
95
Consolidated Statements of Cash Flows for the Years Ended December 31, 2022 and 2023
96
Notes to Consolidated Financial Statements
97
(2) Financial Statement Schedules
All financial statement schedules have been omitted because they are not applicable, not required or the information required is shown in the
financial statements or the notes thereto.
(3) Index to Exhibits.
Exhibit
Number
Description
3.1
Second Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K (File No. 001-38293) filed on November 21, 2017)
3.2
Amended and Restated By-laws of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report
on Form 8-K (File No. 001-38293) filed on November 21, 2017)
3.3
Amendment No. 1 to the Company’s Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K (File No. 001-38293) filed on June 10, 2020)
3.4
Amendment No. 2 to the Company’s Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K (File No. 001-38293) filed on March 12, 2021)
4.1
Amended and Restated Investors’ Rights Agreement among the Registrant and certain of its stockholders, dated December
22, 2016 (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-
221077) filed on October 23, 2017)
4.2
Form of Warrant, dated October 13, 2022, issued by the Registrant to certain lenders, together with a schedule of warrant
holders (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K (File No. 001-38293) filed
on October 14, 2022)
4.3
Form of Pre-Funded Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K (File
No. 001-38293) filed on November 23, 2022)
4.4
Warrant, dated August 9, 2024, issued by scPharmaceuticals, Inc. to Perceptive Credit holdings IV, LP (incorporated by
reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K (File No. 001-38293) filed on August 12, 2024).
4.5
Form of Pre-Funded Warrant (incorporated by reference to Exhibit 4.1 to the Registrant's Current Report on Form 8-K (File
No. 001-38293) filed on August 13, 2024.
4.6
Description of Registered Securities (incorporated by reference to the Registrant's Annual Report on Form 10-K (File No.
001-38293) filed on March 23, 2021)
122
10.1#
2014 Stock Incentive Plan, as amended, and forms of award agreements thereunder (incorporated by reference to the
Registrant’s Registration Statement on Form S-1 (File No. 333-221077) on October 23, 2017)
10.2#
2017 Stock Option and Incentive Plan and forms of award agreements thereunder (incorporated by reference to the
Registrant’s Registration Statement on Form S-1/A (File No. 333-221077) filed on November 7, 2017)
10.3#
Senior Executive Cash Incentive Bonus Plan (incorporated by reference to the Registrant’s Registration Statement on Form
S-1/A (File No. 333-221077) filed on November 7, 2017)
10.4#
2017 Employee Stock Purchase Plan (incorporated by reference to the Registrant’s Registration Statement on Form S-1/A
(File No. 333-221077) filed on November 7, 2017)
10.5#
2023 Employment Inducement Award Plan and form of award agreement thereunder (incorporated by reference to Exhibit
10.5 to the Registrant's Annual Report on Form 10-K (File No. 001-38293) filed on March 22, 2023.
10.6#*
Amended and Restated Non-Employee Director Compensation Policy
10.7#
Form of Indemnification Agreement (incorporated by reference to Exhibit 10.5 to the Registrant’s Registration Statement on
Form S-1/A (File No. 333-221077) filed on November 7, 2017)
10.8
Sublease Agreement, dated as of August 31, 2023, by and between the Registrant and 89 Degrees, Inc. (d/b/a Iris Concise)
(incorporated by reference to Exhibit 10.1 to the Registrant's Current Report on Form 8-K (File No. 001-38293) filed on
September 20, 2023.
10.9
Credit Agreement and Guaranty, by and among the Company, the guarantors from time to time party thereto, the lenders
from time to time party thereto and Perceptive Credit Holdings IV, LP, in its capacity as administrative agent for the Lender,
dated August 9, 2024 (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No.
001-38293) filed on August 12, 2024).
10.10
Revenue Purchase and Sale Agreement, dated August 9, 2024 (incorporated by reference to Exhibit 10.2 to the Registrant’s
Current Report on Form 8-K (File No. 001-38293) filed on August 12, 2024).
10.11#
Amended and Restated Employment Agreement, by and between the Registrant and John H. Tucker (incorporated by
reference to Exhibit 10.11 to the Registrant's Annual Report on Form 10-K (File No. 001-38293) filed on March 22, 2023)
10.12#
Employment Agreement, by and between the Registrant and Rachael Nokes (incorporated by reference to Exhibit 10.9 to the
Registrants Annual Report on Form 10-K (File No. 00138293) filed on March 24, 2020)
10.13†
Development Agreement, by and between the Registrant and West Pharmaceutical Services, Inc., dated January 28, 2019
(incorporated by reference to Exhibit 10.2 to the Registrants Quarterly Report on Form 10-Q (File No. 00138293) filed on
May 8, 2019)
10.14†
Supply Agreement, dated August 15, 2020, by and between West Pharmaceutical Services, Inc. and the Registrant
(incorporated by reference to Exhibit 10.1 to the Registrants Quarterly Report on Form 10-Q (File No. 00138293) filed on
November 16, 2020)
19.1*
scPharmaceuticals Inc. Policy and Procedures on Insider Trading and Disclosure
21.1
Subsidiaries of the Registrant (incorporated by reference to Exhibit 21.1 to the Registrant's Annual Report on Form 10-K (File
No. 001-38293) filed on March 22, 2022)
23.1*
Consent of RSM US LLP, Independent Registered Public Accounting Firm
31.1*
Certification of Principal Executive Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of
1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
123
31.2*
Certification of Principal Financial Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of
1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1**
Certification of Principal 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 Principal Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
97.1
Policy for Recovery of Erroneously Awarded Compensation (incorporated by reference to Exhibit 97.1 to the Registrant's
Annual Report on Form 10-K (File No. 001-38293) filed on March 13, 2024).
101*
Inline XBRL Document Set for the consolidated financial statements and accompanying notes in Part II, Item 8, Financial
Statements and Supplementary Data of this Annual Report on Form 10-K
104*
Cover Page Interactive Data File (formatted as inline XBRL with applicable taxonomy extension information contained in
Exhibits 101.)
* Filed herewith.
† Portions of this exhibit (indicated by asterisks) have been omitted in compliance with Regulation S-K Item 601(b)(10)(iv).
# Indicates a management contract or any compensatory plan, contract or arrangement.
** This certification will not be deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liability of that
section. Such certification will not be deemed to be incorporated by reference into any filing under the Securities Act of 1933, as amended, or
the Exchange Act, except to the extent specifically incorporated by reference into such filing.
Item 16. Form 10-K Summary.
Not applicable.
124
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused
this Report to be signed on its behalf by the undersigned, thereunto duly authorized.
SCPHARMACEUTICALS INC.
Date: March 19, 2025
By:
/s/ John H. Tucker
John H. Tucker
President and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this Report has been signed below by the following
persons on behalf of the Registrant in the capacities and on the dates indicated.
Name
Title
Date
/s/ John H. Tucker
Director, President, and Chief Executive Officer (Principal
Executive Officer)
March 19, 2025
John H. Tucker
/s/ Rachael Nokes
Chief Financial Officer (Principal Financial and Accounting Officer)
March 19, 2025
Rachael Nokes
/s/ Jack A. Khattar
Chairman of the Board
March 19, 2025
Jack A. Khattar
/s/ William T. Abraham, M.D.
Director
March 19, 2025
William T. Abraham, M.D.
/s/ Mette Kirstine Agger
Director
March 19, 2025
Mette Kirstine Agger
/s/ Minnie V. Baylor-Henry
Director
March 19, 2025
Minnie V. Baylor-Henry
/s/ Sara Bonstein
Director
March 19, 2025
Sara Bonstein
/s/ Frederick Hudson
Director
March 19, 2025
Frederick Hudson
/s/ Leonard D. Schaeffer
Director
March 19, 2025
Leonard D. Schaeffer
/s/ Klaus Veitinger, M.D., Ph.D
Director
March 19, 2025
Klaus Veitinger, M.D., Ph.D.
Exhibit 10.6
SCPHARMACEUTICALS INC.
AMENDED AND RESTATED
NON-EMPLOYEE DIRECTOR COMPENSATION POLICY
The purpose of this Amended and Restated Non-Employee Director Compensation Policy (this “Policy”) of scPharmaceuticals
Inc. (the “Company”), is to provide a total compensation package that enables the Company to attract and retain, on a long-term
basis, high-caliber directors who are not employees or officers of the Company or its subsidiaries (each, a “Non-Employee
Director”). In furtherance of the purpose stated above, all Non-Employee Directors shall be paid compensation for services
provided to the Company as set forth below, unless such Non-Employee Director declines the receipt of such cash or equity
compensation by written notice to the Company:
Cash Retainers
Annual Retainer for Board Membership: $50,000
Additional Annual Retainer for Non-Executive Chair of the Board: $40,000
Additional Retainers for Committee Membership:
Audit Committee Chair: $20,000
Audit Committee member: $10,000
Compensation Committee Chair: $15,000
Compensation Committee member: $7,500
Nominating and Corporate Governance Committee Chair: $10,000
Nominating and Corporate Governance Committee member: $5,000
Note: Chair and committee member retainers are in addition to retainers for members of the Board of Directors.
All retainers are paid quarterly in arrears, pro-rated based on the number of actual days served by the director during such
calendar quarter.
Equity Retainers
Initial Award: An initial, one-time equity award (the “Initial Award”) of an option to purchase 60,000 shares of the Company's
common stock, par value $0.0001 per share (“Common Stock”), to each new Non-Employee Director (who is initially elected or
appointed to the Board of Directors after the Effective Date (as defined below)) upon his or her election or appointment to the
Board of Directors, which shall vest and become exercisable over three years beginning on the date of the Non-Employee
Director’s election or appointment to the Board of Directors, with one-third of the shares subject to the Initial Award vesting on
the first anniversary of the date of such election or appointment and the remainder of such shares vesting in 24 substantially equal
monthly installments thereafter, subject to the Non-Employee Director continuing in service on the Board of Directors through
each such vesting date. Such stock option shall have a per share exercise price equal to the closing price of the Common Stock
on the date of grant on the Nasdaq Stock Market LLC.
Annual Award: On the date of each of the Company’s Annual Meeting of Stockholders following the Effective Date (each, an
“Annual Meeting”), each continuing Non-Employee Director, other than a director receiving an Initial Award at such Annual
Meeting, will receive an annual equity award (the “Annual Award”) of an option to purchase 30,000 shares of Common Stock,
which shall vest and become exercisable on the earlier of (A) the first anniversary of the date of grant or (B) the next occurring
Annual Meeting, subject to the Non-Employee Director continuing in service on the Board through such vesting date unless the
Board of Directors determines that the circumstances warrant continuation of vesting. Such stock option shall have a per share
exercise price equal to the closing price of the Common Stock on the date of grant on the Nasdaq Stock Market LLC.
Limits on Non-Employee Director Compensation
Any limits on Non-Employee Director compensation contained in the Plan or in any other documents or policy, if any, shall
govern the compensation to be provided under this Policy. To the extent the compensation to be paid or provided under this
Policy to a Non-Employee Director would exceed any such limits, the compensation shall be automatically reduced to the extent
necessary to ensure it complies with such limits.
Expenses
The Company will reimburse reasonable travel and related business expenses that a Non-Employee Director incurs for attendance
at all meetings of the Board and applicable meetings of committees, to the extent incurred and substantiated in accordance with
the policies, practices and procedures of the Company as in effect from time to time.
This Policy has been amended and restated in its entirety, effective as of January 1, 2023 (“Effective Date”), and has been further
amended on March 5, 2024 and March 4, 2025.
Exhibit 19.1
SCPHARMACEUTICALS INC.
POLICY AND PROCEDURES ON INSIDER TRADING
AND DISCLOSURE
This memorandum sets forth the policy of scPharmaceuticals Inc. and its subsidiaries (collectively, the “Company”)
regarding trading in the Company’s securities as described below and the disclosure of information concerning the Company.
This Policy and Procedures on Insider Trading and Disclosure (the “Insider Trading Policy”) is designed to prevent insider
trading or the appearance of impropriety, to satisfy the Company’s obligation to reasonably supervise the activities of
Company personnel, and to help Company personnel avoid the severe consequences associated with violations of insider
trading laws. It is your obligation to understand and comply with this Insider Trading Policy. Please contact the
Company’s Chief Financial Officer, who has been appointed as the Company’s insider trading compliance officer (the
“Compliance Officer”), if you have any questions regarding the policy.
1.
To Whom does this Insider Trading Policy Apply?
This Insider Trading Policy is applicable to the Company’s directors, officers, employees, and designated consultants
and contractors, and continues to apply following the termination of any such individual’s service to or employment with the
Company until any material, nonpublic information possessed by such individual has become public or is no longer material.
The same restrictions that apply to you also apply to your spouse, significant other, child, parent or other family member, in
each case, living in the same household, and to any investment fund, trust, retirement plan, partnership, corporation or other
entity over which you have the ability to influence or direct investment decisions concerning securities (collectively, these
persons and entities are referred to as “Affiliated Persons”). You are responsible for ensuring compliance with this Insider
Trading Policy by all such persons affiliated with you.
All members of the Board of Directors, and designated officers and employees also must comply with the special
trading procedures described in Section H of this Insider Trading Policy (the “Trading Procedures”). Generally, the Trading
Procedures establish blackout periods during which the persons covered by the Trading Procedures will be restricted from
trading in the Company’s securities and also require the pre-clearance of all transactions in the Company’s securities by such
persons. You will be notified if you are required to comply with the Company’s Trading Procedures.
In the event that you leave our Company for any reason, this Insider Trading Policy will continue to apply to you, and
other persons who have a relationship with you who are subject to this policy, until the later of: (1) the first trading day
following the public release of earnings for the fiscal quarter in which you leave our Company or (2) the first trading day after
any material nonpublic information known to you has become public or is no longer material.
2.
What is Prohibited by this Insider Trading Policy?
It is generally illegal for any director, officer or employee of the Company to trade in the securities of the Company
while in the possession of material, nonpublic information about the Company. It is also generally illegal for any director,
officer or employee of the Company to disclose material, nonpublic information about the Company to others who may trade
on the basis of that information. These illegal activities are commonly referred to as “insider trading.”
The prohibition on illegal insider trading in this Insider Trading Policy is not limited to trading in the
Company’s own securities. It also includes trading in the securities of other entities, such as material licensors, collaboration
partners, and suppliers of the Company, and entities in the Company’s industry or with which the Company may be
negotiating major transactions, such as an acquisition, investment, or sale, while in possession of material nonpublic
information. Information that is not material to the Company may nevertheless be material to one of these other entities.
Your failure to observe this Insider Trading Policy could lead to significant legal problems, including fines and/or
imprisonment, and could have other serious consequences, including the termination of your employment or service
relationship with the Company.
Prohibited Activities
When you know or are in possession of material, nonpublic information about the Company, you generally are
prohibited from the following activities:
•
purchasing, selling or otherwise disposing of the Company’s securities, which includes common stock, options
to purchase common stock, any other type of securities that the Company may issue (such as preferred stock,
convertible debentures, warrants, exchange- traded options or other derivative securities), and any derivative
securities that provide the economic equivalent of ownership of any of the Company’s securities or an
opportunity, direct or indirect, to profit from any change in the value of the Company’s securities;
•
having others trade for you in the Company’s securities;
•
giving trading advice of any kind about the Company except that you should, when appropriate, advise others
not to trade if doing so might violate the law or this Insider Trading Policy; and
•
disclosing the material, nonpublic information about the Company to anyone else who might then trade, or
recommending to anyone that they purchase or sell the Company’s securities when you are aware of material,
nonpublic information (these practices are known as “tipping”).
These prohibitions continue whenever and for as long as you know or are in possession of material, nonpublic
information. Remember, anyone scrutinizing your transactions will be doing so after the fact, with the benefit of hindsight. As
a practical matter, before engaging in any transaction, you should carefully consider how enforcement authorities and others
might view the transaction in hindsight.
The prohibition on purchasing, selling or otherwise disposing of the Company’s securities while in possession of
material, nonpublic information about the Company does not apply to the following “Permitted Transactions”:
1.
purchases of the Company’s securities from the Company, or sales of the Company’s securities to the Company,
including without limitation periodic wage withholding contributions by the Company or employees of the Company
which are used to purchase the Company’s securities pursuant to the employees’ advance instructions under the
Company’s 2017 Employee Stock Purchase Plan or any successor plan. However, you may elect to participate in the
plan or alter your instructions regarding the level of withholding or purchase by you of Company securities under
such plan on the basis of material nonpublic information. Any sale of securities acquired by you under such plan is
subject to this Insider Trading Policy;
2.
exercises of stock options or other equity awards or the surrender of shares to the Company in payment of the
exercise price or in satisfaction of any tax withholding obligations in a manner permitted by the applicable equity
award agreement, or vesting of equity-based awards, in each case, that do not involve a market sale of the Company’s
securities (the “cashless exercise” of a Company stock option or other equity award through a broker does involve a
market sale of the Company’s securities, and therefore would not qualify under this exception); or
3.
purchases or sales of the Company’s securities made pursuant to a plan adopted to comply with Rule 10b5-1 (“Rule
10b5-1”) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or that meets the definition of a
“non-Rule 10b5-1 trading arrangement” under Item 408 of Regulation S-K and that has been pre-approved in
accordance with this Policy (see Section I of this Insider Trading Policy).
Definition of Material, Nonpublic Information
This Insider Trading Policy prohibits you from trading in the Company’s securities if you are in possession of
information about the Company that is both “material” and “nonpublic.”
What is “Material” Information?
Information about the Company is “material” if it could reasonably be expected to affect the investment or voting
decisions of a stockholder or investor, or if the disclosure of the information could reasonably be expected to significantly
alter the total mix of information in the marketplace about the Company. In simple terms, material information is any type of
information that could reasonably be expected to affect the market price of the Company’s securities. Both positive and
negative information may be material. While it is not possible to identify all information that would be deemed “material,” the
following items are types of information that should be considered carefully to determine whether they are material:
•
developments regarding any programs in clinical development, including recent regulatory interaction and/or
data that have been recently generated from ongoing or recently completed clinical trials;
•
developments regarding the intellectual property and/or freedom to operate for any of the current programs or
product candidates under development;
•
projections of future earnings or losses, or other earnings guidance;
•
earnings or revenue that are inconsistent with the consensus expectations of the investment community;
•
potential restatements of the Company’s financial statements, changes in auditors or auditor notification that the
Company may no longer rely on an auditor’s audit report;
•
pending or proposed mergers, acquisitions, tender offers, joint ventures or dispositions of significant assets;
•
changes in management or the Board of Directors;
•
actual or threatened litigation or governmental investigations or major developments in such matters;
•
developments regarding products, customers, suppliers, orders, contracts or financing sources (e.g., the
acquisition or loss of a contract);
•
changes in dividend policy, declarations of stock splits, or public or private sales of additional securities;
•
cybersecurity or data security incidents;
•
potential defaults under the Company’s credit agreements or indentures, or the existence of material liquidity
deficiencies; and
•
bankruptcies or receiverships.
The Securities and Exchange Commission (the “SEC”) has stated that there is no fixed quantitative threshold amount
for determining materiality, and that even very small quantitative changes can be
qualitatively material if they would result in a movement in the price of the Company’s securities.
What is “Nonpublic” Information?
Material information is “nonpublic” if it has not been disseminated in a manner making it available to investors
generally. To show that information is public, it is necessary to point to some fact that establishes that the information has
become publicly available, such as the filing of a report with the SEC, the distribution of a press release through a widely
disseminated news or wire service, or by other means that are reasonably designed to provide broad public access. The
circulation of rumors, even if accurate and reported in the media, does not constitute public dissemination. Before a person
who possesses material, nonpublic information can trade, there also must be adequate time for the market as a whole to absorb
the information that has been disclosed. For the purposes of this Insider Trading Policy, information will be considered public
after the close of trading on the first full trading day following the Company’s public release of the information.
For example, if the Company announces material information of which you are aware before trading begins on a
Tuesday, the first time you can buy or sell Company securities is the opening of the market on Wednesday. However, if the
Company announces this material information after trading begins on that Tuesday, the first time that you can buy or sell
Company securities is the opening of the market on Thursday.
3.
What are the Penalties for Insider Trading and Noncompliance with this Insider Trading Policy?
Both the SEC and the national securities exchanges, through the Financial Industry Regulatory Authority (FINRA),
investigate and are very effective at detecting insider trading. The SEC, together with the U.S. Attorneys, pursue insider
trading violations vigorously. For instance, cases have been successfully prosecuted against trading by employees in foreign
accounts, trading by family members and friends, and trading involving only a small number of shares.
The penalties for violating insider trading or tipping rules can be severe and include:
•
disgorgement of the profit gained or loss avoided by the trading;
•
payment of the loss suffered by the persons who, contemporaneously with the purchase or sale of securities that
are subject of such violation, have purchased or sold, as applicable, securities of the same class;
•
payment of criminal penalties of up to $5,000,000;
•
payment of civil penalties of up to three times the profit made or loss avoided; and
•
imprisonment for up to 20 years.
The Company and/or the supervisors of the person engaged in insider trading may also be required to pay significant
civil and/or criminal penalties, and could under certain circumstances be subject to private lawsuits.
Violation of this Insider Trading Policy or any federal or state insider trading laws may subject the person violating
such policy or laws to disciplinary action by the Company up to and including termination. The Company reserves the right to
determine, in its own discretion and on the basis of the information available to it, whether this Insider Trading Policy has
been violated. The Company may determine that specific conduct violates this Insider Trading Policy, whether or not the
conduct also violates the law. It is not necessary for the Company to await the filing or conclusion of a civil or criminal action
against the alleged violator before taking disciplinary action.
4.
Prohibited Transactions
1.
No Short Sales.
You may not at any time sell any securities of the Company that are not owned by you at the time of the sale (a
“short sale”).
2.
No Purchases or Sales of Derivative Securities or Hedging Transactions.
You may not buy or sell puts, calls, other derivative securities of the Company or any derivative securities that
provide the economic equivalent of ownership of any of the Company’s securities or an opportunity, direct or indirect, to
profit from any change in the value of the Company’s securities or engage in any other hedging transaction with respect to
the Company’s securities, such as prepaid variable forward contracts, equity swaps, collars and exchange funds, or other
transactions that hedge or offset, or are designed to hedge or offset, any decrease in the market value of the Company’s
equity securities.
3.
No Company Securities Subject to Margin Calls.
You may not use the Company’s securities as collateral in a margin account.
4.
No Pledges Without Pre-Approval.
You may not pledge Company securities as collateral for a loan (or modify an existing pledge) unless the pledge
has been approved by the Audit Committee of the Board of Directors. Any request for approval of such a pledge must be
submitted to the Audit Committee in writing at least two (2) weeks prior to the proposed execution of documents
evidencing the proposed pledge. Any such request submitted will be considered by the Audit Committee on a case-by-
case basis and, if permitted, shall be subject to all of the other restrictions on trading in the Company’s securities set
forth in this Insider Trading Policy.
5.
Distributions, Gifts and Other Transfers for No Consideration are Subject to Same Restrictions as All Other
Securities Trades.
You may not give or make any other transfer of Company securities without consideration (e.g., a partnership
distribution) during a period when you are not permitted to trade.
5.
Does the Company have any Other Policies Regarding Confidential Information?
The Company also has strict policies relating to safeguarding the confidentiality of its internal, proprietary
information and the use of social media and other online platforms . These policies include procedures regarding identifying,
marking and safeguarding confidential information and employee confidentiality agreements. You should comply with these
policies at all times.
6.
How Do You Report a Violation of this Insider Trading Policy?
If you violate this Insider Trading Policy or any federal or state laws governing insider trading, or know of any
such violation by any director, officer or employee of the Company, you must report the violation immediately to the
Compliance Officer. However, if the conduct in question involves the Compliance Officer, or if you have reported such
conduct to the Compliance Officer and you do not believe that he has dealt with it properly, or if you do not feel that you
can discuss the matter with the Compliance Officer, you may raise the matter with the Chief Executive Officer.
7.
Is This Insider Trading Policy Subject to Modification?
The Company may at any time change this Insider Trading Policy or adopt such other policies or procedures which it
considers appropriate to carry out the purposes of its policies regarding insider trading and the disclosure of Company
information. Notice of any such change will be delivered to you by regular or electronic mail (or other delivery option used by
the Company) by the Company. You will be deemed to have received, be bound by and agree to revisions of this Insider
Trading Policy when such revisions have been delivered to you.
8.
Special Trading Procedures
These Trading Procedures regulate securities trades by all directors, officers of the Company who are subject to
Section 16 of the Exchange Act, and certain other employees (which initially shall be all employees) and consultants of
the Company and its subsidiaries designated by the Chief Executive Officer who in the ordinary course of the
performance of their duties have access to material, nonpublic information regarding the Company (collectively, these
persons are referred to as “Insiders”). These Trading Procedures also apply to Insiders’ Affiliated Persons, and Insiders
are responsible for ensuring compliance with these Trading Procedures and the Insider Trading Policy by all of their
Affiliated Persons.
The special trading restrictions set forth in these Trading Procedures continue to apply to Insiders following the
termination of any such Insider’s service to or employment with the Company until any material, nonpublic information
possessed by such Insider has become public or is no longer material.
1.
Blackout Periods
No Insider shall purchase or sell any security of the Company during the period beginning at 11:59 pm, Eastern
Time, on the 14th calendar day before the end of any fiscal quarter of the Company and ending upon the completion of
the first full trading day after the public release of earnings data for such fiscal quarter, or during any other trading
suspension period declared by the Company (such period, a “blackout period”). A “trading day” is a day on which U.S.
national stock exchanges are open for trading. For example, if the Company’s fourth fiscal quarter ends at 11:59 p.m.,
Eastern time, on December 31, the corresponding black- out period would begin at 11:59 p.m., Eastern time, on
December 17. If the Company were to make an announcement on Monday prior to 9:30 a.m. Eastern Time, then the
blackout period would terminate after the close of trading on Monday. If an announcement were made on Monday after
9:30 a.m. Eastern Time, then the blackout period would terminate after the close of trading on Tuesday. If you have any
question as to whether information is publicly available, please direct an inquiry to the Compliance Officer. The
blackout period prohibitions do not apply to Permitted Transactions.
Exceptions to the blackout period policy may be approved by the Compliance Officer or, in the case of
exceptions for directors, the Board of Directors.
The Compliance Officer may recommend that directors, officers, employees or others suspend trading in
Company securities because of developments that have not yet been disclosed to the public. Subject to the exceptions
noted above, all of those individuals affected should not trade in the Company’s securities while the suspension is in
effect, and should not disclose to others that the Company has suspended trading.
2.
Pre-Clearance Procedures
Procedures. No Insider may trade in Company securities until:
•
The Insider has notified the Compliance Officer of the amount and nature of the proposed trade(s) using the
Stock Transaction Request form attached to this Insider Trading Policy. In order to provide adequate time for
the preparation of any required reports under Section 16 of the Exchange Act, a Stock Transaction Request
form should, if practicable, be received by the Compliance Officer at least two (2) business days prior to the
intended trade date;
•
The Insider has certified to the Compliance Officer in writing prior to the proposed trade(s) that the Insider is
not in possession of material, nonpublic information concerning the Company;
•
The Insider has informed the Compliance Officer whether, to the Insider’s best knowledge, (a) the Insider has
(or is deemed to have) engaged in any opposite way transactions within the previous six months that were not
exempt from Section 16(b) of the Exchange Act and (b) if the transaction involves a sale by an “affiliate” of the
Company or of “restricted securities” (as such terms are defined under Rule 144 under the Securities Act of
1933, as amended (“Rule 144”)), whether the transaction meets all of the applicable conditions of Rule 144; and
•
The Compliance Officer or his or her designee has approved the trade(s) and has certified such approval in
writing. Such certification may be made via digitally- signed electronic mail.
The Compliance Officer does not assume the responsibility for, and approval from the Compliance Officer does not
protect the Insider from, the consequences of prohibited insider trading. The Chief Executive Officer shall act as the
Compliance Officer for transactions by the Chief Financial Officer.
Additional Information. Insiders shall provide to the Compliance Officer any documentation reasonably
requested by him or her in furtherance of the foregoing procedures. Any failure to provide such requested information will
be grounds for denial of approval by the Compliance Officer.
No Obligation to Approve Trades. The existence of the foregoing approval procedures does not in any way
obligate the Compliance Officer to approve any trade requested by an Insider. The Compliance Officer may reject any
trading request at his or her sole discretion.
From time to time, an event may occur that is material to the Company and is known by only a few directors or
executives. So long as the event remains material and nonpublic, the Compliance Officer may determine not to approve
any transactions in the Company’s securities. If an Insider requests clearance to trade in the Company’s securities during
the pendency of such an event, the Compliance Officer may reject the trading request without disclosing the reason.
Notwithstanding receipt of preclearance, if the Insider requesting preclearance becomes aware of material nonpublic
information, or becomes subject to a blackout period before the transaction is effected, the transaction may not be
completed.
Completion of Trades. After receiving written clearance to engage in a trade signed by the Compliance Officer,
an Insider must complete the proposed trade within two (2) business days or make a new trading request.
Post-Trade Reporting. Any transactions in the Company’s securities by an Insider (including transactions
effected pursuant to a Rule 10b5-1 Plan) must be reported to the Compliance Officer by completing the “Confirmation of
Transaction” section of the Stock Transaction Request form attached to these Trading Procedures on the same day in
which such a transaction occurs. Compliance by directors and executive officers with this provision is imperative given
the requirement of Section 16 of the
Exchange Act that these persons generally must report changes in ownership of Company securities within two (2)
business days. The sanctions for noncompliance with this reporting deadline include mandatory disclosure in the
Company’s proxy statement for the next annual meeting of stockholders, as well as possible civil or criminal sanctions
for chronic or egregious violators.
Each report an Insider makes to the Compliance Officer should include the date of the transaction, quantity of
shares, price and broker-dealer through which the transaction was effected. This reporting requirement may be satisfied
by sending (or having such Insider’s broker send) duplicate confirmations of trades to the Compliance Officer if such
information is received by the Compliance Officer on or before the required date. This requirement is in addition to any
required notification that the Company receives from the broker who completes the trade.
9.
Rule 10b5-1 Plans
Transactions effected pursuant to a pre-approved Rule 10b5-1 plan will not be subject to the Company’s
blackout periods or pre-clearance procedures, and you are not required to complete a Stock Transaction Request form
for such transactions. Rule 10b5-1 provides an affirmative defense from insider trading liability under the federal
securities laws for trading plans that meet certain requirements. A trading plan, arrangement or instruction that meets the
requirements of Rule 10b5-1 (a “Rule 10b5-1 Plan”) enables you to establish arrangements to trade in Company
securities outside of the Company’s trading windows, even when in possession of material, nonpublic information. If
you intend to trade pursuant to a Rule 10b5-1 Plan, such plan must:
•
satisfy the requirements of Rule 10b5-1;
•
be documented in writing and either (1) specify the amounts, prices, and dates of all transactions under the Rule
10b5-1 Plan; or (2) provide a written formula, algorithm, or computer program for determining the amount,
price, and date of the transactions, and (3) prohibit the individual from exercising any subsequent influence over
the transactions;
•
include a “Cooling-Off Period” for:
•
Section 16 reporting persons that extends to the later of 90 days after adoption or modification of a Rule
10b5-1 Plan or two (2) business days after filing the Form 10-K or Form 10-Q covering the fiscal quarter
in which the Rule 10b5-1 Plan was adopted, up to a maximum of 120 days; and
•
employees who are not Section 16 reporting persons and any other persons, other than the Company, that
extends 30 days after adoption or modification of a Rule 10b5-1 Plan;
•
for Section 16 reporting persons, include a representation in the Rule 10b5-1 Plan that the Section 16 reporting
person is (1) not aware of any material nonpublic information about the Company or its securities; and (2)
adopting the Rule 10b5-1 Plan in good faith and not as part of a plan or scheme to evade Rule 10b-5;
•
have been entered into in good faith at a time when you do not possess material, nonpublic information about
the Company and were not otherwise in a blackout period, and have acted in good faith with respect to the Rule
10b5-1 Plan; and
•
be pre-approved by the Compliance Officer.
The Compliance Officer may impose such other conditions on the implementation and operation of the Rule 10b5-1
Plan as the Compliance Officer deems necessary or advisable.
Individuals may not adopt more than one Rule 10b5-1 Plan at a time except under the limited
circumstances permitted by Rule 10b5-1 and subject to preapproval by the Compliance Officer.
The Compliance Officer may refuse to approve a Rule 10b5-1 Plan as he or she deems appropriate including,
without limitation, if he or she determines that such plan does not satisfy the requirements of Rule 10b5-1. If the
Compliance Officer does not approve your Rule 10b5-1 Plan, you must adhere to pre-clearance procedures and the
blackout periods set forth above until such time as a Rule 10b5-1 Plan is approved.
Any modification or termination of a Rule 10b5-1 Plan requires pre-approval by the Compliance Officer. A
modification must occur during a trading window and while you are not aware of material, nonpublic information.
Modifications of a Rule 10b5-1 Plan that change the amount, price, or timing of the purchase or sale of the securities
underlying a Rule 10b5-1 Plan will trigger a new Cooling-Off Period.
The Company reserves the right to publicly disclose, announce, or respond to inquiries from the media regarding
the adoption, modification, or termination of a Rule 10b5-1 Plan and non-Rule 10b5-1 trading arrangements, or the
execution of transactions made under a Rule 10b5-1 Plan. The Company also reserves the right from time to time to
suspend, discontinue, or otherwise prohibit transactions under a Rule 10b5-1 Plan if the Compliance Officer or the Board of
Directors, in its discretion, determines that such suspension, discontinuation, or other prohibition is in the best interests of
the Company.
Compliance of a Rule 10b5-1 Plan with the terms of Rule 10b5-1 and the execution of transactions pursuant to the
Rule 10b5-1 Plan are the sole responsibility of the person initiating the Rule 10b5-1 Plan, and none of the Company, the
Compliance Officer, the Chief Executive Officer or the Company’s other employees assumes any liability for any delay in
reviewing and/or refusing to approve a Rule 10b5-1 Plan submitted for approval, nor the legality or consequences relating to a
person entering into, informing the Company of, or trading under, a Rule 10b5-1 Plan.
10.
Waivers
A waiver of any provision of this Insider Trading Policy in a specific instance may be authorized in writing by
the Compliance Officer, his or her designee or the Audit Committee of the Board of Directors, and any such waiver
shall be reported to the Company’s Board of Directors.
11.
Acknowledgment
This Insider Trading Policy will be delivered to all of the Company’s current directors, officers, employees, and
designated consultants and contractors and to all new directors, officers, employees, and designated consultants and
contractors of the Company at the start of their employment or relationship with the Company. Upon first receiving a
copy of this Insider Trading Policy, you must acknowledge that you have received a copy and agree to comply with the
terms of the Insider Trading Policy. You shall return the acknowledgment attached hereto within ten (10) days of receipt
to the Compliance Officer.
Failure to observe this Insider Trading Policy could lead to significant legal problems, and could have other serious
consequences, including termination of employment. Questions regarding this Insider Trading Policy are encouraged
and may be directed to the Compliance Officer.
Adopted October 27, 2017, subject to effectiveness of the Company’s Registration Statement on Form S-1.
Updated March 12, 2019.
Amended and Restated June 8, 2021.
Amended and Restated May 15, 2023.
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Nos. 333-221677, 333-227071, 333-229122, 333-237361, 333-
254636, 333-263762, 333-270757, 333-270758 and 333-277892) on Form S-8 and the Registration Statement (No. 333-277886) on Form S-
3 of scPharmaceuticals Inc. of our report dated March 19, 2025, relating to the consolidated financial statements of scPharmaceuticals Inc.
and its subsidiary, appearing in this Annual Report on Form 10-K of scPharmaceuticals Inc. for the year ended December 31, 2024.
/s/ RSM US LLP
Boston, Massachusetts
March 19, 2025
Exhibit 31.1
CERTIFICATION
I, John H. Tucker, certify that:
1.
I have reviewed this Annual Report on Form 10-K of scPharmaceuticals Inc.;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to
the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this
report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act
Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under
our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made
known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed
under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions
about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on
such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s
most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is
reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial
reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the
equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which
are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information;
and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s
internal control over financial reporting.
Date: March 19, 2025
By:
/s/ John H. Tucker
John H. Tucker
President and Chief Executive Officer (Principal Executive
Officer)
Exhibit 31.2
CERTIFICATION
I, Rachael Nokes, certify that:
1.
I have reviewed this Annual Report on Form 10-K of scPharmaceuticals Inc.;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to
the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this
report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act
Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under
our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made
known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed
under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions
about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on
such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s
most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is
reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial
reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the
equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which
are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information;
and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s
internal control over financial reporting.
Date: March 19, 2025
By:
/s/ Rachael Nokes
Rachael Nokes
Chief Financial Officer (Principal Financial Officer)
Exhibit 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report on Form 10-K of scPharmaceuticals Inc. (the “Company”) for the year ended December 31,
2024 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, John H. Tucker, President and Chief
Executive Officer (Principal Executive Officer), hereby certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-
Oxley Act of 2002, that to the best of my knowledge:
(1)
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations
of the Company.
Date: March 19, 2025
By:
/s/ John H. Tucker
John H. Tucker
President and Chief Executive Officer (Principal Executive
Officer)
Exhibit 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report on Form 10-K of scPharmaceuticals Inc. (the “Company”) for the year ended December 31,
2024 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Rachael Nokes, Chief Financial Officer
(Principal Financial Officer), hereby certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002,
that to the best of my knowledge:
(1)
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations
of the Company.
Date: March 19, 2025
By:
/s/ Rachael Nokes
Rachael Nokes
Chief Financial Officer (Principal Financial Officer)