XENON PHARMACEUTICALS INC.
2019 ANNUAL REPORT
To Our Shareholders:
We believe 2019 was a transformative year for Xenon – marked by significant progress on our proprietary
programs and a successful collaboration agreement with Neurocrine Biosciences, which we believe represents
one of the largest “pre-Phase 3” epilepsy deals done to date. Today, we remain focused on developing
innovative therapeutics to address neurological disorders, and we believe that Xenon has one of the most
exciting epilepsy pipelines currently in development. We are entering a “data-rich” period with the expectation
that a number of our proprietary product candidates will either enter mid to late stage clinical trials or generate
important data over the next 12 to 18 months.
This annual report covers our activities and programs throughout 2019; however, it is important to note that
subsequent to year-end, we provided a corporate update in the context of the developing COVID-19 pandemic.
First and foremost, the safety of Xenon’s employees and their families, as well as the healthcare professionals
and patients involved in our clinical studies, is of the utmost importance to us. As we face an unprecedented
global health crisis, we are focused on doing all we can at Xenon internally, in collaboration with our partners,
and in our local communities to support the public health initiatives aimed at addressing the COVID-19
pandemic. At a high level, it’s important to state that Xenon is in a very sound financial position, and we believe
we have the resources to conduct our work during this global pandemic and continue to execute on our goals.
Proprietary Programs
XEN1101 is a differentiated Kv7 potassium channel modulator being developed for the treatment of epilepsy
and potentially other neurological disorders. Designed as a randomized, double-blind, placebo-controlled,
multicenter study, a Phase 2b clinical trial (called the X-TOLE study) is underway to evaluate the clinical
efficacy, safety and tolerability of XEN1101 administered as adjunctive treatment in approximately 300 adult
patients with focal epilepsy. The primary endpoint is the median percent change in monthly focal seizure
frequency from baseline compared to treatment period of active versus placebo. As with other trials ongoing in
our industry, we are seeing a significant reduction in new patient enrollment in the X-TOLE study for numerous
reasons related to the COVID-19 pandemic; therefore, we have adjusted guidance with topline data now
anticipated in the first half of 2021, dependent upon the rate of patient enrollment throughout the remainder of
this year. Despite this shift in guidance, we are pleased with the advancement of XEN1101 to date. We are
particularly encouraged by our review of safety data on a blinded basis, which suggests that XEN1101 is
currently being well tolerated, and the rate of discontinuations to date in the study is lower than we modeled
going into the study. Our goal is to complete the study, as planned, in the shortest possible time frame. We also
continue to explore the development of XEN1101 in other neurological indications.
XEN496 (active ingredient ezogabine) is a Kv7 potassium channel modulator being developed by Xenon. The
U.S. Food and Drug Administration (FDA) granted orphan drug designation and Fast Track designation for the
investigation of XEN496 for the treatment of seizures related to KCNQ2 developmental and epileptic
encephalopathy (KCNQ2-DEE). The FDA has also indicated that it is acceptable to study XEN496 in infants
and children up to four years old, and that a single, small pivotal trial may be considered adequate in order to
demonstrate XEN496’s efficacy in KCNQ2-DEE, provided the study shows evidence of a clinically meaningful
benefit in patients with the intended indication. We are pleased to report that we recently completed a
pharmacokinetic, or PK, study testing XEN496 in healthy adult volunteers. The PK profile observed for
XEN496 appears to be comparable to historical PK data for immediate-release ezogabine tablets, with XEN496
showing similar absorption and elimination curves, and we are excited that these data support Xenon’s planned
Phase 3 clinical trial of XEN496 in patients with KCNQ2-DEE. Depending upon FDA feedback on our clinical
trial design, we anticipate initiating a Phase 3 clinical trial in KCNQ2-DEE in 2020.
XEN007 (active ingredient flunarizine) is a CNS-acting calcium channel modulator that modulates Cav2.1 and
T-type calcium channels. Other reported mechanisms include dopamine, histamine and serotonin inhibition. A
physician-led, Phase 2 proof-of-concept study is examining the potential clinical efficacy, safety, and tolerability
of XEN007 as an adjunctive treatment in pediatric patients diagnosed with treatment-resistant childhood absence
epilepsy, which could represent a potential orphan indication for future development of XEN007.
Pre-Clinical Work: We continue to make progress in our early-stage, discovery work. Our deep knowledge of
the genetics of channelopathies combined with our proprietary biology and medicinal chemistry know-how have
positioned Xenon as a leader in small molecule ion channel drug discovery. Our robust pipeline of pre-clinical
candidates encompasses our work related to several sodium and potassium channel targets. For example, our
pre-clinical data suggests that a highly selective small molecule potentiator of Nav1.1 could potentially address
the underlying cause of Dravet Syndrome using a precision medicine approach and may have utility in other
neurologic indications where interneuron excitability is impaired. We intend to build upon this promising work
and expect to highlight this exciting and novel pre-clinical work as it matures.
Partnered Programs
NBI-921352: We entered into a collaboration with Neurocrine Biosciences to develop treatments for epilepsy
that included a $30 million upfront payment and $20 million investment by Neurocrine in our common shares,
with up to $1.7 billion in potential development, regulatory and commercial milestone payments as well as
royalties on commercial sales. Neurocrine Biosciences has an exclusive license to XEN901, now known as NBI-
921352, a clinical stage selective Nav1.6 sodium channel inhibitor for epilepsy. Neurocrine Biosciences
anticipates filing an Investigational New Drug (IND) application with the FDA in mid-2020 in order to start a
Phase 2 clinical trial in SCN8A developmental and epileptic encephalopathy (SCN8A-DEE) patients in the
second half of 2020. We are eligible to receive up to $25 million, comprised of cash and equity investment, upon
FDA acceptance of an IND for NBI-921352.
FX301: Flexion Therapeutics, Inc. acquired the global rights to develop and commercialize FX301 (formerly
XEN402), a Nav1.7 inhibitor. Flexion’s pre-clinical FX301 program consists of XEN402 formulated for
extended release from a thermosensitive hydrogel. The initial development of FX301 is intended to support
administration as a peripheral nerve block for control of post-operative pain. Flexion has indicated that it
anticipates initiating FX301 clinical trials in 2021.
The progress made within our proprietary clinical-stage programs, as well as the deal terms from our partnership
with Neurocrine, created positive momentum that carried through into early this year. Subsequent to year-end,
we raised over $100 million from an underwritten public offering and sales under our “at-the-market” equity
offering program, resulting in cash, cash equivalents and marketable securities of approximately $235 million at
the end of February 2020¹. Our team is committed to strategically and prudently managing our business and
capital resources to support anticipated future milestone events, including: topline data from our XEN1101 X-
TOLE study; initiation of the Phase 3 XEN496 clinical trial for the treatment of KCNQ2-DEE; completion of
the physician-led study with XEN007; and the continued progress of our partnered assets.
We appreciate the strategic input from our Board of Directors, and, as always, are grateful for the high-quality
work from all of Xenon’s dedicated employees. Finally, we thank our shareholders for their continued support of
our goal to deliver new therapeutics that improve the lives of patients with neurological disorders.
/s/ Michael M. Tarnow
/s/ Simon N. Pimstone
Michael M. Tarnow
Board Chair
Simon N. Pimstone
Chief Executive Officer
¹ Xenon’s estimated balance as of February 29, 2020 of approximately $235 million of cash, cash equivalents and marketable
securities is a preliminary estimate based on management's analysis, is subject to further internal review, and has not been reviewed
or audited by Xenon’s external auditors.
Certain statements contained in this letter may constitute forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, Section 21E of the Securities Exchange Act of 1934, as amended, and Canadian securities
laws. A detailed discussion of such forward-looking statements and the related risks and uncertainties is included in our Annual
Report on Form 10-K included herewith.
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, 2019
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
Commission File Number 001-36687
XENON PHARMACEUTICALS INC.
(Exact Name of Registrant as Specified in its Charter)
Canada
(State or other jurisdiction of
incorporation or organization)
200-3650 Gilmore Way
Burnaby, British Columbia
(Address of principal executive offices)
98-0661854
(I.R.S. Employer
Identification No.)
V5G 4W8
(Zip Code)
Registrant’s telephone number, including area code: (604) 484-3300
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Common Shares, without par value
Trading
Symbol(s)
XENE
Name of each exchange on which registered
The Nasdaq Stock Market LLC
(The Nasdaq Global Market)
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. YES NO
Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or 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
Non-accelerated filer
Emerging growth company
Accelerated filer
Smaller reporting company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). YES NO
The aggregate market value of the voting and non-voting common equity held by non-affiliates of the Registrant, based on the closing price of the common
shares on The Nasdaq Global Market on June 28, 2019, was approximately $227.6 million. Common shares held by each executive officer and director and by
each other person who may be deemed to be an affiliate of the Registrant, have been excluded from this computation. This determination of affiliate status is
not necessarily a conclusive determination for other purposes.
The number of common shares of the Registrant outstanding as of March 5, 2020 was 34,956,272.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant’s Definitive Proxy Statement relating to the 2020 Annual Meeting of Shareholders, which will be filed with the Securities and
Exchange Commission subsequent to the date hereof, are incorporated by reference into Part III of this Report. Such Proxy Statement will be filed with the
Securities and Exchange Commission not later than 120 days following the end of the Registrant’s fiscal year ended December 31, 2019.
XENON PHARMACEUTICALS INC.
FORM 10-K
For the Fiscal Year Ended December 31, 2019
Table of Contents
PART I .....................................................................................................................................................................................
Item 1.
Business .................................................................................................................................................................
Item 1A. Risk Factors ...........................................................................................................................................................
Item 1B. Unresolved Staff Comments..................................................................................................................................
Properties ...............................................................................................................................................................
Item 2.
Legal Proceedings..................................................................................................................................................
Item 3.
Mine Safety Disclosures........................................................................................................................................
Item 4.
PART II....................................................................................................................................................................................
Item 5.
Market for Registrant’s Common Equity, Related Shareholder Matters and Issuer Purchases of Equity
Securities ...............................................................................................................................................................
Selected Financial Data .........................................................................................................................................
Item 6.
Management’s Discussion and Analysis of Financial Condition and Results of Operations ...............................
Item 7.
Item 7A. Quantitative and Qualitative Disclosure About Market Risk................................................................................
Financial Statements and Supplementary Data .....................................................................................................
Item 8.
Item 9.
Changes in and Disagreements With Accountants on Accounting and Financial Disclosure ..............................
Item 9A. Controls and Procedures........................................................................................................................................
Item 9B. Other Information ..................................................................................................................................................
PART III ..................................................................................................................................................................................
Directors, Executive Officers and Corporate Governance ....................................................................................
Item 10.
Executive Compensation .......................................................................................................................................
Item 11.
Security Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters .............
Item 12.
Certain Relationships and Related Transactions, and Director Independence......................................................
Item 13.
Principal Accountant Fees and Services................................................................................................................
Item 14.
PART IV ..................................................................................................................................................................................
Exhibits, Financial Statement Schedules...............................................................................................................
Item 15.
Form 10-K Summary.............................................................................................................................................
Item 16.
Signatures.................................................................................................................................................................................
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Forward-Looking Statements
PART I
Certain statements contained in this Annual Report on Form 10-K may constitute forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as
amended and Canadian securities laws. The words or phrases “would be,” “will allow,” “intends to,” “may,” “believe,” “plan,” “will
likely result,” “are expected to,” “will continue,” “is anticipated,” “estimate,” “project,” or similar expressions, or the negative of such
words or phrases, are intended to identify “forward-looking statements.” You should read these statements carefully because they
discuss future expectations, contain projections of future results of operations or financial condition, or state other “forward-looking”
information. These statements relate to our future plans, objectives, expectations, intentions and financial performance and the
assumptions that underlie these statements. These forward-looking statements include, but are not limited to:
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our ability to identify additional products or product candidates either from our internal research efforts or though acquiring
or in-licensing other product candidates or technologies;
the initiation, timing, cost, progress and success of our research and development programs, pre-clinical studies, and clinical
trials;
our ability to advance product candidates into, and successfully complete, clinical trials;
our ability to recruit sufficient numbers of patients for our current and future clinical trials for orphan or more common
indications;
our ability to achieve profitability;
our ability to obtain funding for our operations, including research funding;
our ability to receive milestones, royalties and sublicensing fees under our collaborations, and the timing of such payments;
the timing and magnitude of potential milestone payments under our product acquisition and in-licensing agreements;
the implementation of our business model and strategic plans;
our ability to develop and commercialize product candidates for orphan and niche indications independently;
our ability to advance XEN007, XEN496, and potentially other future product candidates directly into Phase 2 or later stage
clinical trials;
our commercialization, marketing, and manufacturing capabilities and strategy;
our ability to identify drug targets;
our ability to protect our intellectual property and operate our business without infringing upon the intellectual property
rights of others;
our expectations regarding federal, state and foreign regulatory requirements;
the therapeutic benefits, effectiveness and safety of our product candidates;
the accuracy of our estimates of the size and characteristics of the markets that may be addressed by our products and
product candidates;
the rate and degree of market acceptance and clinical utility of any future products;
the timing of, and our and our collaborators’ ability to obtain and maintain regulatory approvals for our product candidates;
our ability to maintain and establish collaborations;
our expectations regarding market risk, including interest rate changes and foreign currency fluctuations;
our belief in the sufficiency of our cash, cash equivalents and marketable securities to meet our needs for at least the next 12
months;
our ability to engage and retain the employees required to grow our business;
our future financial performance and projected expenditures;
developments relating to our competitors and our industry, including the success of competing therapies that are or become
available; and
estimates of our expenses, future revenue, capital requirements and our needs for additional financing.
1
These forward-looking statements are subject to certain risks and uncertainties that could cause actual results to differ materially
from those anticipated in the forward-looking statements. Factors that might cause such a difference include, but are not limited to,
those discussed in this report in Part I, Item 1A — “Risk Factors,” and elsewhere in this report. Forward-looking statements are based
on our management’s beliefs and assumptions and on information currently available to our management. These statements, like all
statements in this report, speak only as of their date, and we undertake no obligation to update or revise these statements in light of
future developments. In this report, “we,” “our,” “us,” “Xenon,” and “the Company” refer to Xenon Pharmaceuticals Inc. and its
subsidiary. Unless otherwise noted, all dollar amounts in this report are expressed in United States dollars.
In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These
statements are based upon information available to us as of the date of this Annual Report on Form 10-K, and although we believe
such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements
should not be read to indicate that we have conducted a thorough inquiry into, or review of, all potentially available relevant
information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.
This Annual Report on Form 10-K includes our trademarks and registered trademarks, including the Xenon logo and other
trademarks or service marks of Xenon. Each other trademark, trade name or service mark appearing in this Annual Report on Form
10-K belongs to its holder.
Item 1. Business
Overview
We are a clinical stage biopharmaceutical company committed to developing innovative therapeutics to improve the lives of
patients with neurological disorders. We are advancing a novel product pipeline of neurology-focused therapies to address areas of
high unmet medical need, with a focus on epilepsy. In addition to our proprietary product candidates, we also have partnered programs
with several pharmaceutical companies, including Neurocrine Biosciences, Inc., or Neurocrine Biosciences, Genentech, a member of
the Roche Group, and Flexion Therapeutics, Inc., or Flexion.
Our Strategy
Our goal is to build a self-sustaining, fully-integrated, and profitable company that discovers, develops and commercializes
innovative therapeutics to treat neurological disorders.
Our strategy includes:
•
•
•
•
Focusing on orphan and niche disease market opportunities that we can independently develop and commercialize;
Selectively establishing additional partnerships enabling us to access large commercial indications while leveraging the
benefits of those collaborations to expand our internal capabilities;
Further leveraging our discovery platform and insights into disease biology to identify additional product candidates; and
Identifying external opportunities to expand our pipeline.
A significant focus of our discovery efforts has been on human channelopathies, enabling us to develop strong capabilities in
small molecule ion channel drug discovery. Our ion channel discovery capability is founded upon our understanding of the genetics of
channelopathies combined with our proprietary biology and medicinal chemistry assets and know-how. While the pharmaceutical
industry has shown significant interest in channelopathies, a general inability to target ion channels selectively with a pharmaceutical
agent has been a limitation to the development of more effective or safer therapeutics. We believe we have developed a core
competence in identifying and developing selective small-molecule ion channel modulators, and we believe we can use this know-how
to develop a pipeline of novel ion channel inhibitors for diseases in areas of high unmet medical need. In addition, we have
complemented our internal discovery capabilities by identifying external product candidates that target ion channels in the CNS for the
treatment of neurological conditions.
Our Product Candidates
XEN1101, A Kv7 Potassium Channel Modulator for the Treatment of Epilepsy
We are developing XEN1101, a differentiated Kv7 potassium channel modulator, for the treatment of epilepsy and potentially
other neurological disorders. We acquired XEN1101 from 1st Order Pharmaceuticals pursuant to an asset purchase agreement in April
2017. For a more detailed description of the terms of this agreement with 1st Order Pharmaceuticals, see “—Collaborations,
Commercial and License Agreements” below.
2
The Kv7 potassium channel mechanism has been clinically validated with ezogabine, an earlier generation Kv7 modulator that
was approved by the U.S. Food and Drug Administration, or FDA, as an adjunctive treatment for adults with focal seizures with or
without secondary generalization. XEN1101’s unique composition is chemically designed to improve upon potency, selectivity and
pharmacokinetics, or PK, of ezogabine, and is not expected to have ezogabine’s composition-specific tissue pigmentation effects.
Clinical Development
We announced final data from a XEN1101 Phase 1 clinical trial and the related transcranial magnetic stimulation, or TMS,
studies at the American Epilepsy Society, or AES, Annual Meeting in December 2018. The objectives of the XEN1101 Phase 1
clinical trial were to evaluate the safety, tolerability and PK of both single ascending doses, or SAD, and multiple ascending doses, or
MAD, of XEN1101 in healthy subjects. The XEN1101 Phase 1 clinical trial also included a pharmacodynamic, or PD, read-out from
TMS studies that were designed to assess XEN1101’s ability and potency to modulate cortical excitability, thereby demonstrating
activity in the target CNS tissue. The XEN1101 Phase 1 results include data from six SAD cohorts ranging in dose from 5 to 30 mg
(n=34, placebo=8), including a crossover food effect cohort (n=10) with a single 20 mg dose. MAD results included three cohorts
ranging in once daily doses from 15 to 25 mg (n=18, placebo=6) including two cohorts of 15 mg evaluated in a fasted and fed state
over 7 and 10 days, respectively, and one cohort of 25 mg evaluated in a fed state over 10 days. The PK profile of XEN1101
(including an effective half-life greater than 24 hours) supports a once-per-day dosing schedule with expected steady state in
approximately one week without the need for titration. The majority of adverse events, or AEs, were mild or moderate, resolved
spontaneously and were consistent with antiepileptic drugs of this class. Sedation (including somnolence and drowsiness) and
dizziness (including light-headedness and presyncope) were the most common AEs, while mild cognitive effects (including memory
and speech impairment) and blurred vision were also observed in a dose dependent manner. There were no SAEs, deaths, or clinically
significant delayed ventricular repolarization or laboratory findings. Phase 1 results suggest that that XEN1101 is generally safe and
well tolerated in the doses examined (single doses of up to 30 mg and multiple doses of up to 25 mg once daily).
The Phase 1b double-blind, placebo-controlled, randomized cross-over TMS study included 20 healthy male subjects. TMS
measurements were taken at 2 and 4 hours for all subjects and, due to a prolonged absorption phase displayed by XEN1101, an
additional TMS assessment time-point was added at 6 hours for a subset of subjects. Subjects were randomized initially to either a 20
mg dose of XEN1101 or placebo and then, after a one-week wash-out period, crossed over to the other treatment arm. XEN1101
reduced corticospinal excitability, as demonstrated by a concentration dependent elevation in resting motor threshold, or RMT, the key
TMS-EMG measure. RMT increased in proportion to XEN1101 plasma concentration showing a mean ± standard error of mean
increase of 4.9 ± 0.7% (p<0.01) at 6 hours. Active motor threshold, or AMT, also increased in proportion to plasma concentration of
XEN1101 with an increase of 2.0 ± 0.4% at 6 hours. In addition, XEN1101 statistically significantly modulated TMS-evoked EEG
potentials, or TEPs, in a pattern consistent with reductions in cortical excitability. Relative to time-matched placebo, at peak plasma
levels, XEN1101 decreased the amplitude of TEPs vs placebo at 25, 45 and 180 ms after the TMS pulse. Additional measures of
cortical excitability including global mean field power were similarly impacted. XEN1101 also shifted the power spectra of resting
state EEGs toward lower frequencies. This Phase 1b TMS study provides evidence of the CNS effects of a 20 mg dose of XEN1101 as
indicated by suppression of cortical and corticospinal excitability, and helped with dose selection for our XEN1101 Phase 2b clinical
trial.
A Phase 2b clinical trial, called the X-TOLE study, is currently underway and designed as a randomized, double-blind, placebo-
controlled, multicenter clinical trial to evaluate the clinical efficacy, safety and tolerability of XEN1101 administered as adjunctive
treatment in approximately 300 adult patients with focal epilepsy. The primary endpoint is the median percent change in monthly focal
seizure frequency from baseline compared to treatment period of active versus placebo. Patient enrollment for this XEN1101 Phase 2b
clinical trial is ongoing in the United States, Canada and Europe. Long term six-and nine-month toxicology studies have now been
completed, providing support for the 12-month open label extension for patients enrolled in the Phase 2b clinical trial. The clinical
trial protocol includes an option to conduct an interim analysis. Depending upon the rate of enrollment, top-line results are anticipated
in the second half of 2020. We also continue to explore the development of XEN1101 in other neurological indications.
About Focal Seizures
A focal seizure is localized within the brain and can either stay localized or spread to the entire brain, which is typically
categorized as a secondary generalized seizure. Focal seizures are the most common type of seizure experienced by people with
epilepsy. The treatment of an individual patient with focal seizures is currently focused on reduction of seizure frequency, with seizure
freedom as the ultimate goal. Focal seizures (simple, complex and secondary generalized tonic-clonic) account for approximately 60%
of seizures (GlobalData Report 2017) of which approximately 33% are considered resistant to current treatments (Epilepsy
Foundation). It is estimated that the addressable population in the United States could include approximately 460,000 adults and
70,000 pediatric patients with focal epilepsy.
3
XEN496, A Kv7 Potassium Channel Modulator for the Treatment of KCNQ2-DEE
We are developing XEN496 (active ingredient ezogabine), a Kv7 potassium channel modulator, for the treatment of KCNQ2
developmental and epileptic encephalopathy, or KCNQ2-DEE (also known as EIEE7). Ezogabine was previously approved by the
FDA as an anti-seizure medication, or ASM, as an adjunctive treatment for adults with focal seizures with or without secondary
generalization. Published case reports where physicians have used ezogabine in infants and young children with KCNQ2-DEE suggest
that XEN496 may be efficacious in this often hard-to-treat pediatric patient population.
The FDA has granted orphan drug designation, or ODD, for XEN496 as a treatment of KCNQ2-DEE. The FDA previously
indicated that it is acceptable to study XEN496 in infants and children up to four years old, and that a single, small pivotal trial may be
considered adequate in order to demonstrate XEN496’s efficacy in KCNQ2-DEE, provided the study shows evidence of a clinically
meaningful benefit in patients with the intended indication.
Clinical Development
We have developed XEN496 as a pediatric-specific, granule formulation of ezogabine to be presented as single-dose sprinkle
capsules. Standard in vitro testing has shown that XEN496 acts as an “immediate-release” drug product. In December 2019, we filed
an Investigational New Drug, or IND, application with the FDA related to a PK study, testing XEN496 in healthy adult volunteers. In
January 2020, we received permission to proceed with the study, which is now ongoing and expected to be completed in the first
quarter of 2020. In parallel, we are corresponding with the FDA regarding the Phase 3 clinical trial design and we expect feedback
early in the second quarter of 2020. A Phase 3 clinical trial in KCNQ2-DEE is expected to start in 2020.
About KCNQ2-DEE
KCNQ2 developmental and epileptic encephalopathy (KCNQ2-DEE), otherwise known as EIEE7, is a rare, severe
neurodevelopmental disorder with a significant seizure burden and profound developmental impairment. KCNQ2-DEE is uniquely
characterized by multiple, daily, refractory seizures presenting within the first week of life with a prominent tonic component and
autonomic signs. Seizures are often accompanied by clonic jerking or complex motor behavior. The electroencephalogram, or EEG, at
onset of the disease shows a burst suppression pattern later evolving into multifocal epileptiform activity. The infants usually develop
a severe to profound intellectual disability with axial hypotonia that can be accompanied by limb spasticity. The seizure activity
typically decreases with age with some patients becoming seizure free or experiencing more minor seizure burden by 3 to 5 years of
age; however, a survey of patient caregivers conducted by us indicates that a significant proportion of patients have ongoing seizures
beyond this age range. The intellectual disability and other co-morbidities are not reversed or improved with age and patients
generally require life-long care. Patients are often non-verbal and some children may also have autistic features. Seizure-related
bradycardia and oxygen desaturation with cyanosis have been observed, and are thought to contribute to the significant risk of Sudden
Unexpected Death in Epilepsy, or SUDEP, in these children. A recent epidemiology study from Europe examining the incidence and
phenotypes of childhood-onset genetic epilepsies reports the incidence of KCNQ2-DEE as approximately 1 per 17,000 live births
(5.89/100,000) compared to 1 per 12,200 live births estimated for Dravet Syndrome.
XEN007, A CNS-acting Calcium Channel Modulator
XEN007 (active ingredient flunarizine) is a CNS-acting calcium channel modulator that modulates Cav2.1 and T-type calcium
channels. Other reported mechanisms include dopamine, histamine and serotonin inhibition. Flunarizine is available in certain
countries outside of the United States and has been reported to have clinical benefit in treating migraine and other neurological
disorders.
Various development strategies for XEN007 are under consideration. We have entered into key exclusive licensing agreements
in order to access regulatory files and drug product manufacturing, both of which may enable advanced clinical development of
XEN007. The FDA granted ODD for the treatment of hemiplegic migraine with XEN007, and granted ODD and a rare pediatric
disease, or RPD, designation for the treatment of alternating hemiplegia of childhood with XEN007. A physician-led, Phase 2 proof-
of-concept study is underway to examine the potential clinical efficacy, safety, and tolerability of XEN007 as an adjunctive treatment
in pediatric patients diagnosed with treatment-resistant childhood absence epilepsy, or CAE. Absence seizures are characterized by an
abrupt impairment of awareness with arrest in behavior, staring, eye lid fluttering, and automatisms associated with generalized 3 Hz
spike wave discharges, or SWD, on electroencephalogram, or EEG. A child may have one or many (up to 100) absence seizures a day
and have problems with attention and learning. Flunarizine has been shown to be well tolerated clinically, and in pre-clinical models
of absence seizures, flunarizine significantly reduced the number and duration of SWDs on EEG as mono-therapy and, when
combined with valproic acid or ethosuximide, significantly reduced the SWD EEGs more than any drug alone. Results from the Phase
2 investigator-led proof-of-concept study are expected in 2020. Depending on the results from the study, CAE may represent a
potential orphan indication for future development of XEN007.
4
New Pipeline Opportunities
Given our expertise in ion channel drug discovery, our efforts are concentrated on the identification of ion channel targets where
we believe novel modulators might represent significant therapeutic advances, with a particular focus on CNS-related orphan
indications. We intend to expand our pipeline from our internal research efforts and through the acquisition or in-licensing of other
product candidates.
Our Partnered Programs
NBI-921352, A Clinical Stage, Selective Nav1.6 Sodium Channel Inhibitor for the Treatment of Epilepsy
In December 2019, we entered into a license and collaboration agreement with Neurocrine Biosciences to develop treatments for
epilepsy. Neurocrine Biosciences has an exclusive license to XEN901, now known as NBI-921352, a clinical stage selective Nav1.6
sodium channel inhibitor, and an exclusive license to pre-clinical compounds for development, including selective Nav1.6 inhibitors
and dual Nav1.2/1.6 inhibitors. The agreement also included a multi-year research collaboration to discover, identify and develop
additional novel Nav1.6 and Nav1.2/1.6 inhibitors. For a more detailed description of the terms of this agreement with Neurocrine
Biosciences, see “—Collaborations, Commercial and License Agreements” below.
NBI-921352 is a potent, highly selective Nav1.6 sodium channel inhibitor being developed to treat pediatric patients with
SCN8A developmental and epileptic encephalopathy, or SCN8A-DEE, and other potential indications, including adult focal epilepsy.
Prior to our license and collaboration agreement with Neurocrine Biosciences, we completed a Phase 1 clinical trial in healthy adult
subjects, and subsequently developed a pediatric-specific, granule formulation. Neurocrine Biosciences anticipates filing an IND
application with the FDA in mid-2020 in order to start a Phase 2 clinical trial in SCN8A-DEE patients in the second half of 2020. We
are eligible to receive up to $25 million upon the FDA acceptance of an IND for NBI-921352, with 55% of the amount in the form of
an equity investment in our common shares at a 15% premium to our 30-day trailing volume weighted average price at that time.
FX301, A Pre-Clinical Nav1.7 Inhibitor for the Treatment of Post-Operative Pain
In September 2019, we entered into an agreement providing Flexion with the global rights to develop and commercialize
XEN402, now known as FX301, a Nav1.7 inhibitor. Flexion’s pre-clinical FX301 program consists of XEN402 formulated for
extended release from a thermosensitive hydrogel. The initial development of FX301 is intended to support administration as a
peripheral nerve block for control of post-operative pain. Flexion has indicated that it anticipates initiating FX301 clinical trials in
2021. For a more detailed description of the terms of this agreement with Flexion, see “—Collaborations, Commercial and License
Agreements” below.
Selective Inhibitors of Nav1.7 for the Treatment of Pain
In December 2011, we entered into a collaborative research and license agreement with Genentech to discover and develop
selective oral inhibitors of Nav1.7 for the treatment of pain. For a more detailed description of the terms of our agreements with
Genentech, see “—Collaborations, Commercial and License Agreements” below. Based on our discovery of Nav1.7 deficiency
underlying the rare human disease called congenital indifference to pain, or CIP, where individuals with CIP are unable to feel pain,
we believe that Nav1.7 is a highly-validated target for the treatment of pain. Our Genentech collaboration is focused on discovering
and developing oral drugs that selectively target Nav1.7.
Collaborations, Commercial and License Agreements
License and Collaboration Agreement with Neurocrine Biosciences, Inc.
On December 2, 2019, we entered into a license and collaboration agreement, or the Collaboration Agreement, with Neurocrine
Biosciences, Inc., or Neurocrine Biosciences, to establish a collaboration under which the parties will identify, research and develop
sodium channel inhibitors, including our clinical candidate XEN901, now known as NBI-921352, and preclinical candidates XEN393,
XPC’535 and XPC’391, which compounds Neurocrine Biosciences will have the exclusive right to further develop and commercialize
under the terms and conditions set forth in the Collaboration Agreement.
5
Licenses. Under the terms of the Collaboration Agreement we granted to Neurocrine Biosciences an exclusive, royalty-bearing,
sublicensable license to certain of our intellectual property rights for the research, development and commercialization of (i) XEN901;
(ii) XEN393, XPC’535 and XPC’391, collectively referred to as the development track candidates, or the DTCs; and (iii) certain
research compounds that bind to and inhibit voltage-gated sodium channels Nav1.2 and Nav1.6 as their primary mechanism of action,
collectively, the Research Compounds and, together with XEN901 and the DTCs, the Compounds, on a worldwide basis for the
treatment, cure, diagnosis, prediction or prevention of any human disease or disorder, state, condition and/or malady, subject to certain
exceptions set forth in the Collaboration Agreement. We also granted to Neurocrine Biosciences a non-exclusive, non-royalty-
bearing, sublicensable license to certain of our intellectual property rights for the screening of compounds for identification as a Select
Nav Inhibitor (as defined below) and for the research of certain compounds otherwise expressly excluded from the Collaboration
Agreement, or the Excluded Compounds.
Exclusivity. During the Research Term (as defined below) and for one year thereafter, other than in accordance with the terms
of the Collaboration Agreement, neither Neurocrine Biosciences nor any of its respective affiliates is permitted to directly or indirectly
research, develop, manufacture or commercialize any small-molecule Select Nav Inhibitor (as defined below). During the term of the
Collaboration Agreement, other than the Excluded Compounds and otherwise in accordance with the terms of the Collaboration
Agreement, neither we nor any of our respective affiliates is permitted to directly or indirectly research, develop, manufacture or
commercialize a compound that, as its primary mechanism of action, binds to and inhibits voltage-gated sodium channels Nav1.2 and
Nav1.6, such compound referred to as a Select Nav Inhibitor.
Governance. The parties will establish a joint steering committee, or JSC, composed of an equal number of representatives
from each entity, which will coordinate and oversee the Collaboration Programs (as defined below). The JSC will disband upon the
completion or earlier termination of both of the Collaboration Programs. Decisions of the JSC will be made by unanimous vote,
provided that in the event of a disagreement on any matter, following a specified dispute resolution procedure, Neurocrine Biosciences
will have the right to decide such matter, subject to certain exceptions.
Collaboration Programs. We are collaborating with Neurocrine Biosciences on the conduct of two collaboration programs: (i) a
joint research collaboration to discover, identify and preclinically develop Research Compounds, or the Research Program, and (ii) a
collaborative development program for XEN901 and two DTCs selected by the JSC, or the Initial Development Program and, together
with the Research Program, referred to as the Collaboration Programs. The Research Program is intended to include the preclinical
development of our existing non-clinical Research Compounds and the discovery of new back-up and follow-on Research Compounds
to XEN901 and the two DTCs selected by the JSC as clinical development candidates for subsequent development and
commercialization by Neurocrine Biosciences. During the term of the Research Program, the parties will conduct related activities in
accordance with an agreed research plan and budget. Each party will be solely responsible for all costs such party incurs to conduct its
activities under the research plan, provided that Neurocrine Biosciences will reimburse us for certain full-time employees and out-of-
pocket expenses incurred by us in accordance with the research budget. Unless earlier terminated or extended, the Research Program
will end on the second anniversary of the Collaboration Agreement, or the Research Term, after which we will have no obligation to
perform any further activities in furtherance of the Research Program.
The Initial Development Program will include: (i) completion of any preclinical and clinical studies that are ongoing as the date
of the Collaboration Agreement of any XEN901 product and the two DTC products selected by the JSC; (ii) a pharmacokinetic, drug-
drug interaction and food effect Phase 1 clinical trial of a XEN901 product to examine the adequacy of a new pediatric formulation;
and (iii) all preclinical studies of two DTC products containing the two DTCs selected by the JSC. The parties will use their
commercially reasonable efforts to conduct the development activities under the Initial Development Program pursuant to specific
development plans. Each party will be solely responsible for all costs such party incurs to conduct its activities under these
development plans, provided that, with respect to XEN901 development activities, Neurocrine Biosciences will reimburse us for
certain full-time employees and out-of-pocket expenses incurred by us, and with respect to certain development activities related to
the two JSC-selected DTCs, the JSC may determine that Neurocrine Biosciences shall make such reimbursements.
Development, Regulatory and Manufacturing. Except for the activities set forth in the plans for the Collaboration Programs,
Neurocrine Biosciences will be solely responsible, at its sole cost and expense, for all development and manufacturing of the
Compounds and any pharmaceutical product that contains a Compound, subject to the Co-Funding Option (as defined below). For the
first indication that meets or exceeds a specified prevalence threshold, or a Major Indication, for which Neurocrine Biosciences
intends to conduct a Phase 3 clinical trial of a XEN901 product or the first clinical trial of a DTC product following a successful Phase
2 clinical trial for such DTC product, Neurocrine Biosciences will prepare a development plan including an estimated budget and
provide such plan to us. We will have the right to elect to co-fund the development of one product in a Major Indication under such
development plan and to receive a mid-single digit percentage increase in royalties owed on the net sales as calculated pursuant to the
terms of the Collaboration Agreement, or Net Sales, of such products in the United States, or the Co-Funding Option. If we exercise
the Co-Funding Option, the parties will share equally all reasonable and documented costs and expenses that Neurocrine Biosciences
incurs in connection with the development of such product in the applicable indication, except costs and expenses that are solely
related to the development of such product for regulatory approval outside the United States.
Neurocrine Biosciences anticipates filing an IND with the FDA in the middle of 2020 in order to start a proposed clinical trial
for XEN901 in SCN8A-DEE patients in the second half of 2020.
6
Neurocrine Biosciences will be the regulatory sponsor and will be solely responsible for all regulatory activities (except for
those delegated to us) under the Collaboration Agreement, including submitting one or more INDs for a XEN901 product. If the FDA
grants a Rare Pediatric Disease Priority Review Voucher in connection with the approval of a New Drug Application for a XEN901
product, Neurocrine Biosciences may, at its option, (i) sell it to a third party and share a specified portion of the proceeds with us; (ii)
use it for a product Neurocrine Biosciences is developing outside the Collaboration Agreement and pay us a specified portion of the
voucher’s intrinsic value (as calculated pursuant to the terms of the Collaboration Agreement); or (iii) use the voucher for a
pharmaceutical product that contains a Compound, in which case no payments would be due to us. If the FDA grants Neurocrine
Biosciences a voucher in connection with any other product, Neurocrine Biosciences will retain all rights to such voucher without any
payment or other obligations to us.
Commercialization. Neurocrine Biosciences will have the exclusive right to conduct, and will be solely responsible for all
aspects of, the commercialization of any pharmaceutical product that contains a Compound.
Financial Terms. Neurocrine Biosciences has agreed to pay us an upfront payment of $50.0 million, which includes a $30.0
million payment in cash within ten business days after the date of the Collaboration Agreement. For the remainder of the upfront
payment, concurrently with the entry into the Collaboration Agreement, the parties entered into the Share Purchase Agreement (as
defined below) pursuant to which we will issue and sell the Shares (as defined below) to Neurocrine Biosciences for an aggregate
purchase price of $20.0 million.
If a XEN901 product achieves IND acceptance in either SCN8A-EE or a Major Indication, we will be entitled to a milestone
cash payment of $11.25 million or $4.5 million, respectively. In addition to such cash payment, we will issue and sell either $13.75
million or $5.5 million of its common shares to Neurocrine Biosciences, depending on whether the IND acceptance is for SCN8A-EE
or a Major Indication, respectively, the Milestone Equity Purchase. The common shares sold to Neurocrine Biosciences in the
Milestone Equity Purchase will have a price equal to 115% of our 30-day volume-weighted average price immediately prior to the
public announcement of the IND acceptance. If the IND acceptance first occurs for a Major Indication and, within one year after such
IND acceptance, there is an IND acceptance in SCN8A-EE, Neurocrine Biosciences will pay us an additional $6.75 million cash
payment and an additional $8.25 million of common shares will be issued and sold to Neurocrine Biosciences at a price equal to 115%
of our 30-day volume-weighted average price immediately prior to the public announcement of the subsequent IND acceptance, or the
Subsequent Milestone Equity Purchase. If the aggregate number of common shares to be sold to Neurocrine Biosciences pursuant to
the Share Purchase Agreement, the Milestone Equity Purchase and the Subsequent Milestone Equity Purchase would exceed 19.9% of
our common shares outstanding on the date of the Collaboration Agreement, then the number of shares to be purchased shall be
reduced such that the percentage cap is not exceeded.
The Collaboration Agreement also provides for potential aggregate development and regulatory milestone payments from
Neurocrine Biosciences to us of up to $325.0 million for a XEN901 product and up to $247.5 million for each other Compound up to a
maximum of three other Compounds. Sales-based milestones of up to $150.0 million for each Compound, including a XEN901
product, will be paid from Neurocrine Biosciences to us upon the achievement of certain Net Sales targets, up to a maximum of four
Compounds.
Neurocrine Biosciences has further agreed to pay us royalties based on future Net Sales of any pharmaceutical product that
contains a Compound. Such royalty percentages, for Net Sales in and outside the United States, range from (i) for a XEN901 product,
a low double-digit percentage to a mid-teen percentage and a high-single digit percentage to low double-digit percentage, respectively;
(ii) for each DTC product, a high-single digit percentage to a low double-digit percentage and a mid-single digit percentage to a high-
single digit percentage, respectively; and (iii) for each Research Compound product, a mid-single digit percentage to a high-single
digit percentage and a tiered mid-single digit percentage, respectively.
Neurocrine Biosciences’s obligations to pay royalties with respect to a product and country will expire upon the latest of: (i) the
expiration of the last to expire valid claim in (a) the parties’ joint patent rights filed during the Research Term or a specified period of
time thereafter or (b) our patent rights as specified in the Collaboration Agreement, in each case that cover such product; (ii) ten years
from the first commercial sale of the product in such country; and (iii) the expiration of regulatory exclusivity for such product in such
country, or the Royalty Term. Royalty payments are subject to reduction in specified circumstances, including expiration of patent
rights or if average Net Sales decrease by a certain percentage after the introduction of a generic product.
Term and Termination. Unless earlier terminated, the term of the Collaboration Agreement will continue on a product-by-
product and country-by-country basis until the expiration of the Royalty Term for such product in such country. Upon the expiration
of the Royalty Term for a particular product and country, the exclusive license granted by us to Neurocrine Biosciences with respect to
such product and country will become fully-paid, royalty free, perpetual and irrevocable.
7
Neurocrine Biosciences may terminate the Collaboration Agreement in its entirety or on a product-by-product or country-by-
country basis, for any or no reason, by providing at least 90 days’ written notice, provided that such unilateral termination will not be
effective (i) with respect to a XEN901 product until Neurocrine Biosciences has used its commercially reasonable efforts to complete
one Phase 2 clinical trial for a XEN901 product; (ii) with respect to a DTC product until Neurocrine Biosciences has used its
commercially reasonable efforts to complete one Phase 1 clinical trial for a DTC product; and (iii) with respect to the Collaboration
Agreement in its entirety until Neurocrine Biosciences has used its commercially reasonable efforts to complete both of these clinical
trials. Either party may terminate the Collaboration Agreement in the event of a material breach in whole or in part, subject to
specified conditions. If Neurocrine Biosciences is entitled to terminate the Collaboration Agreement due to our uncured material
breach, in lieu of termination, Neurocrine Biosciences may elect to reduce all subsequent payments owing from Neurocrine
Biosciences to us by half.
Upon the termination of the Collaboration Agreement for any reason, all licenses and other rights granted to Neurocrine
Biosciences by us shall terminate, provided that if termination is solely with respect to one or more products or countries, then such
termination will apply only to the terminated products or countries. Upon termination in certain cases, Neurocrine Biosciences has
agreed to grant us licenses to certain Neurocrine Biosciences intellectual property that is reasonably necessary, and that was actually
used by Neurocrine Biosciences for the development, manufacturing or commercialization of the terminated products, to research,
develop and commercialize the terminated products in the terminated countries. Such license will be royalty-free with respect to any
terminated product for which a Phase 2 clinical trial was not completed prior to the effective date of termination, and otherwise will be
royalty-bearing ranging from a low-single digit percentage to a high-single digit percentage depending on the stage of development of
the applicable product at the effective date of termination.
The Collaboration Agreement includes certain other customary terms and conditions, including mutual representations and
warranties, indemnification and confidentiality provisions.
Share Purchase Agreement
On December 2, 2019, pursuant to the Collaboration Agreement, we entered into a Share Purchase Agreement with Neurocrine
Biosciences, or the Share Purchase Agreement, pursuant to which we issued and sold 1,408,847 of our common shares, or the Shares,
to Neurocrine Biosciences in a private placement for an aggregate purchase price of $20.0 million, or $14.196 per share. The
purchase price represented a 20% premium to the closing price of our common shares on November 29, 2019.
The Shares are subject to lock-up restrictions, which, without prior approval of us, prohibit Neurocrine Biosciences from selling
the Shares for a period of up to two years after the effective date of the Collaboration Agreement. In addition, Neurocrine Biosciences
is, subject to certain exceptions, subject to a standstill agreement for a period of two years after the effective date of the Collaboration
Agreement. Pursuant to the standstill agreement, Neurocrine Biosciences and its affiliates will not (1) acquire, offer to acquire or
agree to acquire any of our common shares or securities convertible into common shares, other than common shares issuable to
Neurocrine Biosciences pursuant to the terms of the Collaboration Agreement; (2) make, or participate in, any solicitation of proxies
to vote any of our or our subsidiaries’ voting securities, or propose to change or control our management or board of directors by use
of any public communication to holders of securities intended for such purpose; (3) make a public proposal for a change of control; or
(4) knowingly encourage, accept, or support a tender, exchange, or offer proposal by any person, which would result in a change of
control. The Share Purchase Agreement contains certain other customary terms and conditions, including mutual representations,
warranties, and covenants.
Asset Purchase Agreement with Flexion Therapeutics, Inc.
On September 9, 2019, we entered into an asset purchase agreement with Flexion Therapeutics, Inc. pursuant to which Flexion
acquired all rights with respect to our investigational compound XEN402 and a related compound, including certain regulatory
documentation, intellectual property rights, reports, data and all quantities of XEN402 owned or controlled by us. XEN402 is a
sodium channel inhibitor that we had previously developed with our collaborator, Teva Pharmaceuticals International GmbH and its
affiliated entities. Pursuant to the terms of the agreement, Flexion also assumed certain liabilities relating to the purchased assets,
including the obligation to pay a low single-digit percentage royalty to Teva on net sales of any approved products incorporating
XEN402.
Flexion paid an upfront purchase price of $3.0 million for the purchased assets. Pursuant to the terms of the agreement, we are
eligible to receive additional payments for various CMC, development and regulatory milestones of up to $9.0 million through
initiation of a Phase 2 proof of concept clinical trial. In addition, following a successful proof of concept clinical trial, we would be
eligible to receive additional clinical development and global regulatory approval milestone payments of up to $40.75 million,
commercialization milestone payments of up to $75.0 million, as well as future royalties on sales of any approved products ranging
from mid-single to low-double digit percentages, depending on the level of worldwide net sales.
8
The agreement contains customary representations, warranties and covenants, including a covenant by us not to develop a
competing product for the treatment of post-surgical pain and a covenant by Flexion not to develop a product for the treatment of
epilepsy incorporating XEN402. Each party has agreed, subject to certain conditions and limitations, to indemnify the other party for
breaches of representations, warranties and covenants and for losses arising from certain assumed/excluded liabilities, as applicable.
Asset Purchase Agreement with 1st Order Pharmaceuticals, Inc.
In April 2017, we entered into an asset purchase agreement with 1st Order Pharmaceuticals, Inc., or 1st Order, pursuant to
which we acquired all rights with respect to XEN1101 (previously known as 1OP2198). 1st Order previously acquired 1OP2198 from
Valeant Pharmaceuticals Luxembourg S.a.r.l., an indirect subsidiary of Bausch Health Companies Inc., together with Valeant
Pharmaceuticals Ireland Limited, Bausch Health, and assumed certain obligations, including potential milestone and royalty payments.
Under the terms of the asset purchase agreement, we paid 1st Order an upfront fee of approximately $0.4 million and a $0.7 million
milestone in 2017 upon achieving a clinical development milestone.
In September 2018, we signed an agreement with Bausch Health to buy out all future milestone payments and royalties owed to
Bausch Health with respect to XEN1101, including up to $39.6 million in potential clinical development, regulatory and sales-based
milestones and a mid-to-high single digit percentage royalty on commercial sales in exchange for a one-time payment of $6.0 million.
We remain responsible for future potential payments to 1st Order of $0.5 million in clinical development milestones, up to $6.0
million in regulatory milestones for multiple indications and $1.5 million in other milestones, which may be payable pre-
commercially. There are no royalty obligations to 1st Order.
Agreements with Genentech for Selective Inhibitors of Nav1.7 and Pain Genetics
In December 2011, we entered into a collaborative research and license agreement with Genentech, a member of the Roche
Group, to discover and develop small and large molecules that selectively inhibit the Nav1.7 sodium channel and companion
diagnostics for the potential treatment of pain. Pursuant to this agreement, we granted Genentech a worldwide exclusive license to
develop and commercialize compounds directed to Nav1.7 and products incorporating such compounds for all uses. We also granted
Genentech a worldwide non-exclusive license to diagnostic products for the purpose of developing or commercializing such
compounds.
Under the terms of the agreement, Genentech paid us an upfront fee of $10.0 million, a $5.0 million milestone payment for the
selection of a compound for development and an $8.0 million milestone payment upon the approval by Health Canada of a CTA.
Genentech provided funding to us for certain of our full-time equivalents, or FTEs, performing the research collaboration plan, which
concluded in December 2016. We are eligible to receive pre-commercial and commercial milestone payments with respect to the
licensed products totaling up to an additional $613.0 million, comprised of up to $45.5 million in pre-clinical and clinical milestone
payments, up to $387.5 million in regulatory milestone payments, and up to $180.0 million in sales-based milestone payments for
multiple products and indications. In addition, we are eligible to receive royalties based on net sales of the licensed products, which
range from a mid-single-digit percentage to ten percent for small-molecule inhibitors for the timeframe that such products are covered
by the licensed patents and a low single-digit percentage thereafter until the date that is ten years after first commercial sale on a
country-by-country basis, plus a low single-digit percentage for large molecule inhibitors of Nav1.7 for a period of ten years from first
commercial sale on a country-by-country basis. Our pre-commercial and commercial milestone payments and royalties may be subject
to reductions based on the period in which the compound that is selected for development and commercialization was initially
conceived.
Our agreement with Genentech expires on the date of the expiration of all payment obligations to us under the agreement.
Genentech may terminate the agreement with three months advance notice anytime on or after the third anniversary of the effective
date of the agreement, and each party may terminate the agreement in the event of a material breach by the other party that remains
uncured after 90 days. In the event that Genentech terminates the agreement due to our breach, Genentech retains its licenses and its
payment obligations to us are reduced. In the event that we terminate the agreement due to Genentech’s breach, the rights and licenses
granted to Genentech revert back to us, subject to certain rights to make and use certain large-molecule product candidates that are
retained by Genentech, and Genentech is obligated to assign certain regulatory approvals and grant certain licenses to us to enable us
to develop and commercialize certain terminated products outside of the collaboration.
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Our collaborative research and license agreement with Genentech has been amended multiple times, in May 2015, November
2015, March 2016, May 2017, July 2018 and September 2018, to either extend the term of the research program or to provide us with
greater flexibility in developing compounds that target Nav1.6. Pursuant to the current amendment, we have obtained a non-exclusive,
irrevocable, perpetual, world-wide, sublicensable license under the know-how forming part of the Genentech intellectual property
developed under the Nav1.7 collaboration that is necessary or useful to make, use, sell, offer for sale, and import compounds from our
Nav1.6 program that are above a certain potency on Nav1.7 and were conceived prior to a certain date and products containing those
compounds. Our license from Genentech includes commercialization rights but we are restricted from developing or commercializing
our Nav1.6 compounds below a certain potency on Nav1.7 and conceived prior to a certain date in the field of epilepsy and any of our
Nav1.6 compounds conceived prior to a certain date, regardless of their potency on Nav1.7, in the field of pain. In exchange for the
rights granted to us under this amendment, Genentech is eligible to receive a low single-digit percentage, tiered royalty on net sales of
our Nav1.6 compounds conceived prior to a certain date, including XEN901 (now known as NBI-921352), for a period of ten years
from first commercial sale on a country-by-country basis. In accordance with our license and collaboration agreement with Neurocrine
Biosciences, we remain solely responsible for all payments to Genentech with respect to certain Nav1.6 compounds, including NBI-
921352, licensed to Neurocrine Biosciences. Pursuant to the amendment, we granted Genentech a royalty-free, non-exclusive, world-
wide license under our Nav1.6 intellectual property to make, use, sell, offer for sale and import compounds below a certain potency on
Nav1.7 and products containing those compounds for all uses and indications except epilepsy.
In March 2014, we entered into an additional agreement with Genentech for pain genetics, which focused on identifying genetic
targets associated with rare phenotypes where individuals have an inability to perceive pain or where individuals have non-
precipitated spontaneous severe pain. Pursuant to the terms of this agreement, any intellectual property arising out of the collaboration
will be jointly owned by us and Genentech. We also granted Genentech a time-limited, exclusive right of first negotiation on a target-
by-target basis to form joint drug discovery collaborations. Under the terms of this agreement, Genentech paid us an upfront payment
of $1.5 million and two $0.25 million milestone payments related to the identification of novel pain targets in September 2015 and
July 2017. Genentech’s time-limited, exclusive right of first negotiation, which was exercisable throughout the research term, expired
at the same time as the agreement in March 2018. Despite such termination, we remain eligible for up to an additional $1.5 million in
milestone payments.
Agreement with Merck & Co., Inc. for Cardiovascular Disease
In June 2009, we entered into an exclusive collaborative research and option agreement with Merck & Co., Inc., or Merck,
pursuant to which the parties conducted a research program to discover and develop novel small-molecule candidates for the potential
treatment of cardiovascular disease. Merck provided payments to us for our FTEs who performed our activities pursuant to the
research program conducted under the Merck agreement. The Merck collaborative research program ended in December 2012.
Under the terms of the agreement, Merck had the option to obtain an exclusive license under certain intellectual property
controlled by us to develop and commercialize compounds and products directed to targets in the research program, which has now
expired. In June 2012, Merck exercised its option and paid us $2.0 million to obtain such a worldwide exclusive license to develop
and commercialize compound inhibitors of a target that was identified using our discovery platform. Through December 31, 2018, we
have received milestone payments and an option fee totaling $9.0 million, and we are eligible for further research, development and
regulatory milestone payments of up to $64.0 million, comprised of $21.0 million in pre-clinical and clinical milestone payments and
up to $43.0 million in regulatory milestone payments for products directed to the licensed target, as well as royalties from the mid to
high single-digit range in countries where such products are covered by a valid composition or method of use claim of a Xenon or
Merck patent or, if not covered by such claims, royalties in the mid-single-digit range for ten years after first commercial sale of such
products.
We have an option to co-fund the Phase 1 and first Phase 2 clinical trials of product candidates licensed by Merck by paying
Merck 50% of such development costs. Such co-funding option is available at the IND-filing stage for the applicable product
candidate. If we exercise our co-funding option then the maximum eligible milestone amounts due to us increase to $86.5 million and
the royalties increase to the high single-digit to the low double-digit range.
Our agreement with Merck expires on the date of the expiration of all royalty payment obligations to us under the agreement.
Merck has the right to terminate the agreement upon providing certain notices to us. Each party may terminate the agreement in the
event of a material breach by the other party that remains uncured for 90 days after notice of such breach. In the event that Merck
terminates the agreement due to our breach, the licenses granted to Merck survive and becomes fully paid up. In the event that we
terminate the agreement due to Merck’s breach, the licenses granted to Merck terminate.
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Termination Agreement with Teva Pharmaceuticals International GmbH and Teva Canada Limited
On March 7, 2018, we and Teva Pharmaceuticals International GmbH and Teva Canada Limited, or together Teva, entered into
a termination agreement terminating by mutual agreement the collaborative development and license agreement dated December 7,
2012, as amended, which subsequently closed on March 27, 2018. In connection with the termination, Teva returned and we cancelled
1,000,000 of our common shares that were owned by Teva. Pursuant to the terms of the termination agreement, Teva has also
returned, licensed or assigned to us certain intellectual property, including certain patent rights and transferred regulatory filings
related to TV-45070. The termination agreement requires us to pay a low single digit percentage royalty to Teva based on net sales of
approved products, if any, resulting from any continued development and commercialization of TV-45070 by us or a sublicensee
during the period that assigned or licensed patents cover such products. Pursuant to the terms of the asset purchase agreement with
Flexion, certain future potential obligations relating to the purchased assets were assumed by Flexion, including the obligation to pay a
low single-digit percentage royalty to Teva on net sales of any approved products incorporating XEN402. To date, no such sales have
occurred.
Intellectual Property
As part of our business strategy, we generally file patent applications disclosing and claiming drug targets and their novel uses,
novel compositions that modulate such targets, methods of making and using such compositions and various therapeutic formulations
of such compositions that cover our product candidates. In some cases, we also file claims on screening assays as well as compositions
and methods for use in diagnosing certain diseases. We generally file applications in the U.S., Canada, the European Union, or EU,
and other commercially significant foreign jurisdictions. We also rely on trade secrets, internal know-how, technological innovations
and agreements with third parties to develop, maintain and protect our competitive position. Our ability to be competitive will depend
on the success of this strategy.
As of December 31, 2019, we owned, co-owned or licensed approximately 26 issued U.S. patents and approximately 23 pending
U.S. patent applications, including provisional and non-provisional filings. We also owned, co-owned or licensed approximately 157
additional pending and granted counterpart applications worldwide, including approximately 19 total country-specific validations for
three European patents.
As of December 31, 2019, we owned two issued U.S. patents, one pending U.S. non-provisional patent application and four U.S.
provisional patent applications related to XEN1101, and methods of making and using XEN1101 and certain related compounds. The
issued patents are expected to expire between 2028 and 2029 (absent any extensions of term). In addition, we have approximately 14
foreign issued patents (exclusive of European patent national validations), one pending PCT international application, and
approximately five pending corresponding applications in various foreign jurisdictions relating to XEN1101 and certain related
compounds.
As of December 31, 2019, we have filed one U.S. provisional patent application directed to XEN496 (i.e., our pediatric
formulation of ezogabine), a genus of related formulations, and methods of making and using the same. Any patents issuing from this
application are expected to expire in 2040 (absent any adjustments or extensions of term).
As of December 31, 2019, we owned one U.S. patent and one pending U.S. patent application directed to XEN901 and methods
of making and using XEN901 and certain related compounds. Any patents issuing from these applications are expected to expire in
2037 (absent any extensions of term). In addition, we have approximately 20 pending corresponding applications in various foreign
jurisdictions relating to XEN901 and certain related compounds. Pursuant to our collaboration with Neurocrine Biosciences,
Neurocrine Biosciences will oversee the prosecution, maintenance and other matters relating to the patent portfolio for XEN901 (now
known as NBI-921352) and the other selective Nav1.6 inhibitors and dual Nav1.2/1.6 inhibitors.
As of December 31, 2019, we have filed four U.S. non-provisional patent applications, three PCT international applications, and
approximately 20 pending corresponding applications in various foreign jurisdictions directed to certain of our selective inhibitors of
Nav1.6 and/or Nav1.2 (exclusive of XEN901), as well as methods of making and using the same. Any patents issuing from these
applications are expected to expire between 2037 and 2039 (absent any adjustments or extensions of term).
As of December 31, 2019, we, together with Genentech, a member of the Roche group, co-owned approximately seven issued
U.S. patents, approximately nine pending U.S. patent applications, four foreign issued patents (exclusive of European patent national
validations) and have filed approximately 67 pending counterpart patent applications in various jurisdictions directed to Nav1.7
inhibitors, as well as methods of making and using the same. The issued patents, as well as any patents issuing from these applications
are expected to expire between 2034 and 2037 (absent any adjustments or extensions of term).
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Competition
The biotechnology and pharmaceutical industries are highly competitive and are characterized by rapidly advancing
technologies and a strong emphasis on proprietary products. While we believe that our technology, development experience, scientific
knowledge and drug discovery approach provide us with certain advantages, we face potential competition in our discovery and
product development efforts from many different approaches and sources, including pharmaceutical and biotechnology companies,
academic institutions and governmental agencies and public and private research institutions. Any product candidates or products that
we or our collaborators successfully develop and commercialize will compete with existing products and new products that may
become available in the future.
Many of the companies against which we are competing or against which we may compete in the future have significantly
greater financial resources and expertise in research and development, manufacturing, pre-clinical testing, conducting clinical trials,
obtaining regulatory approvals and marketing approved products than we, or our collaborators, do. Mergers and acquisitions in the
pharmaceutical and biotechnology industries may result in even more resources being concentrated among a smaller number of our
competitors. Smaller or early stage companies may also prove to be significant competitors, particularly through collaboration
arrangements with large and established companies.
Our commercial opportunities could be reduced or eliminated if our competitors develop and commercialize products or
therapies that are safer, more effective, have fewer or less severe side effects, are more convenient or are less expensive than any
products that we may develop. Our competitors also may obtain FDA, European Medicines Agency, or EMA, Health Canada or other
regulatory approval for their products more rapidly than we may obtain approval for ours, which could result in our competitors
establishing a strong market position before we are able to enter the market. In addition, our ability to compete may be affected in
many cases by insurers or other third party payers.
Aside from the product marketplace, our competitors also compete with us in recruiting and retaining qualified scientific and
management personnel, establishing clinical trial sites, recruiting patients for clinical trials, and by acquiring technologies
complementary to, or necessary for, our programs.
The key competitive factors affecting the success of all of our product candidates, if approved, are likely to be their efficacy,
safety, convenience, price, the effectiveness of alternative products, the level of competition and the availability of coverage, and
adequate reimbursement from government and other third party payers. Our product candidates that are in clinical development may
compete with various therapies and drugs, both in the marketplace and currently under development.
Anti-Seizure Medications, or ASMs, for the Treatment of Epilepsy
If more than one of our proprietary or partnered products were approved for the treatment of epilepsy, we anticipate that they
could potentially compete with one another and other ASMs. Commonly used ASMs, among others, include phenytoin, levetiracetam,
brivaracetam, cenobamate, carbamazepine, clobazam, lamotrigine, valproate, oxcarbazepine, topiramate, lacosamide, perampanel and
cannabidiol. There are currently no FDA-approved treatments specifically indicated for the early infantile epileptic encephalopathies
KCNQ2-DEE or SCN8A-DEE; however, a number of different ASMs are currently used in these patient populations. We are not
aware of other companies that are developing selective Nav1.6 inhibitors for the treatment of epilepsy. There are other ASMs in
development that could potentially compete with our products, including products in development from Eisai Co., Ltd., Insys
Therapeutics Inc., Knopp Biosciences LLC, Marinus Pharmaceuticals, Inc., Ovid Therapeutics Inc., Praxis Bioresearch, Sage
Therapeutics, SK Life Science, Inc., Sunovion Pharmaceuticals Inc., Supernus Pharmaceuticals Inc., Takeda Pharmaceutical Company
Ltd., UCB, Inc., Upsher-Smith Laboratories, Inc., and Zogenix, Inc.
Selective Inhibitors of Nav1.7 for the Treatment of Pain
Drug discovery and development for various pain applications is intensely competitive. There are a large number of approved
products for neuropathic pain, inflammatory pain and other pain indications. These approved products include capsaicin, celecoxib,
lidocaine, narcotic analgesics, gabapentin, and pregabalin. We are also aware of development programs at several pharmaceutical and
biotechnology companies that are developing Nav1.7 inhibitors or other sodium channel inhibitors for the treatment of pain, including
Amgen Inc., AstraZeneca PLC, Biogen Inc., Bristol-Myers Squibb Company, Chromocell Corporation in collaboration with its
partner Astellas Pharma Inc., Dainippon Sumitomo Co., Ltd., Eli Lilly and Company, H. Lundbeck A/S, Merck, NeuroQuest Inc.,
Newron Pharmaceuticals SpA, Vertex Pharmaceuticals Inc., Voyager Therapeutics, Inc. Moreover, we are aware of various other
product candidates in development that target other mechanisms of action to treat various pain indications, including calcium channel
inhibitors, nerve growth factor inhibitors, and Nav1.8 inhibitors.
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Government Regulation
We are developing small-molecule product candidates, which are regulated as drugs by the FDA and equivalent regulatory
authorities outside the U.S. Within the FDA, the Center for Drug Evaluation and Research, or CDER, regulates drugs. Drugs are
subject to regulation under the Federal Food, Drug, and Cosmetic Act, or FD&C Act, and other federal, provincial, state, local and
foreign statutes and regulations. The FD&C Act and corresponding regulations govern, among other things, the testing,
manufacturing, safety, efficacy, labeling, packaging, storage, record keeping, distribution, import, export, reporting, advertising and
other promotional practices involving drugs. FDA approval of an IND application must be obtained before clinical testing of drugs is
initiated, and each clinical study protocol for such product candidates is reviewed by the FDA and IRB prior to initiation in the U.S.
FDA approval also must be obtained before marketing of drugs in the U.S. The process of obtaining regulatory approvals and the
subsequent compliance with appropriate federal, provincial, state, local and foreign statutes and regulations require the expenditure of
substantial time and financial resources and we may not be able to obtain the required regulatory approvals.
U.S. Drug Development Process
The process required by the FDA before a drug product may be marketed in the U.S. generally involves the following:
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completion of nonclinical laboratory tests and animal studies according to good laboratory practices, or GLPs, and
applicable requirements for the humane use of laboratory animals or other applicable regulations;
submission to the FDA of an application for an IND, which must become effective before human clinical studies may begin;
performance of adequate and well-controlled human clinical studies according to the FDA’s regulations commonly referred
to as good clinical practices, or GCPs, and any additional requirements for the protection of human research subjects and
their health information, to establish the safety and efficacy of the proposed product for its intended use;
submission to the FDA of an NDA for drug products for marketing approval that includes substantial evidence of safety and
efficacy based on large scale phase 3 clinical studies;
satisfactory completion of an FDA inspection of the manufacturing facility or facilities where the product is produced to
assess compliance with good manufacturing practices, or GMP, to assure that the facilities, methods and controls are
adequate to consistently manufacture the product pursuant to regulatory requirements;
potential FDA audit of the nonclinical and clinical study sites that generated the data in support of the NDA; and
FDA review and approval of the NDA.
Human clinical studies are typically conducted in three sequential phases that may overlap or be combined:
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Phase 1. The drug is initially introduced into healthy human subjects and tested for safety. In the case of some products for
severe or life-threatening diseases, especially when the product may be too inherently toxic to ethically administer to
healthy volunteers, the initial human testing is often conducted in patients that have the condition or disease being studied.
Phase 2. The drug is evaluated in a limited patient population to identify possible adverse effects and safety risks, to
preliminarily evaluate the efficacy of the product for specific targeted diseases and to determine a dose range and dosing
schedule.
Phase 3. Clinical studies are undertaken to further evaluate dosing and dosing schedule, clinical efficacy, and safety in an
expanded patient population at geographically dispersed clinical study sites. These clinical studies are intended to establish
the overall risk/benefit ratio of the product and provide an adequate basis for product labeling.
Post-approval clinical studies, sometimes referred to as Phase 4 clinical studies, may be conducted after initial marketing
approval. These clinical studies are used to gain additional experience from the treatment of patients in the intended therapeutic
indication, particularly for long-term safety follow-up. During all phases of clinical development, regulatory agencies require
extensive monitoring and auditing of all clinical activities, clinical data, and clinical study investigators.
Concurrent with clinical studies, companies usually complete additional animal studies and must also develop additional
information about the physical characteristics of the drug as well as finalize a process for manufacturing the product in commercial
quantities in accordance with GMP requirements. The manufacturing process must be capable of consistently producing quality
batches of the product candidate and, among other requirements, the sponsor must develop methods for ensuring the quality, identity,
strength, and purity of the final drug. Additionally, appropriate packaging must be selected and tested and stability studies must be
conducted to demonstrate that the drug candidate does not undergo unacceptable deterioration over its labeled shelf life.
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U.S. Review and Approval Processes
After the completion of clinical studies of a drug, FDA approval of an NDA must be obtained before commercial marketing of
the drug. The NDA must include results of product development, laboratory and animal studies, human studies, information on the
manufacture and composition of the product, proposed labeling and other relevant information. In addition, under the Pediatric
Research Equity Act, or PREA, an NDA or supplement to an NDA must contain data to assess the safety and effectiveness of the
product for the claimed indications in all relevant pediatric subpopulations and to support dosing and administration for each pediatric
subpopulation for which the product is safe and effective. The FDA may grant deferrals for submission of data or full or partial
waivers. Unless otherwise required by regulation, PREA does not apply to any drug for an indication for which orphan designation has
been granted. The testing and approval processes require substantial time and effort and there can be no assurance that the FDA will
accept the NDA for filing and, even if filed, that any approval will be granted on a timely basis, if at all.
Under the Prescription Drug User Fee Act, or PDUFA, as amended, each NDA must be accompanied by a substantial user fee.
PDUFA also imposes an annual product fee for drugs and an annual establishment fee on facilities used to manufacture prescription
drugs. Fee waivers or reductions are available in certain circumstances, including a waiver of the application fee for the first
application filed by a small business. Additionally, no user fees are assessed on NDAs for products designated as orphan drugs, unless
the product also includes a non-orphan indication.
Within 60 days following submission of the application, the FDA reviews the NDA to determine if it is substantially complete
before the agency accepts it for filing. The FDA may refuse to file any marketing application that it deems incomplete or not properly
reviewable at the time of submission and may request additional information, including additional clinical data. 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 the submission is accepted for filing, the FDA begins an in-depth substantive review of the NDA. The FDA reviews
the application to determine, among other things, whether the proposed product is safe and effective for its intended use, and whether
the product is being manufactured in accordance with GMPs. The FDA may refer applications for novel products or products that
present difficult questions of safety or efficacy to an advisory committee, typically a panel that includes clinicians and other experts,
for review, evaluation and 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. During the product approval process, the FDA also will determine whether a Risk Evaluation and Mitigation Strategy, or
REMS, is necessary to assure the safe use of the product. If the FDA concludes a REMS is needed, the sponsor of the NDA must
submit a proposed REMS; the FDA will not approve the application without a REMS, if required.
Notwithstanding the submission of relevant data and information, the FDA may ultimately decide that the NDA does not satisfy
its regulatory criteria for approval and deny approval. Data obtained from clinical studies are not always conclusive and the FDA may
interpret data differently than we interpret the same data. If the agency decides not to approve the marketing application, the FDA will
issue a Complete Response letter that usually describes all of the specific deficiencies in the application identified by the FDA. The
deficiencies identified may be minor, for example, requiring labeling changes, or major, for example, requiring additional clinical
studies. Additionally, the Complete Response letter may include recommended actions that the applicant might take to place the
application in a condition for approval. If a Complete Response letter is issued, the applicant may either resubmit the NDA, addressing
all of the deficiencies identified in the letter, or withdraw the application.
If a product receives regulatory approval, the approval will be limited to the specific diseases and dosages studied in clinical
trials or the indications for use may otherwise be limited, which could restrict the commercial value of the product. Further, the FDA
may require that certain contraindications, warnings or precautions be included in the product labeling. The FDA may impose
restrictions and conditions on product distribution, prescribing, or dispensing pursuant to a REMS request, or otherwise limit the scope
of any approval.
One of the performance goals agreed to by the FDA under the PDUFA is to complete its review of 90% of standard new
molecular entity, or NME, NDAs within ten months from the filing date and 90% of priority NME NDAs within six months from the
filing date, whereupon a review decision is to be made. The FDA does not always meet its PDUFA goal dates and its review goals are
subject to change from time to time. The review process and the PDUFA goal date may be extended by three months if the FDA
requests or the application sponsor otherwise provides additional information or clarification regarding information already provided
in the submission within the last three months before the PDUFA goal date.
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Fast Track Designation
The FDA has various programs, including Fast Track, which are intended to expedite the process for the development and
review of drugs. Even if a drug qualifies for one or more of these programs, the FDA may later decide that the drug no longer meets
the conditions for qualification. Generally, drugs that are eligible for these programs are those for serious or life-threatening
conditions, those with the potential to address unmet medical needs, and those that offer meaningful benefits over existing treatments.
For example, Fast Track is a process designed to expedite the FDA’s review of drugs that treat serious or life-threatening diseases or
conditions and fill unmet medical needs. Under the Fast Track process, drugs that offer major advances in treatment or provide a
treatment where no adequate therapy exists, may also receive priority review by the FDA, or review within six months of the filing of
an NDA compared to a traditional review time of ten months. Although Fast Track and priority review do not affect the standards for
approval of a drug, and may not result in a faster approval, if approval is granted, for Fast Track designated drugs, the FDA will also
attempt to facilitate early and frequent meetings with a sponsor of a Fast Track designated drug, to expedite such drug’s review and
development.
Orphan Drug Designation
Under the Orphan Drug Act, the FDA may grant orphan designation to a drug intended to treat a rare disease or condition,
which is generally a disease or condition that affects fewer than 200,000 individuals in the U.S., or more than 200,000 individuals in
the U.S. and for which there is no reasonable expectation that the cost of developing and making a drug available in the U.S. for this
type of disease or condition will be recovered from sales of the product. XEN007 (active ingredient flunarizine), a drug we are
evaluating for potential development in HM or AHC, has received orphan drug designation from the FDA for each indication. We
have also received orphan drug designation from the FDA for XEN496 (active ingredient ezogabine), a drug we intend to begin Phase
3 development for the treatment of KCNQ2-DEE in 2020. Orphan product designation must be requested before submitting an NDA.
After the FDA grants orphan product designation, the identity of the therapeutic agent and its potential orphan use are disclosed
publicly by the FDA. Orphan product designation does not convey any advantage in or shorten the duration of the regulatory review
and approval process.
Orphan drug products may also be eligible for RPD designation if greater than 50% of patients living with the disease are under
age 19 and the condition affects fewer than 200,000 individuals in the U.S. A priority review voucher will be given to the sponsor of a
product with an RPD designation at the time of product approval that is transferable to another company. We have received RPD
designation from the FDA for XEN007 for the treatment of AHC. There is no assurance we will receive a RPD priority review
voucher or that it will result in a faster development process, review or approval for a subsequent marketing application. Further, it is
possible that even if we obtain approval for XEN007 and qualify for such a priority review voucher, the program may no longer be in
effect at the time of approval. Although priority review vouchers may be sold or transferred to third parties, there is no guaranty that
we will be able to realize any value if we were to sell a priority review voucher.
If a product that has orphan designation subsequently receives the first FDA approval for such drug for the disease or condition
for which it has such designation, the product is entitled to orphan product exclusivity, which means that the FDA may not approve
any other applications to market the same drug for the same indication for seven years, except in limited circumstances, such as a
showing of clinical superiority to the product with orphan exclusivity. Competitors, however, may receive approval of different
products for the same indication for which the orphan product has exclusivity or obtain approval for the same product but for a
different indication for which the orphan product has exclusivity. Orphan product exclusivity also could block the approval of one of
our products for seven years if a competitor obtains approval of the same product for the same orphan indication as defined by the
FDA, or if our product candidate is determined to be contained within the competitor’s product for the same orphan indication or
disease. If a drug designated as an orphan product receives marketing approval for an indication broader than what is designated, it
may not be entitled to orphan product exclusivity. Orphan drug status in the EU has similar, but not identical, benefits, including up to
ten years of exclusivity.
Post-Approval Requirements
Rigorous and extensive FDA regulation of drug continues after approval, particularly with respect to GMP. We will rely, and
expect to continue to rely, on third parties for the production of clinical and commercial quantities of any products that we may
commercialize. Manufacturers of our products are required to comply with applicable requirements in the GMP regulations, including
quality control and quality assurance and maintenance of records and documentation. Other post-approval requirements applicable to
drug manufacturers, include reporting of GMP deviations that may affect the safety, efficacy or quality of a distributed product,
record-keeping requirements, reporting of adverse effects, reporting updated safety and efficacy information, and complying with
electronic record and signature requirements.
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We also must comply with the FDA’s advertising and promotion requirements, such as those related to direct-to-consumer
advertising, the prohibition on promoting products for uses or in patient populations that are not described in or are otherwise
inconsistent with the product’s approved labeling (known as “off-label use”), and industry-sponsored scientific and educational
activities. Discovery of previously unknown problems or the failure to comply with the applicable regulatory requirements may result
in restrictions on the marketing of a product or withdrawal of the product from the market as well as possible civil or criminal
sanctions. Failure to comply with the applicable U.S. requirements at any time during the product development process, approval
process or after approval, may subject an applicant or manufacturer to administrative or judicial civil or criminal sanctions and adverse
publicity. FDA sanctions could include refusal to approve pending applications, withdrawal of an approval, clinical hold, warning or
untitled letters, product recalls, product seizures, total or partial suspension of production or distribution, injunctions, fines, refusals of
government contracts, mandated corrective advertising or communications with doctors, debarment, restitution, disgorgement of
profits, or civil or criminal penalties. Any agency or judicial enforcement action could have a material adverse effect on us.
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 GMPs and other laws. Accordingly, manufacturers must continue to expend time, money,
and effort in the area of production and quality control to maintain GMP compliance. Discovery of problems with a product after
approval may result in restrictions on a product, manufacturer, or holder of an approved NDA, including withdrawal of the product
from the market. In addition, changes to the manufacturing process or facility generally require prior FDA approval before being
implemented and other types of changes to the approved product, such as adding new indications and additional labeling claims, are
also subject to further FDA review and approval.
U.S. Patent Term Restoration and Marketing Exclusivity
Depending upon the timing, duration and specifics of the FDA approval of the use of our product candidates, some of our U.S.
patents may be eligible for limited patent term extension under the Drug Price Competition and Patent Term Restoration Act of 1984,
commonly referred to as the Hatch-Waxman Amendments. The Hatch-Waxman Amendments permit a patent restoration term of up to
five years as compensation for patent term lost during product development and the FDA regulatory review process. However, patent
term restoration cannot extend the remaining term of a patent beyond a total of 14 years from the product’s approval date. Only one
patent applicable to an approved product is eligible for the extension and the application for the extension must be submitted prior to
the expiration of the patent. The U.S. Patent and Trademark Office, in consultation with the FDA, reviews and approves the
application for any patent term extension or restoration.
Under the Hatch-Waxman Amendments, a drug product containing a new chemical entity as its active ingredient is entitled to
five years of market exclusivity, and a product whose active ingredient was previously FDA approved, and for which the sponsor is
required to generate new clinical data is entitled to three years of market exclusivity. A drug can also obtain pediatric market
exclusivity in the U.S. and, if granted, adds six months to existing exclusivity periods and patent terms. This six-month exclusivity,
which runs from the end of other exclusivity protection or patent term, may be granted based on the timely, voluntary, and as-agreed
upon completion of a pediatric study in accordance with an FDA-issued “Written Request” for such a study.
Additional Regulation
In addition to the foregoing, provincial, state and federal U.S. and Canadian laws regarding environmental protection and
hazardous substances affect our business. These and other laws govern our use, handling and disposal of various biological, chemical
and radioactive substances used in, and wastes generated by, our operations. If our operations result in contamination of the
environment or expose individuals to hazardous substances, we could be liable for damages and governmental fines. We believe that
we are in material compliance with applicable environmental laws and that continued compliance therewith will not have a material
adverse effect on our business. We cannot predict, however, how changes in these laws may affect our future operations.
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Global Anti-Corruption Laws
The U.S. Foreign Corrupt Practices Act and the Canadian Corruption of Foreign Public Officials Act, the U.S. Travel Act, the
OECD Anti-Bribery Convention, Title 18 United States Code section 201, and any other applicable domestic or foreign anti-
corruption or anti-bribery laws to which we are subject prohibit corporations and individuals from engaging in certain activities to
obtain or retain business or to influence a person working in an official capacity. It is illegal to pay, offer to pay or authorize the
payment of anything of value to any foreign government official, government staff member, political party or political candidate in an
attempt to obtain or retain business or to otherwise influence a person working in an official capacity. We may also be held liable for
the acts of our third party agents under the U.S. Foreign Corrupt Practices Act, Canadian Corruption of Foreign Public Officials Act,
and other applicable anti-corruption and anti-bribery laws. Noncompliance with these laws could subject us to investigations,
sanctions, settlements, prosecution, other enforcement actions, disgorgement of profits, significant fines, damages, other civil and
criminal penalties or injunctions, suspension or debarment from contracting with certain persons, the loss of export privileges,
whistleblower complaints, reputational harm, adverse media coverage, and other collateral consequences. Any investigations, actions
or sanctions or other previously mentioned harm could have a material negative effect on our business, operating results and financial
condition.
Government Regulation Outside of the U.S.
In addition to regulations in the U.S., we will be subject to a variety of regulations in other jurisdictions governing, among other
things, research, development, testing, manufacture, quality control, approval, labeling, packaging, storage, record-keeping,
promotion, advertising, distribution, post-approval monitoring and reporting, marketing and export and import of drugs, and
reimbursement requirements. Generally, before a new drug can be marketed, considerable data demonstrating its quality, safety and
efficacy must be obtained, organized into a format specific for each regulatory authority, submitted for review and approved by the
regulatory authority. Whether or not we obtain FDA approval for a product, we must obtain the requisite approvals from regulatory
authorities in foreign countries prior to the commencement of clinical studies or marketing of the product in those countries. Certain
countries outside of the U.S. have a similar process that requires the submission of a clinical study application much like the IND prior
to the commencement of human clinical studies. In the EU, for example, a CTA must be submitted to each country’s national health
authority and an independent ethics committee, much like the FDA and the IRB, respectively. Once the CTA is approved in
accordance with a country’s requirements, clinical study development may proceed. Similar requirements regarding a CTA and ethics
approval exist in Canada.
The requirements and process governing the conduct of clinical studies, product licensing, coverage, pricing and reimbursement
vary from country to country. In all cases, the clinical studies are conducted in accordance with GCP and the applicable regulatory
requirements and the ethical principles that have their origin in the Declaration of Helsinki. The EU clinical trials legislation currently
is undergoing a transition process mainly aimed at harmonizing and streamlining clinical-trial authorization, simplifying adverse-event
reporting procedures, improving the supervision of clinical trials and increasing their transparency. Recently enacted Clinical Trials
Regulation EU No 536/2014 is intended to ensure that the rules for conducting clinical trials in the EU are identical; however, it has
not yet been fully implemented.
To obtain regulatory approval of an investigational drug under EU regulatory systems, we must submit a marketing
authorization application, or MAA. The application used to file the NDA in the U.S. is similar to that required in the EU, with the
exception of, among other things, country-specific document requirements. Reimbursement approval for the drug by regulatory
authorities is also required before a drug may be commercialized. The EU also provides opportunities for market exclusivity. For
example, in the EU, upon receiving marketing authorization, new chemical entities generally receive eight years of data exclusivity
and an additional two years of market exclusivity. If granted, data exclusivity prevents regulatory authorities in the EU from
referencing the innovator’s data to assess a generic application. During the additional two-year period of market exclusivity, a generic
marketing authorization can be submitted, and the innovator’s data may be referenced, but no generic product can be marketed until
the expiration of the market exclusivity. However, there is no guarantee that a product will be considered by the EU’s regulatory
authorities to be a new chemical entity, and products may not qualify for data exclusivity. Products receiving orphan designation in the
EU can receive ten years of market exclusivity, during which time no similar medicinal product for the same indication may be placed
on the market. An orphan product can also obtain an additional two years of market exclusivity in the EU for pediatric studies. No
extension to any supplementary protection certificate can be granted on the basis of pediatric studies for orphan indications.
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The criteria for designating an “orphan medicinal product” in the EU are similar in principle to those in the U.S. Under Article 3
of Regulation (EC) 141/2000, a medicinal product may be designated as orphan if (1) it is intended for the diagnosis, prevention or
treatment of a life-threatening or chronically debilitating condition; (2) either (a) such condition affects no more than five in 10,000
persons in the EU when the application is made, or (b) the product, without the benefits derived from orphan status, would not
generate sufficient return in the EU to justify investment; and (3) there exists no satisfactory method of diagnosis, prevention or
treatment of such condition authorized for marketing in the EU, or if such a method exists, the product will be of significant benefit to
those affected by the condition, as defined in Regulation (EC) 847/2000. Orphan medicinal products are eligible for financial
incentives such as reduction of fees or fee waivers and are, upon grant of a marketing authorization, entitled to ten years of market
exclusivity for the approved therapeutic indication. The application for orphan drug designation must be submitted before the
application for marketing authorization. The applicant will receive a fee reduction for the marketing authorization application if the
orphan drug designation has been granted, but not if the designation is still pending at the time the marketing authorization is
submitted. Orphan drug designation does not convey any advantage in, or shorten the duration of, the regulatory review and approval
process.
The 10-year market exclusivity may be reduced to six years if, at the end of the fifth year, it is established that the product no
longer meets the criteria for orphan designation, for example, if the product is sufficiently profitable not to justify maintenance of
market exclusivity. Additionally, marketing authorization may be granted to a similar product for the same indication at any time if:
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the second applicant can establish that its product, although similar, is safer, more effective or otherwise clinically superior;
the applicant consents to a second orphan medicinal product application; or
the applicant cannot supply enough orphan medicinal product.
For other countries outside of the EU, such as Canada and countries in Eastern Europe, Latin America or Asia, the requirements
governing the conduct of clinical studies, product and establishment licensing, coverage, data protection, pricing and reimbursement
vary from country to country. In all cases, again, the clinical studies are conducted in accordance with GCP and the applicable
regulatory requirements and the ethical principles that have their origin in the Declaration of Helsinki.
If we fail to comply with applicable foreign regulatory requirements, we may be subject to, among other things, fines,
suspension or withdrawal of regulatory approvals, product recalls, inability to import or export, seizure of products, operating
restrictions and criminal prosecution.
Pharmaceutical Coverage, Pricing and Reimbursement
Significant uncertainty exists as to the coverage and reimbursement status of any product candidates for which we obtain
regulatory approval. In the U.S. and markets in other countries, sales of any products for which we receive regulatory approval for
commercial sale will depend, in part, on the availability of coverage and adequate reimbursement from third-party payers. Third-party
payers include government programs such as Medicare or Medicaid, managed care plans, private health insurers, and other
organizations. These third-party payers may deny coverage or reimbursement for a product or therapy in whole or in part if they
determine that the product or therapy was not medically appropriate or necessary. Third-party payers may attempt to control costs by
limiting coverage to specific drug products on an approved list, or formulary, which might not include all of the FDA-approved drug
products for a particular indication, and by limiting the amount of reimbursement for particular procedures or drug treatments.
The cost of pharmaceuticals continues to generate substantial governmental and third party payer interest. We expect that the
pharmaceutical industry will experience pricing pressures due to the trend toward managed healthcare, the increasing influence of
managed care organizations and additional legislative proposals. Third-party payers are increasingly challenging the price and
examining the medical necessity and cost-effectiveness of medical products and services, in addition to their safety and efficacy. We
may need to conduct expensive pharmacoeconomic studies in order to demonstrate the medical necessity and cost-effectiveness of our
products, in addition to the costs required to obtain the FDA approvals. Our product candidates may not be considered medically
necessary or cost-effective. A payer’s decision to provide coverage for a drug product does not imply that an adequate reimbursement
rate will be approved. Adequate third-party reimbursement may not be available to enable us to maintain price levels sufficient to
realize an appropriate return on our investment in product development.
Some third-party payers also require pre-approval or prior authorization of coverage for new or innovative drug therapies before
they will reimburse healthcare providers who prescribe such therapies or patients who use such prescription drugs. While we cannot
predict whether any proposed cost-containment measures will be adopted or otherwise implemented in the future, these requirements
or any announcement or adoption of such proposals could have a material adverse effect on our ability to obtain adequate prices for
our product candidates and to operate profitably.
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In international markets, reimbursement and healthcare payment systems vary significantly by country, and many countries have
instituted price ceilings on specific products and therapies. There can be no assurance that our products will be considered medically
reasonable and necessary for a specific indication, that our products will be considered cost-effective by third-party payers, that
coverage or an adequate level of reimbursement will be available or that the third-party payers’ reimbursement policies will not
adversely affect our ability to sell our products profitably.
In addition, in many foreign countries, the proposed pricing for a drug must be approved before it may be lawfully marketed.
The requirements governing drug pricing and reimbursement vary widely from country to country. For example, the EU provides
options for its member states to restrict the range of medicinal products for which their national health insurance systems provide
reimbursement and to control the prices of medicinal products for human use. A member state may approve a specific price for the
medicinal product or it may instead adopt a system of direct or indirect controls on the profitability of the company placing the
medicinal product on the market. There can be no assurance that any country that has price controls or reimbursement limitations for
pharmaceutical products will allow favorable reimbursement and pricing arrangements for any of our products. Historically, products
launched in the EU do not follow price structures of the United States and generally prices tend to be significantly lower.
Healthcare Reform
In the U.S. and foreign jurisdictions, there have been a number of legislative and regulatory changes to the healthcare system
that could affect our future results of operations. In particular, there have been and continue to be a number of initiatives at the U.S.
federal and state levels that seek to reduce healthcare costs.
In the U.S., the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, or the Medicare Modernization Act,
changed the way Medicare covers and pays for pharmaceutical products. The Medicare Modernization Act expanded Medicare
coverage for drug purchases by the elderly by establishing Medicare Part D and introduced a new reimbursement methodology based
on average sales prices for physician administered drugs under Medicare Part B. In addition, this legislation provided authority for
limiting the number of drugs that will be covered in any therapeutic class under the new Medicare Part D program. Cost reduction
initiatives and other provisions of this legislation could decrease the coverage and reimbursement rate that our customers receive for
any of our approved products. While the Medicare Modernization Act applies only to drug benefits for Medicare beneficiaries, private
payers often follow Medicare coverage policy and payment limitations in setting their own reimbursement rates. Therefore, any
reduction in reimbursement that results from the Medicare Modernization Act may result in a similar reduction in payments from
private payers.
Enacted in March 2010, the Patient Protection and Affordable Care Act, as amended, or PPACA, is a sweeping law intended to
broaden access to health insurance, reduce or constrain the growth of healthcare spending, enhance remedies against healthcare fraud
and abuse, add new transparency requirements for healthcare and health insurance industries, impose new taxes and fees on
pharmaceutical and medical device manufacturers and impose additional health policy reforms. Among other things, PPACA revises
the definition of “average manufacturer price” for reporting purposes, which could increase the amount of Medicaid drug rebates to
states. Further, the new law imposes a significant annual fee on companies that manufacture or import branded prescription drug
products. Substantial new provisions affecting compliance have also been enacted, which may affect our business practices with
healthcare practitioners and a significant number of provisions are not yet, or have only recently become, effective. PPACA may
continue to place downward pressure on pharmaceutical pricing, especially under the Medicare program, and may also increase our
regulatory burdens and operating costs.
In addition, other legislative changes have been proposed and adopted since PPACA was enacted. These new laws may result in
reductions in Medicare and other healthcare funding, which could have a material adverse effect on our customers and accordingly,
our financial operations.
We expect that PPACA, as well as other healthcare reform measures that have been and may be adopted in the future, may
result in more rigorous coverage criteria and in additional downward pressure on the price that we receive for any approved product,
and could seriously harm our future revenue. Any reduction in reimbursement from Medicare or other government programs may
result in a similar reduction in payments from private payers. The implementation of cost containment measures or other healthcare
reforms may prevent us from being able to generate revenue, attain profitability, or commercialize our products.
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The Trump administration and Congress have made changes to current health care laws and may continue to attempt broad
sweeping changes to existing health care laws. We face uncertainties that might result from modification or repeal of any of the
provisions of the PPACA, including as a result of current and future executive orders and legislative actions. The impact of those
changes on us and the pharmaceutical industry as a whole is currently unknown. Any changes to the PPACA are likely to have an
impact on our results of operations, and may have a material adverse effect on our result of operations. In particular, on December 18,
2019, the U.S. Court of Appeals for the 5th Circuit upheld the District Court ruling that the individual mandate was unconstitutional
and remanded the case to the District Court to determine whether the remaining provisions of the ACA are invalid. We cannot predict
how this decision or future decisions, including subsequent appeals, will impact our business, or what other healthcare programs and
regulations will ultimately be implemented at the federal or state level or the effect of any future legislation or regulation in the United
States may have on our business.
In addition, different pricing and reimbursement schemes exist in other countries. In the European Community, governments
influence the price of pharmaceutical products through their pricing and reimbursement rules and control of national healthcare
systems that fund a large part of the cost of those products to consumers. Some jurisdictions operate positive and negative list systems
under which products may be marketed only once a reimbursement price has been agreed upon. Some of these countries may require,
as condition of obtaining reimbursement or pricing approval, the completion of clinical trials that compare the cost-effectiveness of a
particular product candidate to currently available therapies. Other member states allow companies to fix their own prices for
medicines, but monitor and control company profits. The downward pressure on healthcare costs in general, particularly prescription
drugs, has become very intense. As a result, increasingly high barriers are being erected to the entry of new products. In addition, in
some countries, cross-border imports from low-priced markets exert a commercial pressure on pricing within a country.
Other Healthcare Laws and Compliance Requirements
In the U.S., the research, manufacturing, distribution, sale and promotion of drug products that we are developing are subject to
regulation by various federal, state and local authorities in addition to the FDA, including the Centers for Medicare & Medicaid
Services, other divisions of the U.S. Department of Health and Human Services (e.g., the Office of Inspector General), the U.S.
Department of Justice, state Attorneys General, and other state and local government agencies. For example, sales, marketing and
scientific/educational grant programs must comply with applicable health care fraud and abuse laws, such as the federal Anti-
Kickback Statute, the federal False Claims Act, Stark law, and implementing regulations, and similar state laws. Pricing and rebate
programs must comply with the Medicaid Drug Rebate Program requirements of the Omnibus Budget Reconciliation Act of 1990, as
amended, and the Veterans Health Care Act of 1992, as amended. If products are made available to authorized users of the Federal
Supply Schedule of the General Services Administration, additional laws and requirements apply. Other laws and regulations that may
apply to prescription drug manufacturers include the Sunshine Act, prescription drug price reporting requirements, and various state
transparency and reporting laws. All business activities of prescription drug manufacturers are also potentially subject to federal and
state consumer protection and unfair competition laws.
The federal Anti-Kickback Statute prohibits any person, including a prescription drug manufacturer (or a party acting on its
behalf), from knowingly and willfully soliciting, receiving, offering or providing remuneration, directly or indirectly, to induce or
reward either the referral of an individual, or the furnishing, recommending, or arranging for a good or service, for which payment
may be made under a federal healthcare program such as the Medicare and Medicaid programs. This statute can be applied broadly to
include arrangements between pharmaceutical manufacturers on one hand and any referral source on the other, including prescribers,
purchasers, and formulary managers. The term “remuneration” has been broadly interpreted to include anything of value, including,
for example, gifts, discounts, the furnishing of supplies or equipment, credit arrangements, payments of cash, waivers of payments,
ownership interests, and service fees, unless expressly exempted or protected by a safe harbor. Further, the statute has been interpreted
to cover any arrangement where one purpose of the remuneration was to obtain remuneration in exchange for referral or to induce
further referrals for an item or service. Although there are a number of statutory exemptions and regulatory safe harbors protecting
certain legitimate business arrangements from prosecution, the exemptions and safe harbors are drawn narrowly, and practices that
involve remuneration intended to induce prescribing, purchasing or recommending may be subject to scrutiny if they do not qualify
for an exemption or safe harbor. Our practices may not in all cases meet all of the criteria of an applicable safe harbor for protection
from liability under the federal Anti-Kickback Statute. The reach of the Anti-Kickback Statute was broadened by PPACA, which,
among other things, amends the intent requirement of the federal Anti-Kickback Statute such that the government does not need to
prove that a person had the intent to specifically violate the statute in order to find a violation. In addition, the PPACA provides that
the government may assert that a claim including items or services resulting from a violation of the federal Anti-Kickback Statute
constitutes a false or fraudulent claim for purposes of the federal False Claims Act (discussed below) or the civil monetary penalties
statute, which imposes fines against any person who is determined to have presented or caused to be presented claims to a federal
healthcare program that the person knows or should know is for an item or service that was not provided as claimed or is false or
fraudulent. Additionally, many states have adopted laws similar to the federal Anti-Kickback Statute, and some of these state
prohibitions apply to referral of patients for healthcare items or services reimbursed by any third-party payer, not only the Medicare
and Medicaid programs in at least some cases, and do not expressly provide for certain safe harbors or impose different requirements
for safe harbor protection under applicable state laws.
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The federal False Claims Act imposes liability on any person or entity that, among other things, knowingly presents, or causes
to be presented, a false or fraudulent claim for payment by a federal healthcare program. The qui tam provisions of the False Claims
Act allow a private individual to bring civil actions on behalf of the federal government alleging that the defendant has submitted or
cause to be submitted a false claim to the federal government, and to share in any monetary recovery. In recent years, the number of
suits brought by private individuals has increased dramatically. In addition, various states have enacted false claims laws analogous to
the False Claims Act. Many of these state laws apply where a claim is submitted to any third-party payer and not merely a federal
healthcare program. There are many potential bases for liability under the False Claims Act. Liability arises, primarily, when an entity
knowingly submits, or causes another to submit, a false claim for reimbursement to the federal government. The False Claims Act has
been used to assert liability on the basis of inadequate care, kickbacks and other improper referrals, improperly reported government
pricing metrics such as Best Price or Average Manufacturer Price, improper use of Medicare numbers when detailing the provider of
services, improper promotion of off-label uses (i.e., uses not expressly approved by FDA in a drug’s label), and allegations as to
misrepresentations with respect to the services rendered. Our future activities relating to the reporting of discount and rebate
information and other information affecting federal, provincial, state and third party reimbursement of our products, and the sale and
marketing of our products and our service arrangements or data purchases, among other activities, may be subject to scrutiny under
these laws. We are unable to predict whether we would be subject to actions under the False Claims Act or a similar state law, or the
impact of such actions. However, the cost of defending such claims, as well as any sanctions imposed, could adversely affect our
financial performance. Also, the Health Insurance Portability and Accountability Act of 1996, or HIPAA, created several new federal
crimes, including healthcare fraud, and false statements relating to healthcare matters. The healthcare fraud statute prohibits
knowingly and willfully executing a scheme to defraud any healthcare benefit program, including private third-party payers. The false
statements statute prohibits 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.
In addition, we may be subject to, or our marketing activities may be limited by, data privacy and security regulation in the U.S.
and foreign jurisdictions in which we conduct our business, including jurisdictions in which we conduct our clinical trials. For
example, HIPAA and its implementing regulations established uniform federal standards for certain “covered entities” (healthcare
providers, health plans and healthcare clearinghouses) governing the conduct of certain electronic healthcare transactions and
protecting the security and privacy of protected health information. The American Recovery and Reinvestment Act of 2009 included
expansion of HIPAA’s privacy and security standards called the Health Information Technology for Economic and Clinical Health
Act, or HITECH. Among other things, HITECH makes HIPAA’s privacy and security standards directly applicable to “business
associates”—independent contractors or agents of covered entities that create, receive, maintain, or transmit protected health
information in connection with providing a service for or on behalf of a covered entity. HITECH also increased the civil and criminal
penalties that may be imposed against covered entities, business associates and possibly other persons, and gave state attorneys
general new authority to file civil actions for damages or injunctions in federal courts to enforce the federal HIPAA laws and seek
attorney’s fees and costs associated with pursuing federal civil actions. In addition, in May 2016, the EU formally adopted the General
Data Protection Regulation, or GDPR, which applies to all EU member states from May 25, 2018 and replaced the European Union
Data Protection Directive. The GDPR has imposed many new or additional requirements including, but not limited to, obtaining
consent of the individuals to whom the personal data relates, the nature and scope of notifications provided to the individuals, the
security and confidentiality of the personal data, data breach notification and using third party processors in connection with the
processing of the personal data. Failure to comply with the GDPR could subject us to regulatory sanctions, delays in clinical trials,
criminal prosecution and/or civil fines or penalties. Additionally, GDPR creates a direct cause of action by individual data subjects.
The GDPR is a complex law and the regulatory guidance is still evolving, including with respect to how the GDPR should be applied
in the context of clinical trials or other transactions from that we may gain access to personal data. These changes in the law will
increase our costs of compliance and result in greater legal risks. Other countries maintain different privacy laws that we are subject
to.
The Physician Payment Sunshine Act, or the Sunshine Act, requires applicable manufacturers and certain distributors of
prescription drugs, among other products, that are available for coverage by Medicare, Medicaid or the Children’s Health Insurance
Program to report annually to the Secretary of HHS: (i) payments or other transfers of value made by that entity, or by a third-party as
directed by that entity, to physicians and teaching hospitals or to third parties on behalf of physicians or teaching hospitals; and (ii)
physician ownership (including immediate family ownership) and investment interests in the entity. There are also an increasing
number of state and local “sunshine” or transparency and reporting laws that require applicable manufacturers to make reports to
states on pricing and marketing information. The U.S. federal government discloses the reported information on a publicly available
website. Several states have enacted legislation requiring pharmaceutical companies to, among other things, establish marketing
compliance programs, file periodic reports with the state, make periodic public disclosures on sales, marketing, pricing, clinical trials
and other activities, and/or register their sales representatives, as well as to prohibit pharmacies and other healthcare entities from
providing certain physician prescribing data to pharmaceutical companies for use in sales and marketing, and to prohibit certain other
sales and marketing practices. These federal, state, and local laws may affect our sales, marketing, and other promotional activities by
imposing administrative and compliance burdens on us. If we fail to track and report as required by these laws or otherwise comply
with these laws, we could be subject to the penalty provisions of the pertinent state and federal authorities.
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Because of the breadth of these health care laws and the narrowness of available statutory and regulatory exemptions, it is
possible that some of our business activities could be subject to challenge under one or more of such laws. If our operations are found
to be in violation of any of the federal and state laws described above or any other governmental regulations that apply to us, we may
be subject to penalties, including criminal and significant civil monetary penalties, damages, fines, imprisonment, exclusion from
participation in government healthcare programs, injunctions, recall or seizure of products, total or partial suspension of production,
denial or withdrawal of pre-marketing product approvals, private qui tam actions brought by individual whistleblowers in the name of
the government or refusal to allow us to enter into supply contracts, including government contracts, the curtailment or restructuring
of our operations, and corporate integrity agreement, which impose certain compliance, certification and reporting obligations, any of
which could adversely affect our ability to operate our business and our results of operations. To the extent that any of our products
are sold in a foreign country or if we contract with vendors or independent contractors outside of the U.S., we may be subject to
similar foreign laws and regulations, which may include, for instance, applicable post-approval requirements, including safety
surveillance, anti-corruption/anti-bribery laws, anti-kickback laws, healthcare fraud and abuse laws, and implementation of corporate
compliance programs and reporting of payments or transfers of value to healthcare professionals. While we are not aware of any
current issues, we are unable to predict whether we will be subject to actions under applicable healthcare laws, or the impact of such
actions on our business. However, the costs of defending such actions or claims, as well as any sanctions imposed, could result in a
material adverse effect on our business or financial condition.
Environmental Matters
Our operations require the use of hazardous materials (including biological materials) which subject us to a variety of federal,
provincial and local environmental and safety laws and regulations. Some of the regulations under the current regulatory structure
provide for strict liability, holding a party potentially liable without regard to fault or negligence. We could be held liable for damages
and fines as a result of our, or someone else’s, business operations should contamination of the environment or individual exposure to
hazardous substances occur. We cannot predict how changes in laws or development of new regulations will affect our business
operations or the cost of compliance.
Employees
As of December 31, 2019, we had 104 employees, including 100 full-time employees. Of our employees, 73 were primarily
engaged in research and development, 32 of whom hold a Ph.D. or M.D. (or equivalent) degree. None of our employees are represented
by a labor union. We have not experienced any work stoppages, and we consider our relations with our employees to be good.
Research and Development
We have committed, and expect to continue to commit, significant resources to developing new product candidates. We have
assembled an experienced research and development team with scientific and clinical development personnel. Our research and
development expenses for the years ended December 31, 2019 and 2018 were $38.8 million and $23.6 million, respectively.
Manufacturing
We currently rely, and expect to continue to rely, on third parties and our collaborators for the manufacture of our product
candidates for pre-clinical and clinical testing, as well as for commercial manufacture if our product candidates receive marketing
approval. Accordingly, we have not internally developed any manufacturing facilities or hired related personnel.
To date, we have obtained materials for our product candidates from multiple third-party manufacturers. We believe that all of
the materials required for the manufacture of our product candidates can be obtained from more than one source. However, the
manufacturing processes for each of our product candidates vary and sourcing adequate supplies may be made more difficult
depending on the type of product candidate involved. Our product candidates generally can be manufactured in reliable and
reproducible synthetic processes from readily available starting materials. This chemistry generally is amenable to scale-up and does
not require unusual equipment in the manufacturing process.
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Corporate Information
We were incorporated in the Province of British Columbia on November 5, 1996 under the predecessor to the Business
Corporations Act (British Columbia) under the name “Xenon Bioresearch Inc.” We continued from British Columbia to the federal
jurisdiction pursuant to Section 187 of the Canada Business Corporations Act, or the CBCA, on May 17, 2000 and concurrently
changed our name to “Xenon Genetics Inc.” We registered as an extra-provincial company in British Columbia on July 10, 2000 and
changed our name to “Xenon Pharmaceuticals Inc.” on August 24, 2004. We have one wholly-owned subsidiary as at December 31,
2019, Xenon Pharmaceuticals USA Inc., which was incorporated in Delaware on December 2, 2016. Our principal executive offices
are located at 200 – 3650 Gilmore Way, Burnaby, British Columbia, Canada V5G 4W8, and our telephone number is (604) 484-3300.
We are a reporting issuer in British Columbia, Alberta and Ontario, but our shares are not listed on any recognized Canadian stock
exchange. Our common shares trade on the Nasdaq Global Market under the symbol “XENE.”
Where You Can Find Additional Information
We make available free of charge through our investor relations website, http://investor.xenon-pharma.com, our annual reports,
quarterly reports, current reports, proxy statements and all amendments to those reports as soon as reasonably practicable after such
material is electronically filed or furnished with the U.S. Securities and Exchange Commission, or SEC. These reports may also be
obtained without charge by contacting Investor Relations, Xenon Pharmaceuticals Inc., 200 – 3650 Gilmore Way, Burnaby, British
Columbia, Canada V5G 4W8, e-mail: investors@xenon-pharma.com. Our website and the information contained therein or
incorporated therein are not intended to be incorporated into this Annual Report on Form 10-K. The SEC maintains a website that
contains reports, proxy and information statements, and other information regarding reports that we file or furnish electronically with
them at www.sec.gov. Additional information related to Xenon is also available on SEDAR at www.sedar.com.
Item 1A. Risk Factors
You should carefully consider the following risk factors, in addition to the other information contained in this report, including the
section of this report captioned “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our
financial statements and related notes. If any of the events described in the following risk factors and the risks described elsewhere in
this report occurs, our business, operating results and financial condition could be seriously harmed. This report on Form 10-K also
contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those
anticipated in the forward-looking statements as a result of factors that are described below and elsewhere in this report.
Risks Related to Our Financial Condition and Capital Requirements
We have incurred significant losses since our inception and anticipate that we will continue to incur significant losses for the
foreseeable future.
We do not expect to have sustained profitability for the foreseeable future. We had net losses of $41.6 million for the year ended
December 31, 2019 and an accumulated deficit of $249.7 million as of December 31, 2019, which were driven by expenses incurred
in connection with our research and development programs and from general and administrative costs associated with our operations.
We have devoted most of our financial resources to research and development, including our clinical and pre-clinical
development activities. To date, we have financed our operations through the sale of equity securities, funding received from our
licensees and collaborators, debt financing and, to a lesser extent, government funding. We have not generated any significant revenue
from product sales and our product candidates will require substantial additional investment before they may provide us with any
revenue.
We expect to incur significant expenses and increasing operating losses for the foreseeable future as we:
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continue our research and pre-clinical and clinical development of our product candidates;
expand the scope of our clinical studies for our current and prospective product candidates;
initiate additional pre-clinical, clinical or other studies for our product candidates;
change or add additional manufacturers or suppliers and manufacture drug supply and drug product for clinical trials and
commercialization;
seek regulatory and marketing approvals for any of our product candidates that successfully complete clinical studies;
seek to identify and validate additional product candidates;
acquire or in-license other product candidates and technologies;
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• make milestone or other payments under our in-license or other agreements, including, without limitation, payments to
Memorial University of Newfoundland, 1st Order Pharmaceuticals, Inc. and other third parties;
• maintain, protect and expand our intellectual property portfolio;
•
establish a sales, marketing and distribution infrastructure to commercialize any products for which we may obtain
marketing approval;
•
•
create additional infrastructure to support our operations and our product development and planned future
commercialization efforts; and
experience any delays or encounter issues with any of the above.
Our expenses could increase beyond expectations for a variety of reasons, including if we are required by the U.S. Food and
Drug Administration, or FDA, the European Medicines Agency, or EMA, Health Canada, or other regulatory agencies, domestic or
foreign, to perform clinical and other studies in addition to those that we currently anticipate. Our prior losses, combined with
expected future losses, have had and will continue to have an adverse effect on our shareholders’ equity.
We have not generated any significant royalty revenue from product sales and may never become profitable on a U.S. GAAP
basis.
Our ability to generate meaningful revenue and achieve profitability on a U.S. GAAP basis depends on our ability, alone or with
strategic collaborators, to successfully complete the development of, and obtain the regulatory approvals necessary to commercialize,
our product candidates. Substantially all of our revenue since inception has consisted of upfront and milestone payments associated
with our collaboration and license agreements. Revenue from these agreements is dependent on successful development of our product
candidates by us or our collaborators. We have not generated any significant royalty revenue from product sales, and do not otherwise
anticipate generating revenue from product sales for the foreseeable future, if ever. If any of our product candidates fail in clinical
trials or do not gain regulatory approval, or if any of our future products, if any, once approved, fail to achieve market acceptance or
adequate market share, we may never become profitable. Our ability to generate future revenue from product sales depends heavily on
our success, and the success of our collaborators, in:
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completing research, pre-clinical and clinical development of our product candidates;
seeking and obtaining regulatory and marketing approvals for product candidates for which we complete clinical studies;
commercializing products for which we obtain regulatory and marketing approval, either with a collaborator or, if launched
independently, by establishing sales, marketing and distribution infrastructure;
negotiating favorable terms in any collaboration, licensing or other arrangements into which we may enter;
obtaining market acceptance of products for which we obtain regulatory and marketing approval as therapies;
addressing any competing technological and market developments;
establishing and maintaining supply and manufacturing relationships with third parties that can provide adequate (in amount
and quality) products and services to support clinical development and the market demand for any approved products in the
future;
developing sustainable, scalable, reproducible, and transferable manufacturing processes for any of our products approved
in the future;
• maintaining, protecting, expanding and enforcing our portfolio of intellectual property rights, including patents, trade
secrets and know-how;
•
•
implementing additional internal systems and infrastructure, as needed; and
attracting, hiring and retaining qualified personnel.
The scope of our future revenue will also depend upon the size of any markets in which our product candidates receive approval
and the availability of insurance coverage and the availability and amount of reimbursement from third-party payers for future
products, if any. If we are unable to achieve sufficient revenue to become profitable and remain so, our financial condition and
operating results will be negatively impacted, and the market price of our common shares might be adversely impacted.
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We will likely need to raise additional funding, which may not be available on acceptable terms, if at all. Failure to obtain this
necessary capital when needed may force us to delay, limit or terminate our product development efforts or other operations.
Since our inception, we have dedicated most of our resources to the discovery and development of our pre-clinical and clinical
product candidates, and we expect to continue to expend substantial resources doing so for the foreseeable future. These expenditures
will include costs associated with research and development, potential milestone payments and royalties to third parties,
manufacturing of product candidates and products approved for sale, conducting pre-clinical experiments and clinical trials and
obtaining and maintaining regulatory approvals, as well as commercializing any products later approved for sale. During the year
ended December 31, 2019, we incurred $38.8 million of costs associated with research and development, exclusive of costs incurred
by our collaborators in developing our product candidates.
Our current cash and cash equivalents and marketable securities are not expected to be sufficient to complete clinical
development of any of our product candidates and prepare for commercializing any product candidate which receives regulatory
approval. Accordingly, we will likely require substantial additional capital to continue our clinical development and potential
commercialization activities. Our future capital requirements depend on many factors, including but not limited to:
•
•
the number and characteristics of the future product candidates we pursue either from our internal research efforts or
through acquiring or in-licensing other product candidates or technologies;
the scope, progress, results and costs of independently researching and developing any of our future product candidates,
including conducting pre-clinical research and clinical trials;
• whether our existing collaborations generate substantial milestone payments and, ultimately, royalties on future approved
products for us;
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the timing of, and the costs involved in, obtaining regulatory approvals for any future product candidates we develop
independently;
the timing and magnitude of potential milestone payments and royalties under our product acquisition and in-license
agreements;
the cost of commercializing any future products we develop independently that are approved for sale;
the cost of manufacturing our future product candidates and products, if any;
our ability to maintain existing collaborations and to establish new collaborations, licensing or other arrangements and the
financial terms of such agreements;
the costs involved in preparing, filing, prosecuting, maintaining, defending and enforcing patents, including litigation costs
and the outcome of such litigation; and
the timing, receipt and amount of sales of, or royalties on, our future products, if any.
We are unable to estimate the funds we will actually require to complete research and development of our product candidates or
the funds required to commercialize any resulting product in the future.
Based on our research and development plans and our timing expectations related to the progress of our programs, we expect
that our existing cash and cash equivalents and marketable securities as of the date of this report will enable us to fund our operating
expenses and capital expenditure requirements for at least the next 12 months.
Our operating plan may change as a result of many factors currently unknown to us, and we may need to seek additional funds
sooner than planned, through public or private equity or debt financings, government or other third-party funding, marketing and
distribution arrangements and other collaborations, strategic alliances and licensing arrangements or a combination of these
approaches. Raising funds in the future may present additional challenges and future financing may not be available in sufficient
amounts or on terms acceptable to us, if at all.
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We may allocate our limited resources to pursue a particular product candidate or indication and fail to capitalize on other
product candidates or indications that may be more profitable or for which there is a greater likelihood of success.
Because we have limited financial and management resources, we focus on a limited number of research programs and product
candidates. As a result, we may forgo or delay pursuit of opportunities with other product candidates or for other indications that later
prove to have greater commercial potential. Our resource allocation decisions may cause us to fail to capitalize on viable commercial
drugs or profitable market opportunities. Our spend on current and future research and development programs and product candidates
for specific indications may not yield any commercially viable drugs. If we do not accurately evaluate the commercial potential or
target market for a particular product candidate, we may relinquish valuable rights to that product candidate through collaboration,
licensing or other arrangements in cases in which it would have been more advantageous for us to retain sole development and
commercialization rights.
We are party to a loan and security agreement that contains operating and financial covenants that may restrict our business
and financing activities and we may be required to repay the outstanding indebtedness in an event of default, which could have a
materially adverse effect on our business.
In August 2018, we entered into an amended and restated loan and security agreement with Silicon Valley Bank providing for a
term loan to us with an aggregate principal amount of $15.5 million. Borrowings under our amended and restated loan and security
agreement are secured by substantially all of our assets except intellectual property and subject to certain other exceptions. The loan
and security agreement restricts our ability, among other things, to:
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sell, transfer or otherwise dispose of any of our business assets or property, subject to limited exceptions;
• make material changes to our business;
•
enter into transactions resulting in significant changes to the voting control of our stock;
• make certain changes to our organizational structure;
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consolidate or merge with other entities or acquire other entities;
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incur additional indebtedness or create encumbrances on our assets;
pay dividends, other than dividends paid solely in our common shares, or make distributions on and, in certain cases,
repurchase our capital stock;
enter into certain transactions with our affiliates;
repay subordinated indebtedness; or
• make certain investments.
In addition, we are required under our amended and restated loan agreement and security agreement to comply with various
affirmative covenants. The covenants and restrictions and obligations in our amended and restated loan and security agreement, as
well as any future financing agreements that we may enter into, may restrict our ability to finance our operations, engage in business
activities or expand or fully pursue our business strategies. Our ability to comply with these covenants may be affected by events
beyond our control, and we may not be able to meet those covenants. A breach of any of these covenants could result in a default
under the amended and restated loan and security agreement, which could cause all of the outstanding indebtedness under the facility
to become immediately due and payable.
If we are unable to generate sufficient cash available to repay our debt obligations when they become due and payable, either
when they mature, or in the event of a default, we may not be able to obtain additional debt or equity financing on favorable terms, if
at all, which may negatively impact our business operations and financial condition.
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Raising additional capital may cause dilution to our existing shareholders, restrict our operations or require us to relinquish
rights to our technologies or product candidates.
The terms of any financing arrangements we enter into may adversely affect the holdings or the rights of our shareholders and
the issuance of additional securities, whether equity or debt, by us, or the possibility of such issuance, may cause the market price of
our common shares to decline. The sale of additional equity or convertible securities also would dilute all of our shareholders. For
example, in November 2019, we entered into the November 2019 sales agreement with Jefferies LLC, or Jefferies, and Stifel,
Nicolaus & Company, Incorporated, or Stifel, to sell up to $50.0 million of our common shares, from time to time, through an “at-the-
market” equity offering program under which Jefferies and Stifel acted as sales agents. As of January 14, 2020, we had sold an
aggregate of 3,252,330 common shares for net proceeds of $48.8 million, net of commissions paid, but excluding estimated
transaction expenses. Additionally, in December 2019, pursuant to the terms of our collaboration agreement with Neurocrine
Biosciences, we issued 1,408,847 common shares to Neurocrine Biosciences for an aggregate purchase price of $20.0 million. In
January 2020, we completed an underwritten public offering of 3,750,000 of our common shares at a public offering price of $16.00
per share for net proceeds of $56.4 million, net of underwriting discounts and commissions, but before other offering expenses. In
February 2020, the underwriters of the January 2020 public offering exercised their option to purchase an addtional 562,500 of our
common shares at a public offering price of $16.00 per share, raising additional net proceeds of $8.5 million, net of underwriting
discounts and commissions, but before other offering expenses. We are also party to an amended and restated loan and security
agreement with Silicon Valley Bank pursuant to which we have borrowed an aggregate principal amount of $15.5 million. Our loan
pursuant to the amended and restated loan and security agreement is secured by substantially all of our assets except intellectual
property and the agreement requires us to comply with various affirmative and negative covenants. The incurrence of additional
indebtedness would result in increased fixed payment obligations and, potentially, the imposition of additional restrictive covenants.
Such additional covenants could include limitations on our ability to incur additional debt, limitations on our ability to acquire, sell or
license intellectual property rights and other operating restrictions that could adversely impact our ability to conduct our business. We
could also be required to seek funds through arrangements with collaborators or otherwise at an earlier stage than otherwise would be
desirable resulting in the loss of rights to some of our product candidates or other unfavorable terms, any of which may have a
material adverse effect on our business, operating results and prospects. In addition, any additional fundraising efforts may divert our
management from their day-to-day activities, which may adversely affect our ability to develop and commercialize our product
candidates.
Unstable market and economic conditions may have serious adverse consequences on our business and financial condition.
Global credit and financial markets experienced extreme disruptions at various points over the last decade, characterized by
diminished liquidity and credit availability, declines in consumer confidence, declines in economic growth, increases in
unemployment rates, and uncertainty about economic stability. If another such disruption in credit and financial markets and
deterioration of confidence in economic conditions occurs, our business may be adversely affected. If the equity and credit markets
were to deteriorate significantly in the future, it may make any necessary equity or debt financing more difficult to complete, more
costly, and more dilutive. Failure to secure any necessary financing in a timely manner and on favorable terms could have a material
adverse effect on our growth strategy, financial performance and the market price of our common shares could require us to delay or
abandon development or commercialization plans. In addition, there is a risk that one or more of our current collaborators, service
providers, manufacturers and other partners would not survive or be able to meet their commitments to us under such circumstances,
which could directly affect our ability to attain our operating goals on schedule and on budget.
We are subject to risks associated with currency fluctuations which could impact our results of operations.
As of December 31, 2019, approximately 8% of our cash and cash equivalents and marketable securities were denominated in
Canadian dollars. We incur significant expenses in Canadian dollars in connection with our operations in Canada. We do not currently
engage in foreign currency hedging arrangements for our Canadian dollar expenditures, and, consequently, foreign currency
fluctuations may adversely affect our earnings; however, in the future, we may engage in exchange rate hedging activities in an effort
to mitigate the impact of exchange rate fluctuations. Any hedging technique we implement may fail to be effective. If our hedging
activities are not effective, changes in currency exchange rates may have a more significant impact on the market price of our common
shares.
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Risks Related to Our Business
We, or our collaborators, may fail to successfully develop our product candidates.
Our and our collaborators’ clinical product candidates, which include XEN1101, XEN007, and NBI-921352 (previously known
as XEN901 and being developed by our collaborator Neurocrine Biosciences), along with product candidates we expect to enter
clinical development, which include XEN496, FX301 (being developed by Flexion Therapeutics, Inc.) and our pre-clinical
compounds, are in varying stages of development and will require substantial clinical development, testing and regulatory approval
prior to commercialization. It may be several more years before these product candidates or any of our other product candidates
receive marketing approval, if ever. If any of our product candidates fail to become approved products, our business, growth prospects,
operating results and financial condition may be adversely affected and a decline in the market price of our common shares could
result.
We and our collaborators face substantial competition in the markets for our product candidates, which may result in others
discovering, developing or commercializing products before us or doing so more successfully than we or our collaborators do.
The biotechnology and pharmaceutical industries are characterized by rapidly advancing technologies, intense competition and a
strong emphasis on proprietary products. We face potential competition in drug discovery and product development from many
different approaches and sources, including major pharmaceutical, specialty pharmaceutical and biotechnology companies, academic
institutions, governmental agencies, as well as public and private research institutions. Any product candidates that we or our
collaborators successfully develop and commercialize will compete with existing products and any new products that may become
available in the future.
The key competitive factors affecting the success of all of our product candidates, if approved, are likely to be their efficacy,
safety, convenience and price, the effectiveness and safety of alternative products, the level of generic competition, and the availability
of coverage and adequate reimbursement from government and other third-party payers.
Many of the companies against which we are competing or against which we may compete in the future have significantly
greater financial resources and expertise in research and development, manufacturing, pre-clinical testing, conducting clinical trials,
obtaining regulatory approvals and marketing approved products than we, or our collaborators, do. Mergers and acquisitions in the
pharmaceutical and biotechnology industries may result in even more resources being concentrated among a smaller number of our
competitors. Smaller or early stage companies may also prove to be significant competitors, particularly through collaboration
arrangements with large and established companies.
Our commercial opportunities could be reduced or eliminated if our competitors develop and commercialize products or
therapies that are safer, more effective, have fewer or less severe side effects, are more convenient or are less expensive than any
products that we may develop. Our competitors also may obtain FDA, EMA, Health Canada or other regulatory approval for their
products more rapidly than we may obtain approval for ours, which could result in our competitors establishing a strong market
position before we are able to enter the market. In addition, our ability to compete may be affected by decisions made by insurers or
other third-party payers.
To the extent that we are unable to compete effectively against one or more of our competitors in these areas, our business will
not grow and our financial condition, results of operations and the market price of our common shares may suffer.
If more than one of our proprietary or partnered products were approved for the treatment of epilepsy, we anticipate that they
could potentially compete with one another and other anti-seizure medications, or ASMs. Commonly used ASMs, among others,
include phenytoin, levetiracetam, brivaracetam, cenobamate, carbamazepine, clobazam, lamotrigine, valproate, oxcarbazepine,
topiramate, lacosamide, ethosuximide, perampanel and cannabidiol. The FDA has not yet approved any drug products specifically for
the KCNQ2 developmental and epileptic encephalopathy indication (otherwise known as KCNQ2-DEE or EIEE7) or for the SCN8A
developmental and epileptic encephalopathy indication (otherwise known as SCN8A-DEE or EIEE13), an early infantile epileptic
encephalopathy due to gain-of-function mutations in the SCN8A gene that encodes the Nav1.6 sodium channel. There are other ASMs
in development that could potentially compete with our products, including products in development from Eisai Co., Ltd., Insys
Therapeutics Inc., Knopp Biosciences LLC, Marinus Pharmaceuticals, Inc., Ovid Therapeutics Inc., Praxis Bioresearch, Sage
Therapeutics, SK Life Science Inc., Sunovion Pharmaceuticals Inc., Supernus Pharmaceuticals, Inc., Takeda Pharmaceutical Company
Ltd., UCB, Inc., Upsher-Smith Laboratories, Inc., and Zogenix, Inc.
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Drug discovery and development for various pain applications is intensely competitive. There are a large number of approved
products for neuropathic pain, inflammatory pain and other pain indications. These approved products include capsaicin, celecoxib,
lidocaine, narcotic analgesics, gabapentin, and pregabalin. We are also aware of development programs at several pharmaceutical and
biotechnology companies that are developing Nav1.7 inhibitors or other sodium channel inhibitors for the treatment of pain, including
Amgen Inc., AstraZeneca PLC, Biogen Inc., Bristol-Myers Squibb Company, Dainippon Sumitomo Co., Ltd., Eli Lilly and Company,
H. Lundbeck A/S, Merck, NeuroQuest Inc., Newron Pharmaceuticals SpA, Vertex Pharmaceuticals Inc., Voyager Therapeutics, Inc.
and Chromocell Corporation in collaboration with its partner Astellas Pharma Inc. Moreover, we are aware of various other product
candidates in development that target other mechanisms of action to treat various pain indications, including calcium channel
inhibitors, nerve growth factor inhibitors, and Nav1.8 inhibitors.
We have no marketed proprietary products and have not yet advanced a product candidate beyond Phase 2 clinical trials, which
makes it difficult to assess our ability to develop our future product candidates and commercialize any resulting products
independently.
As a company, we have no experience in Phase 3 and later stage clinical development or in conducting clinical trials in pediatric
indications, and related regulatory requirements or the commercialization of products. We have not yet demonstrated our ability to
independently and repeatedly conduct clinical development after Phase 2, successfully conduct an international multi-center clinical
trial, conduct a pivotal clinical trial, obtain regulatory approval, manufacture drug product on a commercial scale or arrange for a third
party to do so on our behalf, and commercialize therapeutic products. We will need to develop such abilities if we are to execute on
our business strategy to develop and independently commercialize product candidates for orphan and niche indications. To execute on
our business plan for the development of independent programs, we will need to successfully:
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execute our clinical development and manufacturing plans for later-stage product candidates;
obtain required regulatory approvals in each jurisdiction in which we will seek to commercialize products;
build and maintain appropriate sales, distribution and marketing capabilities;
gain market acceptance for our future products, if any; and
• manage our spending as costs and expenses increase due to clinical trials, regulatory approvals and commercialization
activities.
If we are unsuccessful in accomplishing these objectives, we will not be able to develop and commercialize any future product
candidates independently and could fail to realize the potential advantages of doing so.
If we are not successful in discovering, acquiring or in-licensing product candidates in addition to XEN496, XEN1101 and
XEN007, our ability to expand our business and achieve our strategic objectives may be impaired.
We have built a product development pipeline by identifying product candidates either from our internal research efforts or
though acquiring or in-licensing other product candidates or technologies. To date, our internal discovery efforts have yielded multiple
development candidates, including XEN901, which we licensed to Neurocrine Biosciences and is now known as NBI-921352, and
XEN402, which has been acquired by Flexion to use in its product candidate FX301. Both our internal discovery efforts and our
assessment of potential acquisition or in-licensing opportunities require substantial technical, financial and human resources,
regardless of whether we identify any viable product candidates.
If we are unable to identify additional product candidates suitable for clinical development and commercialization either from
our internal research efforts or though acquiring or in-licensing other product candidates or technologies, we may not be able to obtain
product revenue in future periods, which likely would result in significant harm to our financial position and adversely impact the
market price of our common shares.
Our approach to drug discovery is unproven, and we do not know whether we will be able to develop any products of
commercial value.
Our approach to drug discovery may not reproducibly or cost-effectively result in the discovery of product candidates and
development of commercially viable products that safely and effectively treat human disease.
Our drug discovery efforts may initially show promise in identifying additional potential product candidates yet fail to yield
viable product candidates for clinical development or commercialization. Such failure may occur for many reasons, including the
following: any product candidate may, on further study, be shown to have serious or unexpected side effects or other characteristics
that indicate it is unlikely to be safe or otherwise does not meet applicable regulatory criteria; and any product candidate may not be
capable of being produced in commercial quantities at an acceptable cost, or at all.
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If our discovery activities fail to identify novel targets for drug discovery, or such targets prove to be unsuitable for treating
human disease, or we are unable to develop product candidates with specificity and selectivity for such targets, we will fail to develop
viable products. If we fail to develop and commercialize viable products, we will not achieve commercial success.
If we fail to attract and retain senior management and key personnel, we may be unable to successfully develop our product
candidates, perform our obligations under our collaboration agreements, conduct our clinical trials and commercialize our
product candidates.
Our success depends in part on our continued ability to attract, retain and motivate highly qualified management, clinical and
scientific personnel.
We could experience difficulties attracting and retaining qualified employees as competition for qualified personnel in the
biotechnology and pharmaceutical field is intense. We are highly dependent upon our senior management, particularly Dr. Simon
Pimstone, our Chief Executive Officer, and Mr. Ian Mortimer, our President and Chief Financial Officer, as well as other employees.
The loss of services of either of these individuals or one or more of our other members of senior management could materially delay
or even prevent the successful development of our product candidates.
In addition, we will need to hire additional personnel as we expand our clinical development activities and develop commercial
capabilities, including a sales infrastructure to support our independent commercialization efforts. We may not be able to attract and
retain personnel on acceptable terms given the competition among numerous pharmaceutical and biotechnology companies for
individuals with similar skill sets. The inability to recruit or loss of the services of any executive or key employee may impede the
progress of our research, development and commercialization objectives.
Our employees, collaborators and other personnel may engage in misconduct or other improper activities, including non-
compliance with regulatory standards and requirements and insider trading.
We are exposed to the risk of fraud or other misconduct by our employees, collaborators, vendors, principal investigators,
consultants and commercial partners. Misconduct by these parties could include intentional failures to comply with the regulations of
the FDA, EMA, Health Canada and other regulators, provide accurate information to the FDA, EMA, Health Canada and other
regulators, comply with data privacy and security and healthcare fraud and abuse laws and regulations in the U.S. and abroad, report
financial information or data accurately or disclose unauthorized activities to us. In particular, sales, marketing and business
arrangements in the healthcare industry are subject to extensive laws and regulations intended to prevent fraud, misconduct, kickbacks,
self-dealing and other abusive practices. Additionally, laws regarding data privacy and security, including the federal Health Insurance
Portability and Accountability Act of 1996, or HIPAA, as amended by the Health Information Technology for Economic and Clinical
Health Act of 2009, or HITECH, the General Data Protection Regulation (EU) 2016/679, or GDPR, and the Personal Information
Protection and Electronic Documents Act, or PIPEDA, as well as comparable laws in other jurisdictions, may impose obligations with
respect to safeguarding the privacy, use, security and transmission of individually identifiable health information such as genetic
material or information we have obtained through our direct-to-patient web-based recruitment approach for identifying patients with
rare or extreme phenotypes or patients identified for clinical trials.
Various laws and regulations may restrict or prohibit a wide range of pricing, discounting, marketing and promotion, sales
commission, customer incentive programs and other business arrangements. Any misconduct could also involve the improper use of
information obtained in the course of clinical studies, which could result in regulatory sanctions and cause serious harm to our
reputation. We have adopted a code of conduct applicable to all of our employees, officers, directors, agents and representatives,
including consultants, but it is not always possible to identify and deter misconduct, and the precautions we take to detect and prevent
misconduct may not be effective in controlling unknown or unmanaged risks or losses or in protecting us from governmental
investigations or other actions or lawsuits stemming from a failure to comply with these laws and regulations. If any such actions are
instituted against us, and we are not successful in defending ourselves or asserting our rights, those actions could have a significant
impact on our business, including the imposition of significant fines or other sanctions, exclusion from participation in government
healthcare programs, or the curtailment or restructuring of our operations.
We may encounter difficulties in managing our growth, including headcount, and expanding our operations successfully.
Our business strategy involves continued development and, where development is successful, commercialization of select
product candidates for orphan and niche indications. In order to execute on this strategy, we will need to build out a regulatory, sales,
manufacturing, distribution and marketing infrastructure and expand our development capabilities or contract with third parties to
provide these capabilities and infrastructure for us. To achieve this, we will need to identify, hire and integrate personnel who have not
worked together as a group previously.
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As our operations expand, we expect that we will need to manage additional relationships with various strategic collaborators,
suppliers and other third parties.
Dr. Simon Pimstone devotes a small amount of his time to clinical work outside of his duties at our company, conducting,
generally, one outpatient clinic per week. Future growth will impose significant added responsibilities on members of management,
and our management may need to divert a disproportionate amount of its attention away from our day-to-day activities and devote a
substantial amount of time to managing these growth activities.
If we are unable to effectively manage our growth, our expenses may increase more than expected, our ability to generate and
grow revenue could be reduced, and we may not be able to implement our business strategy. Our future financial performance and our
ability to commercialize product candidates and compete effectively will depend, in part, on our ability to effectively manage any
future growth.
Our business and operations could suffer in the event of system failures.
Computer system, network or telecommunications failures due to events such as damage from malware, unauthorized access,
terrorism, war, or natural disasters could interrupt our internal or partner operations. For example, the loss of pre-clinical trial data,
data from completed or ongoing clinical trials for our product candidates or other confidential information could result in delays in our
regulatory filings and development efforts, significantly increase our costs and result in other adverse impacts to our business. To the
extent that any disruption or cybersecurity breach was to result in a loss of or damage to our data, or inappropriate disclosure of
confidential or proprietary information, we could incur liability and other remediation costs, and the development of our product
candidates could be delayed. While we have implemented security measures and, to date, have not detected a cybersecurity breach of
our systems nor experienced a material system failure, our internal computer systems and the external systems and services used by
our third-party contract manufacturers, or CMOs, third-party contract research organizations, or CROs, or other contractors,
consultants, directors and partners remain potentially vulnerable to damage from these events.
A variety of risks associated with international operations could materially adversely affect our business.
If we engage in significant cross-border and international activities, we will be subject to risks related to international operations,
including:
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different regulatory requirements for initiating clinical trials and maintaining approval of drugs in foreign countries;
reduced protection for intellectual property rights in certain countries;
unexpected changes in tariffs, trade barriers and regulatory requirements;
economic weakness, including inflation, political instability or open conflict in particular foreign economies and markets;
differing and multiple payor reimbursement regimes, government payors or patient self-pay systems;
compliance with tax, employment, immigration and labor laws for employees living or traveling abroad;
foreign currency fluctuations, which could result in increased operating expenses and reduced revenue, and other
obligations of doing business in another country;
• workforce uncertainty in countries where labor unrest is more common than in North America;
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likelihood of potential or actual violations of domestic and international anti-corruption laws, such as the U.S. Foreign
Corrupt Practices Act and the U.K. Bribery Act, or of U.S. and international import, export and re-export control and
sanctions laws and regulations, which likelihood may increase with an increase of operations in foreign jurisdictions;
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tighter restrictions on privacy and the collection and use of data, including clinical data and genetic material, may apply in
jurisdictions outside of North America; and
business interruptions resulting from geopolitical actions, including war and terrorism, or natural disasters including
earthquakes, typhoons, floods and fires.
If any of these issues were to occur, our business could be materially harmed.
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We face risks related to health epidemics and other outbreaks, which could significantly disrupt our operations and/or business.
Our business could be adversely impacted by the effects of the coronavirus (COVID-19) outbreak originating in China, or by
other epidemics. Our supply chain for raw materials, drug substance or drug product is worldwide, including China, and accordingly
could be subject to disruption. There may be restrictions on the export or shipment of raw materials, drug substance or drug product
that could materially delay our business or clinical trials.
Certain of our research and development efforts are also conducted globally, including our ongoing Phase 2b XEN1101 (X-
TOLE) clinical trial, which includes investigative sites in North America and Europe. A health epidemic or other outbreak, including
the current COVID-19 outbreak, may materially and adversely affect our business, financial condition and results of operations. The
extent to which COVID-19 impacts our results will depend on future developments, which are highly uncertain and cannot be
predicted, including new information which may emerge concerning the severity of COVID-19 and the actions to contain COVID-19
or treat its impact, among others.
U.S. holders of our common shares may suffer adverse tax consequences if we are characterized as a passive foreign investment
company.
Generally, for any taxable year in which 75% or more of our gross income is passive income, or at least 50% of the average
quarterly value of our assets (which may be determined in part by the market value of our common shares, which is subject to change)
are held for the production of, or produce, passive income, we would be characterized as a passive foreign investment company, or
PFIC, for U.S. federal income tax purposes. Based on the price of our common shares and the composition of our gross income and
gross assets, we believe that we were a PFIC for the taxable year ended December 31, 2018, and we could be a PFIC in subsequent
years. Based on the price of our common shares and the composition of our gross income and gross assets, we do not believe we were
a PFIC for the taxable year ended December 31, 2019. Our status as a PFIC is a fact-intensive determination made on an annual basis,
and we cannot provide any assurance regarding our PFIC status for future taxable years.
If we are a PFIC for any year, U.S. holders of our common shares may suffer adverse tax consequences. Gains realized by non-
corporate U.S. holders on the sale of our common shares would be taxed as ordinary income, rather than as capital gain, and the
preferential tax rate applicable to dividends received on our common shares would be lost. Interest charges would also be added to
taxes on gains and dividends realized by all U.S. holders. U.S. holders should consult their own tax advisors with respect to their
particular circumstances.
A U.S. holder may avoid these adverse tax consequences by timely making a qualified electing fund election. For each year that
we would meet the PFIC gross income or asset test, an electing U.S. holder would be required to include in gross income its pro rata
share of our net ordinary income and net capital gains, if any. A U.S. holder may make a qualified electing fund election only if we
commit to provide U.S. holders with their pro rata share of our net ordinary income and net capital gains. We will provide, upon
request, our U.S. holders with the information that is necessary in order for them to make a qualified electing fund election and to
report their common shares of ordinary earnings and net capital gains for each year for which we may be a PFIC. U.S. holders should
consult their own tax advisors with respect to making this election and the related reporting requirements.
A U.S. holder may also mitigate the adverse tax consequences by timely making a mark-to-market election. Generally, for each
year that we meet the PFIC gross income or asset test, an electing U.S. holder would include in gross income the increase in the value
of its common shares during each of its taxable years and deduct from gross income the decrease in the value of such shares during
each of its taxable years. A mark-to-market election may be made and maintained only if our common shares are regularly traded on a
qualified exchange, including the Nasdaq Global Market, or Nasdaq. Whether our common shares are regularly traded on a qualified
exchange is an annual determination based on facts that, in part, are beyond our control. Accordingly, a U.S. holder might not be
eligible to make a mark-to-market election to mitigate the adverse tax consequences if we are characterized as a PFIC. U.S. holders
should consult their own tax advisors with respect to the possibility of making this election.
In addition, if we are or become a PFIC (or our PFIC status is uncertain), it may deter certain U.S. investors from purchasing our
common shares, which could have an adverse impact on the market price of our common shares.
We may become subject to income tax in jurisdictions in which we are organized or operate, which would reduce our future
earnings.
There is a risk that we may become subject to income tax in jurisdictions outside of Canada and the United States, if under the
laws of any such jurisdiction, we are considered to be carrying on a trade or business there or earn income that is considered to be
sourced there and we do not qualify for an exemption. In jurisdictions where we do not believe we are subject to tax, we can provide
no certainty that tax authorities in those jurisdictions will not subject one or more tax years to examination. Tax examinations are often
complex as tax authorities may disagree with the treatment of items reported by us, the result of which could have a material adverse
effect on our operating results and financial condition.
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Acquisitions, joint ventures or other strategic transactions could disrupt our business, cause dilution to our shareholders and
otherwise harm our business.
We actively evaluate various strategic transactions on an ongoing basis, including the acquisition of other businesses, products
or technologies as well as pursuing strategic alliances, joint ventures, licensing transactions or investments in complementary
businesses. Any of these transactions could be material to our financial condition and operating results and expose us to many risks,
including:
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disruption in our relationships with collaborators or suppliers as a result of such a transaction;
unanticipated liabilities related to acquired companies;
difficulties integrating acquired personnel, technologies and operations into our existing business;
retention of key employees;
diversion of management time and focus from operating our business to pursuing strategic transactions and managing any
such strategic alliances, joint ventures or acquisition integration challenges;
dilution to our shareholders if we issue equity in connection with such transactions;
increases in our expenses and reductions in our cash available for operations and other uses; and
possible write-offs or impairment charges relating to acquired businesses.
Foreign acquisitions involve unique risks in addition to those mentioned above, including those related to integration of
operations across different cultures and languages, currency risks and the particular economic, political and regulatory risks associated
with specific countries.
Also, the anticipated benefit of any strategic alliance, joint venture or acquisition may not materialize. Future acquisitions or
dispositions could result in potentially dilutive issuances of our equity securities, the incurrence of debt, contingent liabilities or
amortization expenses or write-offs of goodwill, any of which could harm our financial condition. We cannot predict the number,
timing or size of future joint ventures or acquisitions, or the effect that any such transactions might have on our operating results.
Risks Related to Development, Clinical Testing and Regulatory Approval of Our Product Candidates
The regulatory approval processes of the FDA, EMA, Health Canada and regulators in other jurisdictions are lengthy, time-
consuming and inherently unpredictable. If we, or our collaborators, are unable to obtain regulatory approval for our product
candidates in a timely manner, or at all, our business will be substantially harmed.
The regulatory approval process is expensive and the time required to obtain approval from the FDA, EMA, Health Canada or
other regulatory authorities in other jurisdictions to sell any product is uncertain and may take years. Whether regulatory approval will
be granted is unpredictable and depends upon numerous factors, including the substantial discretion of the regulatory authorities.
Approval policies, regulations, or the type and amount of pre-clinical and clinical data necessary to gain approval may change during
the course of a product candidate’s clinical development and may vary among jurisdictions. Moreover, pre-clinical and clinical data
are often susceptible to varying interpretations and analyses, and even if the pre-clinical studies show promising results and clinical
trials are successfully completed, we cannot guarantee that the FDA, EMA, Health Canada or other regulatory authorities in other
jurisdictions will interpret the results as we do, and more trials, manufacturing-related studies or non-clinical studies could be required
before we submit our product candidates for approval. Many companies that have believed their product candidates performed
satisfactorily in pre-clinical studies and clinical trials have nonetheless failed to obtain marketing approval of their products. To the
extent that the results of our studies and trials are not satisfactory to the FDA, EMA, Health Canada or other regulatory authorities in
other jurisdictions for support of a marketing application, approval of our product candidates may be significantly delayed, or we may
be required to expend significant additional resources, which may not be available to us, to conduct additional trials in support of
potential approval of our product candidates. It is also possible that none of our existing product candidates or any of our future
product candidates will ever obtain regulatory approval, even if we expend substantial time and resources seeking such approval.
Our product candidates could fail to receive regulatory approval for many reasons, including the following:
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the FDA, EMA, Health Canada or other regulatory authorities may disagree with the design or implementation of our or our
collaborators’ clinical trials;
• we or our collaborators may be unable to demonstrate to the satisfaction of the FDA, EMA, Health Canada or other
regulatory authorities that a product candidate is safe and effective for its proposed indication;
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the results of clinical trials may not meet the level of statistical significance required by the FDA, EMA, Health Canada or
other regulatory authorities for approval;
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• we, or our collaborators, may be unable to demonstrate that a product candidate’s clinical and other benefits outweigh its
safety risks;
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the FDA, EMA, Health Canada or other regulatory authorities may disagree with our or our collaborators’ interpretation of
data from pre-clinical studies or clinical trials;
the data collected from clinical trials of our product candidates may not be sufficient to support the submission of a New
Drug Application, or NDA, or other submission or to obtain regulatory approval in the U.S. or elsewhere;
the FDA, EMA, Health Canada or other regulatory authorities may fail to approve the manufacturing processes, controls or
facilities of third-party manufacturers with which we or our collaborators contract for clinical and commercial supplies; and
the approval policies or regulations of the FDA, EMA, Health Canada or other regulatory authorities may significantly
change in a manner rendering our or our collaborators’ clinical data insufficient for approval.
Even if we, or our collaborators, obtain approval for a particular product, regulatory authorities may grant approval contingent
on the performance of costly post-approval clinical trials, or may approve a product with a label that does not include the labeling
claims necessary or desirable for the successful commercialization of that product.
In addition, because there may be approved treatments for some of the diseases for which we may seek approval, in order to
receive regulatory approval, we may need to demonstrate in clinical trials that the product candidates we develop to treat those
diseases are not only safe and effective, but may need to be compared to existing products, which may make it more difficult for our
product candidates to receive regulatory approval or adequate reimbursement.
Clinical drug development involves a lengthy and expensive process with uncertain timelines and uncertain outcomes. If
clinical trials are prolonged, delayed or not completed, we, or our collaborators, may be unable to commercialize our product
candidates on a timely basis.
Clinical testing of product candidates is expensive and, depending on the stage of development, can take a substantial period of
time to complete. Clinical trial outcomes are inherently uncertain, and failure can occur at any time during the clinical development
process.
Clinical trials can be halted or delayed for a variety of reasons, including those related to:
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side effects or adverse events in study participants presenting an unacceptable safety risk;
inability to reach agreement with prospective CROs and clinical trial sites, or the breach of such agreements;
failure of third-party contractors, such as CROs, or investigators to comply with regulatory requirements, including GCPs;
delay or failure in obtaining the necessary approvals from regulators or institutional review boards, or IRBs, in order to
commence a clinical trial at a prospective trial site, or their suspension or termination of a clinical trial once commenced;
a requirement to undertake and complete additional pre-clinical studies to generate data required to support the continued
clinical development of a product candidate or submission of an NDA;
inability to enroll sufficient patients to complete a protocol, particularly in orphan diseases;
difficulty in having patients complete a trial or return for post-treatment follow-up;
clinical sites deviating from trial protocol or dropping out of a trial;
problems with drug product or drug substance storage, stability and distribution;
our inability to add new or additional clinical trial sites;
our inability to manufacture, or obtain from third parties, adequate supply of drug substance or drug product sufficient to
complete our pre-clinical studies and clinical trials; and
governmental or regulatory delays and changes in regulatory requirements, policy and guidelines.
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The results of any Phase 3 or other pivotal clinical trial may not be adequate to support marketing approval. These clinical trials
are lengthy and, with respect to non-orphan indications, usually involve many hundreds to thousands of patients. In addition, if the
FDA, EMA, Health Canada or another regulator disagrees with our or our collaborator’s choice of the key testing criterion, or primary
endpoint, the results for the primary endpoint are not robust or significant relative to the control group of patients not receiving the
experimental therapy, or our statistical analysis is inconclusive, such regulator may refuse to approve our product candidate in the
region in which it has jurisdiction. The FDA, EMA, Health Canada or other regulators also may require additional clinical trials as a
condition for approving any of these product candidates.
We could also encounter delays if a clinical trial is suspended or terminated by us, by our collaborators, by the IRBs of the
institutions in which such trial is being conducted, by any Data Safety Monitoring Board for such trial, or by the FDA, EMA, Health
Canada or other 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 our clinical protocols, inspection of the
clinical trial operations or trial site by the FDA, EMA, Health Canada or other regulatory authorities resulting in the imposition of a
clinical hold, product candidate manufacturing problems, unforeseen safety issues or adverse side effects, failure to demonstrate a
benefit from using a drug, changes in governmental regulations or administrative actions or lack of adequate funding to continue the
clinical trial. In addition, delays can occur due to safety concerns arising from trials or other clinical data regarding another company’s
product candidate in the same compound class as one of ours.
Additionally, changes in applicable regulatory requirements and guidance may occur and we may need to amend clinical trial
protocols to reflect these changes or to include additional objectives that could yield important scientific information critical to our
overall development strategy. The protocol amendment process often requires review and approval by several review bodies,
including regulatory agencies and scientific, regulatory and ethics boards and IRBs. These protocol amendments may not be accepted
by the review bodies in the form submitted, or at all, which may impact costs, timing or successful completion of a clinical trial.
If we or our collaborators experience delays in the completion of, or termination of, any clinical trial of one of our product
candidates, the commercial prospects of the product candidate will be harmed, could shorten the period during which we may have the
exclusive right to commercialize our products under patent protection, and our or our collaborators’ ability to commence product sales
and generate product revenue from the product will be delayed. In addition, any delays in completing our clinical trials will increase
our costs and slow down our product candidate development and approval process. Any of these occurrences may harm our business,
financial condition and prospects significantly. In addition, many of the factors that cause, or lead to, a delay in the commencement or
completion of clinical trials may also ultimately lead to the denial of regulatory approval of our product candidates.
XEN496 targets an ultra-orphan indication of KCNQ2-DEE and the FDA has indicated that a single, small pivotal trial may be
sufficient to demonstrate effectiveness and safety in KCNQ2-DEE provided that no new or unexpected safety issues arise during drug
development. However, other regulatory authorities may require additional data. Further, even though we believe the safety and
efficacy profile of ezogabine, the active ingredient in XEN496, in pediatric patients with KCNQ2-DEE generated to date by others
appears promising based on published clinical case reports, we do not yet know if the pediatric-specific formulation of XEN496 will
have the same or similar safety, pharmacokinetic and/or efficacy profile in pediatric patients with KCNQ2-DEE as the original
formulation of ezogabine. If we are unable to replicate the published clinical case reports, due to the new formulation or any other
factors, the clinical development of XEN496 may not be successful and the FDA or other regulatory authorities may require additional
data in more patients or we may not be able to generate sufficient data for approval in this patient population.
Clinical trials may fail to demonstrate adequately the safety and efficacy of our or our collaborators’ product candidates,
which could prevent or delay regulatory approval and commercialization.
Before obtaining regulatory approvals for the commercial sale of our products, we or our collaborators must demonstrate
through lengthy, complex and expensive pre-clinical testing and clinical trials that the product candidate is both safe and effective for
use in each target indication. Clinical trials often fail to demonstrate safety and efficacy of the product candidate studied for the target
indication. Most product candidates that commence clinical trials are never approved as products.
In the case of some of our and our collaborators’ product candidates, we and our collaborators are seeking to develop treatments
for diseases for which there is relatively limited clinical experience, and clinical trials may use novel endpoints and measurement
methodologies or subjective patient feedback, which adds a layer of complexity to these clinical trials and may delay regulatory
approval. In addition, our focus on orphan and niche markets may cause us to select target indications that are in more challenging
therapeutic areas. Related to our collaboration with Genentech and our agreement with Flexion, clinical trials for pain are inherently
difficult to conduct. The primary measure of pain is based on subjective patient feedback, which can be influenced by factors outside
of our control and can vary widely from day to day for a particular patient, from patient to patient, and from site to site within a
clinical study. The placebo effect also tends to have a more significant impact in pain trials.
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If our or our collaborators’ product candidates are not shown to be both safe and effective in clinical trials, such product
candidates will be unable to obtain regulatory approval or be successfully commercialized. In such case, we would need to develop
other compounds and conduct associated pre-clinical testing and clinical trials, as well as potentially seek additional financing, all of
which would have a material adverse effect on our business, growth prospects, operating results, financial condition and results of
operations.
We or our collaborators may find it difficult to enroll patients in our clinical studies, including for ultra-orphan, orphan or
niche indications, which could delay or prevent clinical studies of our product candidates.
We or our collaborators may not be able to identify, recruit and enroll a sufficient number of patients, or those with required or
desired characteristics to achieve diversity in a study, to complete clinical studies in a timely manner, or at all. Patient enrollment for
clinical trials for ultra-orphan, orphan and niche indications and for more prevalent conditions is affected by factors including:
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severity of the disease under investigation;
design of the study protocol;
size of the patient population;
eligibility criteria for the study in question;
perceived risks and benefits of the product candidate under study;
proximity and availability of clinical study sites for prospective patients;
availability of competing therapies and clinical studies;
efforts to facilitate timely enrollment in clinical studies; and
patient referral practices of physicians.
The limited patient populations in ultra-orphan, orphan and niche indications, such as KCNQ2-DEE, SCN8A-DEE, other early
infantile epileptic encephalopathies, or EIEEs, alternating hemiplegia of childhood, or AHC, and hemiplegic migraine, or HM, present
significant recruitment challenges for clinical trials and a full understanding of the size of these populations is still relatively unknown.
Many of these patients may not be suitable or available to participate in our or our collaborators’ clinical trials. This means that we or
our collaborators will generally have to run multi-site and potentially multi-national trials, which can be expensive and require close
coordination and supervision. If we or our collaborators’ experience delays in completing our clinical trials, such delays could result in
increased costs, delays in advancing our product development, delays in testing the effectiveness of our product candidates or
termination of the clinical studies altogether. Even if we or our collaborators’ are successful in receiving regulatory approval, the
limited patient populations in ultra-orphan, orphan and niche indications may impact the successful commercialization of our or our
collaborators’ product candidates and reimbursement rates, which could impact revenue and our ability to achieve profitability.
The FDA has not yet approved any drug products specifically for AHC, KCNQ2-DEE or SCN8A-DEE, and the clinical
endpoints required to obtain approval are not well defined.
Given the nature of some of the rare diseases we and our collaborators are seeking to treat, we or our collaborators may have to
devise novel clinical endpoints to be tested in studies, which can lead to some subjectivity in interpreting study results and could result
in regulatory agencies not agreeing with the validity or the adequacy of the chosen endpoints, or our or our collaborators’
interpretation of the clinical data, and therefore denying approval. Negotiating the appropriate endpoints to use with FDA or similar
regulators may be costly and time-consuming, and may delay clinical trials. In post-Phase 1 trials, given the illness of the subjects in
our and our collaborators’ studies and the nature of the subjects’ rare diseases, we or our collaborators may also be required or choose
to conduct certain studies on an open-label basis. Additionally, we or our collaborators may elect to review interim clinical data at
multiple time points during the studies, which could introduce bias into the study results, or result in statistical penalties being applied
to the data, and potentially result in denial of approval.
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If we fail to obtain or maintain orphan drug designation or other regulatory exclusivity for some of our product candidates, our
competitive position would be harmed.
Although we may file intellectual property to protect XEN007 and additional intellectual property to protect XEN496, these
product candidates are not currently covered by any issued patents and we may have to rely solely on orphan drug designation to gain
market exclusivity for these product candidates. Currently, this designation provides market exclusivity in the U.S. and the EU for
seven years and ten years, respectively, if a product is the first such product approved for such orphan indication. This market
exclusivity does not, however, pertain to indications other than those for which the drug was specifically designated in the approval,
nor does it prevent other types of drugs from receiving orphan designations or approvals in these same indications. Further, even after
an orphan drug is approved, the FDA can subsequently approve a drug with similar chemical structure for the same condition if the
FDA concludes that the new drug is clinically superior to the orphan product or a market shortage occurs.
In the EU, orphan exclusivity may be reduced to six years if the drug no longer satisfies the original designation criteria or can
be lost altogether if the marketing authorization holder consents to a second orphan drug application or cannot supply enough drug, or
when a second applicant demonstrates its drug is “clinically superior” to the original orphan drug. XEN007, a drug we are evaluating
for potential development in HM or AHC, has received orphan drug designation from the FDA for each indication. We have also
received orphan drug designation from the FDA for XEN496, a drug we intend to begin Phase 3 development for the treatment of
KCNQ2-DEE in 2020. If we seek orphan drug designations for other indications or in other jurisdictions, we may fail to receive such
orphan drug designations and, even if we succeed, such orphan drug designations may fail to result in or maintain orphan drug
exclusivity upon approval, which would harm our competitive position. Further, not all jurisdictions, such as Canada, have orphan
drug designations. Neither orphan drug designation, nor rare pediatric disease, or RPD, designation gives the drug any advantage in
the regulatory review or approval process.
Although the FDA has granted RPD designation to XEN007 for the treatment of AHC, we may not be able to realize any value
from such designation.
Our product candidate XEN007 has received RPD designation from the FDA for the treatment of AHC. The FDA defines a
"rare pediatric disease" as a disease that affects fewer than 200,000 individuals in the U.S. primarily under the age of 18 years old.
Under the FDA's RPD priority review voucher program, upon the approval of a new drug application, NDA, or a biologics license
application, BLA, for the treatment of an RPD, the sponsor of such application would be eligible for a priority review voucher that can
be used to obtain priority review for a subsequent NDA or BLA. There is no assurance we will receive a RPD priority review voucher
or that use of the priority review voucher will result in a faster review or approval for a subsequent marketing application. It is
possible that even if we obtain approval for XEN007 and qualify for such a priority review voucher, the program may no longer be in
effect at the time of XEN007 approval. Also, although priority review vouchers may be freely sold or transferred to third parties, there
is no guarantee that we will be able to realize any value if we were to sell a priority review voucher to a third party. We may not be
able to receive approval of an NDA for XEN007 for AHC prior to October 1, 2022 after which Congress must further reauthorize the
program for priority review vouchers. RPD Designation does not lead to faster development or regulatory review of the product, or
increase the likelihood that it will receive marketing approval.
Results of pre-clinical studies and/or earlier clinical trials may not be predictive of the results of later clinical trials and the
results of our clinical trials may not satisfy the requirements of the FDA, EMA, Health Canada or foreign regulatory authorities.
The results of pre-clinical studies, either generated by us, such as for XEN901 (which we licensed to Neurocrine Biosciences
and is now known as NBI-921352) or XEN402 (which we sold to Flexion and is now known as FX301), or by our CROs or by other
third parties from which we have in-licensed or acquired a product candidate, such as for XEN1101, may not be predictive of results
in clinical testing. Moreover, pre-clinical results can often be difficult to compare across different studies for a variety of reasons,
including differences in experimental protocols and techniques, personnel, equipment and other factors, which may make the pre-
clinical results less reliable and predictive of clinical trial results. In addition, published clinical data or case reports from third parties
or early clinical trial data of our product candidates may not be predictive of the results of later-stage clinical trials. Interpretation of
results from early, usually smaller, studies that suggest a clinically meaningful response in some patients, requires caution. Results
from later stages of clinical trials enrolling more patients may fail to show the desired safety and efficacy results or otherwise fail to be
consistent with the results of earlier trials of the same product candidate. Later clinical trial results may not replicate earlier clinical
trials for a variety of reasons, including differences in trial design, different trial endpoints (or lack of trial endpoints in exploratory
studies), patient population, number of patients, patient selection criteria, trial duration, drug dosage and formulation and lack of
statistical power in the earlier studies. These uncertainties are enhanced where the diseases under study lack established clinical
endpoints, validated measures of efficacy, as is often the case with orphan diseases for which no drugs have been developed
previously and where the product candidates target novel mechanisms. For example, to our knowledge, NBI-921352 is the first
selective Nav1.6 sodium channel inhibitor being developed for the treatment of epilepsy and therefore standard pre-clinical models
may not be predictive of clinical efficacy due to its novel molecular mechanism.
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Further, our product candidates may not be approved even if they achieve their primary endpoint in our Phase 3 clinical trials.
The FDA, EMA, Health Canada or foreign regulatory authorities may disagree with our trial design and our interpretation of data from
pre-clinical studies and clinical trials. In addition, any of these regulatory authorities may change its requirements for the approval of a
product candidate even after reviewing and providing comments or advice on a protocol for a pivotal clinical trial that, if successful,
would potentially form the basis for an application for approval by the FDA, EMA, Health Canada or another regulatory authority.
Furthermore, any of these regulatory authorities may also approve our product candidates for a narrower indication than we request or
may grant approval contingent on the performance of costly post-marketing clinical trials.
Changes in methods of product candidate manufacturing or formulation may result in additional costs or delay.
As product candidates are developed through pre-clinical to late stage clinical trials towards approval and commercialization, it
is common that various aspects of the development program, such as manufacturing methods and formulations, are altered along the
way in an effort to optimize products, processes and results, to extend patent protection and/or to target different populations. For
example, XEN496 is a pediatric-specific formulation of ezogabine and we have also developed a pediatric formulation for NBI-
921352 that was included in the license to Neurocrine Biosciences. Any of these changes could cause our product candidates to
perform differently and not provide the same drug exposure profile in children and/or cause side effects different to those observed
with formulations previously tested in adults. Unexpected changes in the performance of a new formulation may affect the results of
planned clinical trials or other future clinical trials conducted with the altered materials. This could delay completion of clinical trials,
require the conduct of bridging clinical trials or the repetition of one or more clinical trials, increase clinical trial costs and/or delay or
jeopardize approval of our product candidates and/or jeopardize our or our collaborators’ ability to commence product sales and
generate revenue.
Even if we obtain and maintain approval for our product candidates from one jurisdiction, we may never obtain approval for
our product candidates in other jurisdictions, which would limit our market opportunities and adversely affect our business.
Sales of our approved products, if any, will be subject to the regulatory requirements governing marketing approval in the
countries in which we obtain regulatory approval, and we plan to seek regulatory approval to commercialize our product candidates in
North America, the EU and in additional foreign countries. Clinical trials conducted in one country may not be accepted by regulatory
authorities in other countries and regulatory approval in one country does not ensure approval in any other country, while a failure or
delay in obtaining regulatory approval in one country may have a negative effect on the regulatory approval process in others. For
example, approval in the U.S. by the FDA does not ensure approval by regulatory authorities in other countries or jurisdictions, and
approval by one foreign regulatory authority does not ensure approval by the FDA, EMA, Health Canada or regulatory authorities in
other countries. Approval procedures vary among jurisdictions and can be lengthy and expensive, and involve requirements and
administrative review periods different from, and greater than, those in the U.S., including additional pre-clinical studies or clinical
trials. Even if our product candidates are approved, regulatory approval for any product may be withdrawn by the regulatory
authorities in a particular jurisdiction.
Even if a product is approved, the FDA, EMA, Health Canada, or another applicable regulatory authority, as the case may be,
may limit the indications for which the product may be marketed, require extensive warnings on the product labeling or require
expensive and time-consuming clinical trials or reporting as conditions of approval. In many countries outside the U.S., a product
candidate must be approved for reimbursement before it can be approved for sale in that country. In some cases, the price that we
intend to charge for a product is also subject to approval.
Regulatory authorities in countries outside of the U.S., Canada and the EU also have their own requirements for approval of
product candidates with which we must comply prior to marketing in those countries. Obtaining foreign regulatory approvals and
compliance with such foreign regulatory requirements could result in significant delays, difficulties and costs for us and could delay or
prevent the introduction of our current and any future products, in certain countries.
If we fail to receive applicable marketing approvals or comply with the regulatory requirements in international markets, our
target market will be reduced and our ability to realize the full market potential of our product candidates will be harmed and our
business will be adversely affected.
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We work with outside scientists and their institutions in executing our business strategy of developing product candidates. These
scientists may have other commitments or conflicts of interest, which could limit our access to their expertise and harm our ability
to develop viable product candidates.
We work with scientific advisors and collaborators at academic institutions and other research institutions. These scientists and
collaborators are not our employees; rather, they serve as either independent contractors or the primary investigators under research
collaboration agreements that we have with their sponsoring academic or research institution. Such scientists and collaborators may
have other commitments that would limit their availability to us. Although our scientific advisors generally agree not to do competing
work, if an actual or potential conflict of interest between their work for us and their work for another entity arises, we may lose their
services. It is also possible that some of our valuable proprietary knowledge may become publicly known through these scientific
advisors if they breach their confidentiality agreements with us, which would cause competitive harm to our business.
Risks Related to Commercialization
If, in the future, we are unable to establish our own sales, marketing and distribution capabilities or enter into licensing or
collaboration agreements for these purposes, we may not be successful in independently commercializing any future products.
We do not have a sales or marketing infrastructure and, as a company, have no sales, marketing or distribution experience. Our
strategy involves, in part, building our own commercial infrastructure to selectively commercialize future products in niche or orphan
indications in certain commercial markets. If we enter into licensing or collaboration agreements, we may seek to retain the right to
participate in the future development and commercialization of such products if we believe such involvement would advance our
business.
To develop internal sales, distribution and marketing capabilities, we will have to invest significant amounts of financial and
management resources, some of which will need to be committed prior to any confirmation that any of our product candidates will be
approved. For any future products for which we decide to perform sales, marketing and distribution functions ourselves, we could face
a number of additional risks, including:
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the maintenance of existing or the establishment of new supply arrangements with third-party drug product suppliers and
manufacturers;
the maintenance of existing or the establishment of new scaled production arrangements with third-party manufacturers to
obtain finished products that are appropriately packaged for sale;
a continued acceptable safety profile following any marketing approval;
our inability to recruit and retain adequate numbers of qualified sales and marketing personnel or develop alternative sales
channels;
the inability of our products to secure acceptance from physicians, healthcare providers, patients, third-party payors and the
medical community including identifying an adequate number of physicians and patients, especially for ultra-orphan,
orphan or niche indications;
the lack of complementary products to be offered by sales personnel, which may put us at a competitive disadvantage
relative to companies with more extensive product lines;
unforeseen costs and expenses associated with creating and maintaining an independent sales and marketing organization;
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our ability to compete with other therapies.
Where and when appropriate, we may elect to utilize contract sales forces or distribution partners to assist in the
commercialization of our product candidates. If we enter into arrangements with third parties to perform sales, marketing and
distribution services for a product, the resulting revenue or the profitability from this revenue to us is likely to be lower than if we had
sold, marketed and distributed that product ourselves. In addition, we may not be successful in entering into arrangements with third
parties to sell, market, and distribute our product candidates or may be unable to do so on terms that are favorable to us. We likely will
have little control over such third parties, and any of these third parties may fail to devote the necessary resources and attention to sell,
market, and distribute our current or any future products effectively.
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Even if we receive regulatory approval to commercialize any of the product candidates that we develop independently, we will be
subject to ongoing regulatory obligations and continued regulatory review, which may result in significant additional expense.
Any regulatory approvals that we receive for our product candidates we commercialize will be subject to limitations on the
approved indicated uses for which the product may be marketed or subject to certain conditions of approval and may contain
requirements for potentially costly post-approval trials, including Phase 4 clinical trials, and surveillance to monitor the safety and
efficacy of the marketed product.
For any approved product, we will need to ensure continued compliance with extensive regulations and requirements regarding
the manufacturing processes, labeling, packaging, distribution, adverse event reporting, storage, advertising, promotion and
recordkeeping for the product. These requirements include submissions of safety and other post-approval information and reports, as
well as continued compliance with current good manufacturing practices, or cGMP, and current good clinical practices, or cGCP, for
any clinical trials that we or our collaborators are required to conduct post-approval. Later discovery of previously unknown problems
with a product, including adverse events of unanticipated severity or frequency, or with third-party manufacturers or manufacturing
processes, or failure to comply with regulatory requirements, may result in, among other things:
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restrictions on the marketing or manufacturing of the product, withdrawal of the product from the market or voluntary or
mandatory product recalls;
fines, warning letters or holds on any post-approval clinical trials;
refusal by the FDA, EMA, Health Canada or another applicable regulatory authority to approve pending applications or
supplements to approved applications filed by us or our collaborators, or suspension or revocation of product license
approvals;
product seizure or detention, or refusal to permit the import or export of products; and
injunctions or the imposition of civil or criminal penalties.
Occurrence of any of the foregoing could have a material and adverse effect on our business and results of operations.
In addition, prescription drugs may be promoted only for the approved indications in accordance with the approved label. The
FDA and other agencies actively enforce the laws and regulations prohibiting the promotion of off-label uses, and a company that is
found to have improperly promoted off-label may be subject to significant liability. However, physicians may, in their independent
medical judgment, prescribe legally available products for off-label uses. The FDA does not regulate the behavior of physicians in
their choice of treatments but the FDA and other foreign regulators do restrict manufacturer’s communications on the subject of off-
label use of their products.
If the market opportunities for our product candidates are smaller than we believe they are, our revenue may be adversely
affected, and our business may suffer. Because the target patient populations for some of our product candidates are small, we
must be able to successfully identify patients and acquire a significant market share to achieve profitability and growth.
Some of our product candidates focus on treatments for rare and ultra-rare diseases. Given the small number of patients who
have some of the diseases that we are targeting, our profitability and growth depend on successfully identifying patients with these
rare and ultra-rare diseases. Currently, most reported estimates of the prevalence of these diseases are based on studies of small
subsets of the population in specific geographic areas, which are then extrapolated to estimate the prevalence of the diseases in the
U.S. or elsewhere. Our projections of both the number of people who have these diseases, as well as the subset of people with these
diseases who have the potential to benefit from treatment with our product candidates, are based on our internal estimates. These
estimates have been derived from a variety of sources, including scientific literature, surveys of clinics, patient foundations, and
market research, and may prove to be incorrect. Further, new studies may change the estimated incidence or prevalence of these
diseases, and, as a result, the number of patients with these diseases may turn out to be lower than expected. Our effort to identify
patients with diseases we seek to treat is in early stages, and we cannot accurately predict the number of patients for whom treatment
might be possible. Additionally, the potentially addressable patient population for each of our product candidates may be limited or
may not be amenable to treatment with our product candidates, and new patients may become increasingly difficult to identify or gain
access to, which would adversely affect our results of operations and our business. Finally, even if we obtain significant market share
for our product candidates, because the potential target populations are very small, we may never achieve profitability despite
obtaining such significant market share.
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Even if we or our collaborators receive approval to commercialize our products, unfavorable pricing regulations and
challenging third-party coverage and reimbursement practices could harm our business.
Our or any collaborators’ ability to commercialize any products successfully will depend, in part, on the extent to which
coverage and reimbursement for these products and related treatments will be available from government healthcare programs, private
health insurers, managed care plans, and other organizations. Government authorities and third-party payers, such as private health
insurers and health maintenance organizations, decide which medications they will pay for and establish reimbursement levels. A
primary trend in the U.S. healthcare industry is cost containment. Government authorities and third-party payers have attempted to
control costs by limiting coverage and the amount of reimbursement for particular medications. Increasingly, third-party payers are
requiring that drug companies provide them with predetermined discounts from list prices and are challenging the prices charged for
medical products. We cannot be sure that coverage and reimbursement will be available for any product that we or any collaborator
commercialize and, if reimbursement is available, the level of reimbursement. In addition, coverage and reimbursement may impact
the demand for, or the price of, any product candidate for which we or a collaborator obtains marketing approval. If coverage and
reimbursement are not available or reimbursement is available only to limited levels, we or our collaborators may not be able to
successfully commercialize any product candidate for which marketing approval is obtained.
There may be significant delays in obtaining coverage and reimbursement for newly approved drugs, and coverage may be more
limited than the purposes for which the drug is approved by the FDA, EMA, Health Canada or other regulatory authorities. Moreover,
eligibility for coverage and reimbursement does not imply that a drug will be paid for in all cases or at a rate that covers our costs,
including research, development, manufacture, sale and distribution expenses. Interim reimbursement levels for new drugs, if
applicable, may also be insufficient to cover our and any collaborator’s costs and may not be made permanent. Reimbursement rates
may vary according to the use of the drug and the clinical setting in which it is used, may be based on reimbursement levels already
set for lower cost drugs and may be incorporated into existing payments for other services. Net prices for drugs may be reduced by
mandatory discounts or rebates required by government healthcare programs or private payers and by any future relaxation of laws
that presently restrict imports of drugs from countries where they may be sold at lower prices than in the U.S. Third-party payers often
rely upon Medicare coverage policy and payment limitations in setting their own reimbursement policies. Our or any collaborator’s
inability to promptly obtain coverage and profitable payment rates from both government-funded and private payers for any approved
products that we or our collaborators develop could have a material adverse effect on our operating results, our ability to raise capital
needed to commercialize products and our overall financial condition.
Our and our collaborators’ target patient populations in orphan and niche indications, such as KCNQ2-DEE, and SCN8A-DEE,
and other potential target patient populations, such as AHC, are relatively small. In order for therapies that are designed to treat
smaller patient populations to be commercially viable, the pricing, coverage and reimbursement for such therapies needs to be higher,
on a relative basis, to account for the lack of volume. Accordingly, we will need to implement pricing, coverage and reimbursement
strategies for any approved product that accounts for the smaller potential market size. If we are unable to establish or sustain
coverage and adequate reimbursement for our current and any future products from third party payers or the government, the adoption
of those products and sales revenue will be adversely affected, which, in turn, could adversely affect the ability to market or sell those
products.
Recently enacted and future legislation may increase the difficulty and cost for us to commercialize any products that we or our
collaborators develop and affect the prices we may obtain.
The U.S. and some foreign jurisdictions are considering or have enacted a number of legislative and regulatory proposals to
change the healthcare system in ways that could affect our ability to sell any of our products profitably, once such products are
approved for sale. Among policy makers and payers in the U.S. 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 U.S., the
pharmaceutical industry has been a particular focus of these efforts and has been significantly affected by major legislative initiatives.
For example, in 2010, the Patient Protection and Affordable Care Act, as amended by the Health Care and Education
Reconciliation Act of 2010, collectively, the PPACA, was enacted and includes measures that have significantly changed the way
healthcare is financed by both governmental and private insurers. The Trump administration and Congress, through legislation,
executive orders and other measures, has taken action to repeal and replace certain provisions of the PPACA and a recent court
decision has called into question the enforceability of the PPACA. It is unclear how this decision, future decisions, subsequent appeals,
and other efforts to repeal and replace the PPACA will impact the PPACA and our business.
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In addition, there has 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 federal and state legislation
designed to, among other things, bring more transparency to product pricing, review the relationship between pricing and
manufacturer patient programs, and reform government program reimbursement methodologies for pharmaceutical products. At the
federal level, the Trump administration has continued to pursue additional drug price control measures that could be enacted during
the budget process or in other future legislation. Congress and the Trump administration have each indicated that it will continue to
seek new legislative and/or administrative measures to control drug costs. 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. These and other health reform
measures that are implemented may have a material adverse effect on our operations.
In the EU, similar political, economic and regulatory developments may affect our ability to profitably commercialize our
current or any future products. In addition to continuing pressure on prices and cost containment measures, legislative developments at
the EU or member state level may result in significant additional requirements or obstacles that may increase our operating costs. In
international markets, reimbursement and healthcare payment systems vary significantly by country, and many countries have
instituted price ceilings on specific products and therapies. Our future products, if any, might not be considered medically reasonable
and necessary for a specific indication or cost-effective by third-party payers. An adequate level of reimbursement might not be
available for such products and third-party payers’ reimbursement policies might adversely affect our or our collaborators’ ability to
sell any future products profitably.
Legislative and regulatory proposals have been made to expand post-approval requirements and restrict sales and promotional
activities for pharmaceutical products. We cannot be sure whether additional legislative changes will be enacted, or whether the FDA
regulations, guidance or interpretations will be changed, or what the impact of such changes on the marketing approvals of our product
candidates, if any, may be. In addition, increased scrutiny by the U.S. Congress of the FDA’s approval process may significantly delay
or prevent marketing approval, as well as subject us to more stringent product labeling and post-approval testing and other
requirements.
We cannot predict the likelihood, nature or extent of government regulation that may arise from future legislation or
administrative action, either in the U.S. or in other jurisdictions. If we or our collaborators are slow or unable to adapt to changes in
existing requirements or the adoption of new requirements or policies, or if we or our collaborators are not able to maintain regulatory
compliance, our product candidates may lose any marketing approval that may have been obtained and we may not achieve or sustain
profitability, which would adversely affect our business.
Foreign governments tend to impose strict price controls, which may adversely affect our future profitability.
In most foreign countries, particularly those in the EU and Canada, prescription drug pricing and/or reimbursement is subject to
governmental control. In those countries that impose price controls, pricing negotiations with governmental authorities can take
considerable time after the receipt of marketing approval for a product. To obtain reimbursement or pricing approval in some countries,
we or our collaborators may be required to conduct a clinical trial that compares the cost-effectiveness of our product candidate to
other available therapies.
Some countries require approval of the sale price of a drug before it can be marketed. In many countries, the pricing review
period begins after marketing or product licensing approval is granted. In some foreign markets, prescription pharmaceutical pricing
remains subject to continuing governmental control even after initial approval is granted. As a result, we or our collaborators might
obtain marketing approval for a product in a particular country, but then be subject to price regulations that delay commercial launch
of the product, possibly for lengthy time periods, and negatively impact the revenue that is generated from the sale of the product in
that country. If reimbursement of such products is unavailable or limited in scope or amount, or if pricing is set at unsatisfactory levels,
or if there is competition from lower priced cross-border sales, our profitability will be negatively affected.
Risks Related to Our Dependence on Third Parties
Our prospects for successful development and commercialization of our partnered products and product candidates are
dependent upon the research, development and marketing efforts of our collaborators.
We have no control over the resources, time and effort that our collaborators may devote to our programs and limited access to
information regarding or resulting from such programs. We are dependent on our collaborators, including Neurocrine Biosciences,
Flexion, Genentech and Merck, to fund and conduct the research and any clinical development of product candidates under our
agreements with each of them, and for the successful regulatory approval, marketing and commercialization of one or more of such
products or product candidates. Such success will be subject to significant uncertainty.
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Our ability to recognize revenue from successful collaborations may be impaired by multiple factors including:
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a collaborator may shift its priorities and resources away from our programs due to a change in business strategies, or a
merger, acquisition, sale or downsizing of its company or business unit;
a collaborator may cease development in therapeutic areas which are the subject of our strategic alliances;
a collaborator may change the success criteria for a particular program or product candidate thereby delaying or ceasing
development of such program or candidate;
a significant delay in initiation of certain development activities by a collaborator will also delay payment of milestones tied
to such activities, thereby impacting our ability to fund our own activities;
a collaborator could develop a product that competes, either directly or indirectly, with our current or future products, if
any;
a collaborator with commercialization obligations may not commit sufficient financial or human resources to the marketing,
distribution or sale of a product;
a collaborator with manufacturing responsibilities may encounter regulatory, resource or quality issues and be unable to
meet demand requirements;
a collaborator may exercise its rights under the agreement to terminate our collaboration;
a dispute may arise between us and a collaborator concerning the research or development of a product candidate,
commercialization of a product or payment of royalties or milestone payments, any of which could result in a delay in
milestones, royalty payments or termination of a program and possibly resulting in costly litigation or arbitration which
may divert management attention and resources;
a collaborator may not adequately protect the intellectual property rights associated with a product or product candidate;
and
a collaborator may use our proprietary information or intellectual property in such a way as to invite litigation from a third
party.
If our collaborators do not perform in the manner we expect or fulfill their responsibilities in a timely manner, or at all, the
clinical development, regulatory approval and commercialization efforts could be delayed, terminated or be commercially
unsuccessful. Conflicts between us and our collaborators may arise. In the event of termination of one or more of our collaboration
agreements, it may become necessary for us to assume the responsibility of any terminated product or product candidates at our own
expense or seek new collaborators. In that event, we would likely be required to limit the size and scope of one or more of our
independent programs or increase our expenditures and seek additional funding which may not be available on acceptable terms or at
all, and our business would be materially and adversely affected.
We depend on our collaborative relationship with Neurocrine Biosciences to further develop and commercialize NBI-921352,
and if our relationship is not successful or is terminated, we may not be able to effectively develop and/or commercialize NBI-
921352, which could have a material adverse effect on our business.
We depend on Neurocrine Biosciences to collaborate with us to develop and commercialize NBI-921352. Under the agreement
and subject to input from the joint steering committee, Neurocrine Biosciences controls all decision-making with respect to the clinical
development and commercialization for NBI-921352.
As a result of our collaboration with Neurocrine Biosciences, the eventual success or commercial viability of NBI-921352 is
largely beyond our control. The financial returns to us, if any, depend in large part on the achievement of development and
commercialization milestones, plus a share of any revenue from sales. Therefore, our success, and any associated financial returns to
us and our investors, will depend in part on Neurocrine Biosciences’ performance under the agreement.
We are subject to a number of additional specific risks associated with our dependence on our collaborative relationship with
Neurocrine Biosciences, including:
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adverse decisions by Neurocrine Biosciences regarding the development and commercialization of NBI-921352;
possible disagreements as to the timing, nature and extent of development plans, including clinical trials or regulatory
approval strategy;
loss of significant rights if we fail to meet our obligations under the agreement;
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changes in key management personnel at Neurocrine Biosciences, including in members of the joint steering committee;
and
possible disagreements with Neurocrine Biosciences regarding the agreement, for example, with regard to ownership of
intellectual property rights.
If either we or Neurocrine Biosciences fail to perform our respective obligations, any clinical trial, regulatory approval or
development progress could be significantly delayed or halted, could result in costly or time-consuming litigation or arbitration and
could have a material adverse effect on our business.
Decisions by Neurocrine Biosciences to emphasize other drug candidates currently in its portfolio ahead of our product
candidates, or to add competitive agents to its portfolio could result in a decision to terminate the agreement, in which event, among
other things, we may be responsible for paying any remaining costs of all ongoing or future clinical trials.
Any of the above discussed scenarios could adversely affect the timing and extent of the development and commercialization
activities related to NBI-921352, which could materially and adversely impact our business.
We may not be successful in establishing new collaborations or maintaining our existing alliances, which could adversely affect
our ability to develop future product candidates and commercialize future products.
In the ordinary course, we engage with other biotechnology and pharmaceutical companies to discuss potential in-licensing, out-
licensing, alliances and other strategic transactions. We may seek to enter into these types of transactions to enhance and accelerate the
development of our future product candidates and the commercialization of any resulting products. We face significant competition in
seeking appropriate collaborators and the negotiation process is time-consuming and complex. Moreover, we may not be successful in
our efforts to establish other collaborations or other alternative arrangements for any future product candidates because our research
and development pipeline may be insufficient, our product candidates may be deemed to be at too early of a stage of development for
collaboration effort and/or third parties may view our product candidates as lacking the requisite potential to demonstrate safety and
efficacy. Even if we are successful in our efforts to establish collaborations, the terms that we agree upon may not be favorable to us
and we may not be able to maintain such collaborations if, for example, development or approval of a product candidate is delayed or
sales of an approved product are disappointing.
If any of our existing collaboration agreements is terminated, or if we determine that entering into other product collaborations
is in our best interest but we either fail to enter into, delay in entering into or fail to maintain such collaborations:
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the development of certain of our current or future product candidates may be terminated or delayed;
our cash expenditures related to development of our product candidates would increase significantly and we may need to
seek additional financing sooner than expected;
• we may be required to hire additional employees or otherwise develop expertise, such as clinical, regulatory, sales and
marketing expertise, some of which we do not currently have;
• we will bear all of the risk related to the development of any such product candidates; and
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the competitiveness of any product that is commercialized could be reduced.
We intend to rely on third-party manufacturers to produce our clinical product candidate supplies. Any failure by a third-party
manufacturer to produce acceptable supplies for us may delay or impair our ability to initiate or complete our clinical trials or
commercialize approved products.
We do not currently own or operate any manufacturing facilities nor do we have significant in-house manufacturing experience
or personnel. We rely on our collaborators to manufacture product candidates licensed to them or work with multiple CMOs to
produce sufficient quantities of materials required for the manufacture of our product candidates for pre-clinical testing and clinical
trials and intend to do so for the commercial manufacture of our products. If we are unable to arrange for such third-party
manufacturing sources, or fail to do so on commercially reasonable terms, we may not be able to successfully produce sufficient
supply of product candidate or we may be delayed in doing so. Such failure or substantial delay could materially harm our business.
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Reliance on third-party manufacturers entails risks to which we would not be subject if we manufactured product candidates
ourselves, including reliance on the third party for regulatory compliance and quality control and assurance, volume production, the
possibility of breach of the manufacturing agreement by the third party because of factors beyond our control (including a failure to
synthesize and manufacture our product candidates in accordance with our product specifications) and the possibility of termination or
nonrenewal of the agreement by the third party at a time that is costly or damaging to us. In addition, the FDA, EMA, Health Canada
and other regulatory authorities require that our product candidates be manufactured according to cGMP and similar foreign standards.
Pharmaceutical manufacturers and their subcontractors are required to register their facilities and/or products manufactured at the time
of submission of the marketing application and then annually thereafter with the FDA, EMA, Health Canada and other regulatory
agencies. They are also subject to periodic unannounced inspections by the FDA, EMA, Health Canada and other regulatory agencies.
Any subsequent discovery of problems with a product, or a manufacturing or laboratory facility used by us or our collaborators, may
result in restrictions on the product or on the manufacturing or laboratory facility, including product recall, suspension of
manufacturing, product seizure or a voluntary withdrawal of the drug from the market. Any failure by our third-party manufacturers to
comply with cGMP or any failure to deliver sufficient quantities of product candidates in a timely manner, could lead to a delay in, or
failure to obtain, regulatory approval of any of our product candidates.
We rely on third parties to monitor, support, conduct, and/or oversee pre-clinical studies and clinical trials of the product
candidates that we are developing independently and, in some cases, to maintain regulatory files for those product candidates. We
may not be able to obtain regulatory approval for our product candidates or commercialize any products that may result from our
development efforts, if we are not able to maintain or secure agreements with such third parties on acceptable terms, if these third
parties do not perform their services as required, or if these third parties fail to timely transfer any regulatory information held by
them to us.
We rely on entities outside of our control, which may include academic institutions, CROs, hospitals, clinics and other third-
party collaborators, to monitor, support, conduct and/or oversee pre-clinical and clinical studies of our current and future product
candidates. As a result, we have less control over the timing and cost of these studies and the ability to recruit trial subjects than if we
conducted these trials with our own personnel.
If we are unable to maintain or enter into agreements with these third parties on acceptable terms, or if any such engagement is
terminated prematurely, we may be unable to enroll patients on a timely basis or otherwise conduct our trials in the manner we
anticipate. In addition, there is no guarantee that these third parties will devote adequate time and resources to our studies or perform
as required by our contract or in accordance with regulatory requirements, including maintenance of clinical trial information
regarding our product candidates. If these third parties fail to meet expected deadlines, fail to transfer to us any regulatory information
in a timely manner, fail to adhere to protocols or fail to act in accordance with regulatory requirements or our agreements with them,
or if they otherwise perform in a substandard manner or in a way that compromises the quality or accuracy of their activities or the
data they obtain, then clinical trials of our future product candidates may be extended or delayed with additional costs incurred, or our
data may be rejected by the FDA, EMA, Health Canada or other regulatory agencies.
Ultimately, we are responsible for ensuring that each of our clinical trials is conducted in accordance with the applicable
protocol, legal, regulatory and scientific standards, and our reliance on third parties does not relieve us of our regulatory
responsibilities.
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We and our CROs are required to comply with current good laboratory practices, or cGLP, cGCP and cGMP regulations and
guidelines enforced by the FDA, Health Canada, the competent authorities of the member states of the European Economic Area and
comparable foreign regulatory authorities for products in clinical development. Regulatory authorities enforce these regulations
through periodic inspections of clinical trial sponsors, principal investigators, clinical trial sites, manufacturing facilities, nonclinical
testing facilities and other contractors. If we or any of our CROs fail to comply with these applicable regulations, the clinical data
generated in our nonclinical studies and clinical trials may be deemed unreliable and our submission of marketing applications may be
delayed or the FDA, EMA, Health Canada or another regulatory authority may require us to perform additional clinical trials before
approving our marketing applications. Upon inspection, the FDA, EMA, Health Canada or another regulatory authority could
determine that any of our clinical trials fail or have failed to comply with applicable cGCP regulations. In addition, our clinical trials
must be conducted with product produced under the cGMP regulations enforced by the FDA, EMA, Health Canada and other
regulatory authorities, and our clinical trials may require a large number of test subjects. Our failure to comply with cGLP, cGCP and
cGMP regulations may require us to repeat clinical trials, which would delay the regulatory approval process and increase our costs.
Moreover, our business may be implicated if any of our CROs violates federal or state fraud and abuse or false claims laws and
regulations or healthcare privacy and security laws.
If any of our clinical trial sites terminates for any reason, we may experience the loss of follow-up information on patients
enrolled in our ongoing clinical trials unless we are able to transfer the care of those patients to another qualified clinical trial site.
Further, if our relationship with any of our CROs is terminated, we may be unable to enter into arrangements with alternative CROs
on commercially reasonable terms, or at all.
Switching or adding CROs or other suppliers can involve substantial cost and require extensive management time and focus. In
addition, there is a natural transition period when a new CRO or supplier commences work. As a result, delays may occur, which can
materially impact our ability to meet our desired clinical development timelines. If we are required to seek alternative supply
arrangements, the resulting delays and potential inability to find a suitable replacement could materially and adversely impact our
business.
Risks Related to Intellectual Property
We could be unsuccessful in obtaining or maintaining adequate patent protection for one or more of our products or product
candidates.
Our commercial success will depend, in large part, on our ability to obtain and maintain patent and other intellectual property
protection with respect to our product candidates. We evaluate our global patent portfolio in the ordinary course of business to
enhance patent protection in areas of our strategic focus and in key markets for our potential products and may abandon existing
patents or patent applications related to terminated development programs or areas of low strategic importance. Patents might not be
issued or granted with respect to our patent applications that are currently pending, and issued or granted patents might later be found
to be invalid or unenforceable, be interpreted in a manner that does not adequately protect our current product or any future products,
or fail to otherwise provide us with any competitive advantage. The patent position of biotechnology and pharmaceutical companies is
generally uncertain because it involves complex legal and factual considerations. The standards applied by the U.S. Patent and
Trademark Office, or USPTO, and foreign patent offices in granting patents are not always applied uniformly or predictably. For
example, there is no uniform worldwide policy regarding patentable subject matter or the scope of claims allowable in biotechnology
and pharmaceutical patents. Consequently, patents may not issue from our pending patent applications, or we may end up with patent
claims of different scope in different jurisdictions. As such, we do not know the degree of future protection that we will have on our
proprietary products and technology, if any, and a failure to obtain adequate intellectual property protection with respect to our
product candidates and proprietary technology could have a material adverse impact on our business.
Periodic maintenance fees, renewal fees, annuity fees and various other governmental fees on patents and/or applications will be
due to be paid to the USPTO and various governmental patent agencies outside of the U.S. in several stages over the lifetime of the
patents and/or applications. The USPTO and various non-US governmental patent agencies require compliance with a number of
procedural, documentary, fee payment and other similar provisions during the patent application process. We employ reputable law
firms and other professionals to help us comply with respect to the patents and patent applications that we own, and we rely upon our
licensors or our other collaborators to effect compliance with respect to the patents and patent applications that we license. In some
cases, an inadvertent lapse can be cured by payment of a late fee or by other means in accordance with the applicable rules. However,
there are situations in which noncompliance can result in abandonment or lapse of the patent or patent application, resulting in partial
or complete loss of patent rights in the relevant jurisdiction. In such an event, our competitors might be able to enter the market and
this circumstance would have a material adverse effect on our business.
Our intellectual property rights will not necessarily provide us with competitive advantages.
The degree of future protection afforded by our intellectual property rights is uncertain because intellectual property rights have
limitations, and may not adequately protect our business, or permit us to maintain our competitive advantage.
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The following examples are illustrative:
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others may be able to make compounds that are similar to our product candidates but that are not covered by the claims of
the patents that we or our collaborators own or have exclusively licensed;
others may independently develop similar or alternative technologies without infringing our intellectual property rights;
issued patents that we own or have exclusively licensed may not provide us with any competitive advantages, or may be
held invalid or unenforceable, as a result of legal challenges by our competitors;
• we may obtain patents for certain compounds many years before we obtain marketing approval for products containing such
compounds, and because patents have a limited life, which may begin to run out prior to the commercial sale of the related
product, the commercial value of our patents may be limited;
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our competitors might conduct research and development activities in countries where we do not have patent rights and then
use the information learned from such activities to develop competitive products for sale in our major commercial markets;
• we may fail to develop additional proprietary technologies that are patentable;
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the laws of certain foreign countries may not protect our intellectual property rights to the same extent as the laws of the
U.S., or we may fail to apply for or obtain adequate intellectual property protection in all the jurisdictions in which we
operate; and
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the patents of others may have an adverse effect on our business, for example by preventing us from marketing one or more
of our product candidates for one or more indications.
Any of the aforementioned threats to our competitive advantage could have a material adverse effect on our business.
We may not be able to protect our intellectual property rights throughout the world.
Filing, prosecuting and defending patents on product candidates in all countries throughout the world would be prohibitively
expensive, and our intellectual property rights in some countries outside the U.S. can be less extensive than those in the U.S. In
addition, the laws of some foreign countries do not protect intellectual property rights to the same extent as federal and state laws in
the U.S. Consequently, we may not be able to prevent third parties from practicing our inventions in all countries outside the U.S., or
from selling or importing products made using our inventions in and into the U.S. or other jurisdictions. Competitors may use our
technologies in jurisdictions where we have not obtained patent protection to develop their own products and further, may export
otherwise infringing products to territories where we have patent protection, but enforcement is not as strong as that in the U.S. These
products may compete with our current or future products, if any, and our patents or other intellectual property rights may not be
effective or sufficient to prevent them from competing.
Many companies have encountered significant problems in protecting and defending intellectual property rights in foreign
jurisdictions. The legal systems of certain countries, particularly certain developing countries, do not favor the enforcement of patents,
trade secrets and other intellectual property protection, particularly those relating to biotechnology products, which could make it
difficult for us to stop the infringement of our patents or marketing of competing products in violation of our proprietary rights
generally. Proceedings to enforce our patent rights in foreign jurisdictions could result in substantial costs and divert our efforts and
attention from other aspects of our business, could put our patents at risk of being invalidated or interpreted narrowly and our patent
applications at risk of not issuing and could provoke third parties to assert claims against us. We may not prevail in any lawsuits that
we initiate and the damages or other remedies awarded, if any, may not be commercially meaningful. Accordingly, our efforts to
enforce our intellectual property rights around the world may be inadequate to obtain a significant commercial advantage from the
intellectual property that we develop or license.
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Our patents covering one or more of our products or product candidates could be found invalid or unenforceable if challenged.
Any of our intellectual property rights could be challenged or invalidated despite measures we take to obtain patent and other
intellectual property protection with respect to our product candidates and proprietary technology. For example, if we were to initiate
legal proceedings against a third party to enforce a patent covering one of our product candidates, the defendant could counterclaim
that our patent is invalid and/or unenforceable. In patent litigation in the U.S. and in some other jurisdictions, defendant counterclaims
alleging invalidity and/or unenforceability are commonplace. Grounds for a validity challenge could be an alleged failure to meet any
of several statutory requirements, for example, lack of novelty, obviousness, broken priority, lack of written description, or non-
enablement. Grounds for an unenforceability assertion could be an allegation that someone connected with prosecution of the patent
withheld material information from the USPTO or the applicable foreign counterpart, or made a misleading statement, during
prosecution. A litigant or the USPTO itself could challenge our patents on this basis even if we believe that we have conducted our
patent prosecution in accordance with the duty of candor and in good faith. The outcome following such a challenge is unpredictable.
With respect to challenges to the validity of our patents, for example, there might be invalidating prior art, of which we and the
patent examiner were unaware during prosecution. If a defendant were to prevail on a legal assertion of invalidity and/or
unenforceability, we would lose at least part, and perhaps all, of the patent protection on a product candidate. Even if a defendant does
not prevail on a legal assertion of invalidity and/or unenforceability, our patent claims may be construed in a manner that would limit
our ability to enforce such claims against the defendant and others. The cost of defending such a challenge, particularly in a foreign
jurisdiction, and any resulting loss of patent protection could have a material adverse impact on one or more of our product candidates
and our business.
Enforcing our intellectual property rights against third parties may also cause such third parties to file other counterclaims
against us, which could be costly to defend, particularly in a foreign jurisdiction, and could require us to pay substantial damages,
cease the sale of certain products or enter into a license agreement and pay royalties (which may not be possible on commercially
reasonable terms or at all). Any efforts to enforce our intellectual property rights are also likely to be costly and may divert the efforts
of our scientific and management personnel.
Patent protection and patent prosecution for some of our product candidates is dependent on, and the ability to assert patents
and defend them against claims of invalidity is maintained by, third parties.
There have been and may be times in the future when certain patents that relate to our product candidates or any approved
products are controlled by our licensees, sublicensees, licensors or other collaborators. Although we may, under such arrangements,
have rights to consult with our collaborators on actions taken as well as back-up rights of prosecution and enforcement, we have in the
past and may in the future relinquish rights to prosecute and maintain patents and patent applications within our portfolio as well as
the ability to assert such patents against infringers. For example, currently the rights relating to the patent portfolio for XEN901 (now
known as NBI-921352), other selective Nav1.6 inhibitors and dual Nav1.2/1.6 inhibitors are held by Neurocrine Biosciences, some of
the rights relating to the patent portfolio for novel Nav1.7 inhibitors are held by Genentech and the rights to the patent portfolio for
XEN402 were sold to Flexion (now known as FX301).
If any current or future licensee, sublicensee, licensor or other collaborators with rights to prosecute, assert or defend patents
related to our product candidates fails to appropriately prosecute and maintain patent protection for patents covering any of our
product candidates, or if patents covering any of our product candidates are asserted against infringers or defended against claims of
invalidity or unenforceability in a manner which adversely affects such coverage, our ability to develop and commercialize any such
product candidate may be adversely affected and we may not be able to prevent competitors from making, using and selling
competing products.
We may be involved in lawsuits to protect or enforce our patents or the patents of our licensors, which could be expensive, time
consuming and unsuccessful.
Competitors may infringe our patents or the patents of our licensors. To counter infringement or unauthorized use, we may be
required to file infringement claims, which can be expensive and time-consuming. In addition, in an infringement proceeding, a court
may decide that a patent of ours or one of our licensors is not valid or is unenforceable or may refuse to stop the other party in such
infringement proceeding from using the technology at issue on the grounds that our patents do not cover the technology in question.
An adverse result in any litigation or defense proceedings could put one or more of our patents at risk of being invalidated, held
unenforceable or interpreted narrowly, and could put any of our patent applications at risk of not yielding an issued patent.
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Interference proceedings, derivation proceedings, entitlement proceedings, ex parte reexamination, inter partes review, post-
grant review, and opposition proceedings provoked by third parties or brought by the USPTO or any foreign patent authority may be
used to challenge inventorship, ownership, claim scope, or validity of our patent applications. An unfavorable outcome could require
us to cease using the related technology or to attempt to license rights to it from the prevailing party. Our business could be harmed if
the prevailing party does not offer us a license on commercially reasonable terms, if any license is offered at all. Litigation or
interference proceedings may fail and, even if successful, may result in substantial costs and distract our management and other
employees.
We may not be able to prevent, alone or with our licensors, misappropriation of our trade secrets or confidential information,
particularly in countries where the laws may not protect those rights as fully as in the U.S. Furthermore, because of the substantial
amount of discovery required in connection with intellectual property litigation, there is a risk that some of our confidential
information could be compromised by disclosure during this type of litigation. In addition, there could be public announcements of the
results of hearings, motions or other interim proceedings or developments. If securities analysts or investors perceive these results to
be negative, it could have a substantial adverse effect on the market price of our common shares.
Claims that our product candidates or the sale or use of our future products infringe the patent or other intellectual property
rights of third parties could result in costly litigation or could require substantial time and money to resolve, even if litigation is
avoided.
Our commercial success depends upon our ability to develop product candidates and commercialize products that may be
approved in the future, using our proprietary technology without infringing the intellectual property rights of others. Our product or
product candidates or any uses of them may now and in the future infringe third-party patents or other intellectual property rights.
Third parties might allege that we or our collaborators are infringing their patent rights or that we have misappropriated their trade
secrets, or that we are otherwise violating their intellectual property rights, whether with respect to the manner in which we have
conducted our research or to the composition, use or manufacture of the compounds we have developed or are developing with our
collaborators. Such third parties might resort to litigation against us or other parties we have agreed to indemnify, which litigation
could be based on either existing intellectual property or intellectual property that arises in the future.
It is possible that relevant patents or patent applications held by third parties will cover our product candidates at the time of
launch and we may also fail to identify, relevant patents or patent applications held by third parties that cover our product candidates.
For example, applications filed before November 29, 2000, and certain applications filed after that date that will not be filed outside
the U.S. remain confidential until patents issue. Other patent applications in the U.S. and several other jurisdictions are published
approximately 18 months after the earliest filing for which priority is claimed, with such earliest filing date being commonly referred
to as the priority date. Furthermore, publication of discoveries in the scientific or patent literature often lags behind actual discoveries.
Therefore, we cannot be certain that we or our collaborators were the first to invent, or the first to file patent applications on, our
product candidates or for their uses, or that our product candidates will not infringe patents that are currently issued or that are issued
in the future. In the event that a third party has also filed a patent application covering one of our product candidates or a similar
invention, we may have to participate in an adversarial proceeding, known as an interference, declared by the USPTO or its foreign
counterpart to determine priority of invention. Additionally, pending patent applications and patents which have been published can,
subject to certain limitations, be later amended in a manner that could cover our current or future products, if any, or their use.
Defending against claims of patent infringement, misappropriation of trade secrets or other violations of intellectual property
rights could be costly and time consuming, regardless of the outcome. Thus, even if we were to ultimately prevail, or to settle at an
early stage, such litigation could burden us with substantial unanticipated costs. In addition, litigation or threatened litigation could
result in significant demands on the time and attention of our management team, distracting them from the pursuit of other company
business. Claims that our product candidates or the sale or use making, offering to sell, or importing, of our future products infringe,
misappropriate or otherwise violate third-party intellectual property rights could therefore have a material adverse impact on our
business.
Most of our competitors are larger than we are and have substantially greater financial resources. They are, therefore, likely to
be able to sustain the costs of complex intellectual property litigation longer than we could. In addition, the uncertainties associated
with litigation could have a material adverse effect on our ability to raise the funds necessary to conduct our clinical trials, continue
our internal research programs, in-license needed technology, or enter into strategic collaborations that would help us bring our
product candidates to market.
In addition, any future intellectual property litigation, interference or other administrative proceedings will result in additional
expense and distraction of our personnel. An adverse outcome in such litigation or proceedings may expose us or any future strategic
collaborators to loss of our proprietary position, expose us to significant liabilities, or require us to seek licenses that may not be
available on commercially acceptable terms, if at all, each of which could have a material adverse effect on our business.
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Unfavorable outcomes in intellectual property litigation could limit our research and development activities and/or our ability to
commercialize certain products.
If third parties successfully assert their intellectual property rights against us, we might be barred from using certain aspects of
our technology or barred from developing and commercializing certain products. Prohibitions against using certain technologies, or
prohibitions against commercializing certain products, could be imposed by a court or by a settlement agreement between us and a
plaintiff. In addition, if we are unsuccessful in defending against allegations that we have infringed, misappropriated or otherwise
violated patent or other intellectual property rights of others, we may be forced to pay substantial damage awards to the plaintiff.
There is inevitable uncertainty in intellectual property litigation and we could lose, even if the case against us is weak or flawed. If
litigation leads to an outcome unfavorable to us, we may be required to obtain a license from the intellectual property owner in order
to continue our research and development programs or to market any resulting product. It is possible that the necessary license will not
be available to us on commercially acceptable terms, or at all. Alternatively, we may be required to modify or redesign our current or
future products, if any, in order to avoid infringing or otherwise violating third-party intellectual property rights. This may not be
technically or commercially feasible, may render those products less competitive, or may delay or prevent the entry of those products
to the market. Any of the foregoing could limit our research and development activities, our ability to commercialize one or more
product candidates, or both.
In order to avoid or settle potential claims with respect to any patent or other intellectual property rights of third parties, we may
choose or be required to seek a license from a third party and be required to pay license fees or royalties or both, which could be
substantial. These licenses may not be available on acceptable terms, or at all. Even if we or any future collaborators were able to
obtain a license, the rights may be nonexclusive, which could result in our competitors gaining access to the same intellectual property.
Ultimately, we could be prevented from commercializing a product, or be forced, by court order or otherwise, to cease some or all
aspects of our business operations, if, as a result of actual or threatened patent or other intellectual property claims, we are unable to
enter into licenses on acceptable terms. Further, we could be found liable for significant monetary damages as a result of claims of
intellectual property infringement. In the future, we may receive offers to license and demands to license from third parties claiming
that we are infringing their intellectual property or owe license fees and, even if such claims are without merit, we could fail to
successfully avoid or settle such claims.
If Neurocrine Biosciences, Flexion, Genentech, Merck or other collaborators license or otherwise acquire rights to intellectual
property controlled by a third party in various circumstances, for example, where a product could not be legally developed or
commercialized in a country without the third-party intellectual property right or, where it is decided that it would be useful to acquire
such third-party right to develop or commercialize the product, they are eligible under our collaboration agreements to decrease
payments payable to us on a product-by-product basis and, in certain cases, on a country-by-country basis. Any of the foregoing
events could harm our business significantly.
If we breach any of the agreements under which we license the use, development and commercialization rights to our product
candidates or technology from third parties, we could lose license rights that are important to our business.
Under our existing license and other agreements, including those associated with our XEN1101 and XEN007 programs, we are
subject to various obligations, including diligence obligations such as development and commercialization obligations, as well as
potential milestone payments and other obligations. If we fail to comply with any of these obligations or otherwise breach our license
agreements, our licensing partners may have the right to terminate the applicable license in whole or in part, or convert an exclusive
license to a non-exclusive license. Generally, the loss of any one of our current licenses, or license exclusivity, or any other license we
may acquire in the future, could materially harm our business, prospects, financial condition and results of operations.
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Confidentiality agreements with employees and third parties may not prevent unauthorized disclosure of trade secrets and other
proprietary information, which would harm our competitive position.
In addition to patents, we rely on trade secrets, technical know-how and proprietary information concerning our discovery
platform, business strategy and product candidates in order to protect our competitive position, which are difficult to protect. In the
course of our research and development activities and our business activities, we often rely on confidentiality agreements to protect
our proprietary information. Such confidentiality agreements are used, for example, when we talk to vendors of laboratory,
manufacturing or clinical development services or potential strategic collaborators. In addition, each of our employees and consultants
is required to sign a confidentiality agreement and invention assignment agreement upon joining our company. Our employees,
consultants, contractors, business partners or outside scientific collaborators might intentionally or inadvertently disclose our trade
secret information in breach of these confidentiality agreements or our trade secrets may otherwise be misappropriated. Our
collaborators might also have rights to publish data and we might fail to apply for patent protection prior to such publication. It is
possible that a competitor will make use of such information, and that our competitive position will be compromised. In addition, to
the extent that our employees, consultants or contractors use intellectual property owned by others in their work for us, disputes may
arise as to the rights in related or resulting know-how and inventions. Enforcing a claim that a third party 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 U.S.
sometimes are less willing than U.S. courts to protect trade secrets. Moreover, our competitors may independently develop equivalent
knowledge, methods and know-how. If we cannot maintain the confidentiality of our proprietary technology and other confidential
information, then our ability to obtain patent protection or to protect our trade secret information would be jeopardized, which would
adversely affect our competitive position.
Recent court decisions could increase the uncertainties and costs surrounding the prosecution of our patent applications and
the enforcement or defense of our issued patents.
The patent positions of pharmaceutical and biopharmaceutical companies can be highly uncertain and involve complex legal and
factual questions for which important legal principles remain unresolved. No consistent policy regarding the breadth of claims allowed
in patents in these fields has emerged to date in the United States. There have been recent changes regarding how patent laws are
interpreted, and both the U.S. Patent and Trademark Office, or USPTO, and Congress have recently made significant changes to the
patent system. There have been U.S. Supreme Court decisions that now show a trend of the Supreme Court which is distinctly
negative on some patents. The trend of these decisions along with resulting changes in patentability requirements being implemented
by the USPTO could make it increasingly difficult for us to obtain and maintain patents on our products. We cannot accurately predict
future changes in the interpretation of patent laws or changes to patent laws which might be enacted into law. Those changes may
materially affect our patents, our ability to obtain patents, the costs to prosecute our patent applications and enforce our patents and/or
the patents and applications of our collaborators. The patent situation in these fields outside the United States also has uncertainties.
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 or narrow the scope of our patent protection. Accordingly, we cannot predict the breadth of claims that may
be allowed or enforced in the patents we own or to which we have a license or third-party patents.
If we do not obtain protection under the Hatch-Waxman Act and similar legislation outside of the U.S. by extending the patent
terms for our product candidates, our business may be materially harmed.
Depending upon the timing, duration and specifics of FDA marketing approval of our product candidates, if any, one or more
U.S. patents may be eligible for limited patent term restoration under the Hatch-Waxman Act. The Hatch-Waxman Act permits a
patent restoration term of up to five years as compensation for patent term lost during clinical testing of the product and the
subsequent FDA regulatory review process. However, we may not be granted an extension because of, for example, failing to apply
within applicable deadlines, failing to apply prior to expiration of relevant patents or otherwise failing to satisfy applicable
requirements. Moreover, the applicable time period or the scope of patent protection afforded could be less than five years, or even
less than we request if that number is less than five years.
If we are unable to obtain patent term extension or restoration or the term of any such extension is less than we request, the
period during which we will have the right to exclusively market our product will be shortened and our competitors may obtain
approval of competing products following our patent expiration, and our revenue could be reduced, possibly materially.
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We have not registered our corporate name as a trademark in all of our potential markets, and failure to secure those
registrations could adversely affect our business.
Our corporate name, Xenon, has not been trademarked in each market where we operate and plan to operate. Our trademark
applications for our corporate name or the name of our products may not be allowed for registration, and our registered trademarks
may not be maintained or enforced. During trademark registration proceedings, we may receive rejections, which we may be unable to
overcome in our responses. Third parties may also attempt to register trademarks utilizing the Xenon name on their products, and we
may not be successful in preventing such usage. 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 to seek to cancel registered trademarks.
Opposition or cancellation proceedings may be filed against our trademarks, and our trademarks may not survive such proceedings. If
we do not secure registrations for our trademarks, we may encounter more difficulty in enforcing them against third parties than we
otherwise would.
Intellectual property litigation may lead to unfavorable publicity that harms our reputation and causes the market price of our
common shares to decline.
During the course of any intellectual property litigation, there could be public announcements of the initiation of the litigation as
well as results of hearings, rulings on motions, and other interim proceedings in the litigation. If securities analysts or investors regard
these announcements as negative, the perceived value of our existing products, programs or intellectual property could be diminished.
Accordingly, the market price of our common shares may decline. Such announcements could also harm our reputation or the market
for our future products, which could have a material adverse effect on our business.
Risks Related to Our Industry
If product liability lawsuits are brought against us, we may incur substantial liabilities and may be required to limit
commercialization of our current and any future products.
We face an inherent risk of product liability as a result of the clinical testing of our product candidates, and we will face an even
greater risk if we commercialize any product candidates. For example, we may be sued if any of our product candidates, including any
that are developed in combination with other therapies, allegedly causes injury or is found to be otherwise unsuitable during product
testing, manufacturing, marketing or sale. Any such product liability claims may include allegations of defects in manufacturing,
defects in design, a failure to warn of dangers inherent in the product, negligence, strict liability and a breach of warranties. Claims
could also be asserted under state consumer protection acts. If we cannot successfully defend ourselves against product liability claims,
we may incur substantial liabilities or be required to limit commercialization of our product candidates. Even successful defense
would require significant financial and management resources. There is also risk that third parties we have agreed to indemnify could
incur liability. Regardless of the merits or eventual outcome, liability claims may result in:
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decreased demand for our product candidates or any resulting products;
injury to our reputation;
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costs to defend the related litigation;
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a diversion of management’s time and our resources;
substantial monetary awards to trial participants or patients;
product recalls, withdrawals or labeling, marketing or promotional restrictions;
loss of revenue;
the inability to commercialize our product candidates; and
a decline in the market price of our common shares.
We currently carry product liability insurance of $10,000,000 per occurrence and $10,000,000 aggregate limit. We believe our
product liability insurance coverage is appropriate relative to our current clinical programs; however, we may not be able to maintain
insurance coverage at a reasonable cost or in sufficient amounts to protect us against losses due to liability. If and when we obtain
marketing approval for product candidates, we intend to expand our insurance coverage to include the sale of commercial products;
however, we may then be unable to obtain product liability insurance on commercially reasonable terms or in adequate amounts. On
occasion, large judgments have been awarded in class action lawsuits based on drugs or medical treatments that had unanticipated
adverse effects. A successful product liability claim or series of claims brought against us could cause the market price of our common
shares to decline and, if judgments exceed our insurance coverage, could adversely affect our future results of operations and business.
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Patients with certain of the diseases targeted by our product candidates are often already in severe and advanced stages of
disease and have both known and unknown significant pre-existing and potentially life-threatening conditions. During the course of
treatment, patients may suffer adverse events, including death, for reasons that may be related to our product candidates. Such events
could subject us to costly litigation, require us to pay substantial amounts of money to injured patients, delay, negatively impact or end
our opportunity to receive or maintain regulatory approval to market those product candidates, or require us to suspend or abandon our
commercialization efforts. Even in a circumstance in which we do not believe that an adverse event is related to our products, the
investigation into the circumstance may be time-consuming or inconclusive. These investigations may interrupt our sales efforts, delay
our regulatory approval process in other countries, or impact and limit the type of regulatory approvals our product candidates receive
or maintain. As a result of these factors, a product liability claim, even if successfully defended, could have a material adverse effect
on our business, financial condition or results of operations.
Our current and future operations in the U.S. and elsewhere will be subject, directly or indirectly, to applicable federal and state
anti-kickback, fraud and abuse, false claims, transparency, health information privacy and security, 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, physicians and third-party payers in the U.S. and elsewhere play a primary role in the recommendation
and prescription of any product candidates for which we obtain marketing approval. Our current arrangements with health care
providers and our future arrangements with third-party payers and customers may expose us to broadly applicable fraud and abuse and
other healthcare laws and regulations, including, without limitation, the federal Anti-Kickback Statute and the federal False Claims
Act, that may constrain the business or financial arrangements and relationships through which we market, sell and distribute any
products for which we obtain marketing approval. In addition, we may be subject to transparency laws and patient privacy regulation
by the federal government and by the U.S. states and foreign jurisdictions in which we conduct our business. The applicable federal,
state and foreign healthcare laws and regulations that may affect our ability to operate include the following:
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the federal Anti-Kickback Statute, which prohibits, among other things, persons from knowingly and willfully soliciting,
offering, receiving or providing remuneration, directly or indirectly, in cash or in kind, to induce or reward either the
referral of an individual for, or the purchase, order or recommendation of, any good or service for which payment may be
made under federal and state healthcare programs such as Medicare and Medicaid;
federal civil and criminal false claims laws, including the federal False Claims Act, which can be enforced through civil
whistleblower, or qui tam actions, as well as civil monetary penalty laws can impose criminal and civil penalties,
assessment, and exclusion from participation for various forms of fraud and abuse involving the federal health care
programs, such as Medicare and Medicaid;
• HIPAA, which imposes criminal and civil liability for, among other things, executing a scheme to defraud any healthcare
benefit program and making false statements relating to healthcare matters;
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the federal Open Payments program which requires applicable manufacturers of certain drugs, devices, biologics and
medical supplies for which payment is available under Medicare, Medicaid or the Children’s Health Insurance Program
(with certain exceptions) to report annually to CMS, information related to: certain payments or other transfers of value
made to physicians, as defined by such law, and teaching hospitals and ownership or investment interests held by such
healthcare professionals and their immediate family members; and
analogous state and foreign laws and regulations, such as state anti-kickback and false claims laws, which may apply to
sales or marketing arrangements and claims involving healthcare items or services reimbursed by non-governmental third-
party payers, including private insurers; state and foreign laws that require pharmaceutical companies to comply with the
pharmaceutical industry’s voluntary compliance guidelines and the relevant compliance guidance promulgated by the
federal government or otherwise restrict payments that may be made to healthcare providers; state and foreign laws that
require drug manufacturers to report information related to payments to physicians and other healthcare providers or
marketing expenditures; state and local laws requiring the registration of pharmaceutical sales representatives; and state and
foreign laws governing the collection, export, privacy, use and security of biological materials and health information in
certain circumstances, many of which differ from each other in significant ways and may not have the same effect, thus
complicating compliance efforts.
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Efforts to ensure that our business arrangements with third parties will comply with applicable healthcare laws and regulations
may involve substantial costs. It is possible that governmental authorities will conclude that our business practices may not comply
with current or future statutes, regulations or case law involving applicable fraud and abuse or other healthcare laws and regulations. If
our operations are found to be in violation of any of these laws or any other governmental regulations that may apply to us, we may be
subject to significant civil, criminal and administrative penalties, including, without limitation, damages, fines, disgorgement,
imprisonment, exclusion from participation in government healthcare programs, such as Medicare and Medicaid, integrity oversight
and reporting obligations, and the curtailment or restructuring of our operations, which could have a material adverse effect on our
business. If any of the physicians or other providers or entities with whom we expect to do business, including our collaborators, is
found not to be in compliance with applicable laws, it may be subject to criminal, civil or administrative sanctions, including
exclusions from participation in government healthcare programs, which could also materially affect our business.
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 the success of our business.
Our research and development activities involve the controlled use of potentially harmful biological materials as well as
hazardous materials, chemicals, and various radioactive compounds typically employed in molecular and cellular biology. For
example, we routinely use cells in culture and we employ small amounts of radioisotopes. We cannot completely eliminate the risk of
accidental contamination or injury from the use, storage, handling, or disposal of these materials through our maintenance of up-to-
date licensing and training programs. In the event of contamination or injury, we could be held liable for damages that result, and any
liability could exceed our resources. We currently carry insurance covering certain claims arising from our use of these materials.
However, if we are unable to maintain our insurance coverage at a reasonable cost and with adequate coverage, our insurance may not
cover any liability that may arise. We are subject to Canadian federal, provincial, and local, and may be subject to U.S. and/or foreign,
laws and regulations governing the use, storage, handling, and disposal of these materials and specified waste products. Complying
with regulations regarding the use of these materials could be costly, and if we fail to comply with these regulations, it could have a
material adverse effect on our operations and profitability.
We or the third parties upon whom we depend may be adversely affected by earthquakes or other natural disasters and our
business continuity and disaster recovery plans may not adequately protect us from serious disaster.
Our headquarters are located in Burnaby, British Columbia, Canada. We are vulnerable to natural disasters such as earthquakes
that could disrupt our operations. If a natural disaster, power outage, fire or other event occurred that prevented us from using all or a
significant portion of our headquarters, that damaged critical infrastructure, such as the manufacturing facilities of our CMOs, or that
otherwise disrupted operations, it may be difficult or, in certain cases, impossible for us to continue our business for a substantial
period of time. Although we carry insurance for earthquakes and other natural disasters, we may not carry sufficient business
interruption insurance to compensate us for all losses that may occur. The disaster recovery and business continuity plans we have in
place may not be adequate in the event of a serious disaster or similar event. We may incur substantial expenses as a result of a natural
disaster or earthquake, which could have a material adverse effect on our business. In addition, we may lose samples or other valuable
data. The occurrence of any of the foregoing could have a material adverse effect on our business.
Risks Related to the Securities Markets and Ownership of Our Common Shares
The market price of our common shares may be volatile, and purchasers of our common shares could incur substantial losses.
The market price of our common shares has fluctuated in the past and is likely to be volatile in the future. As a result of this
volatility, investors may experience losses on their investment in our common shares. The market price for our common shares may
be influenced by many factors, including the following:
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announcements by us or our competitors of new products, product candidates or new uses for existing products, significant
contracts, commercial relationships or capital commitments and the timing of these introductions or announcements;
actions by any of our collaborators regarding our product candidates they are developing, including announcements
regarding clinical or regulatory decisions or developments of our collaboration;
unanticipated serious safety concerns related to the use of any of our products and product candidates;
results from or delays of clinical trials of our product candidates;
failure to obtain or delays in obtaining or maintaining product approvals or clearances from regulatory authorities;
adverse regulatory or reimbursement announcements;
announcements by us or our competitors of significant acquisitions, strategic collaborations, licenses, joint ventures or
capital commitments;
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the results of our efforts to discover or develop additional product candidates;
our dependence on third parties, including our collaborators, CROs, clinical trial sponsors and clinical investigators;
regulatory or legal developments in Canada, the U.S. or other countries;
developments or disputes concerning patent applications, issued patents or other proprietary rights;
the recruitment or departure of key scientific or management personnel;
our ability to successfully commercialize our future product candidates we develop independently, if approved;
the level of expenses related to any of our product candidates or clinical development programs;
actual or anticipated changes in estimates as to financial results, development timelines or recommendations by securities
analysts;
actual or anticipated quarterly variations in our financial results or those of our competitors;
any change to the composition of the board of directors or key personnel;
sales of common shares by us or our shareholders in the future, as well as the overall trading volume of our common shares;
failure to comply with covenants or make required payments under loan agreements;
changes in the structure of healthcare payment systems;
commencement of, or our involvement in, litigation;
general economic, industry and market conditions in the pharmaceutical and biotechnology sectors and other factors that
may be unrelated to our operating performance or the operating performance of our competitors, including changes in
market valuations of similar companies; and
the other factors described in this “Risk Factors” section.
In addition, the stock market in general, and Nasdaq and the biopharmaceutical industry in particular, have from time to time
experienced volatility that often has been unrelated to the operating performance of the underlying companies. These broad market
and industry fluctuations may adversely affect the market price of our common shares, regardless of our operating performance. In
several recent situations where the market price of a stock has been volatile, holders of that stock have instituted securities class action
litigation against the company that issued the stock. If any of our shareholders were to bring a lawsuit against us, the defense and
disposition of the lawsuit could be costly and divert the time and attention of our management and harm our operating results.
Future sales of our common shares in the public market could cause the market price of our common shares to fall.
The market price of our common shares could decline as a result of sales of a large number of our common shares or the
perception that these sales could occur. These sales, or the possibility that these sales may occur, also might make it more difficult for
us to sell equity securities in the future at a time and at a price that we deem appropriate.
In addition, in the future, we may issue additional common shares, preferred shares, or other equity or debt securities convertible
into common shares in connection with a financing, acquisition, litigation settlement, employee arrangements or otherwise. Any such
issuance could result in substantial dilution to our existing shareholders and could cause the market price of our common shares to
decline.
Provisions in our corporate charter documents and Canadian law could make an acquisition of us, which may be beneficial to
our shareholders, more difficult and may prevent attempts by our shareholders to replace or remove our current management
and/or limit the market price of our common shares.
Provisions in our articles and our by-laws, as well as certain provisions under the Canada Business Corporations Act, or CBCA,
and applicable Canadian securities laws, may discourage, delay or prevent a merger, acquisition, tender offer or other change in
control of us that shareholders may consider favorable, including transactions in which they might otherwise receive a premium for
their common shares. These provisions could also limit the price that investors might be willing to pay in the future for our common
shares, thereby depressing the market price of our common shares. 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 shareholders to
replace or remove our current management by making it more difficult for shareholders to replace members of our board of directors.
Among other things, these provisions include the following:
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shareholders cannot amend our articles unless such amendment is approved by shareholders holding at least two-thirds of
the shares entitled to vote on such approval;
shareholders must give advance notice to nominate directors or to submit proposals for consideration at shareholders’
meetings; and
applicable Canadian securities laws generally require, subject to certain exceptions, a tender offer to remain open for 105
days and that more than 50% of the outstanding securities not owned by the offeror be tendered before the offeror may take
up the securities.
Any provision in our articles, by-laws, under the CBCA or under any applicable Canadian securities law that has the effect of
delaying or deterring a change in control could limit the opportunity for our shareholders to receive a premium for their common
shares, and could also affect the price that some investors are willing to pay for our common shares.
U.S. civil liabilities may not be enforceable against us, our directors, or our officers.
We are governed by the CBCA and our principal place of business is in Canada. Many of our directors and officers reside
outside of the U.S., and all or a substantial portion of their assets as well as all or a substantial portion of our assets are located outside
the U.S. As a result, it may be difficult for investors to effect service of process within the U.S. upon us and certain of our directors
and officers or to enforce judgments obtained against us or such persons, in U.S. courts, in any action, including actions predicated
upon the civil liability provisions of U.S. federal securities laws or any other laws of the U.S. Additionally, rights predicated solely
upon civil liability provisions of U.S. federal securities laws or any other laws of the U.S. may not be enforceable in original actions,
or actions to enforce judgments obtained in U.S. courts, brought in Canadian courts, including courts in the Province of British
Columbia.
We are governed by the corporate and securities laws of Canada which in some cases have a different effect on shareholders
than the corporate laws of Delaware, U.S. and U.S. securities laws.
We are governed by the CBCA and other relevant laws, which may affect the rights of shareholders differently than those of a
company governed by the laws of a U.S. jurisdiction, and may, together with our charter documents, have the effect of delaying,
deferring or discouraging another party from acquiring control of our company by means of a tender offer, a proxy contest or
otherwise, or may affect the price an acquiring party would be willing to offer in such an instance. The material differences between
the CBCA and Delaware General Corporation Law, or DGCL, that may have the greatest such effect include, but are not limited to,
the following: (i) for material corporate transactions (such as mergers and amalgamations, other extraordinary corporate transactions
or amendments to our articles) the CBCA generally requires a two-thirds majority vote by shareholders, whereas DGCL generally
only requires a majority vote; and (ii) under the CBCA holders of 5% or more of our shares that carry the right to vote at a meeting of
shareholders can requisition a special meeting of shareholders, whereas such right does not exist under the DGCL.
An active trading market for our common shares may not be maintained.
Our common shares are currently traded on Nasdaq, but we can provide no assurance that we will be able to maintain an active
trading market on Nasdaq or any other exchange in the future. If an active market for our common shares is not maintained, it may be
difficult for our shareholders to sell the common shares they have purchased without depressing the market price for the common
shares or at all. Further, an inactive market may also impair our ability to raise capital by selling additional common shares and may
impair our ability to enter into strategic collaborations or acquire companies or products by using our common shares as consideration.
We are a smaller reporting company, and any decision on our part to comply only with certain reduced reporting and disclosure
requirements applicable to such companies could make our common shares less attractive to investors.
We are a “smaller reporting company,” as defined under the Securities Exchange Act of 1934, as amended, or the Exchange Act.
For as long as we continue to be a smaller reporting company, we may choose to take advantage of exemptions from various reporting
requirements applicable to other public companies that are not smaller reporting companies, including, but not limited to, two years of
audited financial statements in our annual reports.
We will remain a smaller reporting company so long as, as of June 30 of the preceding year, (i) the market value of our common
shares held by non-affiliates, or our public float, is less than $250 million; or (ii) we have annual revenues less than $100 million and
either we have no public float or our public float is less than $700 million.
Investors could find our common shares less attractive if we choose to rely on these disclosure exemptions. If some investors
find our common shares less attractive as a result of any choices to reduce future disclosure, there may be a less active trading market
for our common shares and the market price of our common shares may be more volatile.
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Effective December 31, 2019, we are no longer an emerging growth company which will increase our costs and demands on
management and could harm our operating results and our ability to accurately report our financial condition, results of
operations or cash flows, which may adversely affect investor confidence in us and, as a result, the value of our common shares.
Prior to our loss of emerging growth company status, we availed ourselves of the exemption from the requirement that our
independent registered public accounting firm attest to the effectiveness of our internal control over financial reporting under
Section 404. However, we may no longer avail ourselves of this exemption and we expect to incur significant expense and devote
substantial management effort toward ensuring compliance with Section 404.
We currently do not have an internal audit group, and we will need to continue to hire additional accounting and financial staff
with appropriate public company experience and technical accounting knowledge, and it may be difficult to recruit and maintain such
personnel. Implementing any appropriate changes to our internal control over financial reporting may require specific compliance
training for our directors, officers and employees and take a significant period of time to complete. Such changes may not, however,
be effective in maintaining the adequacy of our internal control over financial reporting, and any failure to maintain that adequacy, or
consequent inability to produce accurate financial statements or other reports on a timely basis, could increase our operating costs and
could materially impair our ability to operate our business.
If we fail to maintain an effective system of internal control over financial reporting, we may not be able to accurately report
our financial results or prevent fraud. As a result, shareholders could lose confidence in our financial and other public reporting,
which would harm our business and the market price of our common shares.
Effective internal control over financial reporting is necessary for us to provide reliable financial reports and, together with
adequate disclosure controls and procedures, are designed to prevent fraud. Any failure to implement required new or improved
controls, or difficulties encountered in their implementation could cause us to fail to meet our reporting obligations.
We are required to disclose changes made in our internal controls and procedures on a quarterly basis and our management is
required to assess the effectiveness of these controls annually. We are also required to obtain an independent assessment of the
effectiveness of our internal controls which could detect problems that our management’s assessment might not. Going forward, even
if our management concludes that our internal control over financial reporting is effective, our independent registered public
accounting firm may conclude that there are material weaknesses or significant deficiencies with respect to our internal controls or the
level at which our internal controls are documented, designed, implemented or reviewed. If we or our independent registered public
accounting firm identifies deficiencies in our internal control over financial reporting that are deemed to be material weaknesses or
that may require prospective or retroactive changes to our financial statements, investors may lose confidence in our reported financial
information, which could cause the market price of our common shares to decline and we could be subject to sanctions or
investigations by the SEC or other regulatory authorities, which would require additional financial and management resources.
Irrespective of compliance with Section 404, any failure of our internal control over financial reporting could have a material adverse
effect on our stated operating results and harm our reputation.
Future sales and issuances of our common shares, preferred shares, or rights to purchase common shares, including warrants
or pursuant to our equity incentive plans, could cause you to incur dilution and could cause the market price of our common
shares to fall.
As of December 31, 2019, stock options to purchase 3,534,236 of our common shares with a weighted-average exercise price of
$7.90 per common share were outstanding, a warrant to purchase 40,000 of our common shares with a weighted-average exercise
price of $9.79 per common share was outstanding, and 1,016,000 of our Series 1 Preferred Shares were outstanding, which are
convertible into our common shares on a one-for-one basis at the option of the holder, subject to certain ownership limitations
following a requested conversion. During the year ended December 31, 2018, certain funds affiliated with BVF Partners L.P.
exercised their conversion rights to convert 1,852,000 Series 1 Preferred Shares into the same number of common shares. The exercise
of any of these stock options or warrant or conversion of the remaining Series 1 Preferred Shares would result in dilution to current
shareholders. Further, because we anticipate the need to raise additional capital to fund our clinical development programs, we may in
the future sell substantial amounts of common shares, preferred shares, or other securities convertible into or exchangeable for
common shares. Pursuant to our equity incentive plans, our compensation committee (or a subset or delegate thereof) is authorized to
grant equity-based incentive awards to our employees, directors and consultants. Future stock option grants and issuances of common
shares under our share-based compensation plans may have an adverse effect on the market price of our common shares.
Any future issuances of common shares, preferred shares, or securities such as warrants, notes, or preferred shares that are
convertible into, exercisable or exchangeable for, our common shares, would have a dilutive effect on the voting and economic
interests of our existing shareholders.
57
We are at risk of securities class action litigation.
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 biotechnology 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.
Nasdaq may delist our securities from its exchange, which could limit investors’ ability to make transactions in our securities
and subject us to additional trading restrictions.
Our common shares are listed on Nasdaq under the trading symbol “XENE.” Our securities may fail to meet the continued
listing requirements to be listed on Nasdaq. If Nasdaq delists our common shares from trading on its exchange, we could face
significant material adverse consequences, including:
•
•
•
•
•
significant impairment of the liquidity for our common shares, which may substantially decrease the market price of our
common shares;
a limited availability of market quotations for our securities;
a determination that our common shares qualify as a “penny stock” which will require brokers trading in our common
shares to adhere to more stringent rules and possibly resulting in a reduced level of trading activity in the secondary trading
market for our common shares;
a limited amount of news and analyst coverage for our company; and
a decreased ability to issue additional securities or obtain additional financing in the future.
If securities or industry analysts do not publish research reports about our business, or if they issue an adverse opinion about
our business, the market price of our common shares and the trading volume of our common shares could decline.
The trading market for our common shares is influenced by the research and reports that securities or industry analysts publish
about us or our business. If too few securities or industry analysts cover our company, the market price of our common shares would
likely be negatively impacted. If securities and industry analysts who cover us downgrade our common shares or publish inaccurate
or unfavorable research about our business, the market price of our common shares would likely decline. If one or more of these
analysts cease coverage of our company or fail to publish reports on us regularly, demand for our common shares could decrease,
which might cause the market price of our common shares and the trading volume of our common shares to decline.
Our management team has broad discretion as to the use of the net proceeds from public and private equity and debt financings
and the investment of these proceeds may not yield a favorable return. We may invest the proceeds in ways with which our
shareholders disagree.
We have broad discretion in the application of any net proceeds we have received pursuant to our January 2020 public offering
of common shares, our November 2019 “at-the-market” equity offering program with Jefferies and Stifel and our sale of common
shares to Neurocrine Biosciences in December 2019, as well as the net proceeds to us from previous equity and debt financings,
including the net proceeds we received pursuant to our 2018 “at-the-market” equity offering programs, the net proceeds from our
August 2018 amended and restated loan and security agreement, pursuant to which we have borrowed an aggregate of $15.5 million of
principal and the net proceeds from our September 2018 public offering of common shares. You may not agree with our decisions,
and our use of the proceeds and our existing cash and cash equivalents and marketable securities may not improve our results of
operation or enhance the value of our common shares. Our failure to apply these funds effectively could have a material adverse effect
on our business, delay the development of our product candidates and cause the market price of our common shares to decline. In
addition, until the net proceeds are used, they may be placed in investments that do not produce significant income or that may lose
value.
We do not anticipate paying any cash dividends on our common shares in the foreseeable future.
We do not currently intend to pay any cash dividends on our common shares in the foreseeable future. We currently intend to
retain all of our future earnings, if any, to finance the growth and development of our business. In addition, the terms of any future
debt agreements may preclude us from paying dividends. As a result, capital appreciation, if any, of our common shares may be
investors’ sole source of gain for the foreseeable future.
58
Item 1B. Unresolved Staff Comments
None.
Item 2.
Properties
Our headquarters are located in Burnaby, British Columbia, where we occupy approximately 41,332 square feet of office and
laboratory space. The term of the lease expires in March 2022. We currently pay an aggregate of approximately $105,084 per month
in base rent, property tax, common area maintenance fees and management fees, and the landlord holds a security deposit equal to
approximately $68,743.
Our U.S. office is located in Boston, Massachusetts, where we occupy on a month-to-month basis approximately 215 square
feet.
We believe that our existing facilities are adequate to meet our business requirements for the near-term and that additional space
will be available on commercially reasonable terms, if required.
Item 3.
Legal Proceedings
From time to time, we may become involved in legal proceedings or be subject to claims arising in the ordinary course of our
business. We are not presently a party to any legal proceedings that, in the opinion of our management, would reasonably be expected
to have a material adverse effect on our business, financial condition, operating results or cash flows if determined adversely to us.
Regardless of the outcome, litigation can have an adverse impact on us because of defense and settlement costs, diversion of
management resources and other factors.
Item 4.
Mine Safety Disclosures
Not applicable.
59
PART II
Item 5.
Market for Registrant’s Common Equity, Related Shareholder Matters and Issuer Purchases of Equity Securities
Market Information
Our common shares have been traded on the Nasdaq Global Market since November 5, 2014 under the symbol “XENE.” On
March 5, 2020, the last reported sale price of our common shares was $15.38 per share.
Holders
As of March 5, 2020, there were approximately 149 holders of record of our common shares. The actual number of shareholders
is greater than this number of record holders and includes shareholders who are beneficial owners but whose common shares are held
in street name by brokers and other nominees.
Dividends
We have never declared or paid any cash dividends on our common shares or any other securities. We currently anticipate that
we will retain all available funds and any future earnings, if any, in the foreseeable future for use in the operation of our business and
do not currently anticipate paying cash dividends in the foreseeable future. Payment of future cash dividends, if any, will be at the
discretion of the board of directors, subject to applicable law and will depend on various factors, including our financial condition,
operating results, current and anticipated cash needs, the requirements of current or then-existing debt instruments and other factors
the board of directors deems relevant.
Canadian withholding tax at a rate of 25% (subject to reduction under the provisions of any applicable income tax treaty or
convention to which Canada is a signatory) will be payable on the gross amount of a dividend on our common shares paid or credited,
or deemed to be paid or credited, to a holder of our common shares who, for purposes of the Income Tax Act (Canada), is not (and is
not deemed to be) resident in Canada, or a Non-Resident of Canada Holder. The Canadian withholding tax will be deducted directly
by us or our paying agent from the amount of the dividend otherwise payable and remitted to the Receiver General of Canada. The
rate of withholding tax applicable to a dividend paid on our common shares to a Non-Resident of Canada Holder who is a resident of
the U.S. for purposes of the Canada-U.S. Tax Convention (1980), or the Convention, is the beneficial owner of the dividend and
qualifies for the full benefits of the Convention will generally be reduced to 15% or, if such a Non-Resident of Canada Holder is a
company that owns (or, for purposes of the Convention, is considered to own) at least 10% of our voting shares, to 5%. Not all persons
who are residents of the U.S. for purposes of the Convention will qualify for the benefits of the Convention. A Non-Resident of
Canada Holder who is a resident of the U.S. is advised to consult his or her tax advisor in this regard. The rate of withholding tax on
dividends is also reduced under other bilateral income tax treaties to which Canada is a signatory.
Securities Authorized for Issuance under Equity Compensation Plans
The information concerning our equity compensation plans is incorporated by reference herein to our Proxy Statement for the
2020 Annual Meeting of Shareholders to be filed with the SEC within 120 days after the end of our fiscal year ended December 31,
2019.
Performance Graph
As a smaller reporting company, we are not required to provide the information requested by this item pursuant to Item 201(e)
of Regulation S-K.
Recent Sales of Unregistered Securities
None.
Issuer Repurchases of Equity Securities
None.
Item 6.
Selected Financial Data
As a smaller reporting company, we are not required to provide the information requested by this item pursuant to Item 301 of
Regulation S-K.
60
Item 7.
Management’s Discussion and Analysis of Financial Condition and Results of Operations
You should read the following discussion and analysis together with Part II, Item 6 — “Selected Financial Data” and our
consolidated financial statements and notes included elsewhere in this Annual Report. The following discussion contains forward-
looking statements that involve risks and uncertainties. Our actual results could differ from those expressed or implied in any
forward-looking statements as a result of various factors, including those set forth under the caption Part I, Item 1A — “Risk
Factors.” Throughout this discussion, unless the context specifies or implies otherwise, the terms “Xenon,” “we,” “us,” and “our”
refer to Xenon Pharmaceuticals Inc. and its subsidiary.
Overview
We are a clinical stage biopharmaceutical company committed to developing innovative therapeutics to improve the lives of
patients with neurological disorders. We are advancing a novel product pipeline of neurology-focused therapies to address areas of
high unmet medical need, with a focus on epilepsy.
Proprietary Programs
• XEN1101 is a differentiated Kv7 potassium channel modulator being developed for the treatment of epilepsy and
potentially other neurological disorders. A Phase 2b randomized, double-blind, placebo-controlled, multicenter clinical trial
(called the X-TOLE study) is underway to evaluate the clinical efficacy, safety and tolerability of XEN1101 administered
as adjunctive treatment in approximately 300 adult patients with focal epilepsy. The primary endpoint is the median percent
change in monthly focal seizure frequency from baseline compared to treatment period of active versus placebo. Patient
enrollment for this XEN1101 Phase 2b clinical trial is ongoing in the United States, Canada and Europe. Long term six-and
nine-month toxicology studies have now been completed, providing support for the 12-month open label extension for
patients enrolled in the Phase 2b clinical trial. The clinical trial protocol includes an option to conduct an interim analysis.
Depending upon the rate of enrollment, top-line results are anticipated in the second half of 2020. We also continue to
explore the development of XEN1101 in other neurological indications;
• XEN496 (active ingredient ezogabine) is a Kv7 potassium channel modulator being developed by Xenon. The U.S. Food
and Drug Administration, or FDA, has granted orphan drug designation, or ODD, for XEN496 as a treatment of KCNQ2
developmental and epileptic encephalopathy, or KCNQ2-DEE. The FDA previously indicated that it is acceptable to study
XEN496 in infants and children up to four years old, and that a single, small pivotal trial may be considered adequate in
order to demonstrate XEN496’s efficacy in KCNQ2-DEE, provided the study shows evidence of a clinically meaningful
benefit in patients with the intended indication. In December 2019, we filed an IND application with the FDA related to a
pharmacokinetic, or PK, study testing our proprietary pediatric formulation of ezogabine (XEN496) in healthy adult
volunteers. In January 2020, we received permission to proceed with the study, which is now ongoing and expected to be
completed in the first quarter of 2020. In parallel, we are corresponding with the FDA regarding the Phase 3 clinical trial
design and we expect feedback early in the second quarter of 2020. A Phase 3 clinical trial in KCNQ2-DEE is expected to
start in 2020; and
• XEN007 (active ingredient flunarizine) is a CNS-acting calcium channel modulator that modulates Cav2.1 and T-type
calcium channels. Other reported mechanisms include dopamine, histamine and serotonin inhibition. A physician-led, Phase
2 proof-of-concept study has recently been initiated to examine the potential clinical efficacy, safety, and tolerability of
XEN007 as an adjunctive treatment in pediatric patients diagnosed with treatment-resistant childhood absence epilepsy.
Results from this Phase 2 investigator-led proof-of-concept study are expected in 2020. Depending on the results from the
study, CAE may represent a potential orphan indication for future development of XEN007.
Partnered Programs
•
In December 2019, we entered into a license and collaboration agreement with Neurocrine Biosciences, Inc., or Neurocrine
Biosciences, to develop treatments for epilepsy. Neurocrine Biosciences has an exclusive license to XEN901, now known
as NBI-921352, a clinical stage selective Nav1.6 sodium channel inhibitor for epilepsy. In addition, Neurocrine Biosciences
gained an exclusive license to pre-clinical compounds for development, including selective Nav1.6 inhibitors and dual
Nav1.2/1.6 inhibitors. The agreement also included a multi-year research collaboration to discover, identify and develop
additional novel Nav1.6 and Nav1.2/1.6 inhibitors. Neurocrine Biosciences anticipates filing an IND application with the
FDA in mid-2020 in order to start a Phase 2 clinical trial in SCN8A-DEE developmental and epileptic encephalopathy
patients in the second half of 2020. We are eligible to receive up to $25 million upon the FDA acceptance of an IND for
NBI-921352, with 55% of the amount in the form of an equity investment in our common shares at a 15% premium to our
30-day trailing volume weighted average price at that time; and
61
•
In September 2019, we entered into an agreement with Flexion Therapeutics, Inc., or Flexion, that provides Flexion with
the global rights to develop and commercialize XEN402, a Nav1.7 inhibitor. Flexion’s pre-clinical program, known as
FX301, consists of XEN402 formulated for extended release from a thermosensitive hydrogel. The initial development of
FX301 is intended to support administration as a peripheral nerve block for control of post-operative pain. Flexion has
indicated that it anticipates initiating FX301 clinical trials in 2021.
We have funded our operations through the sale of equity securities, funding received from our licensees and collaborators, debt
financing and, to a lesser extent, government funding. For the year ended December 31, 2019, we recognized revenue of $6.8 million,
consisting primarily of funding and payments from our collaborators. We did not recognize any revenue for the year ended December
31, 2018. We do not expect to have sustained profitability for the foreseeable future. We had net losses of $41.6 million for the year
ended December 31, 2019 and an accumulated deficit of $249.7 million as of December 31, 2019, from expenses incurred in
connection with our research programs and from general and administrative costs associated with our operations.
We have not generated any significant royalty revenue from product sales, and do not otherwise anticipate generating revenue
from product sales for the foreseeable future, if ever. We expect that our revenue in the near term will be substantially dependent on
our collaboration agreements. Given the uncertain nature of clinical development of our current and future product candidates and the
commercialization of current and future products, we cannot predict when or whether we will receive further milestone payments
under our current or future collaboration agreements or whether we will be able to report either revenue or net income in future years.
We expect to continue to incur significant expenses and operating losses for at least the next 12 to 24 months. We anticipate that
our expenses will increase as we:
•
•
continue our research and pre-clinical and clinical development of our product candidates either from our internal research
efforts or through acquiring or in-licensing other product candidates or technologies;
seek regulatory and marketing approvals for any of our product candidates that successfully complete clinical trials;
• make milestone and other payments under our in-license or other agreements;
• maintain, protect and expand our intellectual property portfolio;
•
attract, hire and retain skilled personnel; and
•
create additional infrastructure to support our operations and otherwise.
Recent Developments
In January 2020, we entered into an underwriting agreement with Jefferies, Stifel and Guggenheim Securities, LLC, relating to
an underwritten public offering of 3,750,000 common shares at a public offering price of $16.00 per common share, and granted the
underwriters an option for a period of 30 days to purchase up to an additional 562,500 common shares. The public offering was
completed on January 27, 2020 and the closing relating to the underwriters’ exercise in full of their option to purchase additional
common shares was held on February 14, 2020. We sold an aggregate of 4,312,500 common shares for net proceeds of $64.9 million,
net of underwriting discounts and commissions, but before offering expenses.
Financial Operations Overview
Revenue
To date, our revenue has been primarily derived from collaboration and licensing agreements as well as, to a lesser extent,
government funding. We have not generated any significant royalty revenue from product sales, and do not otherwise anticipate
generating revenue from product sales for the foreseeable future, if ever. Over our history, we have entered into several collaboration
agreements and our current collaboration and licensing agreements are described in “Business – Strategic Alliances” and “Note 13” of
the consolidated financial statements included elsewhere in this Annual Report on Form 10-K.
62
The following table is a summary of revenue recognized from our current collaboration and licensing agreements for the years
ended December 31, 2019 and 2018 (in thousands):
Neurocrine Biosciences:
Recognition of the transaction price
Research and development services
Flexion:
Recognition of upfront payment
Milestone payment
Total collaboration revenue
Year Ended December 31,
2018
2019
$
2,881 $
448
3,000
500
6,829
—
—
—
—
—
Pursuant to the terms of our license and collaboration agreement with Neurocrine Biosciences, we received an upfront cash
payment of $30.0 million and a $20.0 million equity investment in our common shares. The equity investment was measured at fair
value on the date of issuance and the resulting premium, together with the upfront cash payment, is the transaction price of the
arrangement for allocation to the performance obligations. The allocation was based on the relative estimated standalone selling prices
of each obligation under the agreement including: (i) an exclusive license to XEN901 with associated technology and know-how
transfer, (ii) an exclusive license to pre-clinical compounds for development, XEN393, XPC’535 and XPC’391, collectively referred
to as the development track candidates, or the DTCs, with associated know-how transfer, and (iii) development services under the
initial development program for the DTCs. In the year ended December 31, 2019, we recognized $2,881 of transaction price allocated
to performance obligations (i) and (ii). These performance obligations are being recognized over a ten month period from December
2019 to September 2020 which is the expected period to complete the delivery of the licenses and transfer of the relevant technology
and know-how. Research and development services are recognized into revenue at fair market value as the services are rendered.
Pursuant to the terms of our agreement with Flexion, we received an upfront payment of $3.0 million. We determined that the
deliverables under this agreement should be considered a single performance obligation. As a result, the upfront payment was fully
recognized as revenue in September 2019 upon the transfer of the global rights to develop and commercialize XEN402. In addition,
we are also eligible for various milestone payments, of which $0.5 million for the initiation of the first GLP toxicology study was
recognized as revenue in September 2019 as the outcome is considered highly probable of occurring.
As our other internal and partnered products are in various stages of clinical and pre-clinical development, we do not expect to
generate any revenue from product sales for at least the next several years. We expect that any revenue for the next several years will
be derived from milestone payments and research and development funding under our current collaboration agreements and any
additional collaboration agreements that we may enter into in the future. We cannot provide any assurance as to the extent or timing of
future milestone payments or royalty payments or that we will receive any future payments at all.
We expect that any revenue we generate will fluctuate quarter to quarter as a function of the timing and amount of milestones
and other payments from our existing collaborations and any future collaborations.
As of December 31, 2019, we have recorded $30.5 million of deferred revenue from upfront payments received under our
license and collaboration agreement with Neurocrine Biosciences.
Operating Expenses
The following table summarizes our operating expenses for the years ended December 31, 2019 and 2018 (in thousands):
Research and development
General and administrative
Buy-out of future milestones and royalties
Total operating expenses
Research and Development Expenses
Year Ended December 31,
2019
2018
38,845
10,803
—
49,648
$
$
23,634
8,406
6,000
38,040
$
$
Research and development expenses represent costs incurred to conduct research and development of our proprietary product
candidates, including any acquired or in-licensed product candidates or technology.
Research and development expenses consist of costs incurred in performing research and development activities, including
salary, related benefits and stock-based compensation for employees engaged in scientific research and development, third-party
contract costs relating to research, formulation, process development and manufacturing, pre-clinical studies and clinical trial
activities, third-party acquisition, license and collaboration fees, laboratory consumables and allocated facility-related and information
technology costs.
63
Project-specific expenses reflect costs directly attributable to our clinical development candidates for which we have incurred
significant expenses. All remaining research and development expenses are reflected in pre-clinical, discovery and other program
expenses. At any given time, we have several active early-stage research and drug discovery programs. Our personnel and
infrastructure are typically deployed over multiple projects and are not directly linked to any individual internal early-stage research or
drug discovery program. Therefore, we do not maintain financial information for our internal early-stage research and internal drug
discovery programs on a project-specific basis.
We expense all research and development costs as incurred. We expect that our research and development expenses will
increase in the future as we advance our proprietary product candidates through clinical development, advance our internal drug
discovery programs into pre-clinical development and continue our early-stage research. The increase in expense will likely include
added personnel and third-party contracts related to research, formulation, process development and manufacturing, pre-clinical
studies and clinical trial activities as well as third-party acquisition, license and collaboration fees and laboratory consumables.
Clinical development timelines, likelihood of regulatory approval, and commercialization and associated costs are uncertain,
difficult to estimate, and can vary significantly. We anticipate determining which research and development projects to pursue as well
as the level of funding available for each project based on the scientific research and pre-clinical and clinical results of each product
candidate and related regulatory action. We expect our research and development expenses to continue to represent our largest
category of operating expenses for at least the next 12 to 24 months.
General and Administrative Expenses
General and administrative expenses consist primarily of salary, related benefits and stock-based compensation of our executive,
finance, legal, business development and administrative functions, travel expenses, allocated facility-related and information
technology costs not otherwise included in research and development expenses, director compensation, director’s and officer’s
insurance premiums, investor relations costs and professional fees for auditing, tax and legal services, including legal expenses for
intellectual property protection.
We expect that general and administrative expenses will increase in the future as we expand our operating activities to support
increased research and development activities.
Buy-out of future milestones and royalties
In September 2018, we entered into a milestone and royalty buy-out agreement with Valeant Pharmaceuticals Luxembourg
S.a.r.l. and Valeant Pharmaceuticals Ireland Limited, or together, Bausch Health, under which all potential clinical development,
regulatory and sales-based milestones and royalties on commercial sales with respect to XEN1101 that may become owed to Bausch
Health were terminated in exchange for a one-time payment of $6.0 million which was expensed in the period.
Other Income (Expense)
Interest Income. Interest income consists of income earned on our cash and investment balances. We anticipate that our interest
income will continue to fluctuate depending on our cash and investment balances and interest rates.
Interest Expense. Interest expense consists of accrual of the final payment fee, amortization of debt discounts, and interest
charged on our borrowings with Silicon Valley Bank, or the Bank, which accrue interest at a floating per annum rate of 0.5% above
the prime rate.
Foreign Exchange Gain (Loss). Net foreign exchange gains and losses consisted of gains and losses from the impact of foreign
exchange fluctuations on our monetary assets and liabilities that are denominated in currencies other than the U.S. dollar (principally
the Canadian dollar). We will continue to incur substantial expenses in Canadian dollars and will remain subject to risks associated
with foreign currency fluctuations.
Gain on Termination of Collaboration Agreement. In March 2018, we entered into a termination agreement terminating by
mutual agreement the collaborative development and license agreement dated December 7, 2012, as amended, with Teva
Pharmaceuticals International GmbH and Teva Canada Limited, or together Teva, that included the cancellation of 1,000,000 of our
common shares owned by Teva. We recorded a one-time gain of $4.4 million on the termination of the collaboration agreement, net of
direct costs incurred in connection with the termination and cancellation of the common shares.
64
Critical Accounting Policies and Significant Judgments and Estimates
Our 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 conformity with generally accepted accounting principles in the U.S., or U.S.
GAAP. The preparation of our consolidated financial statements requires us to make estimates and assumptions that affect the
reported amounts of assets and liabilities and the revenue and expenses incurred during the reported periods. We base estimates on our
historical experience, known trends and 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 apparent from other sources.
Actual results may differ from these estimates under different assumptions or conditions.
The significant accounting policies that we believe to be most critical in fully understanding and evaluating our financial results
are revenue recognition, research and development costs and stock-based compensation. For additional information, see note 3 of the
consolidated financial statements included in Part II, Item 8 of this report.
Revenue recognition:
Revenue recognition is a critical accounting estimate due to the magnitude and nature of the revenues we receive.
Our primary sources of revenue are derived from non-refundable upfront payments, funding for research and development
services, milestone payments, and royalties under various collaboration agreements.
In contracts where we have more than one performance obligation to provide our customer with goods or services, each
performance obligation is evaluated to determine whether it is distinct. The consideration under the contract is then allocated between
the distinct performance obligations based on their respective relative standalone selling prices. The estimated standalone selling price
of each deliverable reflects our best estimate of what the selling price would be if the deliverable was regularly sold on a standalone
basis and is determined by reference to market rates for the good or service when sold to others or by using an adjusted market
assessment approach if selling price on a standalone basis is not available. We generally recognize revenue from non-refundable
upfront payments over the estimated term of the performance obligation or period in which the underlying benefit is transferred to the
customer. We evaluate the measure of progress each reporting period and, if necessary, adjust the measure of performance and related
revenue recognition.
The consideration allocated to each distinct performance obligation is recognized as revenue when control is transferred to our
customer for the related goods or services. Consideration in exchange for research and development services performed by us on
behalf of the licensee is recognized upon performance of such activities at rates consistent with prevailing market rates. Consideration
associated with at-risk substantive performance milestones, including sales-based milestones, is recognized as revenue when we
determine it is probable that a significant reversal of the cumulative revenue recognized will not occur. At the end of each subsequent
reporting period, we re-evaluate the probability of achievement of such milestones, and if necessary, adjust our estimate of the overall
transaction price. Sales-based royalties received in connection with licenses of intellectual property are subject to a specific exception
in the revenue standards, whereby the consideration is not included in the transaction price and recognized in revenue until the
customer’s subsequent sales or usages occur.
Research and development costs:
Research and development costs is a critical accounting estimate due to the magnitude of and the many assumptions that are
required to calculate third-party accrued and prepaid research and development expenses.
We incur development activity costs, such as pre-clinical costs, manufacturing costs and clinical trial costs paid to contract
research organizations, investigators and other vendors who conduct certain product development activities on our behalf. The amount
of expenses recognized in a period related to service agreements is based on estimates of the work performed using an accrual basis of
accounting. These estimates are based on patient enrollment
, services provided and goods delivered, contractual terms and experience with similar contracts. We monitor these factors and
adjust our estimates accordingly.
Stock-based compensation:
Stock-based compensation is a critical accounting estimate due to the magnitude of and the many assumptions that are required
to calculate stock-based compensation expense.
65
We grant stock options to employees, directors and officers pursuant to our stock option plans. Compensation expense is
recorded using the fair value method. We calculate the fair value of stock options using the Black-Scholes option-pricing model which
requires that certain assumptions, including the expected life of the option and expected volatility of the stock, be estimated at the time
that the options are granted. The expected volatility is based on the historical volatility of our common shares calculated based on a
period of time commensurate with the expected term assumption. The expected term of our stock options has been determined
utilizing our available historical data and we recognize forfeitures as they occur. We amortize the fair value of stock options using the
straight-line method over the vesting period of the options.
Results of Operations
Comparison of Years Ended December 31, 2019 and 2018
The following table summarizes the results of our operations for the years ended December 31, 2019 and 2018 together with
changes in those items (in thousands):
Revenue
Research and development expenses
General and administrative expenses
Buy-out of future milestones and royalties
Other:
Interest income
Interest expense
Foreign exchange gain (loss)
Gain on termination of collaboration agreement
Loss before income taxes
$
$
$
6,829
38,845
10,803
—
2,353
(1,434)
282
—
(41,618) $
Year Ended December 31,
2019
2018
$
Change
2019 vs. 2018
Increase/(Decrease)
6,829
15,211
2,397
(6,000)
—
23,634
8,406
6,000
1,216
(1,394)
(701)
4,398
(34,521) $
1,137
(40)
983
(4,398)
(7,097)
Revenue
We recognized revenue of $6.8 million for the year ended December 31, 2019, whereas no revenue was recognized for the year
ended December 31, 2018. In 2019, we recognized revenue of $3.5 million in connection with our agreement with Flexion. Also in
2019, we recognized $2.9 million in connection with the transfer of licenses and related technology and know-how under our license
and collaboration agreement with Neurocrine Biosciences as well as $0.4 million for research and development services.
Research and Development Expenses
The following table summarizes research and development expenses for the years ended December 31, 2019 and 2018 together
with changes in those items (in thousands):
XEN496 expenses
XEN901 expenses (now known as NBI-921352)
XEN1101 expenses
Pre-clinical, discovery and other program expenses
Total research and development expenses
$
$
4,052
8,922
16,254
9,617
38,845
$
$
Year Ended December 31,
2019
2018
$
Change
2019 vs. 2018
Increase/(Decrease)
2,583
3,559
8,371
698
15,211
$
1,469
5,363
7,883
8,919
23,634
Research and development expenses were $38.8 million for the year ended December 31, 2019, compared to $23.6 million for the
year ended December 31, 2018. The increase of $15.2 million was primarily attributable to increased spending on our clinical
development product candidates and, to a lesser extent, increased spending on our pre-clinical, discovery and other internal program
expenses. Pursuant to the terms of our license and collaboration agreement with Neurocrine Biosciences entered into in December
2019, Neurocrine Biosciences will fund all future clinical developments costs associated with the development of product candidates
under the collaboration including XEN901, now known as NBI-921352, with the exception of a portion of certain near term
manufacturing costs.
66
General and Administrative Expenses
The following table summarizes general and administrative expenses for the years ended December 31, 2019 and 2018 together
with changes in those items (in thousands):
General and administrative expenses
$
10,803
$
8,406
Year Ended December 31,
2019
2018
Change
2019 vs. 2018
Increase/(Decrease)
2,397
$
General and administrative expenses were $10.8 million for the year ended December 31, 2019, compared to $8.4 million for
the year ended December 31, 2018. The increase of $2.4 million was primarily attributable to increased salaries and benefits, legal
expenses for intellectual property protection, business development expenses and recruitment fees.
Other Operating Expenses
The following table summarizes other operating expenses for the years ended December 31, 2019 and 2018 together with
changes in those items (in thousands):
Buy-out of future milestones and royalties
$
—
$
6,000
Year Ended December 31,
2019
2018
Change
2019 vs. 2018
Increase/(Decrease)
(6,000)
$
Other operating expenses decreased by $6.0 million for the year ended December 31, 2019, as compared to the year ended
December 31, 2018. The decrease is due to a one-time payment of $6.0 million to Bausch Health made in September 2018 for the buy-
out of all future milestone payments and royalties owed to Bausch Health with respect to the XEN1101 program.
Other Income
The following table summarizes our other income for the years ended December 31, 2019 and 2018 together with changes in
those items (in thousands):
Other income:
$
1,201
$
3,519
Year Ended December 31,
2019
2018
Change
2019 vs. 2018
Increase/(Decrease)
(2,318)
$
Other income decreased by $2.3 million for the year ended December 31, 2019, as compared to the year ended December 31,
2018. The decrease in other income was primarily driven by a $4.4 million gain on the termination of the collaboration agreement
with Teva in March 2018, partially offset by a change in foreign exchange gains and losses and interest income earned on our cash and
investment balances. We recorded a foreign exchange gain of $0.3 million for the year ended December 31, 2019 as compared to a
$0.7 million foreign exchange loss for the same period in 2018, largely due to a 5% increase as compared to an 8% decrease in the
value of the Canadian dollar, respectively. We also recognized an increase of $1.1 million in interest income as a result in an increase
in our average cash and investment balances for the year ended December 31, 2019 as compared to the same period in 2018.
Liquidity and Capital Resources
To date, we have financed our operations primarily through funding received from collaboration and license agreements, private
placements of our common and preferred shares, public offerings of our common shares, debt financing and, to a lesser extent,
government funding. As of December 31, 2019, we had cash and cash equivalents and marketable securities of $141.4 million.
67
We have incurred significant operating losses since inception. We had a $41.6 million net loss for the year ended December 31,
2019 and an accumulated deficit of $249.7 million from inception through December 31, 2019. We expect to continue to incur
significant expenses in excess of our revenue and expect to incur operating losses over the next several years. Our net losses may
fluctuate significantly from quarter to quarter and year to year. We expect to continue to incur significant expenses and operating
losses for the foreseeable future as we continue our research and pre-clinical and clinical development of our product candidates;
expand the scope of our current studies for our product candidates; initiate additional pre-clinical, clinical or other studies for our
product candidates, including under our collaboration agreements; change or add manufacturers or suppliers and manufacture drug
supply and drug products for clinical trials and commercialization; seek regulatory and marketing approvals for any of our product
candidates that successfully complete clinical studies; seek to identify, evaluate and validate additional product candidates; acquire or
in-license other product candidates and technologies; make milestone or other payments under our product acquisition and in-license
agreements, including, without limitation, payments to the Memorial University of Newfoundland, 1st Order Pharmaceuticals, Inc.,
and other third parties; maintain, protect and expand our intellectual property portfolio; attract and retain skilled personnel; establish a
sales, marketing and distribution infrastructure to commercialize any products for which we or one of our collaborators may obtain
marketing approval, and maintain commercial rights; create additional infrastructure to support our operations and our product
development and planned future commercialization efforts; and experience any delays or encounter issues with any of the above.
Until such time as we can generate substantial product revenue, if ever, we expect to finance our cash needs through a
combination of collaboration agreements and equity or debt financings. For example, we entered into an underwriting agreement with
Jefferies LLC, or Jefferies, Stifel, Nicolaus & Company, Incorporated, or Stifel and Guggenheim Securities, LLC, relating to an
underwritten public offering of 3,750,000 common shares at a public offering price of $16.00 per common share, and granted the
underwriters an option for a period of 30 days to purchase up to an additional 562,500 common shares. The public offering was
completed in January 2020 and the underwriters’ option was exercised in full in February 2020. We issued an aggregate of 4,312,500
common shares and raised total net proceeds of $64.9 million, net of underwriting discounts and commissions, but before offering
expenses. In December 2019, pursuant to the terms of our license and collaboration agreement with Neurocrine Biosciences, we
received an upfront cash payment of $30.0 million and we issued 1,408,847 common shares to Neurocrine Biosciences for an
aggregate purchase price of $20.0 million. Further, in November 2019, we entered into an at-the-market equity offering sales
agreement, or the Sales Agreement, with Jefferies and Stifel, to sell our common shares having aggregate sales proceeds of up to
$50.0 million, from time to time, through an “at-the-market” equity offering program under which Jefferies and Stifel acted as sales
agent. As of January 14, 2020, we had sold an aggregate of 3,252,330 common shares for net proceeds of $48.8 million, net of
commissions paid, but excluding estimated transaction expenses. In addition, during the year ended December 31, 2018, we raised
$103.2 million, net of commissions paid, but excluding estimated transaction expenses through a combination of “at-the-market”
equity offerings and an underwritten public offering, selling an aggregate of 9,540,000 common shares. During the year ended
December 31, 2018, we also entered into an amended and restated loan and security agreement with Silicon Valley Bank, or the Bank,
providing for a term loan to us with an aggregate principal amount of $15.5 million.
Except for any obligations of our collaborators to make milestone payments and research and development funding under our
agreements with them, we do not have any committed external sources of capital. To the extent that we raise additional capital through
the future sale of equity or debt, the ownership interest of our shareholders will be diluted, and the terms of these securities may
include liquidation or other preferences that adversely affect the rights of our existing shareholders. If we raise additional funds
through collaboration agreements in the future, we may have to relinquish valuable rights to our technologies, future revenue streams
or product candidates or grant licenses on terms that may not be favorable to us. If we are unable to raise additional funds through
equity or debt financings when needed, we may be required to delay, limit, reduce or terminate our product development or future
commercialization efforts or grant rights to develop and market product candidates that we would otherwise prefer to develop and
market ourselves.
Our future capital requirements are difficult to forecast and will depend on many factors, including:
•
•
the number and characteristics of the future product candidates we pursue either from our internal research efforts or
through acquiring or in-licensing other product candidates or technologies;
the scope, progress, results and costs of independently researching and developing any of our future product candidates,
including conducting pre-clinical research and clinical trials;
• whether our existing collaborations continue to generate substantial milestone payments and, ultimately, royalties on future
approved products for us;
•
•
•
the timing of, and the costs involved in, obtaining regulatory approvals for any future product candidates we develop
independently;
the timing and magnitude of potential milestone payments and royalties under our product acquisition and in-license
agreements;
the cost of commercializing any future products we develop independently that are approved for sale;
68
•
•
•
•
the cost of manufacturing our future product candidates and products, if any;
our ability to maintain existing collaborations and to establish new collaborations, licensing or other arrangements and the
financial terms of such arrangements;
the costs of preparing, filing, prosecuting, maintaining, defending and enforcing patents, including litigation costs and the
outcome of such litigation; and
the timing, receipt and amount of sales of, or royalties on our future products, if any.
Based on our research and development plans and our timing expectations related to the progress of our programs, we expect
that our existing cash and cash equivalents and marketable securities as of the date of this report will enable us to fund our operating
expenses and capital expenditure requirements for at least the next 12 months. We have based this estimate on assumptions that may
prove to be wrong, and we could use our capital resources sooner than we expect. Additionally, the process of testing drug candidates
in clinical trials is costly, and the timing of progress in these trials remains uncertain.
Cash Flows
The following table shows a summary of our cash flows for the years ended December 31, 2019 and 2018 (in thousands):
Net cash used in operating activities
Net cash used in investing activities
Net cash provided by financing activities
Operating Activities
$
Year Ended December 31,
2019
2018
(4,632) $
(66,291)
27,518
(34,724)
(28,987)
111,591
Net cash used in operating activities totaled $4.6 million in 2019 as compared to $34.7 million in 2018. The decrease in cash
used in operating activities was primarily related to the $30.0 million upfront cash consideration received in December 2019 under the
license and collaboration agreement with Neurocrine Biosciences and the associated premium of $3.3 million on the equity investment
in our common shares, the one-time payment in September 2018 of $6.0 million to Bausch Health for the buy-out of all future
milestone payments and royalties owed to Bausch Health with respect to the XEN1101 program, and the $3.0 million upfront
consideration received in September 2019 under the agreement with Flexion, partially offset by an increase in research and
development expenses for the year ended December 31, 2019 compared to the same period in 2018.
Investing Activities
Net cash used in investing activities totaled $66.3 million in 2019 as compared to net cash used in investing activities of $29.0
million in 2018. The change in cash used in investing activities was driven by an increase in purchases of marketable securities, net of
redemptions.
Financing Activities
Net cash provided by financing activities totaled $27.5 million in 2019 as compared to $111.6 million in 2018. The decrease in
cash provided by financing activities was driven by a decrease in net proceeds from the issuance of common shares as well as net
proceeds of $8.5 million under the second tranche of our loan in June 2018.
Contractual Obligations and Commitments
The following table summarizes our significant contractual obligations as of December 31, 2019 (in thousands):
Contractual Obligations
Operating leases (1)
Term loan (2)
Total contractual obligations
Total
$
$
$
1,411
15,500
16,911
$
$
$
Less Than
1 Year
1 To 3 Years 3 To 5 Years
—
—
—
761
10,850
11,611
$
$
$
$
$
$
650
4,650
5,300
More Than
5 Years
$
$
—
—
—
(1) Represents future minimum lease payments under an operating lease in effect as of December 31, 2019 for our current
facility in Burnaby, British Columbia, Canada.
69
(2) Excluding expected interest payments of $0.7 million (less than one year) and $0.5 million (one to three years), based on
the prime rate plus 0.5% margin at December 31, 2019. Also excluded is the final payment fee of $1.0 million which
represents 6.5% of the principal amount.
Term Loan
In August 2018, we entered into an amended and restated loan and security agreement with the Bank, or Amended and Restated
Loan Agreement, providing for a term loan, or Term Loan, to us with an aggregate principal amount of $15.5 million, which was used
to repay in full outstanding borrowings of $12.0 million under a prior loan agreement with the Bank and a payment of $0.5 million,
which represented the current portion of the final payment fee due under such prior loan agreement, as well as for working capital and
other general corporate purposes, including the advancement of our clinical development programs.
The Term Loan accrues interest at a floating per annum rate of 0.5% above the prime rate, which is payable monthly
commencing in September 2018. The Term Loan is interest-only until March 31, 2020, followed by 30 equal monthly installments of
principal plus interest, maturing on September 1, 2022. In addition, we are required to pay a final payment fee of 6.5% of the Term
Loan on the date on which the term loan is prepaid, paid or becomes due and payable in full.
We may prepay all, but not less than all, of the Term Loan subject to a prepayment fee of $0.3 million, which represents the
deferred portion of the final payment fee due under the Modified Loan Agreement, plus 3.0% if prepaid prior to the first anniversary
of the effective date of the Amended and Restated Loan Agreement, 2.0% if prepaid on or after the first anniversary, but prior to the
second anniversary, or 1.0%, if prepaid on or after the second anniversary but prior to the maturity date. As security for our
obligations under the Amended and Restated Loan Agreement, we granted the Bank a first priority security interest on substantially all
of our assets except our intellectual property and subject to certain other exceptions.
The Amended and Restated Loan Agreement contains customary representations and warranties, events of default (including an
event of default upon the occurrence of a material impairment on the Bank’s security interest over the collateral, and a material
adverse change in our company) and affirmative and negative covenants, including, among others, covenants that limit or restrict our
ability to incur indebtedness, grant liens, merge or consolidate, dispose of assets, make investments, make acquisitions, enter into
certain transactions with affiliates, engage in any new line of business, pay dividends or make distributions, or repurchase stock, in
each case subject to certain exceptions. Upon the occurrence and during the continuance of an event of default, a default interest rate
will apply that is 5.0% above the otherwise applicable interest rate.
In connection with the Amended and Restated Loan Agreement, we issued a warrant to the Bank to purchase 40,000 of our
common shares at a price per common share of $9.79. The warrant is immediately exercisable, has a 10-year term and contains a
cashless exercise provision.
Other Commitments
The contractual obligations table above excludes the following material contractual commitments:
In August 2015, we entered into a priority access agreement with Medpace Inc., or Medpace, for the provision of certain clinical
development services. Under the terms of the agreement, we committed to using Medpace non-exclusively for clinical development
services over the five year term of the agreement. In consideration for priority access to Medpace resources and preferred service
rates, we committed to $7.0 million of services over the term of the agreement, $3.0 million of services have been received to date and
$4.0 million remains committed as at December 31, 2019. If we do not meet the commitment to retain Medpace for $7.0 million of
services during the term of the agreement, we agreed to give Medpace the exclusive right to perform all of our subsequent outsourced
clinical development work until such $7.0 million commitment has been satisfied, subject to the availability of appropriate Medpace
resources and reasonable service rates. If we decide not to retain Medpace for the provision of clinical development services, we may
satisfy our obligations under the priority access agreement by paying Medpace an amount equal to half of the unsatisfied portion of the
$7.0 million minimum commitment.
In March 2017, we entered into a license, manufacture and supply agreement with a pharmaceutical contract manufacturing
organization for the access and use of certain regulatory documents as well as for the manufacture and supply of clinical and
commercial drug product to support the development of XEN007. Under the terms of the agreement, we will be required to pay a low
single-digit percentage royalty on net sales of any products developed and commercialized under the agreement.
70
In April 2017, we acquired XEN1101 (previously known as 1OP2198) from 1st Order Pharmaceuticals, Inc., or 1st Order,
pursuant to an asset purchase agreement. 1st Order previously acquired 1OP2198 from an affiliate of Bausch Health, and assumed
certain financial responsibilities under that agreement. In September 2018, we entered into a milestone and royalty buy-out agreement
with Bausch Health under which all potential clinical development, regulatory and sales-based milestones and royalties on commercial
sales with respect to XEN1101 that may become owed to Bausch Health under the asset purchase agreement were terminated in
exchange for a one-time payment of $6.0 million which was expensed in the period. Future potential payments to 1st Order include
$0.5 million in clinical development milestones, up to $6.0 million in regulatory milestones, and $1.5 million in other milestones that
may be payable pre-commercially. There are no royalty obligations to 1st Order.
In July 2017, we entered into a license agreement with a pharmaceutical company for the access and use of certain regulatory
documents to support the development of XEN007. Future potential payments include $2.0 million in clinical development
milestones, up to $7.0 million in regulatory milestones, plus a low-to-mid single-digit percentage royalty on net sales of any products
developed and commercialized under the agreement.
In July 2018, we amended our collaborative research and license agreement with Genentech to provide us with greater
flexibility in developing additional compounds that target Nav1.6. Pursuant to the amendment, we obtained a non-exclusive,
irrevocable, perpetual, world-wide, sublicensable license under the know-how forming part of the Genentech intellectual property
developed under the Nav1.7 collaboration that is necessary or useful to make, use, sell, offer for sale, and import compounds from our
Nav1.6 program that are above a certain potency on Nav1.7 and were conceived prior to a certain date and products containing those
compounds. Our license from Genentech includes commercialization rights but we are restricted from developing or commercializing
our Nav1.6 compounds below a certain potency on Nav1.7 and conceived prior to a certain date in the field of epilepsy and any of our
Nav1.6 compounds conceived prior to a certain date, regardless of their potency on Nav1.7, in the field of pain. In exchange for the
rights granted to us under this amendment, Genentech is eligible to receive a low single-digit percentage, tiered royalty on net sales of
our Nav1.6 compounds conceived prior to a certain date, including XEN901 (now known as NBI-921352), for a period of ten years
from first commercial sale on a country-by-country basis. In accordance with our license and collaboration agreement with Neurocrine
Biosciences, we remain solely responsible for all payments to Genentech with respect to certain Nav1.6 compounds, including NBI-
921352, licensed to Neurocrine Biosciences. Pursuant to the amendment, we granted Genentech a royalty-free, non-exclusive, world-
wide license under our Nav1.6 intellectual property to make, use, sell, offer for sale and import compounds below a certain potency on
Nav1.7 and products containing those compounds for all uses and indications except epilepsy.
Inflation
We do not believe that inflation has had a material effect on our business, financial condition or results of operations in the last
three fiscal years.
Off-Balance Sheet Arrangements
We do not engage in any off-balance sheet financing activities. We do not have any interest in entities referred to as variable
interest entities, which include special purposes entities and other structured finance entities.
Related Party Transactions
For a description of our related party transactions, see “Certain Relationships and Related Transactions, and Director
Independence.”
Outstanding Share Data
As of March 5, 2020, we had 34,956,272 common shares issued and outstanding and outstanding stock options to purchase an
additional 3,439,693 common shares. In addition, as of March 5, 2020, we had 1,016,000 Series 1 Preferred Shares issued and
outstanding. The Series 1 Preferred Shares are convertible into common shares on a one-for-one basis subject to the holder, together
with its affiliates, beneficially owning no more than 9.99% of the total number of common shares issued and outstanding immediately
after giving effect to such conversion, or the Beneficial Ownership Limitation. The holder may reset the Beneficial Ownership
Limitation to a higher or lower number, not to exceed 19.99% of the total number of common shares issued and outstanding
immediately after giving effect to such conversion, upon providing written notice to us which will be effective 61 days after delivery
of such notice. The holders of the Series 1 Preferred Shares are entitled to vote together with the common shares on an as-converted
basis and as a single class, subject in the case of each holder of the Series 1 Preferred Shares to the Beneficial Ownership Limitation.
The Series 1 Preferred Shares may be “restricted securities” as such term is defined under applicable Canadian securities laws, as any
Series 1 Preferred Shares that are ineligible to be converted into common shares due to the Beneficial Ownership Limitation,
measured as of a given record date that applies for a shareholder meeting or ability to act by written consent, shall be deemed to be
non-voting securities. For additional information regarding our Series 1 Preferred Shares, see note 11d to our consolidated financial
statements included in Part II, Item 8 of this report.
71
2019 Inducement Equity Incentive Plan
In September 2019, our board of directors adopted the 2019 Inducement Equity Incentive Plan, or the Inducement Plan, and,
subject to the adjustment provisions of the Inducement Plan, reserved 400,000 of our common shares for issuance pursuant to equity
awards granted under the Inducement Plan.
The Inducement Plan was adopted without shareholder approval in accordance with the applicable Nasdaq Listing Rules. The
Inducement Plan provides for the grant of equity-based awards, including share options, share appreciation rights, restricted share
awards, restricted share unit awards and performance share awards, and its terms are substantially similar to the our 2014 Equity
Incentive Plan, including with respect to treatment of equity awards in the event of a “merger” or “change of control” as defined under
the Inducement Plan, but with such other terms and conditions intended to comply with the Nasdaq inducement award exception or to
comply with the Nasdaq acquisition and merger exception. However, our 2014 Equity Incentive Plan permits certain exchange
programs (which includes repricings) without shareholder approval, while the Inducement Plan requires shareholder approval for such
exchange programs.
In accordance with the applicable Nasdaq Listing Rules, awards under the Inducement Plan may only be made to individuals not
previously serving as our employees or non-employee directors (or following such individuals’ bona fide period of non-employment
with us), as an inducement material to the individuals’ entry into employment with us, or, to the extent permitted by the applicable
Nasdaq Listing Rules, in connection with a merger or acquisition.
Recent Accounting Pronouncements
In November 2019, the Financial Accounting Standards Board, or FASB, issued Accounting Standards Update, or ASU, 2019-
08, Compensation—Stock Compensation (Topic 718) and Revenue from Contracts with Customers (Topic 606): Codification
Improvements—Share-Based Consideration Payable to a Customer. These amendments clarify that companies must measure and
classify share-based payment awards to a customer following the guidance in Topic 718. A company will classify awards as liabilities
or equity following the guidance in Topic 718, and measure them at their grant-date fair value. The awards will be recorded as a
reduction to revenue or an expense based on the guidance in Topic 606. If a company intends to provide an award to a customer and
the grant date has not occurred, the transaction price guidance in Topic 606 should be followed to estimate the fair value of the award.
A company must adjust the fair value estimate each reporting date until a grant date is achieved and recognize changes in the grant-
date fair value of an award as a result of changes in the expected outcome of a service or a performance condition as a reduction in the
transaction price. If the terms of the award are modified after the grantee vests in the award and is no longer a customer, the award
may be subject to other guidance. These amendments will be effective for fiscal years and interim periods within those fiscal years,
beginning after December 15, 2019. We are currently evaluating the new guidance to determine the impact it will have on our
consolidated financial statements.
In December 2019, the FASB issued ASU 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes.
These amendments market targeted improvement to simplify accounting for income taxes, changes the accounting for certain income
tax transactions and makes certain improvements to the codification. These amendments will be effective for fiscal years and interim
periods within those fiscal years, beginning after December 15, 2020 with early adoption permitted. We are currently evaluating the
new guidance to determine the impact it will have on our consolidated financial statements.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
As a smaller reporting company, we are not required to provide the information requested by this item pursuant to Item 301 of
Regulation S-K.
72
Item 8.
Financial Statements and Supplementary Data
XENON PHARMACEUTICALS INC.
Index to Consolidated Financial Statements
Year ended December 31, 2019
Reports of Independent Registered Public Accounting Firm ............................................................................................................
Consolidated Balance Sheets as of December 31, 2019 and 2018 ....................................................................................................
Consolidated Statements of Operations and Comprehensive Loss for the years ended December 31, 2019 and 2018 ...................
Consolidated Statements of Shareholders’ Equity for the years ended December 31, 2019 and 2018 ............................................
Consolidated Statements of Cash Flows for the years ended December 31, 2019, and 2018 ..........................................................
Notes to Consolidated Financial Statements......................................................................................................................................
Index
74
76
77
78
79
80
73
Report of Independent Registered Public Accounting Firm
To the Shareholders and Board of Directors
Xenon Pharmaceuticals Inc.:
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of Xenon Pharmaceuticals Inc. (the Company) as of December 31,
2019 and 2018, the related consolidated statements of operations and comprehensive loss, shareholders’ equity, and cash flows for
each of the years in the two-year period ended December 31, 2019, and the related notes (collectively, the consolidated financial
statements). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the
Company as of December 31, 2019 and 2018, and the results of its operations and its cash flows for each of the years in the two-year
period ended December 31, 2019, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB),
the Company’s internal control over financial reporting as of December 31, 2019, based on criteria established in Internal Control –
Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission, and our report
dated March 9, 2020 expressed an unqualified opinion on the effectiveness of the Company’s internal control over financial reporting.
Change in Accounting Principle
As discussed in Note 4 to the consolidated financial statements, the Company has changed its accounting policies for leases due to the
adoption of ASU 2016-02 – Leases.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an
opinion on these consolidated financial statements based on our audits. We are a public accounting firm registered with the PCAOB
and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable
rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to
error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial
statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining,
on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included
evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall
presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ KPMG LLP
Chartered Professional Accountants
We have served as the Company’s auditor since 1999.
Vancouver, Canada
March 9, 2020
74
Report of Independent Registered Public Accounting Firm
To the Shareholders and Board of Directors
Xenon Pharmaceuticals Inc.:
Opinion on Internal Control Over Financial Reporting
We have audited Xenon Pharmaceuticals Inc.’s (the Company) internal control over financial reporting as of December 31, 2019,
based on criteria established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring
Organizations of the Treadway Commission. In our opinion, the Company maintained, in all material respects, effective internal
control over financial reporting as of December 31, 2019, based on criteria established in Internal Control – Integrated Framework
(2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB),
the consolidated balance sheets of the Company as of December 31, 2019 and 2018, the related consolidated statements of operations
and comprehensive loss, shareholders’ equity, and cash flows for each of the years in the two-year period ended December 31, 2019,
and the related notes (collectively, the consolidated financial statements), and our report dated March 9, 2020 expressed an unqualified
opinion on those consolidated financial statements.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of
the effectiveness of internal control over financial reporting, included in the accompanying Management’s Annual Report on Internal
Control over Financial Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial
reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with
respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities
and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects.
Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting,
assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control
based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances.
We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control Over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting
principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the
maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the
company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in
accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect
on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections
of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in
conditions, or that the degree of compliance with the policies or procedures may deteriorate.
/s/ KPMG LLP
Chartered Professional Accountants
Vancouver, Canada
March 9, 2020
75
December 31,
December 31,
2019
2018
$
$
$
$
$
$
24,755
116,603
813
2,695
144,866
933
1,660
238
147,697
8,818
29,743
168
4,650
43,379
709
743
10,889
55,720
$
$
$
67,754
51,552
151
1,875
121,332
—
991
105
122,428
4,119
—
—
—
4,119
—
—
15,014
19,133
7,732
$
7,732
294,244
40,646
(249,655)
(990)
91,977
147,697
$
$
265,923
38,515
(207,885)
(990)
103,295
122,428
XENON PHARMACEUTICALS INC.
Consolidated Balance Sheets
(Expressed in thousands of U.S. dollars except share amounts)
Assets
Current assets:
Cash and cash equivalents
Marketable securities
Accounts receivable
Prepaid expenses and other current assets
Operating lease right-of-use asset (note 8)
Property, plant and equipment, net (note 7)
Deferred tax assets (note 15)
Total assets
Liabilities and shareholders’ equity
Current liabilities:
Accounts payable and accrued expenses (note 9)
Deferred revenue (note 13)
Operating lease liability (note 8)
Term loan (note 10)
Deferred revenue, long-term (note 13)
Operating lease liability, long-term (note 8)
Term loan, long-term (note 10)
Shareholders’ equity:
Preferred shares, without par value; unlimited shares authorized; issued and
outstanding: 1,016,000 (December 31, 2018 - 1,016,000) (note 11)
Common shares, without par value; unlimited shares authorized; issued and
outstanding: 28,139,228 (December 31, 2018 - 25,750,721) (note 11)
Additional paid-in capital
Accumulated deficit
Accumulated other comprehensive loss
Total liabilities and shareholders’ equity
Collaboration agreements (note 13)
Commitments and contingencies (note 14)
Subsequent events (note 17)
The accompanying notes are an integral part of these consolidated financial statements.
76
XENON PHARMACEUTICALS INC.
Consolidated Statements of Operations and Comprehensive Loss
(Expressed in thousands of U.S. dollars except share and per share amounts)
Revenue (note 13):
Operating expenses:
Research and development
General and administrative
Buy-out of future milestones and royalties (note 14c)
Loss from operations
Other income (expense):
Interest income
Interest expense
Foreign exchange gain (loss)
Gain on termination of collaboration agreement (note 13c)
Loss before income taxes
Income tax recovery
Net loss and comprehensive loss
Net loss attributable to preferred shareholders
Net loss attributable to common shareholders
Net loss per common share (note 6):
Basic and diluted
Weighted-average common shares outstanding (note 6):
Basic and diluted
The accompanying notes are an integral part of these consolidated financial statements.
Year Ended December 31,
2018
2019
$
6,829 $
—
38,845
10,803
—
49,648
(42,819)
2,353
(1,434)
282
—
(41,618)
23
(41,595)
(1,568)
(40,027)
23,634
8,406
6,000
38,040
(38,040)
1,216
(1,394)
(701)
4,398
(34,521)
24
(34,497)
(2,881)
(31,616)
$
(1.54) $
(1.63)
25,939,405
19,425,711
77
XENON PHARMACEUTICALS INC.
Consolidated Statement of Shareholders’ Equity
(Expressed in thousands of U.S. dollars except share amounts)
Balance as of December 31,
2017
Net loss for the year
Issuance of common shares,
net of issuance costs (note 11a)
Issued (cancelled) pursuant
to exchange agreement (note 11d)
Conversion of preferred shares to
common shares (note 11d)
Cancelled pursuant to termination
of collaboration agreement (note
13c)
Stock-based compensation
expense
Issued pursuant to exercise
of stock options and warrants
Issuance of warrants
Balance as of December 31,
2018
Cumulative effect of accounting
change (note 4a)
Net loss for the year
Issuance of common shares,
net of issuance costs (note 11a)
Stock-based compensation
expense
Issued pursuant to exercise
of stock options
Balance as of December 31,
2019
Convertible preferred shares
Common shares
Shares
Amount
Shares
Amount
Additional
paid-in
capital
Accumulated
Accumulated
other
comprehensive
Total
shareholders'
deficit
loss⁽¹⁾
equity
—
$
—
17,998,420
$
173,841
$
36,471
$
(173,388)
(34,497)
$
(990)
$
9,540,000
102,850
2,868,000
21,825
(2,868,000)
(21,825)
(1,852,000)
(14,093)
1,852,000
14,093
(1,000,000)
(4,470)
228,301
1,434
2,652
(1,146)
538
35,934
(34,497)
102,850
—
—
(4,470)
2,652
288
538
1,016,000
$
7,732
25,750,721
$
265,923
$
38,515
$
(207,885)
$
(990)
$
103,295
2,214,490
27,396
174,017
925
2,934
(803)
(175)
(41,595)
(175)
(41,595)
27,396
2,934
122
1,016,000
$
7,732
28,139,228
$
294,244
$
40,646
$
(249,655)
$
(990)
$
91,977
(1)
currency of the Company was the Canadian dollar.
The accumulated other comprehensive loss is entirely related to historical cumulative translation adjustments from the application of U.S. dollar reporting when the functional
The accompanying notes are an integral part of these consolidated financial statements.
78
XENON PHARMACEUTICALS INC.
Consolidated Statements of Cash Flows
(Expressed in thousands of U.S. dollars)
Operating activities:
Net loss
Items not involving cash:
Depreciation
Amortization of discount on term loan
Deferred income tax recovery
Stock-based compensation
Unrealized foreign exchange (gain) loss
Gain on termination of collaboration agreement (note 13c)
Changes in operating assets and liabilities:
Accounts receivable
Prepaid expenses and other current assets
Accounts payable and accrued expenses
Deferred revenue
Net cash used in operating activities
Investing activities:
Purchases of property, plant and equipment
Purchase of marketable securities
Proceeds from marketable securities
Net cash used in investing activities
Financing activities:
Proceeds from issuance of refinanced term loan, net of issuance costs (note 10)
Issuance of common shares, net of issuance costs (note 11a)
Issuance of common shares pursuant to exercise of stock options
Net cash provided by financing activities
Effect of exchange rate changes on cash and cash equivalents
Increase (decrease) in cash and cash equivalents
Cash and cash equivalents, beginning of year
Cash and cash equivalents, end of year
Supplemental disclosures:
Interest paid
Interest received
Cash paid for operating lease
Supplemental disclosures of non-cash transactions:
Fair value of stock options and warrants exercised on a cashless basis
Issuance of preferred shares in exchange for common shares (note 11d)
Conversion of preferred shares to common shares (note 11d)
Termination of Teva agreement through cancellation of common shares (note 13c)
The accompanying notes are an integral part of these consolidated financial statements.
$
$
79
Year Ended December 31,
2018
2019
$
(41,595)
$
(34,497)
429
525
(133)
2,924
(302)
—
(653)
(820)
4,541
30,452
(4,632)
(1,240)
(140,494)
75,443
(66,291)
—
27,396
122
27,518
406
(42,999)
67,754
24,755
917
2,216
634
719
—
—
—
$
$
586
284
(105)
2,625
646
(4,398)
280
(928)
783
—
(34,724)
(507)
(77,002)
48,522
(28,987)
8,453
102,850
288
111,591
(612)
47,268
20,486
67,754
561
1,067
624
1,125
21,825
14,093
4,470
XENON PHARMACEUTICALS INC.
Notes to Consolidated Financial Statements
(Expressed in thousands of U.S. dollars except share and per share amounts)
1.
Nature of the business:
Xenon Pharmaceuticals Inc. (the “Company”), incorporated in 1996 under the predecessor to the Business Corporations Act
(British Columbia) and continued federally in 2000 under the Canada Business Corporation Act, is a clinical stage
biopharmaceutical company focused on developing innovative therapeutics to improve the lives of patients with neurological
disorders. Building upon its extensive knowledge of human genetics and diseases caused by mutations in ion channels, known
as channelopathies, the Company is advancing a novel product pipeline of neurology-focused therapies to address areas of high
unmet medical need, with a focus on epilepsy.
The Company has incurred significant operating losses since inception. As of December 31, 2019, the Company had an
accumulated deficit of $249,655 and a $41,595 net loss for the year ended December 31, 2019. Management expects to continue
to incur significant expenses in excess of revenue and to incur operating losses for the foreseeable future. To date, the Company
has financed its operations primarily through funding received from collaboration and license agreements, private placements of
common and preferred shares, public offerings of common shares, debt financing, and government funding.
Until such time as the Company can generate substantial product revenue, if ever, management expects to finance the
Company’s cash needs through a combination of collaboration agreements, equity and debt financings. The continuation of
research and development activities and the future commercialization of its products are dependent on the Company’s ability to
successfully raise additional funds when needed. It is not possible to predict either the outcome of future research and
development programs or the Company’s ability to continue to fund these programs in the future.
2.
Basis of presentation:
These consolidated financial statements are presented in U.S. dollars and have been prepared in accordance with United States
generally accepted accounting principles (“U.S. GAAP”). Certain information has been reclassified to conform with the
financial statement presentation adopted for the current year.
The Company has one wholly-owned subsidiary as at December 31, 2019, Xenon Pharmaceuticals USA Inc., which was
incorporated in Delaware on December 2, 2016.
These consolidated financial statements include the accounts of the Company and its wholly-owned subsidiary. All
intercompany transactions and balances have been eliminated on consolidation.
3.
Significant accounting policies:
(a) Use of estimates:
The preparation of the consolidated 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 disclosure of contingent assets and
liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting
period. Significant areas of estimates include, but are not limited to, revenue recognition including estimated timing of
completion of performance obligations, the determination of stock-based compensation and the amounts recorded as
accrued liabilities. Actual results could differ materially from those estimates. Estimates and assumptions are reviewed
quarterly. All revisions to accounting estimates are recognized in the period in which the estimates are revised and in any
future periods affected.
(b) Cash and cash equivalents:
Cash equivalents are highly liquid investments that are readily convertible into cash with terms to maturity of three
months or less when acquired. Cash equivalents are recorded at cost plus accrued interest. The carrying value of these
cash equivalents approximates their fair value.
(c) Marketable securities:
Marketable securities are investments with original maturities exceeding three months, and the Company classified these
securities as current assets as the Company has the intent and ability to convert these securities into cash without penalty
within the next 12 months. Marketable securities accrue interest based on a fixed interest rate for the term. The carrying
value of marketable securities is recorded at quoted prices in active markets, which approximates their fair value.
80
(d) Intellectual Property
The costs incurred in establishing and maintaining patents for intellectual property developed internally are expensed in
the period incurred.
(e) Property, plant and equipment:
Property, plant and equipment are stated at cost less accumulated depreciation and/or accumulated impairment losses, if
any. Repairs and maintenance costs are expensed in the period incurred.
Property, plant and equipment are amortized over their estimated useful lives using the straight-line method based on the
following rates:
Asset
Research equipment
Office furniture and equipment
Computer equipment
Leasehold improvements
Rate
5 years
5 years
3 years
Over the lesser of lease term or
estimated useful life
(f)
Impairment of long-lived assets:
The Company monitors its long-lived assets for indicators of impairment. If such indicators are present, the Company
assesses the recoverability of affected assets by determining whether the carrying value of such assets is less than the sum
of the undiscounted future cash flows of the assets. If such assets are found not to be recoverable, the Company measures
the amount of such impairment by comparing the carrying value of the assets to the fair value of the assets, with the fair
value generally determined based on the present value of the expected future cash flows associated with the assets. No
impairment of long-lived assets was noted during the years ended December 31, 2019 and 2018.
(g) Leases:
Leases classified as operating leases are recorded as lease liabilities based on the present value of minimum lease
payments over the lease term, discounted using the lessor’s rate implicit in the lease or the Company’s incremental
borrowing rate, if the lessor’s implicit rate is not readily determinable. The lease term includes all periods covered by
renewal and termination options where the Company is reasonably certain to exercise the renewal options or not to
exercise the termination options. Corresponding right-of-use assets are recognized consisting of the lease liabilities, initial
direct costs and any lease incentive payments. Lease liabilities are drawn down as lease payments are made and right-of-
use assets are depreciated over the term of the lease. Operating lease expenses are recognized on a straight-line basis over
the term of the lease, consisting of interest accrued on the lease liability and depreciation of the right-of-use asset,
adjusted for changes in index-based variable lease payments in the period of change. Lease payments on short-term
operating leases with lease terms twelve months or less are expensed as incurred.
(h) Concentration of credit risk and of significant customers:
Financial instruments that potentially subject the Company to significant concentrations of credit risk consist primarily of
cash and cash equivalents. Cash and cash equivalents were held at major financial institutions in Canada and the United
States. Such deposits may be in excess of insured limits in the event of non-performance by the institutions; however, the
Company does not anticipate non-performance. Collaboration revenues earned from Neurocrine Biosciences, Inc.
("Neurocrine Biosciences") and Flexion Therapeutics, Inc. (“Flexion”) as described in Note 13 accounted for 48% and
51% of total revenues for the year ended December 31, 2019, respectively.
(i) Financial instruments and fair value:
We measure certain financial instruments and other items at fair value.
To determine the fair value, we use the fair value hierarchy for inputs used to measure fair value of financial assets and
liabilities. This hierarchy prioritizes the inputs to valuation techniques used to measure fair value into three levels: Level 1
(highest priority), Level 2, and Level 3 (lowest priority).
•
Level 1 - Unadjusted quoted prices in active markets for identical instruments.
81
•
•
Level 2 - Inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either
directly or indirectly. Level 2 inputs include quoted prices for similar assets or liabilities in active markets, quoted
prices for identical or similar assets or liabilities in markets that are not active, inputs other than quoted prices that
are observable for the asset or liability (i.e., interest rates, yield curves, etc.), and inputs that are derived principally
from or corroborated by observable market data by correlation or other means (market corroborated inputs).
Level 3 - Inputs are unobservable and reflect the Company’s assumptions as to what market participants would use
in pricing the asset or liability. The Company develops these inputs based on the best information available.
Assets and liabilities are classified based on the lowest level of input that is significant to the fair value measurements.
Changes in the observability of valuation inputs may result in a reclassification of levels for certain securities within the
fair value hierarchy.
The Company’s Level 1 assets include cash and cash equivalents and marketable securities with quoted prices in active
markets. The carrying amount of accounts receivables, accounts payable and accrued expenses approximates fair value
due to the nature and short-term of those instruments. The Company’s term loan bears interest at a rate that approximates
prevailing market rates for instruments with similar characteristics and, accordingly, the carrying value of the loan
approximates fair value.
(j) Revenue recognition:
The Company recognizes the amount of revenue to which it expects to be entitled, for the transfer of promised goods or
services to customers under a five-step model: (i) identify 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 or as a performance obligation is satisfied.
The Company generates revenue primarily through collaboration agreements. Such agreements may require the Company
to deliver various rights and/or services, including intellectual property rights or licenses and research and development
services. Under such collaboration agreements, the Company is generally eligible to receive non-refundable upfront
payments, funding for research and development services, milestone payments, and royalties.
In contracts where the Company has more than one performance obligation to provide its customer with goods or services,
each performance obligation is evaluated to determine whether it is distinct based on whether (i) the customer can benefit
from the good or service either on its own or together with other resources that are readily available and (ii) the good or
service is separately identifiable from other promises in the contract. The consideration under the contract is then allocated
between the distinct performance obligations based on their respective relative standalone selling prices. The estimated
standalone selling price of each deliverable reflects the Company’s best estimate of what the selling price would be if the
deliverable was regularly sold on a standalone basis and is determined by reference to market rates for the good or service
when sold to others or by using an adjusted market assessment approach if selling price on a standalone basis is not
available.
The consideration allocated to each distinct performance obligation is recognized as revenue when control is transferred to
the customer for the related goods or services. Consideration in exchange for research and development services
performed by the Company on behalf of the licensee is recognized upon performance of such activities at rates consistent
with prevailing market rates. Consideration associated with at-risk substantive performance milestones, including sales-
based milestones, is recognized as revenue when it is probable that a significant reversal of the cumulative revenue
recognized will not occur. Sales-based royalties received in connection with licenses of intellectual property are subject to
a specific exception in the revenue standards, whereby the consideration is not included in the transaction price and
recognized in revenue until the customer’s subsequent sales or usages occur.
(k) Research and development costs:
Research and development costs are expensed in the period incurred.
Certain development activity costs, such as pre-clinical costs, manufacturing costs and clinical trial costs, are a component
of research and development costs and include fees paid to contract research organizations, investigators and other
vendors who conduct certain product development activities on behalf of the Company. The amount of expenses
recognized in a period related to service agreements is based on estimates of the work performed using the accrual basis of
accounting. These estimates are based on patient enrollment, services provided and goods delivered, contractual terms,
and experience with similar contracts. The Company monitors these factors and adjusts the estimates accordingly.
Payments made to third parties under these arrangements in advance of the receipt of the related services are recorded as
prepaid expenses until the services are rendered.
82
(l) Stock-based compensation:
The Company grants stock options to employees, directors and officers pursuant to stock option plans described in note
11c.
Employee stock-based compensation expense is measured at the grant date, based on the estimated fair value of the award,
and is recognized as an expense, net of actual forfeitures, over the requisite service period with a corresponding increase
in additional paid-in capital. Stock-based compensation expense is amortized on a straight-line basis over the requisite
service period for the entire award, which is generally the vesting period of the award. Any consideration received on
exercise of stock options is credited to share capital.
(m) Foreign currency translation:
The functional and reporting currency of the Company and its subsidiary is the U.S. dollar. Monetary assets and liabilities
denominated in a currency other than the U.S. dollar are re-measured into U.S. dollars at the exchange rate prevailing as at
the balance sheet date. Non-monetary assets and liabilities acquired in a currency other than U.S. dollars are translated at
historical exchange rates prevailing at each transaction date.
Revenue and expense transactions are translated at the exchange rates prevailing at each transaction date. Exchange gains
and losses on translation are included in the consolidated statements of operations and comprehensive income (loss) as
foreign exchange gain (loss).
(n) Income taxes:
Deferred income taxes are recognized for the future tax consequences attributable to differences between the carrying
amounts of assets and liabilities and their respective tax bases and net operating loss and credit carryforwards. Deferred
income tax assets and liabilities are measured at enacted rates expected to apply to taxable income in the years in which
those temporary differences and carryforwards are expected to be recovered or settled. The effect on deferred income tax
assets and liabilities of a change in tax rates is recognized in the consolidated statement of operations and comprehensive
income (loss) in the period that includes the enactment date. A valuation allowance is provided when realization of
deferred income tax assets does not meet the more-likely-than-not criterion for recognition.
(o) Segment and geographic information:
Operating segments are defined as components of an enterprise about which separate discrete information is available for
evaluation by the chief operating decision maker, or decision making group, in deciding how to allocate resources and in
assessing performance. The Company views its operations and manages its business in one operating segment.
4.
Changes in significant accounting policies:
(a) Leases:
The Company adopted the new lease standard (Accounting Standards Codification “ASC” 842), effective January 1,
2019, using the transition method under which previously presented financial statements are not restated and the
cumulative effect of adopting the new lease standard on leases existing as of, or entered into after January 1, 2019, is
recognized by an adjustment to retained earnings at the effective date. Consequently, comparative periods have been
accounted for in accordance with the previous lease standard and the disclosures are in accordance with ASC 840.
In addition, the Company elected to apply the package of practical expedients which allows entities not to reassess its
previous conclusions about lease identification, lease classification, and initial direct costs. The Company elected not to
use hindsight to determine lease terms and to not separate non-lease components from the associated lease component.
The new lease standard only impacted the Company’s one operating lease for its premises. Adoption of the new lease
standard resulted in recognition of a right-of-use asset of $1,333 and a lease liability of $1,453, as of January 1, 2019. The
difference between the right-of-use asset and lease liability relates to the balance of deferred tenant inducements. In
addition, a cumulative effect adjustment of $175 was recorded to opening retained earnings. The adoption of the new
lease standard did not materially impact the consolidated statement of operations and comprehensive loss or the
consolidated statement of cash flows. For additional disclosure and detail, see note 8 below.
83
(b) Collaborative Agreements:
In November 2018, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”)
2018-18, Collaborative Arrangements (Topic 808): Clarifying the Interaction between Topic 808 and Topic 606. These
amendments make targeted improvements to accounting for collaborative arrangements by clarifying that certain
transactions between collaborative arrangement participants should be accounted for as revenue under Topic 606 when
the collaborative arrangement participant is a customer in the context of a unit of account. In those situations, all the
guidance in Topic 606 should be applied, including recognition, measurement, presentation, and disclosure requirements.
In addition, unit-of-account guidance in Topic 808 was aligned with the guidance in Topic 606 (that is, a distinct good or
service) when an entity is assessing whether the collaborative arrangement or a part of the arrangement is within the scope
of Topic 606. The Company has early adopted this standard in the fourth quarter of 2019 on a retrospective basis to the
date of initial application of Topic 606. The adoption of the standard had no impact on the Company’s consolidated
balance sheets, consolidated statements of operations and comprehensive loss and consolidated statements of cash flows.
5.
Future changes in accounting policies:
In November 2019, the FASB issued ASU 2019-08, Compensation—Stock Compensation (Topic 718) and Revenue from
Contracts with Customers (Topic 606): Codification Improvements—Share-Based Consideration Payable to a Customer. These
amendments clarify that companies must measure and classify share-based payment awards to a customer following the
guidance in Topic 718. A company will classify awards as liabilities or equity following the guidance in Topic 718, and measure
them at their grant-date fair value. The awards will be recorded as a reduction to revenue or an expense based on the guidance in
Topic 606. If a company intends to provide an award to a customer and the grant date has not occurred, the transaction price
guidance in Topic 606 should be followed to estimate the fair value of the award. A company must adjust the fair value estimate
each reporting date until a grant date is achieved and recognize changes in the grant-date fair value of an award as a result of
changes in the expected outcome of a service or a performance condition as a reduction in the transaction price. If the terms of
the award are modified after the grantee vests in the award and is no longer a customer, the award may be subject to other
guidance. These amendments will be effective for fiscal years and interim periods within those fiscal years, beginning after
December 15, 2019. The Company is currently evaluating the new guidance to determine the impact it will have on the
Company’s consolidated financial statements.
In December 2019, the FASB issued ASU 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes.
These amendments market targeted improvement to simplify accounting for income taxes, changes the accounting for certain
income tax transactions and makes certain improvements to the codification. These amendments will be effective for fiscal years
and interim periods within those fiscal years, beginning after December 15, 2020 with early adoption permitted. The Company
is currently evaluating the new guidance to determine the impact it will have on the Company’s consolidated financial
statements.
6.
Net income (loss) per common share:
Basic net income (loss) per common share is calculated using the two-class method required for participating securities which
includes the convertible preferred shares as a separate class. The preferred shares entitle the holders to participate in dividends
and in earnings and losses of the Company on an equivalent basis as common shares. Accordingly, undistributed earnings
(losses) are allocated to common shares and participating preferred shares based on the weighted-average shares of each class
outstanding during the period.
The treasury stock method is used to compute the dilutive effect of the Company’s stock options and warrants. Under this
method, the incremental number of common shares used in computing diluted net income (loss) per common share is the
difference between the number of common shares assumed issued and purchased using assumed proceeds.
The if-converted method is used to compute the dilutive effect of the Company’s convertible preferred shares. Under the if-
converted method, dividends on the preferred shares, if applicable, are added back to earnings attributable to common
shareholders, and the preferred shares and paid-in kind dividends are assumed to have been converted at the share price
applicable at the end of the period. The if-converted method is applied only if the effect is dilutive.
For the years ended December 31, 2019 and 2018, all stock options, warrants and convertible preferred shares were anti-dilutive
and were excluded from the diluted weighted average common shares outstanding for the period.
84
7.
Property, plant and equipment:
Property, plant and equipment consisted of the following:
Research equipment
Office furniture and equipment
Computer equipment
Leasehold improvements
Less: accumulated depreciation and amortization
Net book value
8.
Leases
December 31,
2019
2018
$
$
6,522
985
2,473
6,370
(14,690)
1,660
$
$
7,313
1,046
2,461
6,370
(16,199)
991
The Company has one operating lease for research laboratories and office space in Burnaby, British Columbia for a 120-month
term from April 1, 2012 to March 31, 2022.
The cost components of the operating lease were as follows for the year ended December 31, 2019:
Lease Cost
Operating lease expense
Variable lease expense(1)
Lease Term and Discount Rate
Remaining lease term (years)
Discount rate
Year Ended
December 31, 2019
$
436
542
2.25
3.75%
(1) Variable lease costs are payments that vary because of changes in facts or circumstances and include common area
maintenance and property taxes related to the premises. Variable lease costs are excluded from the calculation of
minimum lease payments.
Future minimum lease payments as of December 31, 2019 were as follows:
Year ending December 31:
2020
2021
2022
Total future minimum lease payments
Less: imputed interest
Less: future lease incentives reasonably certain of use
Present value of lease liabilities
9.
Accounts payable and accrued expenses:
Accounts payable and accrued expenses consisted of the following:
Trade payables
Employee compensation, benefits, and related accruals
Consulting and contracted research
Professional fees
Other
Total
650
614
147
1,411
(49)
(451)
911
665
1,728
1,404
237
85
4,119
$
$
December 31,
2019
2018
$
$
2,473 $
2,892
3,104
154
195
8,818 $
85
10. Term Loan:
In December 2017, the Company entered into a Loan and Security Agreement (the “Loan Agreement”) with Silicon Valley
Bank (the “Bank”) under which the Company was funded an initial tranche of $7,000. In June 2018, the Company entered into a
First Loan Modification Amendment (the “Modification”) to the Loan Agreement (together, the “Modified Loan Agreement”),
pursuant to which the Bank accelerated the availability of a second tranche of $5,000.
In August 2018, the Company entered into an Amended and Restated Loan and Security Agreement (the “Amended and
Restated Loan Agreement”) with the Bank, pursuant to which the Bank agreed to extend a term loan to the Company with a
principal amount of $15,500 (the “Term Loan”). The Term Loan was used to repay in full outstanding borrowings of $12,000
under the Modified Loan Agreement and a payment of $485, which represented the current portion of the final payment fee due
under the Modified Loan Agreement, as well as for working capital and other general corporate purposes, including the
advancement of the Company’s clinical development programs. The Term Loan accrues interest at a floating per annum rate of
0.5% above the prime rate, which is payable monthly commencing in September 2018. The Term Loan is interest-only until
March 31, 2020, followed by 30 equal monthly installments of principal plus interest, maturing on September 1, 2022. In
addition, the Company is required to pay a final payment fee of 6.5% of the Term Loan on the date on which the term loan is
prepaid, paid or becomes due and payable in full.
The Company may prepay all, but not less than all, of the Term Loan subject to a prepayment fee of $295, which represents the
deferred portion of the final payment fee due under the Modified Loan Agreement, plus 3.0% if prepaid prior to the first
anniversary of the effective date of the Amended and Restated Loan Agreement, 2.0% if prepaid on or after the first
anniversary, but prior to the second anniversary, or 1.0%, if prepaid on or after the second anniversary but prior to the maturity
date. As security for its obligations under the Amended and Restated Loan Agreement, the Company granted the Bank a first
priority security interest on substantially all of the Company’s assets except its intellectual property and subject to certain other
exceptions.
In connection with the Modification, the number of common shares exercisable pursuant to the warrant issued to the Bank in
December 2017 under the Loan Agreement (the “December 2017 Warrant”) increased by 36,008 common shares. The relative
fair value of the additional common shares exercisable pursuant to the December 2017 Warrant was $247 and was classified in
equity. With this increase, the December 2017 Warrant allowed the Bank to purchase a total of 86,419 of the Company’s
common shares at a price per common share of $2.43. The December 2017 Warrant was immediately exercisable, had a 10-year
term, and contained a cashless exercise provision. In connection with the entry into the Amended and Restated Loan Agreement,
the maximum number of common shares exercisable pursuant to the December 2017 Warrant was fixed at 86,419 at a price per
common share of $2.43. In September 2018, the Company issued 72,325 common shares for the cashless exercise of the
December 2017 Warrant.
In connection with the Amended and Restated Loan Agreement, the Company issued a new warrant to the Bank to purchase
40,000 of the Company’s common shares at a price per common share of $9.79. The relative fair value of the common shares
exercisable pursuant to this warrant was $291 and was classified in equity. The warrant is immediately exercisable, has a 10-
year term and contains a cashless exercise provision. This warrant remains outstanding at December 31, 2019.
The debt proceeds were allocated based on the relative fair values of the debt instrument and the warrant instrument. The fair
value of the warrant and the closing costs were recorded as debt discounts and are being amortized using the effective interest
rate method over the term of the loan. At December 31, 2019, the Company determined the effective interest rate on the
Amended and Restated Loan Agreement with the Bank to be 8.84% (2018 - 9.53%). Amortization of the debt discount and
accretion of the final payment fee was $526 for the year ended December 31, 2019 (2018 - $284). Interest payments are made
monthly.
Interest expense was $1,434 for the year ended December 31, 2019 (2018 - $1,394).
The outstanding loan and unamortized debt discount balances as of December 31, 2019 in accordance with the repayment terms
under Amended and Restated Loan Agreement are as follows:
Term loan
Less: unamortized discount on loan
Less: current portion
Accrued portion of final payment fee
Loan payable, long-term
December 31,
2019
2018
$
$
15,500
(372)
(4,650)
411
10,889
$
$
15,500
(600)
-
114
15,014
86
Scheduled principal payments on outstanding debt as of December 31, 2019, excluding the final payment fee of $1,008, are as
follows:
2020
2021
2022
Total
4,650
6,200
4,650
15,500
$
The Amended and Restated Loan Agreement contains customary representations and warranties, events of default (including an
event of default upon the occurrence of a material impairment on the Bank’s security interest over the collateral, and a material
adverse change of the Company) and affirmative and negative covenants, including, among others, covenants that limit or
restrict the Company’s ability to incur indebtedness, grant liens, merge or consolidate, dispose of assets, make investments,
make acquisitions, enter into certain transactions with affiliates, engage in any new line of business, pay dividends or make
distributions, or repurchase stock, in each case subject to certain exceptions. Upon the occurrence and during the continuance of
an event of default, a default interest rate will apply that is 5.0% above the otherwise applicable interest rate. The Company is in
compliance with all covenants at December 31, 2019.
11.
Share capital:
(a) Financing:
In May 2018, the Company entered into an at-the-market equity offering sales agreement with Stifel Nicolaus &
Company, Incorporated (“Stifel”) to sell common shares of the Company having aggregate gross proceeds of up to
$30,000, from time to time, through an “at-the-market” equity offering program under which Stifel would act as sales
agent. The Company sold 3,440,000 common shares under the sales agreement for proceeds of approximately $29,200,
net of commissions paid, but excluding transaction expenses.
In July 2018, the Company entered into an at-the-market equity offering sales agreement with Jefferies LLC (“Jefferies”)
and Stifel, to sell common shares of the Company having aggregate gross proceeds of up to $50,000, from time to time,
through an “at-the-market” equity offering program under which Jefferies and Stifel would act as sales agent. The
Company sold 1,600,000 common shares under the sales agreement for proceeds of approximately $14,820, net of
commissions paid, but excluding transaction expenses. In connection with the Company’s entry into the July 2018 sales
agreement with Jefferies and Stifel, the May 2018 sales agreement was mutually terminated by the Company and Stifel.
In September 2018, the Company entered into an underwriting agreement with Jefferies and Stifel, relating to an
underwritten public offering of 4,500,000 common shares sold by the Company at a public offering price of $14.00 per
common share. The Company received net proceeds of $59,220, net of underwriting discounts and commissions, but
before offering expenses. In connection with the Company’s entry into the September 2018 underwriting agreement with
Jefferies and Stifel, the July 2018 sales agreement was mutually terminated by the Company, Jefferies and Stifel.
In November 2019, the Company entered into an at-the-market equity offering sales agreement with Jefferies and Stifel to
sell common shares of the Company having aggregate gross proceeds of up to $50,000 from time to time, through an “at-
the-market” equity offering program under which Jefferies and Stifel would act as sales agents. As of December 31, 2019,
the Company had sold 805,643 common shares under the sales agreement for proceeds of approximately $10,771, net of
commissions paid, but excluding transaction expenses. In January 2020, the Company sold an additional 2,446,687
common shares for proceeds of approximately $37,979, net of commissions paid, but excluding estimated transaction
expenses.
In December 2019, in connection with the License and Collaboration Agreement with Neurocrine Biosciences (the
"Neurocrine Collaboration Agreement"), the Company executed a Share Purchase Agreement ("SPA") pursuant to which
the Company issued 1,408,847 common shares for an aggregate purchase price of $20,000, or $14.196 per common share,
which represents a premium of $3,333 when measured at fair value on the date of issuance. These common shares are
subject to lock-up restrictions and standstill agreement for a period of two years. The SPA contains certain other
customary terms and conditions, including mutual representations, warranties and covenants. For additional information
regarding the Neurocrine Collaboration Agreement, refer to note 13a.
(b) Authorized share capital:
The Company’s authorized share capital consists of an unlimited number of common and preferred shares without par
value.
87
(c) Stock-based compensation:
In June 2014, the shareholders of the Company approved the 2014 Equity Incentive Plan (the “2014 Plan”) which permits
the grant of stock-based compensation awards to directors, officers, employees and consultants of the Company. The
Company’s pre-existing stock option plan (the “Amended and Restated Stock Option Plan”) was limited to the granting of
stock options as equity incentive awards whereas the 2014 Plan also allows for the issuance of restricted shares, restricted
share units, share appreciation rights and performance shares. The 2014 Plan replaced the Amended and Restated Stock
Option Plan. No further options will be granted under the Company’s Amended and Restated Stock Option Plan.
The Amended and Restated Stock Option Plan provided for the grant of options for the purchase of common shares to
directors, officers, employees and consultants prior to the Company’s initial public offering. The options granted under
the Amended and Restated Stock Option Plan vest on a graduated basis over a four-year period or less and each option’s
maximum term is ten years. The Amended and Restated Stock Option Plan will continue to govern the options granted
thereunder.
Under the 2014 Plan, options granted generally vest on a graduated basis over a four-year period or less. The exercise price
of the options is determined by the board of directors but must at least be equal to the fair market value of the common
shares on the date of grant. Options may be exercised over a maximum term of ten years. As of December 31, 2019, a total
of 99,818 stock options remain to be granted under the 2014 Plan. The number of common shares available for issuance
under the 2014 Plan was increased by 1,028,806, effective January 1, 2020, as approved by the board of directors in
accordance with the terms of the 2014 Plan.
In September 2019, the board of directors of the Company adopted the 2019 Inducement Equity Incentive Plan (the “2019
Inducement Plan”) and, subject to the adjustment provisions of the 2019 Inducement Plan, reserved 400,000 of the
Company’s common shares for issuance pursuant to equity awards granted under the 2019 Inducement Plan.
The 2019 Inducement Plan was adopted without shareholder approval in accordance with the applicable Nasdaq Listing
Rules. The 2019 Inducement Plan provides for the grant of equity-based awards, including share options, share
appreciation rights, restricted share awards, restricted share unit awards and performance share awards, and its terms are
substantially similar to the Company’s 2014 Equity Incentive Plan, including with respect to treatment of equity awards in
the event of a “merger” or “change of control” as defined under the 2019 Inducement Plan, but with such other terms and
conditions intended to comply with the Nasdaq inducement award exception or to comply with the Nasdaq acquisition
and merger exception. However, the Company’s 2014 Equity Incentive Plan permits certain exchange programs (which
includes repricings) without shareholder approval, while the 2019 Inducement Plan requires shareholder approval for such
exchange programs.
Awards under the 2019 Inducement Plan may only be made to individuals not previously employees or non-employee
directors of the Company (or following such individuals’ bona fide period of non-employment with the Company), as an
inducement material to the individuals’ entry into employment with the Company, or, to the extent permitted by the
applicable Nasdaq Listing Rules, in connection with a merger or acquisition. As of December 31, 2019, a total of 264,750
stock options remain to be granted under the 2019 Inducement Plan.
Summary of stock option activity is as follows:
Outstanding, December 31, 2017
Granted
Exercised(1)
Forfeited, cancelled or expired
Outstanding, December 31, 2018
Granted
Exercised(1)
Forfeited, cancelled or expired
Outstanding, December 31, 2019
Exercisable, December 31, 2019
Number of
Weighted Average Exercise Price
Options
2,339,905
706,600
(251,163)
(123,436)
2,671,906
1,225,575
(266,157)
(97,088)
3,534,236
1,946,026
CAD $
U.S. $
9.32
6.73
4.57
13.61
9.49
12.49
5.56
16.36
10.29
10.02
7.41
5.19
3.53
10.50
6.96
9.43
4.24
12.41
7.90
7.69
Aggregate
Intrinsic Value
159
1,028
3,483
1,594
19,618
11,755
(1) During the year ended December 31, 2019, 36,174 (2018 – 49,502) stock options were exercised for the same
number of common shares in exchange for cash. In the same period, the Company issued 137,843 (2018 – 106,474)
common shares for the cashless exercise of 229,983 (2018 – 201,661) stock options.
88
The following table summarizes the stock options outstanding and exercisable at December 31, 2019:
Options Outstanding
Options Exercisable
Range of Exercise Prices
U.S. $
$2.05 - $4.70
$4.71 - $7.44
$7.45 - $8.50
$8.51 - $9.52
$9.53 - $18.70
Weighted
Average
Remaining
Contractual
Life
(years)
Number of
Options
Outstanding
576,115
682,230
787,990
1,181,034
306,867
3,534,236
Number of
Options
Exercisable
Weighted Average
Exercise Price
CAD $ U.S. $
Weighted Average
Exercise Price
CAD $ U.S. $
4.19 3.79 2.91 476,364 3.61 2.77
7.63 6.82 5.24 366,588 6.94 5.33
5.96 10.48 8.05 677,756 10.43 8.01
9.53 12.26 9.42 134,929 12.10 9.30
5.00 22.12 17.00 290,389 22.47 17.26
7.10 10.29 7.90 1,946,026 10.02 7.69
At December 31, 2019, there were 1,946,026 options exercisable with a weighted average remaining contractual life
December 31, 2019 of 5.4 years.
A summary of the Company’s non-vested stock option activity and related information for the year ended December 31,
2019 is as follows:
Non-vested, January 1, 2019
Granted
Vested
Forfeited or cancelled
Non-vested, December 31, 2019
Number of Options Weighted Average Grant Date Fair Value
CAD $
USD $
1,105,471
1,225,575
(681,918)
(60,918)
1,588,210
5.61
8.11
6.24
8.29
7.17
4.11
6.23
4.79
6.37
5.51
The aggregate fair value of options vested during the year ended December 31, 2019 was $3,255 (2018 – $2,861 ).
The fair value of stock options at the date of grant is estimated using the Black-Scholes option-pricing model which
requires multiple subjective inputs. The risk-free interest rate of the options is based on the U.S. Treasury yield curve in
effect at the date of grant for a term similar to the expected term of the option. The expected volatility is based on the
historical volatility of the Company’s common shares calculated based on a period of time commensurate with the
expected term assumption. Expected life assumptions are based on the Company’s historical data. The dividend yield is
based on the fact that the Company has never paid cash dividends and has no present intention to pay cash dividends.
Forfeitures are recognized as they occur.
The weighted-average option pricing assumptions are as follows:
Average risk-free interest rate
Expected volatility
Average expected term (in years)
Expected dividend yield
Weighted average fair value of options granted
Years ended December 31
2019
2018
1.77%
69%
6.86
0.00%
$
6.23
2.79%
75%
7.38
0.00%
3.74
$
Stock-based compensation expense is classified in the consolidated statements of operations and comprehensive loss as
follows:
Research and development
General and administrative
Years ended December 31,
2019
2018
$
$
1,283
1,661
2,944
$
$
988
1,772
2,760
89
As of December 31, 2019, the unrecognized stock-based compensation cost related to the non-vested stock options was
$8,460, which is expected to be recognized over a weighted-average period of 2.55 years.
(d) Exchange agreement with certain funds affiliated with BVF Partners L.P. (collectively, “BVF”):
In March 2018, the Company and BVF entered into an exchange agreement pursuant to which the Company issued to
BVF 2,868,000 Series 1 Preferred Shares in exchange for 2,868,000 common shares which were subsequently cancelled
by the Company.
The Company filed articles of amendment creating an unlimited number of Series 1 Preferred Shares. The Series 1
Preferred Shares are convertible into common shares on a one-for-one basis subject to the holder, together with its
affiliates, beneficially owning no more than 9.99% of the total number of common shares issued and outstanding
immediately after giving effect to such conversion (the “Beneficial Ownership Limitation”). The holder may reset the
Beneficial Ownership Limitation to a higher or lower number, not to exceed 19.99% of the total number of common
shares issued and outstanding immediately after giving effect to such conversion, upon providing written notice to the
Company which will be effective 61 days after delivery of such notice. Each Series 1 Preferred Share is also convertible
into one common share at any time at the Company’s option without payment of additional consideration, provided that
prior to any such conversion, the holder, together with its affiliates, beneficially owns less than 5.00% of the total number
of common shares issued and outstanding and such conversion will not result in the holder, together with its affiliates,
beneficially holding more than 5.00% of the total number of common shares issued and outstanding immediately after
giving effect to such conversion. In the event of a change of control, holders of Series 1 Preferred Shares shall be issued
one common share for each outstanding Series 1 Preferred Share held immediately prior to the change of control (without
regard to the Beneficial Ownership Limitation), and following such conversion, will be entitled to receive the same kind
and amount of securities, cash or property that a holder of common shares is entitled to receive in connection with such
change of control.
The Series 1 Preferred Shares rank equally to the common shares in the event of liquidation, dissolution or winding up or
other distribution of the assets of the Company among its shareholders and the holders of the Series 1 Preferred Shares are
entitled to vote together with the common shares on an as-converted basis and as a single class, subject in the case of each
holder of the Series 1 Preferred Shares to the Beneficial Ownership Limitation. Any Series 1 Preferred Shares that are
ineligible to be converted into common shares due to the Beneficial Ownership Limitation, measured as of a given record
date that applies for a shareholder meeting or ability to act by written consent, shall be deemed to be non-voting securities
of the Company. Holders of Series 1 Preferred Shares are entitled to receive dividends (without regard to the Beneficial
Ownership Limitation) on the same basis as the holders of common shares. The Company may not redeem the Series 1
Preferred Shares.
The Company recorded the issuance of Series 1 Preferred Shares and corresponding cancellation of common shares at
$7.61 per share, the estimated weighted average cost at which BVF acquired the common shares. The Series 1 Preferred
Shares are recorded wholly as equity under ASC 480, with no bifurcation of conversion feature from the host contract,
given that the Series 1 Preferred Shares cannot be cash settled and have no redemption features.
During the year ended December 31, 2018, BVF converted 1,852,000 Series 1 Preferred Shares in exchange for an equal
number of common shares of the Company.
12. Concentrations of market risk:
(a) Foreign currency risk:
At December 31, 2019, the Company had U.S. dollar denominated cash and cash equivalents and marketable securities of
$129,838 (2018 - $110,771) and Canadian denominated cash and cash equivalents and marketable securities of
CAD$14,962 (2018 - CAD$11,644).
The Company faces foreign currency exchange rate risk in part, as a result of entering into transactions denominated in
currencies other than U.S. dollars, particularly those denominated in Canadian dollars. The Company also holds non-U.S.
dollar denominated cash and cash equivalents, marketable securities, accounts receivable and accounts payable, which are
denominated in Canadian dollars.
Changes in foreign currency exchange rates can create significant foreign exchange gains or losses to the Company. The
Company’s current foreign currency risk is with the Canadian dollar, as a majority of non-U.S. dollar denominated
expenses are denominated in Canadian dollars and a portion of cash and cash equivalents and marketable securities are
held in Canadian dollars. The Company does not currently hedge its exposure and thus assumes the risk of future gains or
losses on the amounts of Canadian dollars held.
90
(b) Interest Rate Risk:
At December 31, 2019, the Company had cash and cash equivalents and marketable securities of $141,358. The
Company’s interest rate risk is primarily attributable to its cash and cash equivalents and marketable securities. The
Company believes that it does not have any material exposure to changes in the fair value of these assets as a result of
changes in interest rates due to the short term nature of cash and cash equivalents and marketable securities. The Company
does not enter into investments for trading or speculative purposes and has not used any derivative financial instruments to
manage interest rate exposure.
The Company had a total outstanding loan balance of $15,500 as of December 31, 2019, of which $4,650 was due within
12 months. The interest rate on borrowings under the Amended and Restated Loan Agreement with the Bank accrues at a
floating per annum rate of 0.5% above the prime rate.
13. Collaboration agreements:
The Company has entered into a number of collaboration agreements under which it may have received non-refundable upfront
payments. Each arrangement is assessed in accordance with ASC 606 under the five-step model as described in note 3j. The
the
Company generally recognizes revenue from non-refundable upfront payments over
performance obligation or period in which the underlying benefit is transferred to the customer. If non-refundable license fees
have value to the customer on a standalone basis, separate from the undelivered performance obligations, they are recognized
upon delivery. The Company evaluates the measure of progress each reporting period and, if necessary, adjusts the measure of
performance and related revenue recognition.
the estimated
term of
Research and development milestones in the Company’s collaboration agreements may include the following types of events:
•
•
•
completion of pre-clinical research and development work leading to selection of product candidates;
initiation of Phase 1, Phase 2 or Phase 3 clinical trials; and
achievement of certain other scientific or development events.
Regulatory milestone payments may include the following types of events:
•
filing of regulatory applications for marketing approval in the U.S., Europe or Japan, including investigational new drug
applications and new drug applications; and
• marketing approval in a major market, such as the U.S., Europe or Japan.
Commercialization milestone payments may include payments triggered by annual product sales that achieve pre-specified
thresholds.
The Company evaluates each arrangement that includes research and development and sales-based milestone payments to
determine whether the milestones are considered probable of being reached and estimates the amount to be included in the
transaction price using the most likely amount method. Milestone payments that are not within the control of the Company are
not considered probable of being achieved. If it is probable that a significant revenue reversal would not occur, the associated
milestone value is included in the transaction price. The transaction price is then allocated to each performance obligation on a
relative standalone selling price basis, for which the Company recognizes revenue as or when the performance obligations under
the contract are satisfied. At the end of each subsequent reporting period, the Company re-evaluates the probability of
achievement of such milestones, and if necessary, adjusts its estimate of the overall transaction price.
(a) Neurocrine license and collaboration agreement:
In December 2019, the Company entered into the Neurocrine Collaboration Agreement with Neurocrine Biosciences to
establish a collaboration under which the parties will identify, research and develop sodium channel inhibitors. Pursuant to
this agreement, the Company granted an exclusive license to XEN901, now known as NBI-921352, a clinical stage
selective Nav1.6 sodium channel inhibitor for the treatment of epilepsy. The Company also granted an exclusive license to
pre-clinical compounds for development, XEN393, XPC’535 and XPC’391 (collectively, the “DTCs”). The agreement
also includes a two-year research collaboration to discover, identify and develop additional novel Nav1.6 and Nav1.2/1.6
inhibitors (“Research Compounds”), with an option to extend for an additional year.
91
At execution of the agreement, Neurocrine Biosciences paid the Company an upfront fee of $50,000, which included a
$30,000 payment in cash and a $20,000 equity investment in the Company. For additional information regarding the
equity investment, refer to note 11a. The Company is eligible to receive pre-commercial and commercial milestone
payments with respect to the licensed products totaling up to an additional $1,692,500, comprised of (a) up to $25,000
upon the U.S. Food and Drug Administration’s acceptance of an Investigational New Drug application for XEN901, with
55% of the amount in the form of an equity investment in the Company at a 15% premium to the Company's 30-day
volume weighted average price at that time, subject to Neurocrine Biosciences’ common share ownership of the Company
being below 19.9%, (b) up to $1,067,500 in additional development and regulatory milestone payments related to
XEN901 and other licensed Nav1.6 or Nav1.2/1.6 inhibitor products, and (c) up to $600,000 in additional sales-based
milestone payments for multiple products. In addition, the Company is eligible to receive royalties on net sales in and
outside the U.S., ranging from (a) for XEN901, a low double-digit percentage to a mid-teen percentage and a high-single
digit percentage to low double-digit percentage, respectively; (b) for DTCs, a high-single digit percentage to a low
double-digit percentage and a mid-single digit percentage to a high-single digit percentage, respectively; and (c) for
Research Compounds, a mid-single digit percentage to a high-single digit percentage and a tiered mid-single digit
percentage, respectively. Royalty rates are subject to customary reductions.
The Company has an option to co-fund 50% of the development costs of XEN901 or another product candidate in the
U.S., exercisable upon achievement of certain milestones, in exchange for increased U.S. royalties. The Company has not
exercised this option as of December 31, 2019.
The Company and Neurocrine Biosciences will collaborate on the conduct of two collaboration programs: (a) a joint
research collaboration to discover, identify and preclinically develop Research Compounds (the “Research Program”) and
(b) a collaborative development program for XEN901 and two DTCs selected by the joint steering committee (the “Initial
Development Program”). The Research Program is intended to include the preclinical development of the Company’s
existing non-clinical Research Compounds and the discovery of new back-up and follow-on Research Compounds to
XEN901 and the two DTCs selected by the joint steering committee as clinical development candidates for subsequent
development and commercialization by Neurocrine Biosciences. During the term of the Research Program, the parties
will conduct related activities in accordance with an agreed upon research plan and budget. Each party will be solely
responsible for all costs such party incurs to conduct its activities under the research plan, provided that Neurocrine
Biosciences will fund the Company for certain full-time employees and out-of-pocket expenses incurred by the Company
in accordance with the research budget. The Initial Development Program will include: (a) completion of any preclinical
and clinical studies that are ongoing as the date of the Neurocrine Collaboration Agreement for XEN901 and for two
DTCs selected by the joint steering committee; (b) a pharmacokinetic, drug-drug interaction and food effect Phase 1
clinical trial of a XEN901 product to examine the adequacy of a new pediatric formulation; and (c) all preclinical studies
of two DTCs selected by the joint steering committee. Each party will be responsible for all costs such party incurs to
conduct its activities under these development plans, provided that, with respect to XEN901 development activities,
Neurocrine Biosciences will fund the Company for certain full-time employees and out-of-pocket expenses incurred by
the Company. The Company will also be responsible for a portion of certain near-term manufacturing costs for XEN901
under the collaboration.
The agreement includes the following performance obligations: (i) an exclusive license to XEN901 with associated
technology and know-how transfer, (ii) an exclusive license to the DTCs with associated know-how transfer, (iii) a license
to Research Compounds and research services under the Research Program, (iv) development services under the Initial
Development Program for XEN901, and (v) development services under the Initial Development Program for the DTCs.
The license to the Research Compounds and the research services under the Research Program are considered a single
performance obligation as Neurocrine Biosciences cannot benefit from such a license on its own or from other resources
commonly available in the industry, without the corresponding research services due to the unique and specialized
expertise of the Company that is not readily available in the marketplace. Given the current development phase of the
Research Compounds, the performance obligation and related revenue has been linked entirely to the performance of
research services.
At execution of the agreement, the transaction price consisted of the $30,000 upfront consideration received in cash and a
premium of $3,333 on the $20,000 equity investment in the Company measured at fair value on the date of issuance. The
Company also considered the following elements in determining the overall transaction price:
• Under the arrangement, the Company is entitled to funding for certain full-time equivalent and external costs
incurred by the Company under performance obligations (iii) and (iv). The arrangement consideration related to
the services under performance obligations (iii) and (iv) to be performed on behalf of Neurocrine Biosciences
were excluded from the initial transaction price allocation because the consideration and performance are
contingent upon Neurocrine Biosciences requesting performance of the services and these services are priced at
an estimated fair value.
92
• None of the at-risk substantive performance milestones, including development, regulatory and sales-based
milestones, were included in the transaction price, as all milestone amounts are outside the control of the
Company and contingent upon Neurocrine Biosciences’s efforts and success in future clinical trials.
Consideration associated with at-risk substantive performance milestones is recognized when it is probable that a
significant reversal of the cumulative revenue recognized will not occur. Any consideration related to sales-based
royalties will be recognized when the related sales occur as they were determined to relate predominantly to the
license granted to Neurocrine Biosciences and therefore have also been excluded from the transaction price. The
Company will re-evaluate the transaction price at each reporting period and as uncertain events are resolved or
other changes in circumstances occur.
The total transaction price of $33,333 was allocated to performance obligation (v) based on its estimated standalone
selling price determined based on internal development plans and budget, with the balance allocated to performance
obligations (i) and (ii) by the residual approach. The residual approach was used as standalone selling prices, including
market data, for equivalent performance obligations were not available. The allocation of the transaction price requires
significant management judgment. The Company has allocated the transaction price as follows: $28,807 to performance
obligations (i) and (ii), which performance obligations are delivered concurrently, and $4,526 to performance obligation
(v). The Company measures proportional performance over time using an input method based on cost incurred relative to
the total estimated costs for each of the identified obligations at each reporting period. Any changes to these estimates will
be recognized in the period in which they change as a cumulative catch up. The considerations allocated to performance
obligations (i) and (ii) are expected to be recognized as revenue over an approximate ten month period from the signing of
the agreement, which is the expected period to complete the delivery of the licenses and transfer of the relevant
technology and know-how. The considerations allocated to performance obligation (v) is expected to be recognized as
revenue over an approximate fifteen month period beginning January 2020 which is the expected period to complete the
development services under the Initial Development Program for the DTCs.
During the year ended December 31, 2019, the Company recognized $2,881 of revenue associated with (i) the exclusive
license to XEN901 and (ii) the exclusive license to the DTCs, and $448 for the research and development services under
performance obligations (iii) the Research Program and (iv) the Initial Development Program for XEN901. As of
December 31, 2019, there is $448 of accounts receivable and $30,452 of deferred revenue related to the Neurocrine
Collaboration Agreement, which is classified as either current or non-current on the balance sheet based on the period the
services are expected to be delivered.
(b) Flexion definitive agreement:
In September 2019, the Company entered into an agreement with Flexion pursuant to which Flexion acquired all rights
with respect to XEN402, and a related compound (collectively “XEN402”), including certain regulatory documentation,
intellectual property rights, reports, data and all quantities of XEN402 owned or controlled by the Company. XEN402 is a
sodium channel inhibitor that the Company had previously developed with its collaborator Teva. Flexion paid the
Company upfront consideration of $3,000. In addition, the Company will also be eligible for various CMC, development
and regulatory milestone payments of up to $9,000 through initiation of a Phase 2 proof-of-concept clinical trial, of which
$500 related to the initiation of the first GLP toxicology study has been included in the recognized transaction price at
December 31, 2019 in accordance with ASC 606 as the outcome is considered highly probable of occurring. Following
successful proof-of-concept, the Company may be entitled to future clinical development and global regulatory approval
milestone payments of up to $40,750, commercial milestone payments of up to $75,000, as well as future royalties
ranging from mid-single to low-double digit percentages. These additional amounts will be recognized as determinable.
93
(c)
Teva Pharmaceutical Industries Ltd. (“Teva Pharmaceutical”) collaborative development and license agreement:
In December 2012, the Company entered into a collaborative development and license agreement with Teva
Pharmaceutical, through its subsidiary, Ivax International GmbH, pursuant to which the Company granted Teva
Pharmaceutical an exclusive worldwide license to develop and commercialize certain products, including TV-45070
(formerly XEN402). In March 2018, the Company and Teva Pharmaceuticals International GmbH and Teva Canada
Limited (together, “Teva”), entered into a termination agreement terminating by mutual agreement the collaborative
development and license agreement. In connection with the termination, Teva returned and the Company cancelled
1,000,000 common shares that were owned by Teva. Pursuant to the terms of the termination agreement, Teva has also
returned, licensed or assigned to the Company certain intellectual property, including certain patent rights and transferred
regulatory filings related to TV-45070 to the Company. The termination agreement requires the Company to pay a low
single-digit percentage royalty to Teva based on net sales of approved products, if any, resulting from any continued
development and commercialization of TV-45070 by the Company or a sublicensee during the period that assigned or
licensed patents cover such products. This obligation was subsequently assumed by Flexion pursuant to the sale of all
rights with respect to XEN402; see note 13b above. The Company has no further financial obligations with respect to the
termination agreement with Teva. The Company recorded a gain on the termination of the collaboration agreement of
$4,398, net of direct costs incurred in connection with the termination and cancellation of 1,000,000 common shares,
based on the estimated fair value represented by the market price of the common shares prior to the closing of the
transaction.
(d) Genentech collaborative research and license agreement:
In December 2011, the Company entered into a collaborative research and license agreement with Genentech and its
affiliate, F. Hoffman-La Roche Ltd. to discover and develop selective oral inhibitors of Nav1.7 for the treatment of pain.
Pursuant to this agreement, the Company granted Genentech a worldwide exclusive license to develop and commercialize
compounds directed to Nav1.7 and products incorporating such compounds for all uses. The Company also granted
Genentech a worldwide non-exclusive license to diagnostic products for the purpose of developing or commercializing
such compounds.
Under the terms of the agreement, Genentech paid the Company an upfront fee of $10,000. Genentech also provided
funding to the Company for certain of the Company’s full-time equivalents performing the research collaboration plan,
which concluded in December 2016.
The Company received and recorded a $5,000 milestone payment in 2013 for the selection of a compound for
development and an $8,000 payment in 2014 upon the approval by Health Canada of the clinical trial application. No
additional milestone payments or royalties have been received to date.
The Company is eligible to receive pre-commercial and commercial milestone payments with respect to the licensed
products totaling up to an additional $613,000, comprised of up to $45,500 in pre-clinical and clinical milestone
payments, up to $387,500 in regulatory milestone payments, and up to $180,000 in sales-based milestone payments for
multiple products and indications. In addition, the Company is eligible to receive royalties based on net sales of the
licensed products, which range from a mid single-digit percentage to ten percent for small-molecule inhibitors for the
timeframe that such products are covered by the licensed patents and a low single-digit percentage thereafter until the date
that is ten years after first commercial sale on a country-by-country basis, plus a low single-digit percentage for large-
molecule inhibitors of Nav1.7 for a period of ten years from first commercial sale on a country-by-country basis. The pre-
commercial and commercial milestone payments and royalties may be subject to reductions based on the period in which
the compound that is selected for development and commercialization was initially conceived.
At execution of the collaborative research and license agreement with Genentech, the transaction price included only the
$10,000 upfront consideration received. None of the at-risk substantive performance milestones, including research and
development and sales-based milestones, were included in the transaction price, as all milestone amounts are outside the
control of the Company and contingent upon Genentech’s efforts and success in future clinical trials. Consideration
associated with at-risk substantive performance milestones is recognized when it is probable that a significant reversal of
the cumulative revenue recognized will not occur. Any consideration related to sales-based royalties will be recognized
when the related sales occur as they were determined to relate predominantly to the license granted to Genentech and
therefore have also been excluded from the transaction price. The Company will re-evaluate the transaction price in each
reporting period and as uncertain events are resolved or other changes in circumstances occur.
94
The collaborative research and license agreement with Genentech was amended multiple times, in May 2015, November
2015, March 2016, May 2017, July 2018 and September 2018, to either extend the term of the research program or to
provide the Company with greater flexibility in developing compounds that target Nav1.6. Pursuant to the current
amendment, the Company obtained a non-exclusive, irrevocable, perpetual, world-wide, sublicensable license under the
know-how forming part of the Genentech intellectual property developed under the Nav1.7 collaboration that is necessary
or useful to make, use, sell, offer for sale, and import compounds from the Company’s Nav1.6 program that are above a
certain potency on Nav1.7 and were conceived prior to a certain date and products containing those compounds. The
Company’s license from Genentech includes commercialization rights but we are restricted from developing or
commercializing the Company’s Nav1.6 compounds below a certain potency on Nav1.7 and conceived prior to a certain
date in the field of epilepsy and any of the Company’s Nav1.6 compounds conceived prior to a certain date, regardless of
their potency on Nav1.7, in the field of pain. In exchange for the rights granted to the Company under this amendment,
Genentech is eligible to receive a low single-digit percentage, tiered royalty on net sales of the Company’s Nav1.6
compounds conceived prior to a certain date, including XEN901, now known as NBI-921352, for a period of ten years
from first commercial sale on a country-by-country basis. In accordance with the Neurocrine Collaboration Agreement,
the Company remains solely responsible for all payments to Genentech with respect to certain Nav1.6 compounds,
including NBI-921352, licensed to Neurocrine Biosciences. Pursuant to the amendment, Genentech was granted a
royalty-free, non-exclusive, world-wide license under the Company’s Nav1.6 intellectual property to make, use, sell, offer
for sale and import compounds below a certain potency on Nav1.7 and products containing those compounds for all uses
and indications except epilepsy.
In March 2014, the Company entered into a new agreement with Genentech for pain genetics, which focused on
identifying genetic targets associated with rare phenotypes where individuals have an inability to perceive pain or where
individuals have non-precipitated spontaneous severe pain. Pursuant to the terms of this agreement, any intellectual
property arising out of the collaboration is jointly owned by the Company and Genentech. The Company also granted
Genentech a time-limited, exclusive right of first negotiation on a target-by-target basis to form joint drug discovery
collaborations. Under the terms of this agreement, Genentech paid an upfront payment of $1,500 and two $250 milestone
payments related to the identification of novel pain targets in September 2015 and July 2017. Genentech’s time-limited,
exclusive right of first negotiation, which was exercisable throughout the research term, expired at the same time as the
agreement in March 2018. Despite such termination, the Company remains eligible for up to an additional $1,500 in
milestone payments.
Pursuant to the terms of the Company’s agreement with the Memorial University of Newfoundland, the Company must
pay to the Memorial University of Newfoundland certain milestone payments, a single-digit percentage of net sales for
pain products the Company sells directly and a single-digit percentage of royalties received for sales of pain products by
Genentech.
14. Commitments and contingencies:
(a) Priority access agreement with Medpace Inc. (“Medpace”):
In August 2015, the Company entered into a priority access agreement with Medpace for the provision of certain clinical
development services. Under the terms of the agreement, the Company has committed to using Medpace non-exclusively
for clinical development services over the five year term of the agreement. In consideration for priority access to Medpace
resources and preferred service rates, the Company has committed to $7,000 of services over the term of the agreement,
$3,024 of services have been received to date and $3,976 remains committed as at December 31, 2019.
(b) License, manufacture and supply agreement:
In March 2017, the Company entered into a license, manufacture and supply agreement with a pharmaceutical contract
manufacturing organization for the access and use of certain regulatory documents as well as for the manufacture and
supply of clinical and commercial drug product to support the development of XEN007. Under the terms of the
agreement, the Company paid an upfront fee of $500 CAD and will be required to pay a low single-digit percentage
royalty on net sales of any products developed and commercialized under the agreement.
(c) Asset purchase agreement with 1st Order Pharmaceuticals, Inc. (“1st Order”):
In April 2017, the Company acquired XEN1101 (previously known as 1OP2198) from 1st Order pursuant to an asset
purchase agreement. 1st Order previously acquired 1OP2198 from Valeant Pharmaceuticals Luxembourg S.a.r.l., an
indirect subsidiary of Bausch Health Companies Inc. (together with Valeant Pharmaceuticals Ireland Limited, “Bausch
Health”) and the Company has assumed certain financial responsibilities under that agreement. Under the terms of the
agreement, the Company paid an upfront fee of $350 and milestone payments in 2017 totaling $700, which were expensed
as research and development.
95
In September 2018, the Company entered into a milestone and royalty buy-out agreement with Bausch Health under
which all potential clinical development, regulatory and sales-based milestones and royalties on commercial sales with
respect to XEN1101 that may become owed to Bausch Health under the asset purchase agreement were terminated in
exchange for a one-time payment of $6,000 which was expensed in the period.
Future potential payments to 1st Order include $500 in clinical development milestones, up to $6,000 in regulatory
milestones, and $1,500 in other milestones, which may be payable pre-commercially. There are no royalty obligations to
1st Order. No amounts have been accrued to date based on the progress against these milestones.
(d) License agreement:
In July 2017, the Company entered into a license agreement with a pharmaceutical company for the access and use of
certain regulatory documents to support the development of XEN007. Under the terms of the agreement, the Company
paid an upfront fee of $1,000, which was expensed as research and development. Future potential payments include
$2,000 in clinical development milestones, up to $7,000 in regulatory milestones, plus a low-to-mid single-digit
percentage royalty on net sales of any products developed and commercialized under the agreement. No amounts have
been accrued to date based on the progress against these milestones.
(e) Guarantees and indemnifications:
The Company has entered into license and research agreements with third parties that include indemnification provisions
that are customary in the industry. These indemnification provisions generally require the Company to compensate the
other party for certain damages and costs incurred as a result of third party claims or damages arising from these
transactions.
The maximum amount of potential future indemnification is unlimited; however, the Company currently holds
commercial and product liability insurance. This insurance limits the Company’s exposure and may enable it to recover a
portion of any future amounts paid. Historically, the Company has not made any indemnification payments under such
agreements and the Company believes that the fair value of these indemnification obligations is minimal. Accordingly, the
Company has not recognized any liabilities relating to these obligations for any period presented.
15.
Income taxes:
Income tax recovery varies from the amounts that would be computed by applying the expected Canadian and provincial
statutory income tax rate of 27% (2018 – 27% ) to loss before income taxes as shown in the following table:
Computed recoveries at Canadian federal and
provincial tax rates
Change in valuation allowance
Investment tax credits earned
Tax attributes expired/utilized
Non-deductible expenditures
Other
Income tax recovery
2019
2018
$
$
(11,237) $
11,148
(1,522)
678
477
433
(23) $
(9,314)
10,472
(1,567)
911
(472)
(54)
(24)
Income tax recovery for the years ended December 31, 2019 and 2018 arose from the operations of Xenon Pharmaceuticals
USA Inc., the Company’s wholly-owned subsidiary in the United States.
96
Deferred income tax assets and liabilities result from the temporary differences between the amount of assets and liabilities
recognized for financial statement and income tax purposes. The significant components of the Company’s net deferred income
tax assets are as follows:
Deferred income tax assets
Scientific research and experimental development pool
Investment tax credits
Non-capital losses
Depreciable assets
Deferred financing fees
Deferred revenue
Other
Less - valuation allowance
Net deferred income tax assets
2019
2018
$
$
$
27,531
24,384
23,603
5,983
972
8,223
347
(90,805)
$
238
26,572
23,808
22,035
5,710
1,303
—
203
(79,526)
105
The realization of deferred income tax assets is dependent upon the generation of sufficient taxable income during future periods
in which the temporary differences are expected to reverse. The valuation allowance is reviewed on a quarterly basis and if the
assessment of the “more likely than not” criteria changes, the valuation allowance is adjusted accordingly. A full valuation
allowance continues to be applied against deferred income tax assets in Canada as the Company has assessed that the realization
of such assets does not meet the “more likely than not” criteria. Deferred income tax assets recorded on the consolidated balance
sheets as of December 31, 2019 and 2018 result from the temporary differences between the amounts of assets and liabilities
recognized for financial statement and income tax purposes related to the operations of Xenon Pharmaceuticals USA Inc.
At December 31, 2019, the Company has unclaimed tax deductions for scientific research and experimental development
expenditures of $101,965 (2018 – $98,412) with no expiry.
At December 31, 2019, the Company has $22,992 (2018 – $22,253) of investment tax credits available to offset federal taxes
payable and $7,675 (2018 – $7,640) of provincial tax credits available to offset provincial taxes payable in the future.
At December 31, 2019, the Company has non-capital losses, net of uncertain tax positions, carried forward for tax purposes,
which are available to reduce taxable income of future years of approximately $87,417 (2018 – $81,611).
The investment tax credits and loss carry forwards expire over various years to 2039.
As of December 31, 2019, the total amount of the Company’s unrecognized tax benefits of uncertain tax positions were $10,850
(2018 – $6,350). If recognized in future periods, the unrecognized tax benefits would not affect the Company’s effective tax
rate. The Company recognizes potential accrued interest and penalties related to unrecognized tax benefits within the income tax
provision. Interest and penalties have not been accrued at December 31, 2019 as none would be owing on the unrecognized tax
benefits due to the availability of non-capital losses to shelter any potential taxable income arising thereon. The Company does
not currently expect any significant increases or decreases to these unrecognized tax benefits within 12 months of the reporting
date.
The Company files income tax returns in Canada and the United States, the jurisdictions in which the Company believes that it
is subject to tax. In jurisdictions in which the Company does not believe it is subject to tax and therefore does not file income
tax returns, the Company can provide no certainty that tax authorities in those jurisdictions will not subject one or more tax
years (since the inception of the Company) to examination. Further, while the statute of limitations in each jurisdiction where an
income tax return has been filed generally limits the examination period, as a result of loss carry-forwards, the limitation period
for examination generally does not expire until several years after the loss carry-forwards are utilized. Other than routine audits
by tax authorities for tax credits and tax refunds that the Company claims, the Company is not aware of any other material
income tax examination currently in progress by any taxing jurisdiction. Tax years ranging from 2002 to 2018 remain subject to
examinations in Canada and the United States.
16. Related Parties:
(a) License and collaboration agreement with Neurocrine Biosciences:
In December 2019, the Company and Neurocrine Biosciences entered into the Neurocrine Collaboration Agreement and
related SPA pursuant to which the Company issued 1,408,847 common shares, representing approximately 5.4% of the
Company’s then outstanding common shares. For additional information regarding the common shares issued to
Neurocrine Biosciences or the Neurocrine Collaboration Agreement, refer to note 11a and note 13a, respectively.
97
(b) Exchange agreement with BVF:
In March 2018, the Company and BVF entered into an exchange agreement pursuant to which the Company issued
2,868,000 Series 1 Preferred Shares in exchange for 2,868,000 common shares which were subsequently cancelled by the
Company. Prior to the closing of the transactions contemplated in the exchange agreement, BVF held a number of
common shares representing approximately 19.9% of the Company’s then outstanding common shares. For additional
information regarding the Series 1 Preferred Shares, refer to note 11d.
(c) Termination of collaboration agreement with Teva:
In March 2018, the Company and Teva, entered into a termination agreement terminating by mutual agreement the
collaborative development and license agreement dated December 7, 2012, as amended. In connection with the
termination, the Company cancelled 1,000,000 common shares that were owned by Teva. Prior to the share cancellation,
Teva owned more than 5% of the Company’s outstanding common shares. For additional information regarding the
termination agreement and the share cancellation, refer to note 13c.
17.
Subsequent events:
In January 2020, the Company entered into an underwriting agreement with Jefferies, Stifel and Guggenheim Securities, LLC,
relating to an underwritten public offering of 3,750,000 common shares sold by the Company at a public offering price of
$16.00 per common share, and granted the underwriters an option for a period of 30 days to purchase up to an additional
562,500 common shares. The public offering was completed on January 27, 2020, and the Company received net proceeds of
$56,400, net of underwriting discounts and commissions, but before offering expenses. The underwriters exercised their option
in full and in February 2020, the Company received additional net proceeds of $8,460, net of underwriting discounts and
commissions.
Item 9.
Changes in and Disagreements With Accountants on Accounting and Financial Disclosure
None.
Item 9A. Controls and Procedures
Evaluation of disclosure controls and procedures. Our management, with the participation of our Chief Executive Officer and
our Chief Financial Officer, evaluated the effectiveness of our disclosure controls and procedures as of December 31, 2019. The term
“disclosure controls and procedures,” as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act, means controls and other
procedures of a company that are designed to ensure that information required to be disclosed by a company in the reports that it files
or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s
rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that
information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and
communicated to the company’s management, including its principal executive and principal financial officers, as appropriate to allow
timely decisions regarding required disclosure.
Management recognizes that any controls and procedures, no matter how well designed and operated, can provide only
reasonable assurance of achieving their objectives and management necessarily applies its judgment in evaluating the cost-benefit
relationship of possible controls and procedures. Based on the evaluation of our disclosure controls and procedures as of
December 31, 2019, our Chief Executive Officer and our Chief Financial Officer concluded that, as of such date, our disclosure
controls and procedures were, in design and operation, effective at the reasonable assurance level.
98
Management’s Annual Report on Internal Control over Financial Reporting. Our management, with the participation of our
Chief Executive Officer and our Chief Financial Officer, is responsible for establishing and maintaining adequate internal control over
our financial reporting, as such term is defined in Rule 13a-15(f) and Rule 15d-15(f) of the Securities Exchange Act of 1934. Our
internal control over financial reporting is a process 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. Our internal
control over financial reporting includes those policies and procedures that:
(i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions
of our assets;
(ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles, and that our receipts and expenditures are being made only in
accordance with authorizations of our management and directors; and
(iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our
assets that could have a material effect on the financial statements.
The effectiveness of any system of internal control over financial reporting, including ours, is subject to inherent limitations,
including the exercise of judgment in designing, implementing, operating, and evaluating the controls and procedures, and the
inability to eliminate misconduct completely. Accordingly, any system of internal control over financial reporting, including ours, no
matter how well designed and operated, can only provide reasonable, not absolute, assurances. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions or that the
degree of compliance with the policies or procedures may deteriorate. Management has assessed the effectiveness of our internal
control over financial reporting as at December 31, 2019. In making its assessment, management used the criteria set forth by the
Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control – Integrated Framework (2013) to
evaluate the effectiveness of our internal control over financial reporting. Based on this assessment using those criteria, management
has concluded that our internal control over financial reporting was effective as of December 31, 2019.
KPMG LLP, our independent registered public accounting firm, has issued an attestation report on our internal control over
financial reporting as of December 31, 2019, which is included herein.
Changes in internal control over financial reporting. There was no change in our internal control over financial reporting
identified in connection with the evaluation required by Rule 13a-15(d) and 15d-15(d) of the Exchange Act that occurred during the
three months ended December 31, 2019 that has materially affected, or is reasonably likely to materially affect, our internal control
over financial reporting.
Item 9B. Other Information
We have a written code of conduct that applies to all of our directors, officers and employees. A copy of the most up-to-date
version of our code of conduct is available within the “Investors” section on our company website located at http://www.xenon-
pharma.com and on SEDAR at www.sedar.com.
99
PART III
Item 10. Directors, Executive Officers and Corporate Governance
The information required by Item 10 of Form 10-K is incorporated by reference to our Proxy Statement for the 2020 Annual
Meeting of Shareholders to be filed with the SEC within 120 days after the end of the fiscal year ended December 31, 2019.
Item 11.
Executive Compensation
The information required by Item 11 of Form 10-K is incorporated by reference to our Proxy Statement for the 2020 Annual
Meeting of Shareholders to be filed with the SEC within 120 days after the end of the fiscal year ended December 31, 2019.
Item 12.
Security Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters
The information required by Item 12 of Form 10-K is incorporated by reference to our Proxy Statement for the 2020 Annual
Meeting of Shareholders to be filed with the SEC within 120 days after the end of the fiscal year ended December 31, 2019.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by Item 13 of Form 10-K is incorporated by reference to our Proxy Statement for the 2020 Annual
Meeting of Shareholders to be filed with the SEC within 120 days after the end of the fiscal year ended December 31, 2019.
Item 14.
Principal Accounting Fees and Services
The information required by Item 14 of Form 10-K is incorporated by reference to our Proxy Statement for the 2020 Annual
Meeting of Shareholders to be filed with the SEC within 120 days after the end of the fiscal year ended December 31, 2019.
100
Item 15.
Exhibits, Financial Statement Schedules
PART IV
(a)(1) Financial Statements — The financial statements included in Item 8 are filed as part of this Annual Report on Form 10-K.
(a)(2) Financial Statement Schedules — All schedules have been omitted because they are not applicable or required, or the
information required to be set forth therein is included in the consolidated Financial Statements or notes thereto included in Item 8 of
this Annual Report on Form 10-K.
(a)(3) Exhibits — The exhibits required by Item 601 of Regulation S-K are listed in paragraph (b) below.
(b) Exhibits — The exhibits listed in the table below are filed herewith or are incorporated by reference to exhibits previously
filed with the SEC.
Exhibit
Number
3.1
3.1A
3.2
4.1
4.2
4.3
4.4
10.1†
10.2†
10.3#
10.4#
10.5#
10.6
10.7#
10.8†
Description of Document
Form
Incorporated by Reference
File No.
Exhibit
Filing Date
Articles of the Company.
Articles of Amendment to the Articles of the Company,
creating the Series 1 Preferred Shares.
10-Q
001-36687
8-K
001-36687
Amended and Restated By-laws of the Company.
10-Q
001-36687
Form of Common Share Certificate.
Specimen Series 1 Preferred Share Certificate.
S-1/A
333-
198666
8-K
001-36687
3.1
3.1
3.2
4.1
4.1
December 15,
2014
March 28,
2018
December 15,
2014
October 6,
2014
March 28,
2018
Warrant to Purchase Shares, dated August 3, 2018, by and
between Xenon Pharmaceuticals Inc. and Silicon Valley
Bank.
Description of Securities.
Exclusive Collaborative Research and Option Agreement,
dated June 10, 2009, by and between the Company and
Merck Sharp & Dohme Research Ltd, as amended.
Collaborative Research and License Agreement, dated
December 22, 2011, by and among the Company,
Genentech, Inc. and F. Hoffmann-La Roche Ltd, as
amended.
Stock Option Plan, as amended, and form of option
agreement thereunder.
2014 Equity Incentive Plan.
Form of Share Option Agreement, as amended, under the
2014 Equity Incentive Plan.
Lease, dated as of 2001, by and between the Company and
Discovery Parks Incorporated, as amended through July 1,
2014.
Form of Director and Executive Officer Indemnification
Agreement.
Amendment #4, dated May 13, 2015, to the Collaborative
Research and License Agreement, dated December 22, 2011,
by and among the Company, Genentech, Inc. and F.
Hoffman-La Roche Ltd, as amended.
101
8-K
001-36687
4.1
August 7, 2018
S-1/A
S-1/A
S-1/A
S-1
333-
198666
333-
198666
333-
198666
333-
198666
10.1
10.3
10.7
10.8
October 6,
2014
October 6,
2014
October 6,
2014
September 10,
2014
10-K
001-36687
10.8A March 8, 2017
S-1
S-1/A
333-
198666
333-
198666
10-Q
001-36687
10.1
10.14
September 10,
2014
10.15
October 6,
2014
August 13,
2015
Exhibit
Number
10.9
10.10
10.11†
10.12†
10.13†
10.14†
10.15†
10.16
10.17†
10.18
10.19
10.20†
10.21#
10.22#
10.23#
Description of Document
Form
Incorporated by Reference
File No.
Exhibit
Filing Date
Lease Modification Agreement, effective July 1, 2015, by
and between the Company and Redstone Enterprises Ltd.
10-Q
001-36687
10.1
November 10,
2015
Lease Modification Agreement, effective December 1, 2015,
by and between the Company and Redstone Enterprises Ltd.
Amendment #5, dated November 19, 2015, to the
Collaborative Research and License Agreement, dated
December 22, 2011, by and among the Company,
Genentech, Inc. and F. Hoffman-La Roche Ltd, as amended.
Amendment #6, dated March 9, 2016, to the Collaborative
Research and License Agreement, dated December 22, 2011,
by and among the Company, Genentech, Inc. and F.
Hoffman-La Roche Ltd, as amended.
Letter Agreement to Amendment #4, dated May 8, 2017, to
the Collaborative Research and License Agreement, dated
December 22, 2011, by and among the Company,
Genentech, Inc. and F. Hoffman-La Roche Ltd, as amended.
Asset Purchase Agreement, dated April 25, 2017, by and
between the Company and 1st Order Pharmaceuticals, Inc.
Termination Agreement by and among Xenon
Pharmaceuticals Inc., Teva Pharmaceuticals International
GmbH and Teva Canada Limited dated March 7, 2018.
Exchange Agreement, dated March 23, 2018, by and among
the Company and the shareholders listed in Schedule B
thereto.
Letter Amendment #7, dated July 25, 2018, to the
Collaborative Research and License Agreement, dated
December 22, 2011, by and among the Company,
Genentech, Inc. and F. Hoffmann-La Roche Ltd, as
amended.
Amended and Restated Loan and Security Agreement, dated
August 3, 2018, by and among Xenon Pharmaceuticals Inc.,
Xenon Pharmaceuticals USA Inc. and Silicon Valley Bank.
Milestone and Royalty Buy-Out Agreement, dated
September 7, 2018, by and among Xenon Pharmaceuticals
Inc., Valeant Pharmaceuticals Ireland Limited and Valeant
Pharmaceuticals Luxembourg S.a.r.l.
Amended and Restated Amendment #7, dated September 27,
2018, to the Collaborative Research and License Agreement,
dated December 22, 2011, by and among the Company,
Genentech, Inc. and F. Hoffmann-La Roche Ltd, as
amended.
Amended and Restated Employment Agreement, dated
March 19, 2019, by and between the Company and Simon
Pimstone.
Amended and Restated Employment Agreement, dated
March 19, 2019, by and between the Company and Ian
Mortimer.
Amended and Restated Employment Agreement, dated
March 19, 2019, by and between the Company and Ernesto
Aycardi.
102
10-K
001-36687
10.19 March 8, 2016
10-K
001-36687
10.20 March 8, 2016
10-Q
001-36687
10.1
May 10, 2016
10-Q
001-36687
10.1
August 3, 2017
10-Q
001-36687
10.2
August 3, 2017
8-K
001-36687
10.1
March 7, 2018
8-K
001-36687
10.1
March 28,
2018
10-Q
001-36687
10.3
August 7, 2018
8-K
001-36687
10.1
August 7, 2018
8-K
001-36687
10.1
September 11,
2018
10-Q
001-36687
10.5
November 6,
2018
8-K
001-36687
10.1
8-K
001-36687
10.2
8-K
001-36687
10.3
March 25,
2019
March 25,
2019
March 25,
2019
Exhibit
Number
10.24#
10.25#
10.26#
10.27
10.28†
10.29
21.1
23.1
24.1
31.1
31.2
32.1*
32.2*
101.INS
101.SCH
101.CAL
101.DEF
101.LAB
101.PRE
Description of Document
Form
Incorporated by Reference
File No.
Exhibit
Filing Date
Amended and Restated Employment Agreement, dated
March 19, 2019, by and between the Company and Robin
Sherrington.
Amended and Restated Employment Agreement, dated
March 20, 2019, by and between the Company and James
Empfield.
2019 Inducement Equity Incentive Plan and related form of
share option agreement.
8-K
001-36687
10.1
At-the-Market Equity Offering Sales Agreement, dated as of
November 5, 2019, by and among Xenon Pharmaceuticals
Inc., Jefferies LLC and and Stifel, Nicolaus & Company,
Incorporated.
License and Collaboration Agreement, dated as of December
2, 2019, by and between Xenon Pharmaceuticals Inc. and
Neurocrine Biosciences, Inc.
Share Purchase Agreement, dated as of December 2, 2019,
by and between Xenon Pharmaceuticals Inc. and Neurocrine
Biosciences, Inc.
8-K
001-36687
1.1
8-K
001-36687
10.1
8-K
001-36687
10.2
September 10,
2019
November 5,
2019
December 2,
2019
December 2,
2019
List of Subsidiaries of the Company.
10-K
001-36687
21.1
March 8, 2017
Consent of KPMG LLP, Independent Registered Public
Accounting Firm.
Powers of Attorney (contained on signature page).
Rule 13a-14(a) / 15d-14(a) Certification of Principal
Executive Officer
Rule 13a-14(a) / 15d-14(a) Certification of Principal
Financial Officer
Section 1350 Certification of Principal Executive Officer
Section 1350 Certification of Principal Financial Officer
XBRL Instance Document
XBRL Taxonomy Extension Schema Document
XBRL Taxonomy Extension Calculation Linkbase
Document
XBRL Taxonomy Extension Definition Linkbase Document
XBRL Taxonomy Extension Label Linkbase Document
XBRL Taxonomy Extension Presentation Linkbase
Document
† Confidential treatment has been granted with respect to certain portions of this exhibit. Omitted portions have been filed
separately with the Securities and Exchange Commission.
†† Portions of this exhibit have been omitted in accordance with Item 601(b)(10) of Regulation S-K because they are not material and
#
*
would likely cause competitive harm to the registrant if disclosed.
Indicates management contract or compensatory plan.
The Certifications attached as Exhibits 32.1 and 32.2 that accompany this Annual Report on Form 10-K are not deemed filed with
the Securities and Exchange Commission and are not to be incorporated by reference into any filing of Xenon Pharmaceuticals
Inc. under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or
after the date of this Form 10-K, irrespective of any general incorporation language contained in such filing.
103
Item 16.
Form 10-K Summary
Not applicable.
104
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this
report to be signed on its behalf by the undersigned, thereunto duly authorized.
Dated: March 9, 2020
XENON PHARMACEUTICALS INC.
By: /s/ Simon Pimstone
Simon Pimstone
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Simon Pimstone and Ian Mortimer, and each of
them severally, as his or her true and lawful attorneys-in-fact and agents, with full power to act without the other and with full power
of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities (including his or her
capacity as a director and/or officer of Xenon Pharmaceuticals Inc.) to sign any and all amendments and supplements to this report,
and any and all other instruments necessary or incidental in connection herewith, and to file the same, with all exhibits thereto, and all
other documents in connection therewith, with the Commission.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons
on behalf of the Registrant and in the capacities and on the dates indicated.
Signature
/s/ Simon Pimstone
Simon Pimstone
/s/ Ian Mortimer
Ian Mortimer
/s/ Michael Tarnow
Michael Tarnow
/s/ Mohammad Azab
Title
Chief Executive Officer (Principal
Executive Officer)
President and Chief Financial Officer
(Principal Financial and Accounting
Officer)
Chair of the Board of Directors
Mohammad Azab
Director
/s/ Clarissa Desjardins
Clarissa Desjardins
Director
/s/ Steven Gannon
Steven Gannon
/s/ Michael Hayden
Michael Hayden
/s/ Frank Holler
Frank Holler
/s/ Gary Patou
Gary Patou
/s/ Dawn Svoronos
Dawn Svoronos
Director
Director
Director
Director
Director
105
Date
March 9, 2020
March 9, 2020
March 9, 2020
March 9, 2020
March 9, 2020
March 9, 2020
March 9, 2020
March 9, 2020
March 9, 2020
March 9, 2020