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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
☒ ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 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 0‑14710
XOMA CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
2200 Powell Street, Suite 310, Emeryville, California
(Address of principal executive offices)
52‑2154066
(I.R.S. Employer Identification No.)
94608
(Zip Code)
Registrant’s telephone number, including area code: (510) 204‑7200
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Common Stock
Securities registered pursuant to Section 12(g) of the Act: None
Trading Symbol(s)
XOMA
Name of each exchange on which registered
The Nasdaq Global Market
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, 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 shares of common stock on
June 30, 2019, was $93,973,763.
Number of shares of Registrant’s Common Stock outstanding as of March 5, 2020 was 9,761,901
Portions of the Registrant’s Definitive Proxy Statement relating to the Company’s 2020 Annual Meeting of Stockholders are incorporated by reference into Part III
of this Report.
Table of Contents
PART I
XOMA Corporation
2019 FORM 10‑K ANNUAL REPORT
TABLE OF CONTENTS
Business
Item 1.
Item 1A. Risk Factors
Item 1B. Unresolved Staff Comments
Item 2.
Item 3.
Item 4.
Properties
Legal Proceedings
Mine Safety Disclosures
PART II
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Selected Financial Data
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Item 5.
Item 6.
Item 7.
Item 7A. Quantitative and Qualitative Disclosures 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
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
Directors, Executive Officers, and Corporate Governance
Executive Compensation
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Certain Relationships and Related Transactions, and Director Independence
Principal Accountant Fees and Services
PART IV
Item 15.
Item 16.
SIGNATURES
Exhibits and Financial Statement Schedules
Form 10‑K Summary
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This annual report on Form 10‑K includes trademarks, service marks and trade names owned by us or others. “XOMA,” the
XOMA logo and all other XOMA product and service names are registered or unregistered trademarks of XOMA Corporation or a
subsidiary of XOMA Corporation in the United States and in other selected countries. All trademarks, service marks and trade names
included or incorporated by reference in this annual report are the property of their respective owners.
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PART I
This Annual Report on Form 10‑K contains forward-looking statements within the meaning of Section 27A of the Securities Act of
1933, as amended, or the Securities Act, Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and the
Private Securities Litigation Reform Act of 1995, which are subject to the “safe harbor” created by those sections. Forward-looking
statements are based on our management’s beliefs and assumptions and on information currently available to them. In some cases, you can
identify forward-looking statements by words such as “may,” “will,” “should,” “could,” “would,” “expects,” “plans,” “anticipates,”
“believes,” “estimates,” “projects,” “predicts,” “potential,” “intend” and similar expressions intended to identify forward-looking
statements. Examples of these statements include, but are not limited to, statements regarding: our future operating expenses, our future
losses, the success of our strategy as a royalty aggregator, extent to which our issued and pending patents may protect our products and
technology, the potential of our existing product candidates to lead to the development of commercial products, our ability to receive
potential milestone or royalty payments under license and collaboration agreements and the timing of receipt of those payments. These
statements are based on assumptions that may not prove accurate. Actual results could differ materially from those anticipated due to
certain risks inherent in the biotechnology industry and for our licensees engaged in the development of new products in a regulated
market. Among other things: our product candidates subject to our out-license agreements are still being developed, and our licensees’ may
require substantial funds to continue development which may not be available; we may not be successful in entering into out-license
agreements for our product candidates; if our therapeutic product candidates do not receive regulatory approval, our third-party licensees
will not be able to manufacture and market them; products or technologies of other companies may render some or all of our product
candidates noncompetitive or obsolete; we do not know whether there will be, or will continue to be, a viable market for the products in
which we have an ownership or royalty interest; even once approved, a product may be subject to additional testing or significant
marketing restrictions, its approval may be withdrawn or it may be voluntarily taken off the market; we and our licensees are subject to
various state and federal healthcare related laws and regulations that may impact the commercialization of our product candidates and
could subject us to significant fines and penalties; and certain of our technologies are in-licensed from third parties, so our capabilities
using them are restricted and subject to additional risks. These and other risks, including those related to current economic and financial
market conditions, are contained principally in Item 1, Business; Item 1A, Risk Factors; Item 7, Management’s Discussion and Analysis of
Financial Condition and Results of Operations; and other sections of this Annual Report on Form 10‑K. Factors that could cause or
contribute to these differences include those discussed in Item 1A, Risk Factors, as well as those discussed elsewhere in this Annual Report
on Form 10‑K.
Forward-looking statements are inherently uncertain and you should not place undue reliance on these statements, which speak
only as of the date that they were made. These cautionary statements should be considered in connection with any written or oral forward-
looking statements that we may issue in the future. We do not undertake any obligation to release publicly any revisions to these forward-
looking statements after completion of the filing of this Annual Report on Form 10‑K to reflect later events or circumstances or to reflect the
occurrence of unanticipated events.
All references to “portfolio” in this Annual Report on Form 10-K are to milestone and/or royalty rights associated with a basket of
drug products in development.
Item 1. Business
Overview and Strategy
XOMA Corporation (“XOMA”), a Delaware corporation, is a biotech royalty aggregator. We have a sizable portfolio of economic
rights to future potential milestone and royalty payments associated with partnered pre-commercial therapeutic candidates. Our portfolio
was built through licensing our proprietary products and platforms from our legacy discovery and development business, combined with
acquisitions of rights to future milestones and royalties that we have made since our royalty aggregator business model was implemented in
2017. We expect that most of our future revenue will be based on payments we may receive for milestones and royalties related to these
programs.
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Our strategy is to expand our pipeline by acquiring additional potential milestone and royalty revenue streams on drug product
candidates from third parties. Expanding our pipeline through these acquisitions can allow for further diversification across therapeutic
areas and development stages. Our ideal target acquisitions are in pre-commercial stages of development, have an expected long duration of
market exclusivity, high revenue potential, and are partnered with a large pharmaceutical or biopharmaceutical enterprise.
Portfolio Highlights
The following table highlights key assets included in our portfolio of potential future milestone and royalty streams. This table
does not include all assets because certain assets are subject to confidentiality agreements.
COMPANY
ASSET NAME
TARGET
ROYALTY RATE
Alligator Bioscience
Aronora
Aronora
AVEO
Bayer
Bayer
JNJ-64457107/ADC-
1013 (mitazalimab)
AB002 (proCase)
AB054
CD40
0.75%
E-WE thrombin
Factor XII
AV-299 (ficlatuzumab)
HGF
BAY1213790 (osocimab)
Factor XIa
BAY1831865
Bayer/Aronora
AB023 (xisomab 3G3)
Compugen
Incyte
Incyte
Incyte
Incyte
Janssen Biotech
Janssen Biotech
Janssen Biotech
Janssen Biotech
Janssen Biotech
COM902
INCAGN1876
INCAGN1949
INCAGN02390
INCAGN2385
JNJ-63723283 (cetrelimab)
JNJ-55920839
JNJ-63709178
JNJ-63898081
JNJ-64232025
Margaux Biologics
rBPI-21 (XOMA 629)
Merck
MK-4830
Monopar Therapeutics MNPR-101
Novartis
Novartis
Novartis
Novartis
CFZ533 (iscalimab)
VPM087 (gevokizumab)
NIS793
NIR178
Factor XI
Factor XI
TIGIT
GITR
OX-40
TIM-3
LAG-3
PD-1
IFN
CD123xCD3
PSMAxCD3
CD154
BPI
ILT-4
uPAR
CD-40
IL-1ß
TGFß
Low single-digit
Low single-digit
Low single-digit
Low single-digit
Low single-digit
Low single-digit
Low single-digit
Mid-single-digit
Mid-single-digit
Low to mid-single-digit
Low to mid-single-digit
0.75%
0.75%
0.75%
0.75%
0.75%
Low to mid-single-digit
Low single-digit
None
Mid-single-digit to low-teens
High single-digit to mid-teens
Mid-single digit to low teens
adenosine A2A
Low single-digit
Ology Bioservices
Palobiofarma
Palobiofarma
NTM-1631, NTM-1632, NTM-
1633, NTM-1634
Botulinum neurotoxins
15%
PBF-680
PBF-677
adenosine A1
adenosine A3
Low single-digit
Low single-digit
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Palobiofarma
PBF-999
Palobiofarma
Palobiofarma
Rezolute
Rezolute
Sesen Bio
Takeda
Takeda/Molecular
Templates
Acquisitions
PBF-1129
PBF-1650
RZ358
RZ402
Vicinium®
TAK-079
TAK-169
adenosine A2A /
Phosphodiesterase 10
(PDE-10)
adenosine A2B
adenosine A3
Low single-digit
Low single-digit
Low single-digit
INSR
Kallikrein
EpCAM
CD-38
CD-38
High single-digit to mid-teens
Low single-digit
2.50%
4%
4%
Royalty Purchase Agreement with Agenus, Inc.
In September 2018, we entered into a Royalty Purchase Agreement (the “Agenus Royalty Purchase Agreement”) with Agenus, Inc.
(“Agenus”). Under the Agenus Royalty Purchase Agreement, we purchased from Agenus the right to receive 33% of the future royalties due
to Agenus from Incyte (net of certain royalties payable by Agenus to a third party) and 10% of all future developmental, regulatory and
sales milestones on sales of six Incyte immuno-oncology assets. In addition, we purchased from Agenus the right to receive 33% of the
future royalties due to Agenus from Merck and 10% of all future developmental, regulatory and sales milestones on sales of MK-4830, an
immuno-oncology product currently in clinical development. Pursuant to the Agenus Royalty Purchase Agreement, our share in future
potential development, regulatory and commercial milestones is up to $59.5 million and the royalties have no limit. Under the terms of the
Agenus Royalty Purchase Agreement, we paid Agenus $15.0 million. We financed $7.5 million of the purchase price with a three-year term
loan under our Loan and Security Agreement with Silicon Valley Bank (“SVB”) dated May 7, 2018.
Royalty Purchase Agreement with Bioasis Technologies, Inc.
In February 2019, we entered into a Royalty Purchase Agreement with Bioasis Technologies, Inc. (the “Bioasis Royalty Agreement”)
and certain affiliates (collectively “Bioasis”). Under the Bioasis Royalty Agreement, we purchased potential future milestone, royalty and
option fee payment rights from Bioasis for product candidates that are being developed pursuant to a License Agreement between Bioasis
and Prothena Biosciences Limited. Under the terms of the Bioasis Royalty Agreement, we paid Bioasis an upfront cash payment of $0.3
million and will be required to make contingent future cash payments of up to $0.2 million to Bioasis if and when the licensed product
candidates reach certain development milestones. As of December 31, 2019, none of the development milestones had been achieved. In
addition, we were granted an option to purchase a 1% royalty right on the next two license agreements entered into between Bioasis and
third-party licensees subject to certain payments and conditions as well as a right of first negotiation on subsequent Bioasis license
agreements with third parties.
Royalty Purchase Agreement with Aronora, Inc.
In April 2019, we entered into a Royalty Purchase Agreement with Aronora, Inc. (the “Aronora Royalty Purchase Agreement”), a
private research and development company headquartered in Portland, Oregon. Under the Aronora Royalty Purchase Agreement, we
purchased from Aronora the rights to potential royalties and a portion of upfront, milestone, and option payments associated with five anti-
thrombotic hematology drug products in development: three candidates subject to Aronora’s collaboration with Bayer Pharma AG (“Bayer”)
(the “Bayer Products”) and two additional early stage candidates (the “non-Bayer Products”).
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Under the terms of the Aronora Royalty Purchase Agreement, we made a $6.0 million upfront payment to Aronora when the
transaction closed on June 26, 2019, and in September 2019 we made an additional $3.0 million payment for the three Bayer Products that
were active as of September 1, 2019. Pursuant to the Aronora Royalty Purchase Agreement, if we receive $250.0 million in cumulative
royalties on net sales per product, we will be required to pay associated tiered milestones payments to Aronora in an aggregate amount of up
to $85.0 million per product. The tiered milestones will be paid based on various royalty tiers prior to reaching $250.0 million in cumulative
royalties on net sales per product. We will retain royalties per product in excess of $250.0 million. We will receive, on average, low single-
digit royalties on future sales of the Bayer Products and 10% of all future developmental, regulatory and sales milestones related to the
Bayer Products. In addition, we purchased from Aronora the right to receive low-single digit percentage of net sales of the non-Bayer
Products and 10% of all future payments, including upfront payments, option payments and developmental, regulatory and sales milestone
payments on potential future sales of the non-Bayer Products. We financed $4.5 million of the purchase price with a three-year term loan
under our Loan and Security Agreement with SVB dated May 7, 2018.
Royalty Purchase Agreement with Palobiofarma, S.L.
In September 2019, we entered into a Royalty Purchase Agreement (the “Palo Royalty Purchase Agreement”) with Palobiofarma,
S.L, (“Palo”). Pursuant to the Palo Royalty Purchase Agreement, we acquired the rights to potential royalty payments in low single digit
percentages of aggregate net sales associated with six drug candidates in various clinical development stages, targeting the adenosine
pathway with potential applications in solid tumors, non-Hodgkin’s lymphoma, asthma/chronic obstructive pulmonary disease,
inflammatory bowel disease, idiopathic pulmonary fibrosis, lung cancer, psoriasis and nonalcoholic steatohepatitis and other indications (the
“Palo Licensed Products”) that are being developed by Palo. Novartis Pharma AG (“Novartis”) is a development partner on NIR178, one of
the Palo Licensed Products, and NIR178 is being developed pursuant to a license agreement between Palo and Novartis. Under the terms of
the Palo Royalty Purchase Agreement, we paid Palo $10.0 million for the rights to potential royalty payments on future sales of the Palo
Licensed Products. We financed $5.0 million of the purchase price with a three-year term loan under our Loan and Security Agreement
with SVB dated May 7, 2018.
Selected Programs Underlying Our Core Pipeline
Historically, we have licensed or provided research and development collaboration services to world-class organizations, such as
Novartis and Takeda, in pursuit of new antibody products under which we are eligible to receive potential future milestone payments and
royalties. The following is a summary of material license and collaboration agreements that represent a significant component of our core
pipeline.
Novartis – Anti-CD40 Antibody
In September 2015, we and Novartis Vaccines and Diagnostics, Inc. (“NVDI”), further amended our 2008 Amended and Restated
Research, Development and Commercialization Agreement, relating to various antibodies, including anti-CD40 antibodies. Under this
agreement, NVDI is solely responsible for the development and commercialization of the antibodies and products containing the antibodies
arising from this program. The parties agreed to reduce the royalty rates that we are eligible to receive on sales of NVDI’s clinical stage anti-
CD40 antibodies (such as iscalimab). These royalties are tiered based on sales levels and now have percentage rates ranging from mid-
single digit to low-teens.
Our right to royalty payments expires on the later of the expiration of any licensed patent covering each product or 10 years from
the first commercial sale of each product in each country. Novartis is conducting clinical testing of iscalimab in several indications.
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Novartis – Gevokizumab
In August 2017, we and Novartis entered into a license agreement (the “XOMA‑052 License Agreement”), under which we granted
Novartis an exclusive, worldwide, royalty-bearing license to gevokizumab (“VPM087”) (an early clinical stage product candidate) and
related know-how and patents. Under the terms of the XOMA‑052 License Agreement, Novartis is solely responsible for the development
and commercialization of VPM087 and products containing such antibody.
Under the XOMA‑052 License Agreement, we received total consideration of $30.0 million in 2017 for the license and rights
granted to Novartis. Of the total consideration, $15.7 million was paid in cash and $14.3 million (equal to €12.0 million) was paid by
Novartis Institutes for Biomedical Research, Inc. (“NIBR”), on our behalf, to settle our loan with Les Laboratories Servier (“Servier”). In
addition, NIBR extended the maturity date on our debt to Novartis to September 30, 2022. We also received $5.0 million related to the sale
of 539,131 shares of our common stock, at a price per share of $9.2742. Based on the achievement of pre-specified criteria, we are eligible
to receive up to $438.0 million in development, regulatory and commercial milestones. We are also eligible to receive royalties on sales of
licensed products, which are tiered based on sales levels and have percentage rates ranging from mid-single digit to mid-teens. This
program is in early clinical testing.
Unless terminated earlier, the XOMA‑052 License Agreement will remain in effect, on a country-by-country and product-by-
product basis, until Novartis’ royalty obligations end. The XOMA‑052 License Agreement contains customary termination rights relating to
material breach by either party. Novartis also has a unilateral right to terminate the XOMA‑052 License Agreement on a product-by-product
and country-by-country basis or in its entirety with six months’ prior written notice.
Novartis – Anti-TGFβ Antibody
In September 2015, we and Novartis International Pharmaceutical Ltd. (“Novartis International”) entered into a license agreement
(the “Anti-TGFβ Antibody License Agreement”) under which we granted Novartis International an exclusive, worldwide, royalty-bearing
license to our anti-TGFβ antibody program (“NIS793”). Novartis International is solely responsible for the development and
commercialization of the antibodies and products containing the antibodies arising from this program.
Under the Anti-TGFβ Antibody License Agreement, we received a $37.0 million upfront fee, and are eligible to receive up to a
total of $480.0 million in development, regulatory and commercial milestones. We also are eligible to receive royalties on sales of licensed
products, which are tiered based on sales levels and have percentage rates ranging from mid-single digit to low-teens. This program is
currently in early clinical testing.
Takeda
In November 2006, we entered into a collaboration agreement with Takeda under which we agreed to discover and optimize
therapeutic antibodies against multiple targets selected by Takeda.
Under the terms of this agreement, we may receive additional milestone payments aggregating up to $19.0 million relating to
TAK-079 and low single-digit royalties on future sales of all products subject to this license. Our right to milestone payments expires on the
later of the receipt of payment from Takeda of the last amount to be paid under the agreement or the cessation by Takeda of all research and
development activities with respect to all program antibodies, collaboration targets or collaboration products. Our right to royalties expires
on the later of 13.5 years from the first commercial sale of each royalty-bearing discovery product or the expiration of the last-to-expire
licensed patent.
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In February 2009, we expanded our existing collaboration to provide Takeda with access to multiple antibody technologies,
including a suite of research and development technologies and integrated information and data management systems. We may receive
milestones of up to $3.3 million per discovery product candidate and low single-digit royalties on future sales of all antibody products
subject to this license. Our right to milestone payments expires on the later of the receipt of payment from Takeda of the last amount to be
paid under the agreement or the cessation by Takeda of all research and development activities with respect to all program antibodies,
collaboration targets or collaboration products. Our right to royalties expires on the later of 10 years from the first commercial sale of such
royalty-bearing discovery product or the expiration of the last-to-expire licensed patent.
Rezolute
In December 2017, we entered into a license agreement with Rezolute, Inc. (formerly AntriaBio, Inc.) (“Rezolute”) pursuant to
which we granted an exclusive global license to Rezolute to develop and commercialize X358 (now RZ358), a Phase 2 product candidate,
for all indications. We and Rezolute also entered into a common stock purchase agreement.
Under the terms of the license agreement, Rezolute is responsible for all development, regulatory, manufacturing and
commercialization activities associated with RZ358 and is required to make certain clinical, regulatory and annual net sales milestone
payments to us of up to $232.0 million in the aggregate based on the achievement of pre-specified criteria. Rezolute is also obligated to pay
us royalties ranging from the high single digits to the mid-teens based upon annual net sales of RZ358. Rezolute is obligated to take
customary steps to advance RZ358, and to meet certain spending requirements on an annual basis for the program until a marketing
approval application for RZ358 is accepted by the FDA. Rezolute’s obligation to pay royalties with respect to a particular RZ358 product
and country will continue for the longer of the date of expiration of the last valid patent claim covering the product in that country, or
twelve years from the date of the first commercial sale of the product in that country.
Under the terms of the license agreement, Rezolute is required to pay us a low single-digit royalty on sales of Rezolute’s other
products from its existing programs, currently in preclinical and early clinical stages. Rezolute’s obligation to pay royalties with respect to a
particular Rezolute product and country will continue for the longer of twelve years from the date of the first commercial sale of the product
in that country or for so long as Rezolute or its licensee is selling such product in such country, provided that such royalty will terminate
upon the termination of the licensee’s obligation to make payments to Rezolute based on sales of such product in such country.
We also granted Rezolute an option through June 1, 2019 for an exclusive license for their choice of one of our preclinical insulin
receptor monoclonal antibody fragments, including X129. On June 1, 2019, such option expired unexercised. The license agreement
contains customary termination rights relating to material breach by either party. Rezolute also has a unilateral right to terminate the license
agreement in its entirety on ninety-days’ notice at any time.
Rezolute License Agreement - First Amendment
In March 2018, we and Rezolute amended the license agreement and common stock purchase agreement. Pursuant to the as-
amended terms of the license agreement and common stock purchase agreement, Rezolute was required to pay us $6.0 million in cash, to
issue us $8.5 million worth of its common stock, and to issue us 7,000,000 shares of its common stock, contingent on the completion of its
financing activities. Further, in the event that Rezolute did not complete a financing that raised at least $20.0 million in aggregate gross
proceeds (“Qualified Financing”) by March 31, 2019 (the “2019 Closing”), it would issue to us an additional number of shares of its
common stock equal to $8.5 million divided by the weighted average of the closing bid and ask prices or the average closing prices of
Rezolute’s common stock on the ten-day trading period prior to March 31, 2019. Finally, if Rezolute was unable to complete a Qualified
Financing by March 31, 2020, it was obliged to pay us $15.0 million in order to maintain the license. Under the common stock purchase
agreement, Rezolute granted us the right and option to sell the greater of (i) 5,000,000 shares of common stock or (ii) one third of the
aggregate shares held by us upon failure by Rezolute to list its shares of its common stock on the Nasdaq Stock Market or a similar national
exchange on or prior to December 31, 2019.
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During the year ended December 31, 2018, Rezolute closed a debt financing activity for gross proceeds of $4.0 million, which
triggered the Initial Closing, and completed an Interim Financing Closing, as defined in the common stock purchase agreement. These
financing activities resulted in receipt of 8,093,010 shares of Rezolute’s common stock and cash of $0.5 million. Under the amended license
agreement, we were also entitled to receive $0.3 million of reimbursable technology transfer expenses from Rezolute.
Rezolute License Agreement - Second Amendment
In January 2019, we and Rezolute further amended the license agreement and common stock purchase agreement. The license
agreement was amended to eliminate the requirement that equity securities be issued to us upon the closing of the Qualified Financing and
to replace it with a requirement that Rezolute: (1) make five cash payments to us totaling $8.5 million following the closing of a Qualified
Financing on or before specified staggered future dates through September 2020 (the “Future Cash Payments”); and (2) provide for early
payment of the Future Cash Payments (only until the above referenced $8.5 million is reached) by making cash payments to us equal to 15%
of the net proceeds of each future financing following the closing of the Qualified Financing, with such payments to be credited against any
remaining unpaid Future Cash Payments in reverse order of their scheduled payment date. In accordance with the terms of the license
agreement, we received an additional $5.5 million in cash upon the closing of the Qualified Financing in February 2019. In July and August
2019, Rezolute received additional cash through two common stock financing events, resulting in early payment of $3.4 million of
unrecognized Future Cash Payments. In addition, we received the $1.5 million and $1.0 million payments due in September 2019 and
December 2019, respectively, resulting in a total of $11.4 million in cash received from Rezolute for Qualified Financing and Future Cash
Payments in the year ended December 31, 2019. As of December 31, 2019, we had an outstanding receivable of $2.6 million representing
the current estimate of the Future Cash Payments expected to be received from Rezolute. During the year ended December 31, 2019, we
recognized $14.0 million as revenue from Rezolute.
The license agreement amendment also revised the amount Rezolute is required to expend on development of RZ358 and related
licensed products and revised provisions with respect to Rezolute’s diligence efforts in conducting clinical studies. Lastly, the common
stock purchase agreement was amended to remove certain provisions related to the issuance of equity to us in accordance with the new
provisions regarding the Future Cash Payments in the license agreement. Specifically, the common stock purchase agreement was amended
to provide XOMA the right to sell up to 5,000,000 shares of Rezolute common stock currently held by us, back to Rezolute if it fails to list
its shares of common stock on the Nasdaq Stock Market or a similar national exchange on or prior to December 31, 2019. Only 2,500,000
shares may be sold back to Rezolute during calendar year 2020. Any such shares may be sold back to Rezolute at the average of the closing
bid and asked prices of its common stock quoted on its principal trading market on the date of such put option exercise. As of December 31,
2019, Rezolute failed to list its shares of common stock on the Nasdaq Stock Market or a similar exchange.
Ology Bioservices
On November 4, 2015, we entered into an asset purchase agreement with Ology Bioservices, Inc. (“Ology Bioservices”) (formerly
Nanotherapeutics Inc.) (the “Ology Bioservices Purchase Agreement”), under which Ology Bioservices agreed to acquire our biodefense
business and related assets. Under the terms of this agreement, we are eligible to receive a 15% royalty on net sales of any future Ology
Bioservices products covered by or involving the related patents or know-how. During the year ended December 31, 2018, we received $2.5
million owed to us under the agreement with Ology Bioservices which was recognized as other income in our consolidated statement of
operations and comprehensive loss. The scheduled payment concluded in 2018, but we are still eligible to receive royalties in the future.
Proprietary Product Candidates
We have a pipeline of unique monoclonal antibodies and technologies available to license to pharmaceutical and biotechnology
companies to further their clinical development. A summary of these product candidates is provided below:
·
IL‑2 program. Interleukin 2 has long been recognized as an effective therapy for metastatic melanoma and renal cell
carcinoma, but it has serious dose-limiting toxicities that prevent broad clinical use. We have
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generated antibodies that, when given with IL‑2, are intended to steer IL‑2 to enhance its positive impact with less toxicity,
potentially improving the therapeutic index over standard IL‑2 therapy.
·
·
·
PTH1R program. We have generated an anti-parathyroid receptor pipeline that includes several functional antibody
antagonists targeting PTH1R, a G-protein-coupled receptor involved in the regulation of calcium metabolism. These
antibodies have shown promising efficacy in in vivo studies and could potentially address unmet medical needs, including
primary hyperparathyroidism and humoral hypercalcemia of malignancy (“HHM”). HHM is present in many advanced
cancers and is caused by high serum calcium due to increased levels of the PTH1R ligand PTH-related peptide (“PTHrP”).
Current HHM treatments often fall short and many cancer patients die from ‘metabolic death’. Our PTH1R antibodies could
be beneficial for the treatment of HHM.
XMetA is an insulin receptor-activating antibody designed to provide long-acting reduction of hyperglycemia in Type 2
diabetic patients, potentially reducing the advancement to a number of insulin injections needed to control their blood
glucose levels.
X213 (formerly LFA 102) is an allosteric inhibitor of prolactin action. It is a humanized IgG1‑Kappa monoclonal antibody
that binds to the extracellular domain of the human prolactin receptor with high affinity at an allosteric site. The antibody has
been shown to inhibit prolactin-mediated signaling, and it is potent and similarly active against several animal and human
prolactin receptors.
Technologies Available for Non-Exclusive License
We have a set of antibody discovery, optimization and development technologies available for licensing, including:
·
ADAPT™ (Antibody Discovery Advanced Platform Technologies): proprietary human antibody phage display libraries,
integrated with yeast and mammalian display, which can be integrated into antibody discovery programs through license
agreements. We believe access to ADAPT™ Integrated Display offers a number of benefits because it enables the diversity
of phage libraries to be combined with accelerated discovery due to rapid immunoglobulin (“IgG”) reformatting and
fluorescence-activated cell sorting based screening using yeast and mammalian display. This increases the probability of
success in finding rare and unique functional antibodies directed to targets of interest.
· ModulX™: technology which allows modulation of biological pathways using monoclonal antibodies and offers insights
into regulation of signaling pathways, homeostatic control, and disease biology. Using ModulX™, we have generated
product candidates with novel mechanisms of action that specifically alter the kinetics of interaction between molecular
constituents (e.g. receptor-ligand). ModulX™ technology enables expanded target and therapeutic options and offers a
unique approach in the treatment of disease.
· OptimX™ technologies:
· Human Engineering™ (“HE™”): a proprietary humanization technology that allows modification of non-human
monoclonal antibodies to reduce or eliminate detectable immunogenicity and make them suitable for medical purposes in
humans. The technology uses a unique method developed by us, based on analysis of the conserved structure-function
relationships among antibodies. The method defines which residues in a non-human variable region are candidates to be
modified. The result is an HE™ antibody with preserved antigen binding, structure and function that has eliminated or
greatly reduced immunogenicity. HE™ technology was used in development of gevokizumab (VPM087) and certain
other antibody products.
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·
Targeted Affinity Enhancement™ (“TAE™”): a proprietary technology involving the assessment and guided
substitution of amino acids in antibody variable regions, enabling efficient optimization of antibody binding affinity and
selectivity. TAE™ generates a comprehensive map of the effects of amino acid mutations in the complementarity-
determining region likely to impact binding. The technology has been licensed to a number of companies.
Sale of Future Revenue Streams
On December 21, 2016, we entered into two Royalty Interest Acquisition Agreements (together, the “Royalty Sale Agreements”)
with HealthCare Royalty Partners II, L.P. (“HCRP”). Under the first Royalty Sale Agreement, we sold our right to receive milestone
payments and royalties on future sales of products subject to a license agreement, dated August 18, 2005, between XOMA and Pfizer, Inc.
(“Pfizer”) (formerly Wyeth) for an upfront cash payment of $6.5 million, plus potential additional payments totaling $4.0 million in the
event three specified net sales milestones were met by Pfizer in 2017, 2018 and 2019. None of the sales milestones were achieved. Under the
second Royalty Sale Agreement entered into in December 2016, we sold our right to receive royalties under an Amended and Restated
License Agreement dated October 27, 2006 between XOMA and Shire Plc. (formerly Dyax, Corp.) for a cash payment of $11.5 million.
Debt Agreements
Novartis
In connection with the collaboration between XOMA and Novartis AG (then Chiron Corporation), a secured note agreement was
executed in May 2005. The note agreement is secured by our interest in the collaboration and was due and payable in full on June 21, 2015.
In June 2015, we and NVDI, who assumed the note agreement, agreed to extend the maturity date of our secured note agreement from
June 21, 2015 to September 30, 2015, which was then subsequently extended to September 30, 2020. In September 2017, in connection with
the XOMA‑052 License Agreement with Novartis, we and NIBR, who assumed the note agreement from NVDI, executed an amendment to
the note agreement under which we further extended the maturity date of the note to September 30, 2022. As of December 31, 2019, the
outstanding principal balance under this note agreement totaled $15.9 million.
Silicon Valley Bank Loan Agreement
In May 2018, we executed a Loan and Security Agreement (the “Loan Agreement”) with SVB. Under the Loan Agreement, upon
our request, SVB may make advances available to us of up to $20.0 million. We may borrow advances under the Term Loan from May 7,
2018 (the “Effective Date”) until the earlier of March 31, 2019 or an event of default.
In connection with the Loan Agreement, we issued a warrant to SVB, which is exercisable in whole or in part for up to an
aggregate of 6,332 shares of common stock with an exercise price of $23.69 per share (the “Warrant”). The Warrant may be exercised on a
cashless basis and is exercisable within 10 years from the date of issuance or upon the consummation of certain acquisitions of XOMA.
In March 2019, we and SVB amended the Loan Agreement to extend the draw period from March 31, 2019 to March 31, 2020. In
connection with the amendment, we issued a second warrant to SVB, which is exercisable in whole or in part for up to an aggregate of 4,845
shares of common stock with an exercise price of $14.71 per share. As of December 31, 2019, both warrants are outstanding. In addition,
both warrants may be exercised on a cashless basis and are exercisable within 10 years from the date of issuance or upon the consummation
of certain acquisitions of XOMA.
In September 2018, we borrowed $7.5 million under the Loan Agreement in connection with the Agenus royalty purchase
agreement. In June and September 2019, we borrowed advances of $3.0 million and $1.5 million for the upfront payment and the contingent
consideration under the Aronora royalty purchase agreement, respectively. In September 2019, we borrowed an additional $5.0 million in
connection with the Palo Royalty Purchase Agreement. As of December 31, 2019, the outstanding principal balance of the debt under the
Loan Agreement was $16.1 million.
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Competition
The biotechnology and pharmaceutical industries are subject to continuous and substantial technological change. Some of the
drugs our licensees or royalty partners are developing may compete with existing therapies or other drugs in development by other
companies. Furthermore, academic institutions, government agencies and other public and private organizations conducting research may
seek patent protection with respect to potentially competing products or technologies and may establish collaborative arrangements with our
competitors. There can be no assurance that developments by others will not render our, or our licensees’, products or technologies obsolete
or uncompetitive.
Additionally, our recently-undertaken royalty aggregator model faces competition on at least two fronts. First, there are other
companies, funds and other investment vehicles seeking to aggregate royalties or provide alternative financing to development-stage
biotechnology and pharmaceutical companies. The competitive companies, funds and other investment vehicles may have a lower target
rate of return, a lower cost of capital or access to greater amounts of capital and thereby may be able to acquire assets that we are also
targeting for acquisitions. Second, existing or potential competitors to our partners’ and licensees’ products, particularly large
pharmaceutical companies, may have greater financial, technical and human resources than our licensees. Accordingly, these competitors
may be better equipped to develop, manufacture and market products. Many of these companies also have extensive experience in
preclinical testing and human clinical trials, obtaining FDA and other regulatory approvals and manufacturing and marketing
pharmaceutical products.
For a discussion of the risks associated with competition, see below under “Item 1A. Risk Factors.”
Government Regulation
The research and development, manufacturing and marketing of pharmaceutical products are subject to regulation by numerous
governmental authorities in the United States and other countries. We and our partners and licensees, depending on specific activities
performed, are subject to these regulations. In the United States, pharmaceuticals are subject to regulation by both federal and various state
authorities, including the FDA. The Federal Food, Drug and Cosmetic Act and the Public Health Service Act govern the testing,
manufacture, safety, efficacy, labeling, storage, record keeping, approval, advertising and promotion of pharmaceutical products and there
are often comparable regulations that apply at the state level. There are similar regulations in other countries as well. For both currently
marketed and products in development, failure to comply with applicable regulatory requirements can, among other things, result in delays,
the suspension of regulatory approvals, as well as possible civil and criminal sanctions. In addition, changes in existing regulations could
have a material adverse effect on us or our partners.
For a discussion of the risks associated with government regulations, see below under “Item 1A. Risk Factors.”
Intellectual Property
Intellectual property is important to our business and our future income streams will depend in part on our ability to obtain issued
patents, and our partners’ and licensees’ ability to operate without infringing on the proprietary rights of others. We hold and have filed
applications for a number of patents in the United States and internationally to protect our products and technology. We also have obtained
or have the right to obtain licenses to, or income streams based on, certain patents and applications filed by others. However, the patent
position of biotechnology companies generally is highly uncertain and consistent policy regarding the breadth of allowed claims has not
emerged from the actions of the U.S. Patent and Trademark Office with respect to biotechnology patents. Accordingly, no assurance can be
given that our, or our partners’ or licensees’ patents will afford protection against competitors with similar products or others will not obtain
patents claiming aspects similar to those covered by our, or our partners’ or licensees’ patent applications. Below is a list of representative
patents and patent applications related to our licensed programs:
10
Representative
Patents/Applications
Subject matter
Expected last
expiry in family
Table of Contents
Licensee
Novartis
Program
Anti-IL‑1b
Novartis
Anti-TGFb
Rezolute
Anti-INSR
Ology Bioservices
Anti-BoNT
Various
Phage display
libraries
US 7,531,166
US 7,582,742
EP 1 899 378
US 7,695,718
US 8,101,166
US 8,586,036
US 9,163,082
US 8,637,029
JP 5763625
US 20180155420
US 8,569,464
US 9,145,458
US 9,714,285
EP 2714735A1
JP 6363948
US 10,167,334
EP 3277716A1
US 9,944,698
EP 2 480 254
JP 5849050
WO2016/141111
US 8,821,879
EP 2 473 191
US 8,546,307
EP 2 344 686
US 7,094,579
EP 2 060 628
Gevokizumab and other antibodies and
antibody fragments with similar binding
properties for IL‑1β
Methods of treating Type 2 diabetes or
Type 2 diabetes-induced diseases or
conditions with high affinity antibodies
and antibody fragments that bind to IL‑1β
Methods of treating gout with certain
doses of IL‑1β binding antibodies or
binding fragments
Pharmaceutical compositions comprising
anti-IL‑1β binding antibodies or
fragments for reducing acute coronary
syndrome in a subject with a history of
myocardial infarction.
2027
2027
2028
2030
TGFβ antibodies and methods of use
thereof
2032
Combination therapy using an inhibitor of
TGFb and an inhibitor of PD‑1 for
treating or preventing recurrence of
cancer
Insulin receptor-modulating antibodies
having the functional properties of RZ358
Methods of treating or preventing post-
prandial hypoglycemia after gastric
bypass surgery using a negative
modulator antibody to the insulin receptor
Coformulations of anti- botulinum
neurotoxin antibodies
2036
2030
2036
2030
XOMA phage display library components
2032
Seeking out license
Anti-PTH1R
US 10,519,250
Seeking out license
Anti-IL2
WO2018/064255*
Seeking out license
Anti-PRLR
US 7,867,493
EP 2 059 535
Parathyroid Hormone Receptor 1
Antibodies and Uses Thereof
Interleukin‑2 Antibodies and Uses
Thereof
Prolactin receptor antibodies
11
2022
2037
2037
2027
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* Jointly-owned with Medical University of South Carolina Foundation for Research Development
If certain patents issued to others are upheld or if certain patent applications filed by others are issued and upheld, our partners and
licensees may require certain licenses from others to develop and commercialize certain potential products incorporating our technology.
There can be no assurance that such licenses, if required, will be available on acceptable terms.
We protect our proprietary information, in part, by confidentiality agreements with our employees, consultants and partners. These
parties may breach these agreements, and we may not have adequate remedies for any breach. To the extent that we or our consultants or
partners use intellectual property owned by others, we may have disputes with our consultants or partners or other third parties, as to the
rights in related or resulting know-how and inventions.
Concentration of Risk
Our business model is dependent on third parties achieving specified development milestones and product sales. Our pipeline
currently includes over 65 fully-funded programs from which we could potentially receive royalties if the programs achieve marketability.
Novartis is developing several of the programs in our pipeline. While we do not expect the discontinuation of any one program would have a
material impact on our business, the discontinuation of all programs by Novartis could have a material effect on our business and financial
condition.
Organization
We were incorporated in Delaware in 1981 and became a Bermuda-exempted company in December 1998. Effective December 31,
2011, we changed our jurisdiction of incorporation from Bermuda to Delaware and changed our name from XOMA Ltd. to XOMA
Corporation. When referring to a time or period before December 31, 1998 or after December 31, 2011, the terms “Company” and “XOMA”
refer to XOMA Corporation, a Delaware corporation; when referring to a time or period between December 31, 1998 and December 31,
2011, such terms refer to XOMA Ltd., a Bermuda company.
Our principal executive offices are located at 2200 Powell Street, Suite 310, Emeryville, California 94608, and we maintain a
registered office located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. Our telephone number at our
principal executive offices is (510) 204‑7200. Our website address is www.xoma.com. The information found on our website is not part of
this or any other report filed with or furnished to the Securities and Exchange Commission (“SEC”).
Employees
As of March 5, 2020, we employed 10 full-time employees. None of our employees are unionized. Our employees are primarily
engaged in executive, business development, legal, finance and administrative positions.
Item 1A. Risk Factors
The following risk factors and other information included in this annual report should be carefully considered. The risks and
uncertainties described below are not the only ones we face. Additional risks and uncertainties not presently known to us also may impair
our business operations. If any of the following risks occur, our business, financial condition, operating results and cash flows could be
materially adversely affected.
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Risks Related to our Royalty Aggregator Strategy
Our acquisitions of potential future royalty and/or milestone payments may not produce anticipated revenues and/or may be negatively
affected by a default or bankruptcy of the licensor(s) or licensee(s) under the applicable license agreement(s) covering such potential
royalties and/or milestones, and if such transactions are secured by collateral, we may be, or may become, under-secured by the
collateral or such collateral may lose value and we will not be able to recuperate our capital expenditures associated with the
acquisition.
We are engaged in a continual review of opportunities to acquire future royalties, milestones and other payments related to drug
development and sales as part of our royalty aggregator strategy or to acquire companies that hold royalty assets. Generally, at any time, we
seek to have acquisition opportunities in various stages of active review, including, for example, our engagement of consultants and
advisors to analyze particular opportunities, technical, financial and other confidential information, submission of indications of interest and
involvement as a bidder in competitive auctions. Many potential acquisition targets do not meet our criteria, and for those that do, we may
face significant competition for these acquisitions from other royalty buyers and enterprises. Competition for future asset acquisition
opportunities in our markets could increase the price we pay for such assets and could reduce the number of potential acquisition targets.
The success of our acquisitions is based on our ability to make accurate assumptions regarding the valuation, timing and amount of potential
future royalty and milestone payments as well as the viability of the underlying technology and intellectual property. The failure of any of
these acquisitions to produce anticipated revenues may materially and adversely affect our financial condition and results of operations.
Some of these acquisitions may expose us to credit risk in the event of a default by or bankruptcy of the licensor(s) or
licensee(s) that are parties to the applicable license agreement(s) covering the potential milestone and royalty streams being acquired. While
we generally try to structure our receipt of potential milestone and royalty payments to minimize the risk associated with such a default or
bankruptcy, there can be no assurance that any such default or bankruptcy will not adversely affect our ability to receive future potential
royalty and/or milestone payments. To mitigate this risk, on occasion, we may obtain a security interest as collateral in such royalty,
milestone and other payments. Our credit risk in respect of such counterparty may be exacerbated when the collateral held by us cannot be
realized upon or is liquidated at prices not sufficient to recover the full amount we are due pursuant to the terms of the particular assets. This
could occur in circumstances where the original collateral was not sufficient to cover a complete loss (e.g., our interests were only partially
secured) or may result from the deterioration in value of the collateral, so that, in either such case, we are unable to recuperate our full
capital outlay. Any such losses resulting therefrom could materially and adversely affect our financial condition and results of operations.
Many of our potential royalty acquisitions may be associated with drug products that are in clinical development and have not yet been
commercialized. To the extent that such products are not successfully developed and commercialized, our financial condition and results
of operations may be negatively impacted.
As part of our royalty aggregator strategy, we will purchase future milestone and royalty streams associated with drug products
which are in clinical development and have not yet been commercialized. To the extent that any such drug products are not successfully
developed and subsequently commercialized, the value of our acquired potential milestone and royalty streams will be negatively affected.
The ultimate success of our royalty aggregator strategy will depend on our ability to properly identify and acquire high quality products and
the ability of the applicable counterparty to innovate, develop and commercialize their products, in increasingly competitive and highly
regulated markets. Their inability to do so would negatively affect our ability to receive royalty and/or milestone payments. In addition, we
are dependent, to a large extent, on third parties to enforce certain rights for our benefit, such as protection of a patent estate, adequate
reporting and other protections, and their failure to do so would presumably negatively impact our financial condition and results of
operations.
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We depend on our licensees and royalty-agreement counterparties for the determination of royalty and milestone payments. While we
typically have primary or back-up rights to audit our licensees and royalty-agreement counterparties, the independent auditors may have
difficulty determining the correct royalty calculation, we may not be able to detect errors and payment calculations may call for
retroactive adjustments. We may have to exercise legal remedies, if available, to resolve any disputes resulting from the audit.
The royalty and milestone payments we may receive are dependent on our licensees’ achievement of regulatory and developmental
milestones and product sales. Each licensee’s calculation of the royalty payments is subject to and dependent upon the adequacy and
accuracy of its sales and accounting functions, and errors may occur from time to time in the calculations made by a licensee and/or a
licensee may fail to report the achievement of royalties or milestones in whole or in part. Our license and royalty agreements typically
provide us the primary or back-up right to audit the calculations and sales data for the associated royalty payments; however, such audits
may occur many months following our recognition of the royalty revenue, may require us to adjust our royalty revenues in later periods and
may require expense on the part of the Company. Further, our licensees and royalty-agreement counterparties may be uncooperative or have
insufficient records, which may complicate and delay the audit process.
Although we intend to regularly exercise our royalty audit rights as necessary and to the extent available, we rely in the first
instance on our licensees and royalty-agreement counterparties to accurately report the achievement of milestones and royalty sales and
calculate and pay applicable milestones and royalties and, upon exercise of such royalty and other audit rights, we rely on licensees’ and
royalty-agreement counterparties’ cooperation in performing such audits. In the absence of such cooperation, we may be forced to incur
expenses to exercise legal remedies, if available, to enforce our agreements.
The lack of liquidity of our acquisitions of future potential milestones and royalties may adversely affect our business and, if we need to
sell any of our acquired assets, we may not be able to do so at a favorable price, if at all. As a result, we may suffer losses.
We generally acquire milestone and royalty rights that have limited secondary resale markets and may be subject to transfer
restrictions. The illiquidity of most of our milestone and royalty receivable assets may make it difficult for us to dispose of them at a
favorable price if at all and, as a result, we may suffer losses if we are required to dispose of any or all such assets in a forced liquidation or
otherwise. In addition, if we liquidate all or a portion of our potential future milestone and/or purchased royalty stream interests quickly or
relating to a forced liquidation, we may realize significantly less than the value at which we had previously recorded these interests.
Our royalty aggregator strategy may require that we register with the SEC as an “investment company” in accordance with the
Investment Company Act of 1940.
The rules and interpretations of the SEC and the courts, relating to the definition of "investment company" are very complex.
While we currently intend to conduct our operations so that we will not be an investment company under applicable SEC interpretations, we
can provide no assurance that the SEC would not take the position that the Company would be required to register under the Investment
Company Act of 1940 (the “‘40 Act”) and comply with the ‘40 Act’s registration and reporting requirements, capital structure requirements,
affiliate transaction restrictions, conflict of interest rules, requirements for disinterested directors, and other substantive provisions. We
monitor our assets and income for compliance under the ‘40 Act and seek to conduct our business activities to ensure that we do not fall
within its definitions of “investment company” or qualify under one of the exemptions or exclusions provided by the ‘40 Act and
corresponding SEC regulations. If we were to become an “investment company” and be subject to the restrictions of the ‘40 Act, those
restrictions would likely require significant changes in the way we do business and add significant administrative burdens to our operations.
To ensure that we do not fall within the ‘40 Act, we may need to take various actions which we might otherwise not pursue. These actions
may include restructuring the Company and/or modifying our mixture of assets and income or a liquidation of certain of our assets.
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Our licensees or royalty-agreement counterparties could be subject to natural disasters, public health crises, political crises and other
catastrophic events that could hinder or disrupt development efforts.
We depend on our licensees and royalty-agreement counterparties to successfully develop and commercialize product candidates
for which we may receive milestone and royalty payments in the future. Our licensees and royalty-agreement counterparties operate
research and development efforts in various locations in the United States and internationally. If any of their facilities is affected by natural
disasters, such as earthquakes, tsunamis, power shortages or outages, floods or monsoons, public health crises, such as pandemics and
epidemics, political crises, such as terrorism, war, political instability or other conflict, or other events outside of their control, their research
and development efforts could be disrupted, which could result in the discontinuation of development of one or more of the product
candidates in which we have rights to future milestone and/or royalty payments which could have a material adverse effect on our business
operations and prospects.
Risks Related to our Financial Results and Capital Requirements
We have sustained losses in the past, and we expect to sustain losses in the foreseeable future.
We have incurred significant operating losses and negative cash flows from operations since our inception. We had net losses of
$2.0 million and $13.3 million for the years ended December 31, 2019 and December 31, 2018, respectively. As of December 31, 2019, we
had an accumulated deficit of $1.2 billion. We do not know whether we will ever achieve sustained profitability or whether cash flow from
future operations will be sufficient to meet our needs.
To date, we have financed our operations primarily through the sale of equity securities and debt and royalty interests, and
payments received under our collaboration and licensing arrangements. The size of our future net losses will depend, in part, on the rate of
our future expenditures and our and our partners’ ability to generate revenues. If our partners’ product candidates are not successfully
developed or commercialized by our licensees, or if revenues are insufficient following regulatory approval, we will not achieve profitability
and our business may fail. Our ability to achieve profitability is dependent in large part on the success of our and our licensees’ ability to
license product candidates, and the success of our licensees’ development programs, both of which are uncertain. Our success is also
dependent on our licensees obtaining regulatory approval to market product candidates which may not materialize or prove to be successful.
Our royalty aggregator strategy may require us to raise additional funds to acquire milestone and royalty interests; we cannot be certain
that funds will be available or available at an acceptable cost of capital, and if they are not available, we may be unsuccessful in
acquiring milestone and royalty interests to sustain the business in the future.
We may need to commit substantial funds to continue our business, and we may not be able to obtain sufficient funds on
acceptable terms, if at all. Any additional debt financing or additional equity that we raise may contain terms that are not favorable to us
and/or result in dilution to our stockholders, including pursuant to our 2018 ATM Agreement. If we raise additional funds through licensing
arrangements with third parties, we may be required to relinquish some rights to our technologies or our product candidates, grant licenses
on terms that are not favorable to us or enter into a license arrangement for a product candidate at an earlier stage of development or for a
lesser amount than we might otherwise choose.
If adequate funds are not available on a timely basis, we may:
·
·
·
·
reduce or eliminate royalty aggregation efforts;
further reduce our capital or operating expenditures;
curtail our spending on protecting our intellectual property; or
take other actions which may adversely affect our financial condition or results of operations.
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We have significantly restructured our business and revised our business plan and there are no assurances that we will be able to
successfully implement our revised business plan or successfully operate as a royalty aggregator.
We have historically been focused on discovering and developing innovative therapeutics derived from our unique platform of
antibody technologies. We have now become a royalty aggregator where we focus on expanding our pipeline of fully-funded programs by
out-licensing our internally developed product candidates and acquiring potential milestone and royalty revenue streams on additional third
party drug product candidates. Our strategy is based on a number of factors and assumptions, some of which are not within our control, such
as the actions of third parties. There can be no assurance that we will be able to successfully execute all or any elements of our strategy, or
that our ability to successfully execute our strategy will be unaffected by external factors. If we are unsuccessful in acquiring potential
milestone and royalty revenue streams on additional drug product candidates, or those acquisitions do not perform to our expectations, our
financial performance and balance sheet could be adversely affected.
We may not fully realize the expected benefits of our cost-saving initiatives.
Maintaining a low corporate cost structure is a key element of our current business strategy. If we experience unanticipated
inefficiencies caused by our reduced headcount, we may be unable to fully execute our new strategy. In addition, we may incur expenses in
excess of what we anticipate. Any of these outcomes could prevent us from meeting our strategic objectives and could adversely impact our
results of operations and financial condition.
Risks Related to Our Reliance on Third Parties
We rely heavily on licensee relationships, and any disputes or litigation with our partners or termination or breach of any of the related
agreements could reduce the financial resources available to us, including our ability to receive milestone payments and future royalty
revenues.
Our existing collaborations may not continue or be successful, and we may be unable to enter into future collaborative
arrangements to develop and commercialize our unpartnered assets. Generally, our current collaborative partners also have the right to
terminate their collaborations at will or under specified circumstances. If any of our collaborative partners breach or terminate their
agreements with us or otherwise fail to conduct their collaborative activities successfully (for example, by not making required payments
when due, or at all or failing to engage in commercially reasonable efforts to develop products if required), our product development under
these agreements will be delayed or terminated. Disputes or litigation may also arise with our collaborators (with us and/or with one or more
third parties), including those over ownership rights to intellectual property, know-how or technologies developed with our collaborators.
Our licensees rely on third parties to provide services in connection with our product candidate development and manufacturing
programs. The inadequate performance by or loss of any of these service providers could affect our licensees’ product candidate
development.
Third parties provide services in connection with preclinical and clinical development programs, including in vitro and in vivo
studies, assay and reagent development, immunohistochemistry, toxicology, pharmacokinetics, clinical trial support, manufacturing and
other outsourced activities. If these service providers do not adequately perform the services for which we or our licensees have contracted,
or cease to continue operations, and we are not able to find a replacement provider quickly or we lose information or items associated with
our drug product candidates, our or our licensees’ development programs and receipt of any potential resulting income may be delayed.
Agreements with other third parties, many of which are significant to our business, expose us to numerous risks.
Because our licensees, suppliers and contractors are independent third parties, they may be subject to different risks than we are
and have significant discretion in, and different criteria for, determining the efforts and resources they will apply related to their agreements
with us. If these licensees, suppliers and contractors do not successfully perform the functions for which they are responsible, we may not
have the capabilities, resources or rights to do so on our own.
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We do not know whether we or our licensees will successfully develop and market any of the products that are or may become the
subject of any of our licensing arrangements. In addition, third-party arrangements such as ours also increase uncertainties in the related
decision-making processes and resulting progress under the arrangements, as we and our licensees may reach different conclusions, or
support different paths forward, based on the same information, particularly when large amounts of technical data are involved.
Under our contract with NIAID, a part of the National Institute of Health (“NIH”), we invoiced using NIH provisional rates, and
these are subject to future audits at the discretion of NIAID’s contracting office. In October of 2019, NIH notified us that it engaged KPMG
LLP (“KPMG”) to perform an audit of our Incurred Cost Submissions for 2013, 2014 and 2015 and the audit is still in progress. This audit
may result in an adjustment to revenue previously reported, which potentially could be material.
Failure of our licensees’ product candidates to meet current Good Manufacturing Practices standards may subject our licensees to
delays in regulatory approval and penalties for noncompliance.
Our licensees may rely on third party manufacturers and such contract manufacturers are required to produce clinical product
candidates under current Good Manufacturing Practices (“cGMP”) to meet acceptable standards for use in clinical trials and for commercial
sale, as applicable. If such standards change, the ability of contract manufacturers to produce our and our licensees’ drug product candidates
on the schedule required for our clinical trials or to meet commercial requirements may be affected. In addition, contract manufacturers may
not perform their obligations under their agreements with our licensees or may discontinue their business before the time required by us to
successfully produce clinical and commercial supplies of our licensees’ product candidates.
Contract manufacturers are subject to pre-approval inspections and periodic unannounced inspections by the FDA and
corresponding state and foreign authorities to ensure strict compliance with cGMP and other applicable government regulations and
corresponding foreign standards. We do not have control over a third-party manufacturer’s compliance with these regulations and standards.
Any difficulties or delays in contractors’ manufacturing and supply of our licensees’ product candidates or any failure of our licensees’
contractors to maintain compliance with the applicable regulations and standards could increase costs, reduce revenue, make our licensees
postpone or cancel clinical trials, prevent or delay regulatory approval by the FDA and corresponding state and foreign authorities, prevent
the import and/or export of our licensees’ product candidates, or cause any of our licensees’ product candidates that may be approved for
commercial sale to be recalled or withdrawn.
Certain of our technologies are in-licensed from third parties, so our and our licensees’ capabilities using them are restricted and subject
to additional risks.
We have licensed technologies from third parties. These technologies include phage display technologies licensed to us in
connection with our bacterial cell expression technology licensing program and antibody products. However, our and our licensees’ use of
these technologies is limited by certain contractual provisions in the licenses relating to them, and although we have obtained numerous
licenses, intellectual property rights in the area of phage display are particularly complex. If we are unable to maintain our licenses, patents
or other intellectual property, we could lose important protections that are material to continuing our operations and for future prospects.
Our licensors also may seek to terminate our license, which could cause us and our licensees to lose the right to use the licensed intellectual
property and adversely affect our and our licensees’ ability to commercialize our technologies, products or services.
Because many of the companies with which we do business also are in the biotechnology sector, the volatility of that sector can affect us
indirectly as well as directly.
The same factors that affect us directly also can adversely affect us indirectly by affecting the ability of our partners and others
with whom we do business to meet their obligations to us and reduce our ability to realize the value of the consideration provided to us by
these other companies in connection with their licensing of our products.
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Risks Related to an Investment in Our Common Stock
Our share price may be volatile, and there may not be an active trading market for our common stock.
There can be no assurance that the market price of our common stock will not decline below its present market price or that there
will be an active trading market for our common stock. The market prices of biotechnology companies have been and are likely to continue
to be highly volatile. Fluctuations in our operating results and general market conditions for biotechnology stocks could have a significant
impact on the volatility of our common stock price. We have experienced significant volatility in the price of our common stock. From
January 1, 2019, through March 5, 2020, the share price of our common stock has ranged from a high of $28.85 to a low of $11.50.
Additionally, we have two significant holders of our stock that could affect the liquidity of our stock and have a significant negative impact
on our stock price if one or both of the holders were to quickly sell their ownership positions.
Our results of operations and liquidity needs could be materially negatively affected by market fluctuations or an economic downturn.
Our results of operations could be materially negatively affected by economic conditions generally, both in the United States and
elsewhere around the world. Concerns over inflation, energy costs, geopolitical issues, the availability and cost of credit, and the U.S.
financial markets have in the past contributed to, and may continue in the future contribute to, increased volatility and diminished
expectations for the economy and the markets. Domestic and international equity markets periodically experience heightened volatility and
turmoil. These events may have an adverse effect on us. In the event of a market downturn, our results of operations could be adversely
affected by those factors in many ways, including making it more difficult for us to raise funds if necessary, and our stock price may
decline.
We may issue additional equity securities and thereby materially and adversely affect the price of our common stock. In addition, under
certain circumstances each share of outstanding Series X and Series Y preferred stock could be converted into 1,000 shares of common
stock which could cause a substantial dilution to our earnings per share and a change in the majority voting control of our Company, if
enough of such preferred shares are converted to common shares.
We expect that significant additional capital will be needed in the future to continue our planned operations. To the extent we raise
additional capital by issuing equity securities, our stockholders may experience substantial dilution. We may sell common stock,
convertible securities or other equity securities in one or more transactions at prices and in such a manner as we determine from time to time,
including pursuant to our 2018 ATM Agreement. If we sell common stock, convertible securities or other equity securities in more than one
transaction, investors may be materially diluted by subsequent sales. These sales may also result in material dilution to our existing
stockholders, and new investors could gain rights superior to our existing stockholders. If we issue additional equity securities, the price of
our common stock may be materially and adversely affected.
We are authorized to issue, without stockholder approval, 1,000,000 shares of preferred stock, of which 5,003 shares of Series X
preferred stock and 1,252.772 shares of Series Y preferred stock were issued and outstanding as of December 31, 2019. Each share of
Series X and Series Y is convertible into 1,000 shares of registered common stock. The total number of shares of common stock issuable
upon conversion of all issued Series X and Series Y convertible preferred stock would be 6,255,772 shares. Each share is convertible at the
option of the holder at any time, provided that the holder will be prohibited from converting into common stock if, as a result of such
conversion, the holder, together with its affiliates, would beneficially own a number of shares above a conversion blocker, which is initially
set at 19.99% of our total common stock then issued and outstanding immediately following the conversion of such shares. A holder of
Series X or Y preferred shares may elect to increase or decrease the conversion blocker above or below 19.99% on 61 days’ notice, provided
the conversion blocker does not exceed the limits under Nasdaq Marketplace Rule 5635(b), to the extent then applicable. If holders of our
Series X and Series Y convertible preferred stock elect to convert their preferred shares into common stock such conversion would dilute
our currently outstanding common stock both in number and in earnings per share. Biotechnology Value Fund, L.P. (“BVF”) (and its
affiliates), as current holders of all shares of our Series X and Series Y preferred stock, would, if they converted all such shares to common
stock, obtain majority voting control of the Company. BVF has notified us of their intention to convert all of their shares of Series Y
preferred stock into common
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stock. Upon such conversion, BVF will own approximately 35.4% the Company’s total outstanding shares of common stock.
In addition, funding from collaboration partners and others has in the past and may in the future involve issuance by us of our
common stock. We cannot be certain how the purchase price of such shares, the relevant market price or premium, if any, will be
determined or when such determinations will be made.
Any issuance by us of equity securities, whether through an underwritten public offering, an at the market offering, a private
placement, in connection with a collaboration or otherwise could result in dilution in the value of our issued and outstanding shares, and a
decrease in the trading price of our common stock.
We may sell additional equity or debt securities to fund our operations, which may result in dilution to our stockholders and impose
restrictions on our business.
In order to raise additional funds to support our operations, we may sell additional equity or convertible debt securities, which
would result in dilution to our stockholders and/or debt securities which may impose restrictive covenants that would adversely impact our
business. The sale of additional equity or convertible debt securities could result in the issuance of additional shares of our capital stock and
dilution to all of our stockholders. The incurrence of indebtedness would result in increased fixed payment obligations and could also result
in certain restrictive covenants, such as 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. If we are unable
to expand our operations or otherwise capitalize on our business opportunities, our business, financial condition and results of operations
could be materially adversely affected and we may not be able to meet our debt service obligations.
Our organizational documents contain provisions that may prevent transactions that could be beneficial to our stockholders and may
insulate our management from removal.
Our charter and by-laws:
·
·
require certain procedures to be followed and time periods to be met for any stockholder to propose matters to be considered
at annual meetings of stockholders, including nominating directors for election at those meetings; and
authorize our Board of Directors to issue up to 1,000,000 shares of preferred stock without stockholder approval and to set
the rights, preferences and other designations, including voting rights, of those shares as the Board of Directors may
determine.
In addition, we are subject to the provisions of Section 203 of the Delaware General Corporation Law (the “DGCL”), that may
prohibit large stockholders, in particular those owning 15% or more of our outstanding common stock, from merging or combining with us.
These provisions of our organizational documents and the DGCL, alone or in combination with each other, may discourage
transactions involving actual or potential changes of control, including transactions that otherwise could involve payment of a premium over
prevailing market prices to holders of common stock, could limit the ability of stockholders to approve transactions that they may deem to
be in their best interests, and could make it considerably more difficult for a potential acquirer to replace management.
As a public company in the United States, we are subject to the Sarbanes-Oxley Act. We have determined our disclosure controls and
procedures and our internal control over financial reporting are effective. We can provide no assurance that we will, at all times, in the
future be able to report that our internal controls over financial reporting are effective.
Companies that file reports with the SEC, including us, are subject to the requirements of Section 404 of the Sarbanes-Oxley Act of
2002 (“SOX”). Section 404 requires management to establish and maintain a system of internal control over financial reporting, and annual
reports on Form 10‑K filed under the Securities Exchange Act of 1934, as
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amended (the “Exchange Act”), must contain a report from management assessing the effectiveness of our internal control over financial
reporting. Ensuring we have adequate internal financial and accounting controls and procedures in place to produce accurate financial
statements on a timely basis is a time-consuming effort that needs to be re-evaluated frequently. Failure on our part to have effective
internal financial and accounting controls would cause our financial reporting to be unreliable, could have a material adverse effect on our
business, operating results, and financial condition, and could cause the trading price of our common stock to fall.
We incur significant costs as a result of operating as a public company, which may adversely affect our operating results and financial
condition.
As a public company, we incur significant accounting, legal and other expenses, including costs associated with our public
company reporting requirements. We also anticipate that we will continue to incur costs associated with corporate governance requirements,
including requirements and rules under SOX and the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") among
other rules and regulations implemented by the SEC, as well as listing requirements of Nasdaq. Furthermore, these laws and regulations
could make it difficult or costly for us to obtain certain types of insurance, including director and officer liability insurance, and we may be
forced to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. The impact of
these requirements could also make it difficult for us to attract and retain qualified persons to serve on our Board of Directors, our Board
Committees or as executive officers.
New laws and regulations as well as changes to existing laws and regulations affecting public companies, including the provisions
of SOX and Dodd-Frank and rules adopted by the SEC and Nasdaq, will likely result in increased costs to us as we respond to their
requirements. We continue to invest resources to comply with evolving laws and regulations, and this investment may result in increased
general and administrative expense.
Our ability to use our net operating loss carry-forwards and other tax attributes will be substantially limited by Section 382 of the U.S.
Internal Revenue Code.
Under the federal income tax law, federal net operating losses incurred in 2019 and in future years may be carried forward
indefinitely, but the deductibility of such federal net operating losses is limited. It is uncertain if and to what extent various states will
conform to the federal tax law. In addition, Section 382 of the U.S. Internal Revenue Code of 1986, as amended, and corresponding
provisions of state law, generally limit the ability of a corporation that undergoes an “ownership change” to utilize its net operating loss
carry-forwards (“NOLs”) and certain other tax attributes against any taxable income in taxable periods after the ownership change. The
amount of taxable income in each taxable year after the ownership change that may be offset by pre-change NOLs and certain other pre-
change tax attributes is generally equal to the product of (a) the fair market value of the corporation’s outstanding shares (or, in the case of a
foreign corporation, the fair market value of items treated as connected with the conduct of a trade or business in the United States)
immediately prior to the ownership change and (b) the long-term tax exempt rate (i.e., a rate of interest established by the U.S. Internal
Revenue Service that fluctuates from month to month). In general, an “ownership change” occurs whenever the percentage of the shares of
a corporation owned, directly or indirectly, by “5‑percent shareholders” (within the meaning of Section 382 of the Internal Revenue Code)
increases by more than 50 percentage points over the lowest percentage of the shares of such corporation owned, directly or indirectly, by
such “5‑percent shareholders” at any time over the preceding three years.
Based on an analysis under Section 382 of the Internal Revenue Code (which subjects the amount of pre-change NOLs and certain
other pre-change tax attributes that can be utilized to an annual limitation), we experienced ownership changes in 2009 and 2012, which
substantially limit the future use of our pre-change NOLs and certain other pre-change tax attributes per year. In February 16, 2017, we
completed an equity financing for net proceeds of $24.8 million which triggered an additional ownership change under Section 382 that
significantly impacted the availability of our tax attributes against future income. Further, due to the existence of a net unrealized built-in
loss at the ownership change date, Section 382 further limits our ability to fully utilize the tax deductions associated with certain of our
assets, including depreciation and amortization deductions recognized during the 60‑month period following the ownership change ending
in 2022. Although these deductions will occur in the post-change period, Section 382 treats the deductions as pre-change losses subject to
the annual 382 limitation. As of December 31, 2019, we have excluded the NOLs and research and development credits that will expire as a
result of the annual limitations. To the extent that we do not utilize our carry-
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forwards within the applicable statutory carry-forward periods, either because of Section 382 limitations or the lack of sufficient taxable
income, the carry-forwards will also expire unused.
The comprehensive tax reform bill could adversely affect our business and financial condition.
On December 22, 2017, the Tax Cuts and Jobs Act of 2017 was signed into law that significantly revises the Internal Revenue
Code of 1986, as amended. The federal income tax law, among other things, contains significant changes to corporate taxation, including
reduction of the corporate tax rate from a top marginal rate of 35% to a flat rate of 21%, limitation of the tax deduction for interest expense
to 30% of adjusted earnings (except for certain small businesses), limitation of the deduction for net operating losses to 80% of current year
taxable income and elimination of net operating loss carrybacks, immediate deductions for certain new investments instead of deductions
for depreciation expense over time, and modifying or repealing many business deductions and credits which may, as applicable, have an
adverse effect on our profitability. Notwithstanding the reduction in the corporate income tax rate, the overall impact of the new federal tax
law is uncertain and our business and financial condition could be adversely affected. In addition, it is uncertain if and to what extent
various states will conform to the federal tax law. The impact of this tax reform on holders of our common stock is also uncertain and could
be adverse.
Risks Related to the Development and Commercialization of our Current and Future Product Candidates
We may not be able to successfully identify and acquire and/or in-license other products, product candidates, programs or companies to
grow and diversify our business, and, even if we are able to do so, we may not be able to successfully manage the risks associated with
integrating any such products, product candidates, programs or companies into our business or we may otherwise fail to realize the
anticipated benefits of these licenses or acquisitions.
To grow and diversify our business, we plan to continue our business development efforts to identify and seek to acquire and/or in-
license potential milestone and royalty streams or companies. Future growth through acquisition or in-licensing will depend upon the
availability of suitable products, product candidates, programs or companies for acquisition or in-licensing on acceptable prices, terms and
conditions. Even if appropriate opportunities are available, we may not be able to acquire rights to them on acceptable terms, or at all. The
competition to acquire or in-license rights to promising products, product candidates, programs and companies is fierce, and many of our
competitors are large, multinational pharmaceutical and biotechnology companies with considerably more financial, development and
commercialization resources, personnel, and experience than we have. In order to compete successfully in the current business climate, we
may have to pay higher prices for assets than may have been paid historically, which may make it more difficult for us to realize an
adequate return on any acquisition.
Even if we are able to successfully identify and acquire or in-license new products, product candidates, programs or companies, we
may not be able to successfully manage the risks associated with integrating any products, product candidates, programs or companies into
our business or the risks arising from anticipated and unanticipated problems in connection with an acquisition or in-licensing. Further,
while we seek to mitigate risks and liabilities of potential acquisitions through, among other things, due diligence, there may be risks and
liabilities that such due diligence efforts fail to discover, that are not disclosed to us, or that we inadequately assess. Any failure in
identifying and managing these risks and uncertainties effectively would have a material adverse effect on our business. In any event, we
may not be able to realize the anticipated benefits of any acquisition or in-licensing for a variety of reasons, including the possibility that a
product candidate fails to advance to clinical development, proves not to be safe or effective in clinical trials, or that a product fails to reach
its forecasted commercial potential or that the integration of a product, product candidate, program or company gives rise to unforeseen
difficulties and expenditures. Any failure in identifying and managing these risks and uncertainties would have a material adverse effect on
our business.
We may not be successful in entering into out-license agreements for our product candidates, which may adversely affect our liquidity
and business.
We intend to pursue a strategy to out-license all of our product candidates in order to provide for potential payments, funding
and/or royalties on future product sales. The out-license agreements may be structured to share in the proceeds received by a licensee as a
result of further development or commercialization of the product candidates. We
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may not be successful in entering into out-licensing agreements with favorable terms as a result of factors, many of which are outside of our
control. These factors include:
·
·
·
research and spending priorities of potential licensing partners;
willingness of, and the resources available to, pharmaceutical and biotechnology companies to in-license product candidates
to fill their clinical pipelines; or
our inability to generate proof-of-concept data and to agree with a potential partner on the value of our product candidates, or
on the related terms.
If we are unable to enter into out-licensing agreements for our product candidates and realize license, milestone and/or royalty fees
when anticipated, it may adversely affect our liquidity, which in turn may harm our business.
If our licensees’ therapeutic product candidates do not receive regulatory approval, our licensees will be unable to market them.
Our licensees’ product candidates cannot be manufactured and marketed in the United States or any other countries without
required regulatory approvals. The U.S. government and governments of other countries extensively regulate many aspects of our product
candidates, including:
·
clinical development and testing;
· manufacturing;
·
·
·
·
·
labeling;
storage;
record keeping;
promotion and marketing; and
importing and exporting.
In the United States, the FDA regulates pharmaceutical products under the Federal Food, Drug, and Cosmetic Act and other laws,
including, in the case of biologics, the Public Health Service Act.
Initiation of clinical trials requires approval by health authorities. Clinical trials involve the administration of the investigational
new drug to healthy volunteers or to patients under the supervision of a qualified principal investigator. Clinical trials must be conducted in
accordance with FDA and International Conference on Harmonization Good Clinical Practices and the European Clinical Trials Directive,
as applicable, under protocols that detail the objectives of the study, the parameters to be used to monitor safety and the efficacy criteria to
be evaluated. Other national, foreign and local regulations also may apply. The developer of the drug must provide information relating to
the characterization and controls of the product before administration to the patients participating in the clinical trials. This requires
developing approved assays of the product to test before administration to the patient and during the conduct of the trial. In addition,
developers of pharmaceutical products must provide periodic data regarding clinical trials to the FDA and other health authorities, and these
health authorities may issue a clinical hold upon a trial if they do not believe, or cannot confirm, that the trial can be conducted without
unreasonable risk to the trial participants.
The results of the preclinical studies and clinical testing, together with chemistry, manufacturing and controls information, are
submitted to the FDA and other health authorities in the form of a New Drug Application (“NDA”) for a drug, and in the form of a Biologic
License Application (“BLA”) for a biological product, requesting approval to
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commence commercial sales. In responding to an NDA or BLA, the FDA or foreign health authorities may grant marketing approvals,
request additional information or further research, or deny the application if they determine the application does not satisfy regulatory
approval criteria. Regulatory approval of an NDA, BLA, or supplement is never guaranteed. The approval process can take several years, is
extremely expensive and can vary substantially based upon the type, complexity, and novelty of the products involved, as well as the target
indications. Our licensees ultimately may not be able to obtain approval in a timely fashion or at all.
The FDA and foreign health authorities have substantial discretion in the drug and biologics approval processes. Despite the time
and expense incurred, failure can occur at any stage, and our potential development partners could encounter problems that cause
abandonment of clinical trials or cause them to repeat or perform additional preclinical, clinical or manufacturing-related studies.
Changes in the regulatory approval policy during the development period, changes in, or the enactment of additional regulations or
statutes, or changes in regulatory review for a submitted product application may cause delays in the approval or rejection of an application.
The FDA and other regulatory agencies have substantial discretion in both the product approval process and manufacturing facility
approval process, and as a result of this discretion and uncertainties about outcomes of testing, we cannot predict at what point, or whether,
the FDA or other regulatory agencies will be satisfied with our licensees’ submissions or whether the FDA or other regulatory agencies will
raise questions that may be material and delay or preclude product approval or manufacturing facility approval. In light of this discretion
and the complexities of the scientific, medical and regulatory environment, our or our licensees’ interpretation or understanding of the
FDA’s or other regulatory agencies’ requirements, guidelines or expectations may prove incorrect, which also could delay further or
increase the cost of the approval process.
Our licensees and potential milestone and royalty providers face uncertain results of clinical trials of product candidates.
Drug development has inherent risk, and our licensees and potential milestone and royalty providers are required to demonstrate
through adequate and well-controlled clinical trials that product candidates are effective, with a favorable benefit-risk profile for use in their
target profiles before they can seek regulatory approvals for commercial use. It is possible we or our licensees may never receive regulatory
approval for any licensed product candidates. Even if a product candidate receives regulatory approval, the resulting product may not gain
market acceptance among physicians, patients, healthcare payors and the medical community.
Our licensees’ product candidates require significant additional research and development, extensive preclinical studies and clinical
trials and regulatory approval prior to any commercial sales. This process is lengthy and expensive, often taking a number of years. As
clinical results frequently are susceptible to varying interpretations that may delay, limit or prevent regulatory approvals, the length of time
necessary to complete clinical trials and to submit an application for marketing approval for a final decision by a regulatory authority varies
significantly. As a result, it is uncertain whether:
·
·
·
·
·
·
our licensees’ future filings will be delayed;
our licensees’ preclinical studies will be successful;
our licensees will be successful in generating viable product candidates;
we will be successful in finding collaboration and licensing partners to advance our product candidates on our behalf;
our licensees will be able to provide necessary data;
results of future clinical trials by our licensees will justify further development; or
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·
our licensees ultimately will achieve regulatory approval for our product candidates.
The timing of the commencement, continuation and completion of clinical trials by our licensees may be subject to significant
delays relating to various causes, including failure to complete preclinical testing and earlier-stage clinical trials in a timely manner, inability
to engage contract research organizations and other service providers, scheduling conflicts with participating clinicians and clinical
institutions, changes in key personnel at clinical institutions, difficulties in identifying and enrolling patients who meet trial eligibility
criteria and shortages of available drug supply. In addition, since we license our product candidates to others to fund and conduct clinical
trials, we have limited control over how quickly and efficiently such licensees advance those trials. Patient enrollment is a function of many
factors, including the size of the patient population, the proximity of patients to clinical sites, the concentration of patients in specialist
centers, the eligibility criteria for the trial, the existence of competing clinical trials and the availability of alternative or new treatments.
Regardless of the initial size or relative complexity of a clinical trial, the costs of such trial may be higher than expected due to increases in
duration or size of the trial, changes in the protocol under which the trial is being conducted, additional or special requirements of one or
more of the healthcare centers where the trial is being conducted, or changes in the regulatory requirements applicable to the trial or in the
standards or guidelines for approval of the product candidate being tested or for other unforeseen reasons.
In addition, our licensees may conduct clinical trials in foreign countries, which may subject them to further delays and expenses as
a result of increased drug shipment costs, additional regulatory requirements and the engagement of foreign clinical research organizations,
and may expose us and our licensees to risks associated with foreign currency transactions to make contract payments denominated in the
foreign currency where the trial is being conducted.
New products and technologies of other companies may render some or all of our licensees’ product candidates noncompetitive or
obsolete.
New developments by others may render our licensees’ product candidates or technologies obsolete or uncompetitive.
Technologies developed and utilized by the biotechnology and pharmaceutical industries are changing continuously and substantially.
Competition in antibody-based technologies is intense and is expected to increase in the future as a number of established biotechnology
firms and large chemical and pharmaceutical companies advance in these fields. Many of these competitors may be able to develop products
and processes competitive with or superior to our and our licensees for many reasons, including that they may have:
·
·
·
·
significantly greater financial resources;
larger research and development staffs;
entered into arrangements with, or acquired, biotechnology companies to enhance their capabilities; or
extensive experience in preclinical testing and human clinical trials.
These factors may enable others to develop products and processes competitive with or superior to our own or those of our
licensees. In addition, a significant amount of research in biotechnology is being carried out in universities and other non-profit research
organizations. These entities are becoming increasingly interested in the commercial value of their work and may become more aggressive
in seeking patent protection and licensing arrangements. Furthermore, many companies and universities tend not to announce or disclose
important discoveries or development programs until their patent position is secure or, for other reasons, later. As a result, we and our
licensees may not be able to track development of competitive products, particularly at the early stages.
Positive developments in connection with a potentially competing product may have an adverse impact on our future potential for
receiving revenue derived from development milestones and royalties. For example, if another product is perceived to have a competitive
advantage, or another product’s failure is perceived to increase the likelihood that our licensed product will fail, our licensees may halt
development of our licensed product candidates.
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Our licensees may be unable to price our products effectively or obtain coverage and adequate reimbursement for sales of our products,
which would prevent our licensees’ products from becoming profitable and negatively affect the royalties we may receive.
If our third-party licensees succeed in bringing our product candidates to the market, they may not be considered cost effective,
and reimbursement to the patient may not be available or may not be sufficient to allow our licensees to sell the products on a competitive
basis. In both the United States and elsewhere, sales of medical products and treatments are dependent, in part, on the availability of
coverage and adequate reimbursement from third-party payors, such as government and private insurance plans. Significant uncertainty
exists as to the coverage and reimbursement status of any products for which our licensees may obtain regulatory approval. Even if
coverage is available, the associated reimbursement rate may not be adequate for us and our licensees to cover related costs. Additionally,
coverage and reimbursement policies for drug products can differ significantly from payor to payor as there is no uniform policy of
coverage and reimbursement for drug products among third‑party payors in the United States. Therefore, the process of obtaining coverage
and reimbursement is often time‑consuming and costly.
Third-party payors are increasingly challenging the prices charged for pharmaceutical products and services. Our business is
affected by the efforts of government and third-party payors to contain or reduce the cost of healthcare through various means. In the United
States, there have been and will continue to be a number of federal and state proposals to implement government controls on pricing.
In addition, the emphasis on managed care in the United States has increased and will continue to increase the pressure on the
pricing of pharmaceutical products. We cannot predict whether any legislative or regulatory proposals will be adopted or the effect these
proposals or managed care efforts may have on our or our licensees’ businesses.
We do not know whether there will be, or will continue to be, a viable market for the product candidates in which we have an ownership
or royalty interest.
Even if product candidates in which we have an interest receive approval in the future, they may not be accepted in the
marketplace. In addition, our licensees may experience difficulties in launching new products, many of which are novel and based on
technologies that are unfamiliar to the healthcare community. We have no assurance healthcare providers and patients will accept such
products, if developed. Similarly, physicians may not accept a product if they believe other products to be more effective or more cost
effective or are more comfortable prescribing other products.
Furthermore, government agencies, as well as private organizations involved in healthcare, from time to time publish guidelines or
recommendations to healthcare providers and patients. Such guidelines or recommendations can be very influential and may adversely
affect product usage directly (for example, by recommending a decreased dosage of a product in conjunction with a concomitant therapy) or
indirectly (for example, by recommending a competitive product over our product). Consequently, we do not know if physicians or patients
will adopt or use our products for their approved indications.
Even approved and marketed products are subject to risks relating to changes in the market for such products. Introduction or
increased availability of generic or biosimilar versions of products can alter the market acceptance of branded products. In addition,
unforeseen safety issues may arise at any time, regardless of the length of time a product has been on the market.
We are exposed to an increased risk of product liability claims.
The testing, marketing and sales of medical products entails an inherent risk of allegations of product liability. In the past, we were
party to product liability claims filed against Genentech Inc. and, even though Genentech agreed to indemnify us in connection with these
matters and these matters have been settled, there can be no assurance other product liability lawsuits will not result in liability to us or that
our insurance or contractual arrangements will provide us with adequate protection against such liabilities. In the event of one or more large,
unforeseen awards of damages against us, our product liability insurance may not provide adequate coverage. A significant product liability
claim for which we were not covered by insurance or indemnified by a third party would have to be paid from cash or other assets, which
could
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have an adverse effect on our business and the value of our common stock. To the extent we have sufficient insurance coverage, such a
claim would presumably result in higher subsequent insurance rates. In addition, product liability claims can have various other
ramifications, including loss of future sales opportunities, increased costs associated with replacing products, a negative impact on our
goodwill and reputation, and divert our management’s attention from our business, each of which could also adversely affect our business
and operating results.
If we and our partners are unable to protect our intellectual property, in particular our patent protection for our principal products,
product candidates and processes, and prevent the use of the covered subject matter by third parties, our licensees’ ability to compete in
the market will be harmed, and we may not realize our profit potential.
We rely on patent protection, as well as a combination of copyright, trade secret, and trademark laws to protect our proprietary
technology and prevent others from duplicating our products or product candidates. However, these means may afford only limited
protection and may not:
·
·
·
prevent our competitors from duplicating our products;
prevent our competitors from gaining access to our proprietary information and technology; or
permit us to gain or maintain a competitive advantage.
Because of the length of time and the expense associated with bringing new products to the marketplace, we and our partners hold
and are in the process of applying for a number of patents in the United States and abroad to protect our product candidates and important
processes and also have obtained or have the right to obtain exclusive licenses to certain patents and applications filed by others. However,
the mere issuance of a patent is not conclusive as to its validity or its enforceability.
The U.S. Federal Courts, the U.S. Patent & Trademark Office or equivalent national courts or patent offices elsewhere may
invalidate our patents or find them unenforceable. The America Invents Act introduced post-grant review procedures subjecting U.S. patents
to post-grant review procedures similar to European oppositions. U.S. patents owned or licensed by us or our licensees may therefore be
subject to post-grant review procedures, as well as other forms of review and re-examination. A decision in such proceedings adverse to our
interests could result in the loss of valuable patent rights, which would have a material adverse effect on our business. In addition, the laws
of foreign countries may not protect our intellectual property rights effectively or to the same extent as the laws of the United States.
If our intellectual property rights are not protected adequately, our licensees may not be able to commercialize our technologies or
products, and our competitors could commercialize our technologies or products, which could result in a decrease in our licensees’ sales and
market share that would harm our business and operating results. Specifically, the patent position of biotechnology companies generally is
highly uncertain and involves complex legal and factual questions. The legal standards governing the validity of biotechnology patents are
in transition, and current defenses as to issued biotechnology patents may not be adequate or available in the future. Accordingly, there is
uncertainty as to:
·
·
·
whether any pending or future patent applications held by us or our partners will result in an issued patent, or whether issued
patents will provide meaningful protection against competitors or competitive technologies;
whether competitors will be able to design around our or our partners’ patents or develop and obtain patent protection for
technologies, designs or methods that are more effective than those covered by our patents and patent applications; or
the extent to which our or our partners’ product candidates could infringe on the intellectual property rights of others, which
may lead to costly litigation, result in the payment of substantial damages or royalties, and prevent our licensees from using
our technology or product candidates.
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If certain patents issued to others are upheld or if certain patent applications filed by others are issued and upheld, our licensees
may require licenses from others to develop and commercialize certain potential products incorporating our technology or we may become
involved in litigation to determine the proprietary rights of others. These licenses, if required, may not be available on acceptable terms, and
any such litigation will presumably be costly and may have other adverse effects on our business, such as inhibiting our licensees’ ability to
compete in the marketplace and absorbing significant management time.
Due to the uncertainties regarding biotechnology patents, we also have relied and will continue to rely upon trade secrets, know-
how and continuing technological advancement to develop and maintain our competitive position. Our employees and contractors are
typically required to sign confidentiality agreements under which they agree not to use or disclose any of our proprietary information.
Research and development contracts and relationships between us and our scientific consultants and potential licensees provide access to
aspects of our know-how that are protected generally under confidentiality agreements. These confidentiality agreements may be breached
or may not be enforced by a court. To the extent proprietary information is divulged to competitors or to the public generally, such
disclosure may adversely affect our licensees’ ability to develop or commercialize our products by giving others a competitive advantage or
by undermining our patent position.
Litigation regarding intellectual property and/or the enforcement of our contractual rights against licensees and third parties can be
costly and expose us to risks of counterclaims against us.
We may be required to engage in litigation or other proceedings to protect our intellectual property and/or enforce our contractual
rights against former or current licensees or third parties, including third-party collaborators of such licensees. The cost to us of this
litigation, even if resolved in our favor, could be substantial. Such litigation and any negotiations leading up to it also could divert
management’s attention and resources. If this litigation is resolved against us, we may lose the value associated with contract rights
contained in our arrangements with licensees and third parties, our patents may be declared invalid, and we could be held liable for
significant damages. While it is our current plan to pursue, on a selective basis, potential material contractual breaches against licensees and
third-parties (including third-party collaborators of licensees) and/or infringement of our intellectual property rights or technology, there can
be no assurance that any such enforcement actions will be successful, or if successful, the timing of such success or that we will have
sufficient capital to prosecute any such actions to a successful conclusion.
In addition, we may be subject to claims that we, or our licensees, are infringing other parties’ patents. If such claims are resolved
against us, we or our licensees may be enjoined from developing, manufacturing, selling or importing products, processes or services unless
we obtain a license from the other party. Such license may not be available on reasonable terms or at all, thus preventing us, or our
licensees, from using these products, processes or services and adversely affecting our potential future revenue.
Risks Related to Employees, Location, Data Integrity, and Litigation
The loss of key personnel, including our Chief Executive Officer or Chief Financial Officer, could delay or prevent achieving our
objectives.
Our business efforts could be adversely affected by the loss of one or more key members of our staff, particularly our executive
officers: James R. Neal, our Chief Executive Officer and Thomas Burns, our Senior Vice President, Finance and Chief Financial Officer.
We currently do not have key person insurance on any of our employees.
Because we are a small biopharmaceutical focused company with limited resources, we may not be able to attract and retain qualified
personnel.
We had 10 employees as of March 5, 2020. We may require additional experienced executive, accounting, legal, administrative
and other personnel from time to time in the future. There is intense competition for the services of these personnel, especially in California.
Moreover, we expect that the high cost of living in the San Francisco Bay Area, where our headquarters is located, may impair our ability to
attract and retain employees in the future. If we do not succeed in
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attracting new personnel and retaining and motivating existing personnel, our business may suffer and we may be unable to implement our
current initiatives or grow effectively.
We rely and will continue to rely on outsourcing arrangements for many of our activities, including financial reporting and accounting
and human resources.
Due to our small number of employees, we rely, and expect to continue to rely, on outsourcing arrangements for a significant portion of
our activities, including financial reporting and accounting and human resources, as well as for certain of our functions as a public
company. We may have limited control over these third parties and we cannot guarantee that they will perform their obligations in an
effective and timely manner.
Our employees may engage in misconduct or other improper activities, including noncompliance with regulatory standards and
requirements and insider trading.
We are exposed to the risk of employee fraud or other misconduct. Misconduct by employees could include intentional failures to
comply with applicable regulations, provide accurate information to regulatory authorities, comply with federal and state fraud and abuse
laws and regulations, report financial information or data accurately or disclose unauthorized activities to us. In particular, the health care
industry is subject to extensive laws and regulations intended to prevent fraud, misconduct, kickbacks, self-dealing and other abusive
practices. It is not always possible to identify and deter employee misconduct, and the precautions we take to detect and prevent this activity
may not be effective in controlling unknown or unmanaged risks or losses or in protecting us from governmental investigations or other
actions or lawsuits stemming from a failure to be in compliance with these laws or regulations. If any such actions are instituted against us,
and we are not successful in defending ourselves or asserting our rights, those actions could have a significant impact on our business,
including the imposition of significant fines or other sanctions.
Calamities, power shortages or power interruptions at our Emeryville headquarters could disrupt our business and adversely affect our
operations.
Our corporate headquarters is located in Emeryville, California. This location is in an area of seismic activity near active
earthquake faults. Any earthquake, tsunami, terrorist attack, fire, power shortage or other calamity affecting our facilities may disrupt our
business and could have material adverse effect on our results of operations.
Our business and operations would suffer in the event of system failures.
Despite the implementation of security measures, our internal computer systems and those of our current and any future licensees,
suppliers, contractors and consultants are vulnerable to damage from cyberattacks, computer viruses, unauthorized access, natural disasters,
terrorism, war and telecommunication and electrical failures. We could experience failures in our information systems and computer
servers, which could be the result of a cyberattacks and could result in an interruption of our normal business operations and require
substantial expenditure of financial and administrative resources to remedy. System failures, accidents or security breaches can cause
interruptions in our operations and can result in a material disruption of our development programs and other business operations. The loss
of clinical trial data from completed or future clinical trials could result in delays in our regulatory approval efforts and significantly increase
our costs to recover or reproduce the data. Similarly, we rely on third parties to manufacture our product candidates, and conduct clinical
trials of our product candidates, and similar events relating to their computer systems could also have a material adverse effect on our
business. To the extent that any disruption or security breach were to result in a loss of, or damage to, our data or applications, or
inappropriate disclosure of confidential or proprietary information, we could incur liability and the development of any of our product
candidates could be delayed or otherwise adversely affected.
Data breaches and cyberattacks could compromise our intellectual property or other sensitive information and cause significant damage
to our business and reputation.
In the ordinary course of our business, we maintain sensitive data on our networks, including our intellectual property and
proprietary or confidential business information relating to our business and that of our customers and
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business partners. The secure maintenance of this information is critical to our business and reputation. We believe companies have been
increasingly subject to a wide variety of security incidents, cyberattacks and other attempts to gain unauthorized access. These threats can
come from a variety of sources, all ranging in sophistication from an individual hacker to a state-sponsored attack. Cyber threats may be
generic, or they may be custom-crafted against our information systems. Cyberattacks have become more prevalent and much harder to
detect and defend against. Our network and storage applications may be subject to unauthorized access by hackers or breached due to
operator error, malfeasance or other system disruptions. It is often difficult to anticipate or immediately detect such incidents and the
damage caused by such incidents. These data breaches and any unauthorized access or disclosure of our information or intellectual property
could compromise our intellectual property and expose sensitive business information. A data security breach could also lead to public
exposure of personal information of our clinical trial patients, customers and others which could expose us to liability under federal or state
privacy laws. Cyberattacks can result in the theft of proprietary information which could be used to compete against us and could cause us to
incur significant remediation costs, result in product development delays, disrupt key business operations and divert attention of
management and key information technology resources. These incidents could also subject us to liability, expose us to significant expense
and cause significant harm to our reputation and business.
Significant disruptions of information technology systems, including cloud-based systems, or breaches of data security could adversely
affect our business.
Our business is increasingly dependent on critical, complex and interdependent information technology systems, including cloud-
based systems, to support business processes as well as internal and external communications. Our computer systems, and those of our
partners and contractors, are potentially vulnerable to breakdown, malicious intrusion and computer viruses that may result in the
impairment of key business processes. Such disruptions and breaches of security could have a material adverse effect on our business,
financial condition and results of operations.
In addition, our data security and information technology systems, as well as those of our partners and contractors, are potentially
vulnerable to data security breaches, whether by employees or others, that may expose sensitive data or personal information to
unauthorized persons. Effective May 25, 2018, the European Union (“EU”) implemented the General Data Protection Regulation (“GDPR”)
a broad data protection framework that expands the scope of current EU data protection law to non-European Union entities that process, or
control the processing of, the personal information of EU subjects, including clinical trial data. The GDPR allows for the imposition of fines
and/or corrective action on entities that improperly use or disclose the personal information of EU subjects, including through a data
security breach.
Also, in June 2018, the State of California enacted the California Consumer Privacy Act of 2018 (“CCPA”), which became
effective in January 2020. The CCPA establishes a privacy framework for covered businesses, including an expansive definition of personal
information and data privacy rights for California residents. The CCPA includes a framework with potentially severe statutory damages and
private rights of action. The CCPA requires covered companies to provide new disclosures to California consumers (as that word is broadly
defined in the CCPA), provide such consumers new ways to opt-out of certain sales of personal information, and allow for a new cause of
action for data breaches. It remains unclear how the CCPA will be interpreted, but as currently written, it will likely impact our business
activities and exemplifies the vulnerability of our business to not only cyber threats but also the evolving regulatory environment related to
personal data. As we expand our operations, the CCPA may increase our compliance costs and potential liability. Some observers have
noted that the CCPA could mark the beginning of a trend toward more stringent privacy legislation in the United States. Other states are
beginning to pass similar laws. Accordingly, data security breaches experienced by us, our partners or contractors could lead to significant
fines, required corrective action, the loss of trade secrets or other intellectual property, public disclosure of sensitive clinical or commercial
data, and the exposure of personally identifiable information (including sensitive personal information) of our employees, partners, and
others. A data security breach or privacy violation that leads to disclosure or modification of, or prevents access to, patient information,
including personally identifiable information or protected health information, could result in fines, increased costs or loss of revenue as a
result of:
·
·
harm to our reputation;
fines imposed on us by regulatory authorities;
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·
·
·
additional compliance obligations under federal, state or foreign laws;
requirements for mandatory corrective action to be taken by us; and
requirements to verify the correctness of database contents and otherwise subject us to liability under laws and regulations
that protect personal data.
If we are unable to prevent such data security breaches or privacy violations or implement satisfactory remedial measures, our
operations could be disrupted, and we may suffer loss of reputation, financial loss and other regulatory penalties because of lost or
misappropriated information, including sensitive patient data. In addition, these breaches and other inappropriate access can be difficult to
detect, and any delay in identifying them may lead to increased harm of the type described above. Moreover, the prevalent use of mobile
devices that access confidential information increases the risk of data security breaches, which could lead to the loss of confidential
information, trade secrets or other intellectual property. While we have implemented security measures to protect our data security and
information technology systems, such measures may not prevent such events. We expect that there will continue to be new proposed laws,
regulations and industry standards relating to privacy and data protection in the United States, the EU and other jurisdictions, such as the
CCPA, which has been characterized as the first “GDPR-like” privacy statute enacted in the United States because it mirrors a number of the
key provisions in the GDPR. We cannot presently determine the impact such laws, regulations and standards will have on our business. In
any event, it is possible that governmental authorities will conclude that our business practices do not comply with current or future statutes,
regulations, agency guidance or case law involving applicable healthcare or privacy laws, including the GDPR, in light of the lack of
applicable precedent and regulations.
Shareholder and private lawsuits, and potential similar or related lawsuits, could result in substantial damages, divert management’s
time and attention from our business, and have a material adverse effect on our results of operations.
Securities-related class action and shareholder derivative litigation has often been brought against companies, including many
biotechnology companies, which experience volatility in the market price of their securities. This risk is especially relevant for us because
biotechnology and biopharmaceutical companies often experience significant stock price volatility in connection with their product
development programs.
It is possible that suits will be filed, or allegations received from stockholders, naming us and/or our officers and directors as
defendants. These potential lawsuits are subject to inherent uncertainties, and the actual defense and disposition costs will depend upon
many unknown factors. The outcome of these lawsuits is uncertain. We could be forced to expend significant resources in the defense of
these suits and we may not prevail. In addition, we may incur substantial legal fees and costs in connection with these lawsuits. It is possible
that we could, in the future, incur judgments or enter into settlements of claims for monetary damages. A decision adverse to our interests on
these actions could result in the payment of substantial damages, or possibly fines, and could have a material adverse effect on our cash
flow, results of operations and financial position.
Monitoring, initiating and defending against legal actions, including any currently pending litigation, are time-consuming for our
management, are likely to be expensive and may detract from our ability to fully focus our internal resources on our business activities. The
outcome of litigation is always uncertain, and in some cases could include judgments against us that require us to pay damages, enjoin us
from certain activities, or otherwise affect our legal or contractual rights, which could have a significant adverse effect on our business. In
addition, the inherent uncertainty of any future litigation could lead to increased volatility in our stock price and a decrease in the value of an
investment in our common stock.
Risks Related to Government Regulation
Even after FDA approval, a product may be subject to additional testing or significant marketing restrictions, its approval may be
withdrawn or it may be removed voluntarily from the market.
Even if our licensees receive regulatory approval for our product candidates, our licensees will be subject to ongoing regulatory
oversight and review by the FDA and other regulatory entities. The FDA, the European Medicines
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Agency (“EMA”), or another regulatory agency may impose, as a condition of the approval, ongoing requirements for post-approval studies
or post-approval obligations, including additional research and development and clinical trials, and the FDA, EMA or other regulatory
agency subsequently may withdraw approval based on these additional trials or obligations.
Even for approved products, the FDA, EMA or other regulatory agency may impose significant restrictions on the indicated uses,
conditions for use, labeling, advertising, promotion, marketing and production of such product. In addition, the labeling, packaging, adverse
event reporting, storage, advertising, promotion and record-keeping for our products are subject to extensive regulatory requirements.
Furthermore, marketing approval of a product may be withdrawn by the FDA, the EMA or another regulatory agency or such
product may be withdrawn voluntarily by our partners based, for example, on subsequently arising safety concerns. The FDA, EMA and
other agencies also may impose various civil or criminal sanctions for failure to comply with regulatory requirements, including withdrawal
of product approval.
Healthcare reform measures and other statutory or regulatory changes could adversely affect our business.
The United States and some foreign jurisdictions have enacted or are considering a number of legislative and regulatory proposals
to change the healthcare system in ways that could affect our licensees’ ability to sell our products and any products as to which we own
milestone and royalty interests, if approved, profitably. Among policy makers and payors in the United States and elsewhere, there is
significant interest in promoting changes in healthcare systems with the stated goals of containing healthcare costs, improving quality and
expanding access. In the United States, the pharmaceutical industry has been a particular focus of these efforts and has been significantly
affected by major legislative initiatives. For example, in March 2010, the United States Congress enacted the Patient Protection and
Affordable Care Act, as amended by the Health Care and Education Reconciliation Act, or collectively the ACA, which substantially
changed the way healthcare is financed by both governmental and private insurers, and continues to significantly impact the United States
pharmaceutical industry. There remain judicial and Congressional challenges to certain aspects of the ACA, as well as efforts by the Trump
administration to repeal or replace certain aspects of the ACA. Since January 2017, President Trump has signed two Executive Orders and
other directives designed to delay the implementation of certain provisions of the ACA or otherwise circumvent some of the requirements
for health insurance mandated by the ACA. Concurrently, Congress has considered legislation that would repeal or repeal and replace all or
part of the ACA. While Congress has not passed comprehensive repeal legislation, several bills affecting the implementation of certain
taxes under the ACA have been signed into law. The Tax Cuts and Jobs Act of 2017, or Tax Act, included a provision which repealed,
effective January 1, 2019, the tax-based shared responsibility payment imposed by the ACA on certain individuals who fail to maintain
qualifying health coverage for all or part of a year that is commonly referred to as the “individual mandate”. In addition, the 2020 federal
spending package permanently eliminates, effective January 1, 2020, the ACA-mandated “Cadillac” tax on high-cost employer-sponsored
health coverage and medical device tax and, effective January 1, 2021, also eliminates the health insurer tax. In addition, the ACA has also
been subject to judicial challenge. On December 14, 2018, a Texas U.S. District Court Judge ruled that the ACA is unconstitutional in its
entirety because the “individual mandate” was repealed by Congress as part of the Tax Act. Additionally, 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
back to the District Court to determine whether the remaining provisions of the ACA are invalid as well. It is unclear how this decision,
future decisions, subsequent appeals, and other efforts to repeal and replace the ACA will impact the ACA and our and our licensees’
businesses.
An expansion in the government’s role in the U.S. healthcare industry may cause general downward pressure on the prices of
prescription drug products, lower reimbursements for providers, and reduced product utilization, any of which could adversely affect our
business and results of operations. Moreover, there has been heightened governmental scrutiny in the United States of pharmaceutical
pricing practices in light of the rising cost of prescription drugs and biologics. Such scrutiny has resulted in several recent 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 products. We cannot know what form any such new legislation may take or the market’s perception of how such legislation would affect
us. Any reduction in reimbursement from government programs may result in a similar reduction in payments from private
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payors. The implementation of cost containment measures or other healthcare reforms may prevent our licensees from being able to
generate revenue, attain profitability, develop, or commercialize our current product candidates and those for which we may receive
regulatory approval in the future.
We and our licensees are subject to various state and federal healthcare-related laws and regulations that may impact the
commercialization of our product candidates or third-party product candidates for which we possess milestone or royalty rights or could
subject us to significant fines and penalties.
Our operations may be directly or indirectly subject to various state and federal healthcare laws, including the federal Anti-
Kickback Statute, the federal False Claims Act and state and federal data privacy and security laws. These laws may impact, among other
things, the commercial operations for any of our product candidates that may be approved for commercial sale.
The federal Anti-Kickback Statute prohibits, among other things, persons and entities from knowingly and willfully soliciting,
offering, receiving or providing any remuneration, directly or indirectly, in cash or in kind, in exchange for or to induce either the referral of
an individual for, or the furnishing or arranging for the purchase, lease, or order of a good or service for which payment may be made under
a federal healthcare program, such as the Medicare and Medicaid programs. The ACA modified the federal Anti-Kickback Statute’s intent
requirement so that a person or entity no longer needs to have actual knowledge of the statute or the specific intent to violate it to have
committed a violation. In addition, several courts have interpreted the statute’s intent requirement to mean that if any one purpose of an
arrangement involving remuneration is to induce referrals of federal healthcare covered business, the statute has been violated. The Anti-
Kickback Statute is broad and prohibits many arrangements and practices that are lawful in businesses outside of the healthcare industry.
The federal false claims laws, including the False Claims Act, and civil monetary penalties laws prohibit, among other things,
persons and entities from knowingly filing, or causing to be filed, a false claim to, or the knowing use of false statements to obtain payment
from the federal government. Certain suits filed under the False Claims Act, known as “qui tam” actions, can be brought by any individual
on behalf of the government and such individual, commonly known as a “whistleblower,” may share in any amounts paid by the entity to
the government in fines or settlement. The filing of qui tam actions has caused a number of pharmaceutical, medical device and other
healthcare companies to have to defend and/or settle a False Claims Act action.
The Federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) created new federal criminal statutes that
prohibit, among other things, executing a scheme to defraud any healthcare benefit program, including a private payor, or 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, health care benefits, items or services.
HIPAA, as amended by the Health Information Technology and Clinical Health Act, and its implementing regulations, also
imposes certain requirements relating to the privacy, security and transmission of individually identifiable health information by entities
subject to the law, such as certain healthcare providers, health plans, and healthcare clearinghouses as well as their respective business
associates that perform certain functions or activities that involve the use or disclosure of protected health information on their behalf.
Many states also have adopted laws similar to each of the federal laws described above, some of which apply to healthcare items or
services reimbursed by any source, not only federal healthcare programs, such as the Medicare and Medicaid programs. In addition, some
states have laws that require pharmaceutical companies to comply with the pharmaceutical industry’s voluntary compliance guidelines and
the applicable compliance guidance promulgated by the federal government. Additionally, certain state and local laws require the
registration of pharmaceutical sales representatives, restrict payments that may be made to healthcare providers and other potential referral
sources, and require manufacturers to report information related to payments and other transfers of value to physicians and other healthcare
providers. Further, some states have laws governing the privacy and security of health information in certain circumstances, many of which
are not preempted by HIPAA and differ from each other in significant ways and may not have the same effect, thus complicating
compliance efforts.
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Because of the breadth of these laws, and the narrowness of the statutory exceptions and regulatory safe harbors available, it is
possible that some of our or our licensees’ business activities could be subject to challenge under one or more of such laws.
If we or our licensees are found to be in violation of any of the laws and regulations described above or other applicable state and
federal healthcare laws, we or our licensees may be subject to penalties, including significant civil, criminal, and administrative penalties,
damages, fines, disgorgement, imprisonment, integrity oversight and reporting obligations, reputational harm, exclusion from government
healthcare reimbursement programs and the curtailment or restructuring of our or our licensees’ operations, any of which could have a
material adverse effect on our business and results of operations. In addition, we and our licensees may be subject to certain analogous
foreign laws and violations of such laws could result in significant penalties.
As we or our licensees do more business internationally, we will be subject to additional political, economic and regulatory
uncertainties.
We or our licensees may not be able to operate successfully in any foreign market. We believe that because the pharmaceutical
industry is global in nature, international activities will be a significant part of future business activities and when and if we or our licensees
are able to generate income, a substantial portion of that income will be derived from product sales and other activities outside the United
States. Foreign regulatory agencies often establish standards different from those in the United States, and an inability to obtain foreign
regulatory approvals on a timely basis could put us at a competitive disadvantage or make it uneconomical to proceed with a product or
product candidate’s development. International sales may be limited or disrupted by many factors, including without limitation:
·
·
·
·
·
·
·
imposition of government controls;
export license requirements;
political or economic instability;
trade restrictions;
changes in tariffs;
restrictions on repatriating profits;
exchange rate fluctuations; and
·
withholding and other taxation.
Item 1B. Unresolved Staff Comments
None.
Item 2. Properties
We currently lease one building that houses our corporate headquarters in Emeryville, California. The building lease expires in
February 2023, and total net lease liability from January 2020 until expiration of the lease is $0.6 million. We believe that our facilities are
adequate to meet our requirements for the near term.
In December 2019, we entered into two Lease Termination Agreements to early terminate our two operating leases in Berkeley,
California. As a result of the lease terminations we were also released from all financial obligations under our sublease agreements . We
agreed to pay an early termination fee of $1.6 million in total and recognized a lease termination loss of $0.4 million for the year ended
December 31, 2019.
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Item 3. Legal Proceedings
None.
Item 4. Mine Safety Disclosures
Not applicable.
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PART II
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Market for Registrant’s Common Equity
Our common stock trades on The Nasdaq Global Market tier of the Nasdaq Stock Market LLC (“Nasdaq”) under the symbol
“XOMA.” On March 5, 2020, there were 201 stockholders of record of our common stock, one of which was Cede & Co., a nominee for
Depository Trust Company (“DTC”). All of the shares of our common stock held by brokerage firms, banks and other financial institutions
as nominees for beneficial owners are deposited into participant accounts at DTC and are therefore considered to be held of record by
Cede & Co. as one stockholder.
Dividend Policy
We have not paid dividends on our common stock. We currently intend to retain any earnings for use in the operations of our
business. We, therefore, do not anticipate paying cash dividends on our common stock in the foreseeable future.
Recent Sales of Unregistered Securities
Except as previously reported in our quarterly reports on Form 10‑Q and current reports on Form 8‑K filed with the Securities and
Exchange Commission (“SEC”), during the year ended December 31, 2019, there were no unregistered sales of equity securities by us
during the year ended December 31, 2019.
Item 6. Selected Consolidated Financial Data
We are a smaller reporting company as defined by Rule 12b‑2 of the Securities Exchange Act of 1934, as amended, or the
Exchange Act, and are not required to provide the information required under this item.
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Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
Overview
We are a biotech royalty aggregator with a sizable portfolio of economic rights to future potential milestone and royalty payments
associated with partnered pre-commercial therapeutic candidates. Our portfolio was built through licensing our proprietary products and
platforms from our legacy discovery and development business, combined with acquisitions of rights to future milestones and royalties that
we have made since our royalty aggregator business model was implemented in 2017. We expect that most of our future revenue will be
based on payments we may receive for milestones and royalties related to these programs.
Significant Developments
Rights Offering
In December 2019, we commenced a rights offering (the “2019 Rights Offering”) to raise $22.0 million through the distribution of
subscription rights to holders of our common stock and Series X and Series Y preferred stock. In December 2019, we sold 1,000,000 shares
of our common stock at the subscription price of $22.00 per share to investors for aggregate gross proceeds of $22.0 million. In total, BVF
purchased 845,463 shares of common stock pursuant to the exercise of subscriptions in the rights offering.
Palobiofarma, S.L.
In September 2019, we entered into a Royalty Purchase Agreement (the “Palo Royalty Purchase Agreement”) with Palobiofarma,
S.L. (“Palo”). Pursuant to the Palo Royalty Purchase Agreement, we acquired the rights to potential royalty payments in low single digit
percentages of aggregate net sales associated with six drug candidates in various clinical development stages, targeting the adenosine
pathway with potential applications in solid tumors, non-Hodgkin’s lymphoma, asthma/chronic obstructive pulmonary disease,
inflammatory bowel disease, idiopathic pulmonary fibrosis, lung cancer, psoriasis and nonalcoholic steatohepatitis and other indications (the
“Palo Licensed Products”) that are being developed by Palo. Novartis Pharma AG (“Novartis”) is a development partner on NIR178, one of
the Palo Licensed Products, and NIR178 is being developed pursuant to a license agreement between Palo and Novartis. Under the terms of
the Palo Royalty Purchase Agreement, we paid Palo $10.0 million for the rights to potential royalty payments on future sales of the Palo
Licensed Products.
Janssen Biotech
In August 2019, our portfolio of potential future royalty and milestone payments increased with the addition of Janssen Biotech, Inc.
(“Janssen”) drug candidates for which XOMA may receive future milestone and royalty payments. Janssen made a one-time payment of
$2.5 million to us and we are entitled to receive milestone payments of up to $3.0 million for each drug candidate upon Janssen’s
achievement of certain clinical development and regulatory approval events. Upon commercialization, we are eligible to receive 0.75%
royalty on net sales of each product. Janssen’s obligation to pay royalties with respect to a particular product and country will continue until
the eighth-year and sixth-month anniversary of the first commercial sale of the product in such country.
Aronora
On April 7, 2019 we entered into a Royalty Purchase Agreement with Aronora, Inc. (the “Aronora Royalty Purchase Agreement”), a
private research and development company headquartered in Portland, Oregon. Under the agreement, we purchased from Aronora the rights
to potential royalty and a portion of upfront, milestone, and option payments associated with five anti-thrombotic hematology drug products
in development: three candidates subject to Aronora’s collaboration with Bayer Pharma AG (“Bayer”) (the “Bayer Products”) and two
additional early stage candidates (the “non-Bayer Products”).
Under the terms of the agreement, we made a $6.0 million upfront payment to Aronora when the transaction closed on June 26, 2019,
and made an additional $3.0 million payment in September 2019 for the three Bayer Products that were active as of September 1,
2019. Pursuant to the Aronora Royalty Purchase Agreement, if we receive $250.0 million in cumulative royalties on net sales per product,
we will be required to pay associated tiered milestones payments to Aronora
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in an aggregate amount of up to $85.0 million per product. The tiered milestones are based upon various royalty tiers prior to reaching
$250.0 million in cumulative royalties on net sales per product. We will retain royalties per product in excess of $250.0 million. We will
receive, on average, low single-digit royalties on future sales of the Bayer Products and 10% of all future developmental, regulatory and
sales milestones related to the Bayer Products. In addition, we purchased from Aronora the right to receive low-single digit percentage of
net sales of the non-Bayer Products and 10% of all future payments, including upfront payments, option payments and developmental,
regulatory and sales milestone payments on potential future sales of the non-Bayer Products.
Bioasis
On February 25, 2019, we entered into a Royalty Purchase Agreement with Bioasis Technologies, Inc. (the “Bioasis Royalty
Agreement”) and certain affiliates (collectively “Bioasis”). Under the agreement, we purchased potential future milestone, royalty and
option fee payment rights from Bioasis for product candidates that are being developed pursuant to a License Agreement between Bioasis
and Prothena Biosciences Limited. Under the terms of the agreement, we paid Bioasis an upfront cash payment of $0.3 million and will be
required to make contingent future cash payments of up to $0.2 million to Bioasis if and when the licensed product candidates reach certain
development milestones. In addition, we were granted an option to purchase a 1% royalty right on the next two license agreements entered
into between Bioasis and third-party licensees subject to certain payments and conditions as well as a right of first negotiation on subsequent
Bioasis license agreements with third parties.
Rezolute
In December 2017, we entered into a license and common stock purchase agreement with Rezolute, which was amended on March
30, 2018 and further amended on January 7, 2019. The license agreement was amended to eliminate the requirement that equity securities be
issued to us upon the closing of the Qualified Financing (as defined in the license agreement) and to replace it with a requirement that
Rezolute: (1) make five cash payments to us totaling $8.5 million following the closing of a Qualified Financing on or before specified
staggered future dates through September 2020 (the “Future Cash Payments”); and (2) provide for early payment of the Future Cash
Payments (only until $8.5 million is reached) by making cash payments to us equal to 15% of the net proceeds of each future financing
following the closing of the Qualified Financing, with such payments to be credited against any remaining unpaid Future Cash Payments in
reverse order of their future payment date. The common stock purchase agreement was amended to remove certain provisions related to the
issuance of equity to us in accordance with the new provisions regarding the Future Cash Payments in the license agreement.
On January 30, 2019, Rezolute closed a preferred stock financing activity for gross proceeds of $25.0 million, which triggered the
Qualified Financing defined under the amended common stock purchase agreement between us and Rezolute. As such, pursuant to the
amended terms of the agreement with Rezolute, we received cash of $5.5 million. In addition, in February 2019, we received the
reimbursable technology transfer expenses of $0.3 million from Rezolute. On June 1, 2019, Rezolute’s option to obtain a license to one of
our preclinical monoclonal antibody fragments expired unexercised.
In July and August 2019, Rezolute closed two common stock financing events for total net proceeds of $22.6 million. As such, we
received 15% of the net proceeds, or $3.4 million, which was credited against the portion of Future Cash Payments due in 2020. In
September and December 2019, we received the $2.5 million Future Cash Payments due in 2019.
Silicon Valley Bank Loan Agreement
In May 2018, we executed a Loan and Security Agreement (the “Loan Agreement”) with Silicon Valley Bank (“SVB”). Under the
Loan Agreement, upon our request, SVB may make advances available to us up to $20.0 million. In March 2019, we and SVB amended the
Loan Agreement to extend the draw period from March 31, 2019 to March 31, 2020. In connection with the amendment, we issued a second
warrant to SVB which is exercisable in whole or in part for up to an aggregate of 4,845 shares of common stock with an exercise price of
$14.71 per share. The warrant may be exercised on a cashless basis and is exercisable within 10 years from the date of issuance or upon the
consummation of certain acquisitions of XOMA. As of December 31, 2019, we had an outstanding principal balance of $16.1 million under
the Loan Agreement.
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Lease Termination
th
In December 2019, we entered into a Lease Termination Agreement with each of the 7 Street Properties II (“7 Street LP”) and 7
Street Property General Partnership (“7 Street GP”) to early terminate the Company’s two operating leases in Berkeley, California. The
Company no longer maintains operations at the real property subject to either of the leases. Based on the terms of each agreement, the
Company surrendered the two leased facilities and was fully released from any further base rent or other payment obligations. In addition,
the Company’s rights and obligations under its sublease arrangements for the two facilities in Berkeley, California transferred to 7 Street
LP and 7 Street GP and XOMA was released from all financial obligations under its sublease agreements. We agreed to pay early
termination fees to 7 Street LP and 7 Street GP of $0.5 million and $1.1 million, respectively.
th
th
th
th
th
th
th
Critical Accounting Estimates
The accompanying discussion and analysis of our financial condition and results of operations are based upon our consolidated
financial statements and the related disclosures, which have been prepared in accordance with generally accepted accounting principles in
the United States. The preparation of these consolidated financial statements requires us to make estimates, assumptions and judgments that
affect the reported amounts in our consolidated financial statements and accompanying notes. On an ongoing basis, we evaluate our
estimates, assumptions and judgments described below that have the greatest potential impact on our consolidated financial statements,
including those related to operating lease right-of-use assets and liabilities, legal contingencies, contingent considerations under royalty
purchase agreements, royalty receivables, revenue recognized under units-of-revenue method, income taxes and stock-based compensation.
We base our estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances,
the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from
other sources. Accounting assumptions and estimates are inherently uncertain and actual results may differ materially from these estimates
under different assumptions or conditions.
While our significant accounting policies are more fully described in Note 2 to the consolidated financial statements, we believe
the following policies to be the most critical to an understanding of our financial condition and results of operations because they require us
to make estimates, assumptions and judgments about matters that are inherently uncertain.
Revenue Recognition
Effective January 1, 2018, we adopted Accounting Standards Codification (“ASC”) Topic 606, Revenue from Contracts with
Customers ("ASC 606") using the modified retrospective transition method and applied the standard only to contracts that were still active or
in place at that date. Also, as permitted, we applied the practical expedient under ASC 606 which permits us to treat all contract
modifications that occurred prior to the adoption in aggregate when determining the performance obligations, transaction price and its
allocation. Except for the license agreement with Rezolute, we did not have any other contracts with customers for which we had not
completed our performance obligations, as of the adoption date January 1, 2018. As of adoption, the license agreement with Rezolute was
not considered a contract under ASC 606 as it was not probable that we would collect substantially all of the consideration to which we
were entitled in exchange for the goods or services that were transferred to Rezolute and there was no consideration exchanged upon
execution of the arrangement or as of January 1, 2018. Thus, we determined that the adoption of ASC 606 did not have a financial impact
on our consolidated financial statements. In addition, the adoption of ASC 606 had no material impact for tax purposes.
We have certain license arrangements in the scope of ASC 606. The terms of these agreements may contain multiple performance
obligations, which primarily include transfer of our licenses. Prior to recognizing revenue, we make estimates of the transaction price,
including variable consideration that is subject to a constraint. Amounts of variable consideration are included in the transaction price to the
extent that it is probable that a significant reversal in the amount of cumulative revenue recognized will not occur and when the uncertainty
associated with the variable consideration is subsequently resolved. Variable consideration may include payments based upon the
achievement of specified milestones, and royalty payments based on product sales derived from the license agreements. The royalty
payments will be recognized as revenue when the related sales occur, as far as there are no unsatisfied performance obligations remaining. If
there are
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multiple distinct performance obligations, we allocate the transaction price to each distinct performance obligation based on its relative
standalone selling price. All licenses we grant to customers are unique, as each uses a specific technology of XOMA or is geared towards a
specific unique product candidate. Thus, there is no observable evidence of standalone selling price for the licenses. The standalone selling
price is generally determined using a valuation approach based on discounted cash flow analysis. For licenses that are bundled with other
promises, we utilize judgement to assess the nature of the combined performance obligation to determine whether the combined
performance obligation is satisfied over time or at a point in time. Under our license agreements, the nature of the combined performance
obligation is the granting of licenses to the customers. As such, we recognize revenue related to the combined performance obligation upon
transfer of the license to the customers or completion of the transfer of related materials and services (i.e., point in time).
Sale of Future Revenue Streams
We have sold our rights to receive certain milestones and royalties on product sales. In the circumstance where we have sold our
rights to future milestones and royalties under a license agreement and also maintain limited continuing involvement in the arrangement (but
not significant continuing involvement in the generation of the cash flows that are due to the purchaser), we defer recognition of the
proceeds we received for the sale of milestone or royalty streams and recognize such unearned revenue as revenue under the units-of-
revenue method over the life of the underlying license agreement. Under the units-of-revenue method, amortization for a reporting period is
calculated by computing a ratio of the proceeds received from the purchaser to the total payments expected to be made to the purchaser over
the term of the agreement, and then applying that ratio to the period’s cash payment.
Estimating the total payments expected to be received by the purchaser over the term of such arrangements requires management to
use subjective estimates and assumptions. Changes to our estimate of the payments expected to be made to the purchaser over the term of
such arrangements could have a material effect on the amount of revenues recognized in any particular period.
Stock-based Compensation
Stock-based compensation expense for stock options and other stock awards is estimated at the grant date based on the award’s fair
value-based measurement. The valuation of stock-based compensation awards is determined at the date of grant using the Black-Scholes
option pricing model (the “Black-Scholes Model”). This model requires highly complex and subjective inputs, such as the expected term of
the option and expected volatility. These inputs are subjective and generally require significant analysis and judgment to develop. Our
current estimate of volatility is based on the historical volatility of our stock price. To the extent volatility in our stock price increases in the
future, our estimates of the fair value of options granted in the future could increase, thereby increasing stock-based compensation cost
recognized in future periods. To establish an estimate of expected term, we consider the vesting period and contractual period of the award
and our historical experience of stock option exercises, post-vesting cancellations and volatility. The risk-free rate is based on the yield
available on United States Treasury zero-coupon issues. Forfeitures are recognized as they occur.
We review our valuation assumptions quarterly and, as a result, we likely will change our valuation assumptions used to value
stock-based awards granted in future periods. In the future, as additional empirical evidence regarding these input estimates becomes
available, we may change or refine our approach of deriving these input estimates. These changes could impact our fair value-based
measurement of stock options granted in the future. Changes in the fair value-based measurement of stock awards could materially impact
our operating results.
For our stock options and service-based awards, we recognize compensation expense on a straight-line basis over the award’s
vesting period. In 2017, we granted equity awards with performance-based conditions to certain employees. The actual number of equity
awards earned and eligible to vest was determined based on a specified level of achievement against a Board-approved budget and
operational targets. For awards with performance-based conditions, at the point that it becomes probable that the performance conditions
will be met, we record a cumulative catch-up of the expense from the grant date to the current date, and we then amortize the remainder of
the expense over the remaining service period. Management evaluates when the achievement of a performance-based condition is probable
based on the expected satisfaction of the performance conditions as of the reporting date. The amount of stock-based compensation expense
recognized during a period is based on the value of the portion of the awards that are ultimately expected to vest.
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Purchase of Rights to Future Milestones and Royalties
We have purchased rights to receive a portion of certain future developmental, regulatory and commercial sales milestones, and
royalties on sales of products currently in clinical development. We acquired such rights from various entities and recorded the amount paid
for these rights as long-term royalty receivables. We have accounted for the purchased rights as a financial asset in accordance with ASC
310, Receivables.
We account for milestone and royalty rights related to developmental pipeline products on a non-accrual basis using the cost
recovery method. These developmental pipeline products are non-commercialized, non-approved products that require FDA or other
regulatory approval, and thus have uncertain cash flows. The related receivable balance is classified as noncurrent since no payments are
probable to be received in the near term. Under the cost recovery method, any milestone or royalty received is recorded as a direct reduction
of the recorded receivable balance. When the recorded receivable balance has been fully collected, any additional amounts collected are
recognized as revenue.
We review any impairment indicators and changes in expected recoverability of the long-term receivable asset regularly. If
expected future cash flows discounted to the current period are less than the carrying value of the asset, we will record impairment. The
impairment will be recognized by reducing the financial asset to an amount that represents the present value of the most recent estimate of
cash flows. No impairment was recorded as of December 31, 2019.
Leases
On January 1, 2019, we adopted ASC Topic 842, Leases (“ASC 842”) using the optional transition method and applied the standard
only to leases that existed at that date. Under the optional transition method, we do not need to restate the comparative periods in transition
and will continue to present financial information and disclosures for periods before January 1, 2019 in accordance with ASC Topic 840.
We have elected the package of practical expedients allowed under ASC Topic 842, which permits us to account for our existing operating
leases as operating leases under the new guidance, without reassessing our prior conclusions about lease identification, lease classification
and initial direct cost. As a result of the adoption of the new lease accounting guidance, we recognized on January 1, 2019 operating lease
right-of-use assets of $7.4 million and operating lease liabilities of $9.2 million.
We determined the initial classification and measurement of our right-of-use assets and lease liabilities at the lease commencement
date and thereafter if modified. The lease term includes any renewal options and termination options that we are reasonably certain to
exercise. The present value of lease payments is determined by using the interest rate implicit in the lease, if that rate is readily
determinable; otherwise, we use our incremental borrowing rate. The incremental borrowing rate is determined by using the rate of interest
that we would pay to borrow on a collateralized basis an amount equal to the lease payments for a similar term and in a similar economic
environment.
Rent expense for operating leases is recognized on a straight-line basis, unless the right-of-use asset has been impaired, over the
reasonably certain lease term based on the total lease payments and is included in operating expenses in the consolidated statements of
operations and comprehensive loss.
For operating leases that reflect impairment, we will recognize the amortization of the right-of-use asset on a straight-lined basis over
the remaining lease term with rent expense still included in operating expenses in the consolidated statements of operations and
comprehensive loss.
For all leases, rent payments that are based on a fixed index or rate at the lease commencement date are included in the measurement
of lease assets and lease liabilities at the lease commencement date.
We have elected the practical expedient to not separate lease and non-lease components. Our non-lease components are primarily
related to property maintenance, which varies based on future outcomes, and thus differences to original estimates are recognized in rent
expense when incurred.
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Results of Operations
Revenues
Total revenues for the years ended December 31, 2019, and 2018 were as follows (in thousands):
Revenue from contracts with customers
Revenue recognized under units-of-revenue method
Total revenues
Revenue from Contracts with Customers
Year Ended
December 31,
2019
$ 17,276 $
1,094
$ 18,370 $
2018
Change
5,068 $ 12,208
863
5,299 $ 13,071
231
Revenue from contracts with customers includes upfront fees, milestone payments and royalties related to the out-licensing of our
product candidates and technologies. The primary components of revenue from contracts with customers in 2019 was $14.0 million
recognized under our license agreement and common stock purchase agreement with Rezolute and $2.5 million in revenue earned from a
one-time payment under our license agreement with Janssen. The primary components of revenue from contracts with customers in 2018
was $1.8 million recognized under our license agreement and common stock purchase agreement with Rezolute, $1.4 million in milestone
revenue earned under our license agreement with Janssen, and $0.8 million in milestone revenue earned under our license agreement with
Compugen.
Revenue recognized under units-of-revenue method
Revenues in 2019 and 2018 include the amortization of unearned revenue of $1.1 million and $0.2 million, respectively, from the
sale of royalty interests to HealthCare Royalty Partners II, L.P. (“HRCP”). The increase in 2019 compared with 2018 was due to increased
sales of products underlying the agreements with HCRP.
The generation of future revenues related to licenses, milestones, and royalties is dependent on the achievement of milestones or
product sales by our existing licensees.
Research and Development Expenses
Research and development (“R&D”) expenses were $1.3 million in 2019, compared with $1.7 million in 2018. The decrease of $0.4 million
in 2019, as compared with 2018, was primarily due to a reduction in headcount of R&D employees. We expect R&D expense in 2020 to be
reduced as compared with 2019.
General and Administrative Expenses
General and administrative (“G&A”) expenses include salaries and related personnel costs, facilities costs and professional fees. In
2019, G&A expenses were $21.0 million compared with $18.6 million in 2018. The increase of $2.4 million in 2019 as compared with 2018
was primarily due to a $0.9 million increase for expenses incurred in connection with a separation agreement with our Chief Business
Officer, which included $0.5 million in stock-based compensation expense for modifications to her vested stock options and $0.4 million in
separation benefits, an increase of $0.7 million in stock-based compensation excluding the option modifications, a $0.6 million increase in
common area maintenance charges related to our legacy leases and a $0.4 million increase in expenses related to investor communications.
To support our royalty aggregator business model, we engage third parties to assist in our evaluation of potential acquisitions of
milestone and royalty streams. While we expect our personnel related costs to be comparable in 2020 with 2019, consulting expenses may
increase in response to an increase in the volume of acquisition targets evaluated or
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completed. In addition, we expect a decrease in facilities costs due to the early termination in December 2019 of our legacy leases in
Berkeley, California.
Restructuring and Other Charges
From August 2015 through June 2018, we implemented a series of restructuring efforts ultimately resulting in the implementation
of our royalty aggregator business model. During the year ended December 31, 2018, we completely vacated both of our leased facilities in
Berkeley, California and met the criteria of a cease-use date. We recorded a lease-related restructuring liability of $1.4 million as of
December 31, 2018, which was adjusted for the remaining balance of deferred rent of $0.7 million. This resulted in us recording lease-
related restructuring charges of $1.3 million for the year ended December 31, 2018. In addition, in connection with a sublease agreement
executed in April 2018, we recognized a loss on the sublease of $0.6 million for the year ended December 31, 2018.
Upon implementation of ASC 842 on January 1, 2019, we derecognized the lease-related restructuring and sublease liabilities
related to the two facilities in Berkeley, California. In December 2019, we early terminated the two operating leases in Berkeley, California
and were fully released from any further base rent or other payment obligations.
Other Income (Expense)
Interest Expense
Amortization of debt issuance costs and discounts are included in interest expense. Interest expense is shown below for the years
ended December 31, 2019 and 2018 (in thousands):
Year Ended
December 31,
SVB loan
Novartis note
Other
Total interest expense
2019
1,207 $
706
6
1,919 $
$
$
2018
Change
949
79
(31)
997
258
627
37
922 $
The increase in interest expense compared with 2018 is primarily due to the increase in the outstanding loan balance with SVB. On
May 7, 2018, we executed a loan agreement with SVB and in September of 2018 we borrowed $7.5 million. In June and September of 2019,
in connection with the Aronora and Palo Royalty Purchase Agreements, we borrowed an additional $9.5 million in aggregate. We expect
our interest expense to increase in 2020 related to the outstanding SVB loan balance and increased interest rate, and to increase further if we
choose to access additional funds.
Other Income, Net
The following table shows the activity in other income (expense), net for the years ended December 31, 2019 and 2018 (in
thousands):
Other income, net
Sublease income
Income under the agreement with Ology Bioservices
Change in fair value of equity securities
Loss on lease termination
Other
Total other income, net
42
Year Ended
December 31,
2019
2018
Change
$
$
3,034 $
—
289
(368)
867
3,822 $
1,787 $
2,470
(563)
—
644
4,338 $
1,247
(2,470)
852
(368)
223
(516)
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In 2019, we were party to four sublease agreements as compared with three sublease agreements in 2018, resulting in increased
sublease income for the year December 31, 2019 as compared with the same period of 2018. No sublease income will be recognized in 2020
due to the early termination of our Berkeley, California building leases.
In 2018, we received income from Ology Bioservices related to the disposition of our biodefense business in March 2016. The
scheduled payments concluded in 2018; therefore, there was no corresponding income received in 2019.
During the year ended December 31, 2019, we held equity securities which consisted of shares of Rezolute’s common stock. As of
December 31, 2019, the fair value of the equity securities increased, and we recognized a gain of $0.3 million for the year ended December
31, 2019. For the year ended December 31, 2018, the fair value of the equity securities decreased, and we recognized a loss of $0.6 million
for the year ended December 31, 2018. The increase in value of the equity securities was primarily due to Rezolute’s financing activities in
2019.
Total other income, net for 2019 decreased by $0.5 million as compared to 2018 primarily due to the discontinuation of income
under the Ology Bioservices agreement of $2.5 million and a loss of $0.4 million recognized due to the early termination of our legacy
building leases, partially offset by the increase in sublease income of $1.2 million and change in fair value adjustment of Rezolute common
stock of $0.9 million.
Provision for Income Taxes
We have no provision for income tax since we have incurred net operating losses during the year ended December 31, 2019. We
had $0.1 million income tax benefit for the year ended December 31, 2018 related to our 2017 return to provision adjustment.
As we continue to maintain a full valuation allowance against our net deferred tax assets, no income tax benefit is being recorded.
We had a total of $5.5 million of gross unrecognized tax benefits, none of which would affect the effective tax rate upon realization. We do
not expect our unrecognized tax benefits to change significantly over the next twelve months.
Liquidity and Capital Resources
The following table summarizes our cash, our working capital and our cash flow activities for each of the periods presented (in
thousands):
Cash
Working capital
Net cash used in operating activities
Net cash used in investing activities
Net cash provided by financing activities
Effect of exchange rate changes on cash
Net increase in cash
Cash Used in Operating Activities
December
31,
December 31,
2019
Change
2018
56,688 $ 45,780 $ 10,908
9,175
51,098 $ 41,923 $
$
$
Year Ended
December 31,
$
2018
2019
Change
(285) $ (12,644) $ 12,359
(4,294)
554
(20)
8,599
(19,300) $ (15,006)
29,939
30,493
20
—
2,309 $
$ 10,908 $
Net cash used in operating activities for the year ended December 31, 2019 of $0.3 million was primarily due to the $2.0 million
net loss incurred. Compared to 2018, the decrease of cash used in operating activities was primarily due to the $11.7 million cash receipts
under the license and common stock purchase agreement with Rezolute and the $2.5 million cash receipt from Janssen in 2019, partially
offset by $1.6 million in lease termination fees.
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Net cash used in operating activities for the year ended December 31, 2018 of $12.6 million was primarily due to the $13.3 million
net loss incurred.
Cash Used in Investing Activities
Net cash used in investing activities for the year ended December 31, 2019 of $19.3 million was due to the purchases of milestone
and royalty rights of $19.3 million in connection with the Bioasis Royalty Purchase Agreement executed in February 2019, the Aronora
Royalty Purchase Agreement executed in April 2019, and the Palo Royalty Purchase Agreement executed in September 2019.
Net cash used in investing activities for the year ended December 31, 2018 of $15.0 million was due to the purchase of milestone
and royalty rights of $15.0 million in connection with the Agenus Royalty Purchase Agreement executed in September 2018.
Cash Provided by Financing Activities
Net cash provided by financing activities for the year ended December 31, 2019 of $30.5 million was primarily related to the sale
of common stock issued under the 2019 Rights Offering for total net proceeds of $21.9 million and proceeds received under the SVB loan
agreement of $9.5 million.
Net cash provided by financing activities for the year ended December 31, 2018 of $30.0 million was primarily related to the sale
of Series Y convertible preferred stock and common stock issued under the 2018 Rights Offering for total net proceeds of $19.7 million and
proceeds received under the SVB loan agreement of $7.5 million.
Rights Offering
In November 2019, we initiated a rights offering to raise $22.0 million through the distribution of subscription rights to holders of
our common stock and Series X and Series Y preferred stock. In December 2019, we sold 1,000,000 shares of our common stock at the
subscription price of $22.00 per share for aggregate gross proceeds of $22.0 million. Total offering costs of $0.2 million were offset against
the proceeds from the sale of common stock, for total net proceeds of $21.8 million.
Silicon Valley Bank Loan Agreement
Under our Loan Agreement with SVB, upon our request, SVB may make advances available to us up to $20.0 million. In March
2019, we and SVB amended the Loan Agreement to extend the draw period from March 31, 2019 to March 31, 2020. In connection with the
amendment, we issued a second warrant to SVB which is exercisable in whole or in part for up to an aggregate of 4,845 shares of common
stock with an exercise price of $14.71 per share. The warrant may be exercised on a cashless basis and is exercisable within 10 years from
the date of issuance or upon the consummation of certain acquisitions of XOMA. As of December 31, 2019, we had an outstanding
principal balance of $16.1 million under the Loan Agreement, and $5.2 million was classified as current portion of long-term debt.
* * *
We have incurred significant operating losses since our inception and have an accumulated deficit of $1.2 billion at December 31,
2019. As of December 31, 2019, we had $56.7 million in cash, which will enable us to maintain our operations for a period of at least
12 months following the filing date of this report.
Our ability to raise additional capital in the equity and debt markets, should we choose to do so, is dependent on a number of
factors, including the market demand for our common stock or debt, which itself is subject to a number of pharmaceutical development and
business risks and uncertainties, as well as the uncertainty that we would be able to raise such additional capital at a price or on terms that
are favorable to us.
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Commitments and Contingencies
Although operations are influenced by general economic conditions, we do not believe inflation had a material impact on financial
results for the periods presented. We believe that we are not dependent on materials or other resources that would be significantly impacted
by inflation or changing economic conditions in the foreseeable future.
Collaborative Agreements, Royalties and Milestone Payments
We have committed to make potential future milestone payments and legal fees to third parties as part of licensing and
development programs. Payments under these agreements become due and payable only upon the achievement of certain developmental,
regulatory and commercial milestones by our licensees. Because it is uncertain if and when these milestones will be achieved, such
contingencies, aggregating up to $7.6 million (assuming one product per contract meets all milestones) have not been recorded on our
consolidated balance sheet as of December 31, 2019. We are unable to determine precisely when and if our payment obligations under the
agreements will become due as these obligations are based on milestone events, the achievement of which is subject to a significant number
of risks and uncertainties.
Lease Agreements
In December 2019, we terminated two of our operating leases in Berkeley, California and were fully released from any further
payment obligations. We continue to lease one administrative facility in Emeryville, California and office equipment under operating leases
expiring on various dates through February 2023. These leases require us to pay taxes, insurance, maintenance and minimum lease
payments.
Recent Accounting Pronouncements
In June 2016, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2016-13,
Financial Instruments-Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments. ASU 2016-13 replaced the
incurred loss impairment methodology under current GAAP with a methodology that reflects expected credit losses and requires
consideration of a broader range of reasonable and supportable information to inform credit loss estimates. ASU 2016-13 requires use of a
forward-looking expected credit loss model for accounts receivables, loans, and other financial instruments. Adoption of the standard
requires using a modified retrospective approach through a cumulative-effect adjustment to retained earnings as of the effective date to align
existing credit loss methodology with the new standard. Subsequent to issuing ASU 2016-13, the FASB issued ASU 2018-19, Codification
Improvements to Topic 326, Financial Instruments – Credit Losses, or ASU 2018-19, for the purpose of clarifying certain aspects of ASU
2016-13. In May 2019, the FASB issued ASU 2019-05, Financial Instruments – Credit Losses (Topic 326): Targeted Transition Relief, or
ASU 2019-05, to provide entities with more flexibility in applying the fair value option on adoption of the credit impairment standard. ASU
2018-19 and ASU 2019-05 have the same effective date and transition requirements as ASU 2016-13. ASU 2016-13 will be effective for all
entities except public companies that are not smaller reporting companies for fiscal years beginning after December 15, 2022, including
interim periods within those fiscal years, using a modified retrospective approach. Early adoption is permitted. The Company plans to adopt
ASU 2016-13 and related updates as of January 1, 2023. We are evaluating the impact of adopting this new accounting guidance on our
consolidated financial statements.
In June 2018, the FASB issued ASU 2018‑07, Compensation- Stock Compensation (Topic 718) “Improvements to Nonemployee
Share-Based Payment Accounting”, which expands the scope of Topic 718 to include all share-based payment transactions for acquiring
goods and services from nonemployees. An entity should apply the requirements of Topic 718 to nonemployee awards except for certain
exemptions specified in the amendment. ASU 2018‑07 is effective for our interim and annual reporting periods during the year ending
December 31, 2019, and all annual and interim reporting periods thereafter. Early adoption is permitted, but no earlier than an entity’s
adoption date of Topic 606. We elected to early adopt this standard on June 30, 2018. The adoption did not have a material impact on our
consolidated financial statements.
In August 2018, the FASB issued ASU 2018‑13, Fair Value Measurement (Topic 820), which modifies, removes and adds certain
disclosure requirements on fair value measurements based on the FASB Concepts Statement, Conceptual
45
Table of Contents
Framework for Financial Reporting—Chapter 8: Notes to Financial Statements. The ASU is effective for our interim and annual reporting
periods during the year ending December 31, 2020, and all annual and interim reporting period thereafter. The amendments on changes in
unrealized gains and losses, the range and weighted average of significant unobservable inputs used to develop Level 3 fair value
measurements and the narrative description of measurement uncertainty should be applied prospectively for only the most recent interim or
annual period presented in the initial fiscal year of adoption. All other amendments should be applied retrospectively to all periods
presented upon their effective date. Early adoption is permitted upon issuance of ASU 2018‑13. An entity is permitted to early adopt any
removed or modified disclosures upon issuance of ASU 2018‑13 and delay adoption of the additional disclosures until their effective date.
We early adopted the guidance related to removal of disclosures upon issuance of this ASU and will delay adoption of additional disclosures
as permitted under the ASU. We do not believe adoption of the guidance will have a significant impact on our consolidated financial
statements.
In November 2018, the FASB issued ASU 2018‑18, Collaborative Arrangements (Topic 808) “Clarifying the Interaction between
Topic 808 and Topic 606”, which requires transactions in collaborative arrangements to be accounted for under ASC 606 if the counterparty
is a customer for a good or service that is a distinct unit of account. The new standard also precludes an entity from presenting consideration
from transactions with a collaborator that is not a customer together with revenue recognized from contracts with customers. The ASU is
effective for our interim and annual reporting periods during the year ending December 31, 2020, and all annual and interim reporting
period thereafter. Early adoption is permitted, but no earlier than an entity’s adoption date of Topic 606. This ASU requires retrospective
adoption to the date we adopted ASC 606, January 1, 2018, by recognizing a cumulative-effect adjustment to the opening balance of
retained earnings of the earliest annual period presented. We may elect to apply the ASU retrospectively either to all contracts or only to
contracts that are not completed at the date we initially applied ASC 606. We do not believe adoption of the guidance will have a significant
impact on our consolidated financial statements.
In December 2019, the FASB issued ASU 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes. The
amendments in ASU 2019-12 are intended to simplify various aspects related to accounting for income taxes. ASU 2019-12 removes
certain exceptions to the general principles in Topic 740 and also clarifies and amends existing guidance to improve consistent application.
ASU 2019-12 is effective for us beginning January 1, 2021 with early adoption permitted. We are evaluating the impact of adopting this
new accounting guidance on our consolidated financial statements.
Off Balance Sheet Arrangements
We have not engaged in any off-balance sheet arrangements, including the use of structured finance, special purpose entities or
variable interest entities.
Item 7A. Quantitative and Qualitative Disclosures about Market Risk
We are a smaller reporting company as defined by Rule 12b‑2 of the Securities Exchange Act of 1934, as amended, or the
Exchange Act, and are not required to provide the information required under this item.
Item 8. Financial Statements and Supplementary Data
The following consolidated financial statements of the registrant, related notes and report of independent registered public
accounting firm are set forth beginning on page F‑1 of this report.
Reports of Independent Registered Public Accounting Firm
Consolidated Balance Sheets
Consolidated Statements of Comprehensive Loss
Consolidated Statements of Stockholders’ Equity
Consolidated Statements of Cash Flows
Notes to the Consolidated Financial Statements
46
F-1
F-3
F-4
F-5
F-6
F-7
Table of Contents
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Not applicable.
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Under the supervision and with the participation of our management, including our Chief Executive Officer and our Senior Vice
President, Finance and Chief Financial Officer, we conducted an evaluation of our disclosure controls and procedures, as such term is
defined under Rule 13a‑15 promulgated under the Securities Exchange Act of 1934, as amended, as of the end of the period covered by this
report. Our disclosure controls and procedures are intended to ensure that the information we are required to disclose in the reports that we
file or submit under the Securities Exchange Act of 1934 is (i) recorded, processed, summarized and reported within the time periods
specified in the Securities and Exchange Commission’s rules and forms and (ii) accumulated and communicated to our management,
including the Chief Executive Officer and Senior Vice President, Finance and Chief Financial Officer, as the principal executive and
financial officers, respectively, to allow timely decisions regarding required disclosures. Based on this evaluation, our Chief Executive
Officer and our Senior Vice President, Finance and Chief Financial Officer concluded that our disclosure controls and procedures were
effective as of the end of the period covered by this report.
Management’s Report on Internal Control over Financial Reporting
Management, including our Chief Executive Officer and our Senior Vice President, Finance and Chief Financial Officer, is
responsible for establishing and maintaining adequate internal control over financial reporting (as such term is defined in Exchange Act
Rules 13a‑15(f)). The Company’s internal control system was designed to provide reasonable assurance to the Company’s management and
board of directors regarding the preparation and fair presentation of published financial statements in accordance with accounting principles
generally accepted in the United States.
Management assessed the effectiveness of our internal control over financial reporting as of December 31, 2019. In making this
assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”)
in Internal Control—Integrated Framework (2013 Framework). Based on our assessment we believe that, as of December 31, 2019, our
internal control over financial reporting is effective based on those criteria.
This annual report includes an attestation report of the Company’s registered public accounting firm, Deloitte & Touche LLP,
regarding the effectiveness of our internal control over financial reporting as of December 31, 2019.
Changes in Internal Control over Financial Reporting
There were no changes in our internal control over financial reporting during the quarter ended December 31, 2019 that have
materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information
None.
47
Table of Contents
Item 10. Directors, Executive Officers, Corporate Governance
PART III
Information required by this Item will be included in the Company’s proxy statement for the 2020 Annual Meeting of
Stockholders (“2020 Proxy Statement”), under the sections labeled “Proposal 1—Election of Directors”, “Information about our Executive
Officers” and “Delinquent Section 16(a) Reports,” and is incorporated by reference. The 2020 Proxy Statement will be filed with the SEC
within 120 days after the end of the fiscal year to which this report relates.
Code of Ethics
The Company’s Code of Ethics applies to all employees, officers and directors including the Chief Executive Officer (principal
executive officer) and the Senior Vice President, Finance and Chief Financial Officer (principal financial and principal accounting officer)
and is posted on the Company’s website at www.xoma.com. We intend to satisfy the applicable disclosure requirements regarding
amendments to, or waivers from, provisions of our Code of Ethics by posting such information on our website.
Item 11. Executive Compensation
Information required by this Item will be included in the sections labeled “Compensation of Executive Officers,” “Summary
Compensation Table,” “Outstanding Equity Awards as of December 31, 2019,” “Pension Benefits,” “Non-Qualified Deferred
Compensation” and “Compensation of Directors” appearing in our 2020 Proxy Statement and is incorporated by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Information required by this Item will be included in the sections labeled “Common Stock of Certain Beneficial Owners and
Management” and “Equity Compensation Plan Information” appearing in our 2020 Proxy Statement and is incorporated by reference.
Item 13. Certain Relationships and Related Transactions, and Director Independence
Information required by this Item will be included in the section labeled “Transactions with Related Persons” appearing in our
2020 Proxy Statement and is incorporated by reference.
Item 14. Principal Accountant Fees and Services
Information required by this Item will be included in the section labeled “Proposal 3 – Ratification of Appointment of Independent
Registered Public Accounting Firm” appearing in our 2020 Proxy Statement and is incorporated by reference.
48
Table of Contents
PART IV
Item 15. Exhibits and Financial Statement Schedules
(a) The following documents are included as part of this Annual Report on Form 10‑K:
(1) Financial Statements:
All financial statements of the registrant referred to in Item 8 of this Report on Form 10‑K.
(2) Financial Statement Schedules:
All financial statements schedules have been omitted because the required information is included in the consolidated financial
statements or the notes thereto or is not applicable or required.
(3)
Exhibits:
Exhibit
Number
Exhibit Description
Form SEC File No.
Exhibit
Filing Date
Incorporation By Reference
Certificate of Incorporation of XOMA Corporation
8‑K12G3
000‑14710
3.1
01/03/2012
Certificate of Amendment of Certificate of Incorporation of
XOMA Corporation
8‑K
000‑14710
3.1
05/31/2012
Certificate of Amendment to the Amended Certificate of
Incorporation of XOMA Corporation
8‑K
000‑14710
3.1
05/28/2014
Certificate of Amendment to the Amended Certificate of
Incorporation of XOMA Corporation
8‑K
000‑14710
3.1
10/18/2016
Certificate of Designation of Preferences, Rights and
Limitations of Series X Convertible Preferred Stock
Certificate of Designation of Preferences, Rights and
Limitations of Series Y Convertible Preferred Stock
By-laws of XOMA Corporation
Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4, 3.5, 3.6
and 3.7
Specimen of Common Stock Certificate
8‑K
000‑14710
Form of Warrants (February 2016 Warrants)
10‑Q
000‑14710
Form of Warrants (May 2018 Warrants)
10‑Q
000‑14710
49
8‑K
000‑14710
3.1
02/16/2017
8‑K
000‑14710
8‑K
000‑14710
3.1
3.2
4.1
4.9
4.6
12/13/2018
01/03/2012
01/03/2012
05/04/2016
08/07/2018
3.1
3.2
3.3
3.4
3.5
3.6
3.7
4.1
4.2
4.3
4.4
Table of Contents
Exhibit
Number
4.5
+
4.6
Exhibit Description
Form SEC File No.
Exhibit
Filing Date
Incorporation By Reference
Form of Warrants (March 2019 Warrants)
10‑Q
000‑14710
4.7
05/06/2019
Description of Registrant’s Securities
10.1*
1981 Share Option Plan as amended and restated
S‑8
333‑171429
10.1
12/27/2010
10.2*
Form of Share Option Agreement for 1981 Share Option
Plan
10‑K
000‑14710
10.1A
03/11/2008
10.3*
Restricted Share Plan as amended and restated
S‑8
333‑171429
10.2
12/27/2010
10.4*
Form of Share Option Agreement for Restricted Share
Plan
10‑K
000‑14710
10.2A
03/11/2008
10.5*
XOMA Corporation Amended and Restated 2010 Long
Term Incentive and Stock Award Plan
S‑8
333-198719
99.1
09/12/2014
10.6*
Amended and Restated 2010 Long Term Incentive and
Stock Award Plan
DEF
14A
000‑14710
Appendix A
04/05/2019
10.7*
Form of Stock Option Agreement for Amended and
Restated 2010 Long Term Incentive and Stock Award
Plan
10‑K
000‑14710
10.6A
03/14/2012
10.8*
2016 Incentive Compensation Plan
10‑Q
000‑14710
10.1
05/04/2016
10.9*
Form of Amended and Restated Indemnification
Agreement for Officers
10‑K
000‑14710
10.6
03/08/2007
10.10*
Form of Amended and Restated Indemnification
Agreement for Employee Directors
10‑K
000‑14710
10.7
03/08/2007
10.11*
Form of Amended and Restated Indemnification
Agreement for Non-employee Directors
10‑K
000‑14710
10.8
03/08/2007
10.12*
2015 Employee Stock Purchase Plan
S‑8
333‑204367
99.1
05/21/2015
10.13*
Amended 2015 Employee Share Purchase Plan
8‑K
000‑14710
10.2
05/24/2017
10.14*
Form of Subscription Agreement and Authorization of
Deduction under the 2015 Employee Stock Purchase Plan
S‑8
333‑204367
99.2
05/21/2015
10.15†
License Agreement by and between XOMA Ireland
Limited and MorphoSys AG, dated as of February 1, 2002
10‑Q/A
000‑14710
10.43
12/04/2002
10.16†
License Agreement, dated as of December 29, 2003, by
and between Diversa Corporation (n/k/a BP Biofuels
Advanced Technology Inc.) and XOMA Ireland Limited
8‑K/A
000‑14710
2
03/19/2004
50
Table of Contents
Exhibit
Number
10.17
Exhibit Description
Form SEC File No.
Exhibit
Filing Date
Incorporation By Reference
First Amendment, dated October 28, 2014, to the License
Agreement between XOMA (US) LLC (assigned to it by
XOMA Ireland Limited) and BP Biofuels Advanced
Technology Inc. (previously Diversa Corporation,
previously Verenium Corporation).
10‑Q
000‑14710
10.3
11/06/2014
10.18†
Secured Note Agreement, dated as of May 26, 2005, by and
between Chiron Corporation and XOMA (US) LLC
10‑Q
000‑14710
10.3
08/08/2005
10.19†
Amended and Restated Research, Development and
Commercialization Agreement, executed November 7,
2008, by and between Novartis Vaccines and Diagnostics,
Inc. (formerly Chiron Corporation) and XOMA (US) LLC
10.20†
Amendment No. 1 to Amended and Restated Research,
Development and Commercialization Agreement, effective
as of April 30, 2010, by and between Novartis Vaccines
and Diagnostics, Inc. (formerly Chiron Corporation) and
XOMA (US) LLC
10.21†
Amendment to Amended and Restated Research,
Development and Commercialization Agreement, dated
September 30, 2015, by and between XOMA (US) LLC
and Novartis Vaccines and Diagnostics, Inc. (formerly
Chiron Corporation)
10.22
Amendment to Secured Note Agreement, executed
September 22, 2017, by and between Novartis Vaccines
and Diagnostics, Inc. (formerly Chiron Corporation) and
XOMA (US) LLC
10.23†
10.24
10.25
Collaboration Agreement, dated as of November 1, 2006,
between Takeda Pharmaceutical Company Limited and
XOMA (US) LLC
First Amendment to Collaboration Agreement, effective as
of February 28, 2007, between Takeda Pharmaceutical
Company Limited and XOMA (US) LLC
Second Amendment to Collaboration Agreement, effective
as of February 9, 2009, among Takeda Pharmaceutical
Company Limited and XOMA (US) LLC
51
10‑K
000‑14710
10.24C
03/11/2009
10‑K
000‑14710
10.25B
03/14/2012
10‑Q
000-14710
10.4
11/06/2015
10‑K
000-14710
10.31
03/07/2018
10‑K
000-14710
10.46
03/08/2007
10‑Q
000-14710
10.48
05/10/2007
10‑K
000-14710 10.31B
03/11/2009
Table of Contents
Exhibit
Number
Exhibit Description
Form SEC File No.
Exhibit
Filing Date
Incorporation By Reference
10.26†
License Agreement, effective as of August 27, 2007, by and
between Pfizer Inc. and XOMA Ireland Limited
8‑K
000-14710
2
09/13/2007
10.27†
Discovery Collaboration Agreement dated September 9,
2009, by and between XOMA Development Corporation
and Arana Therapeutics Limited
10.28
Letter Agreement, dated June 19, 2015, by and between
XOMA (US) LLC and Novartis Vaccines and Diagnostics,
Inc.
10.29†
10.30
License Agreement, dated September 30, 2015, by and
between XOMA (US) LLC and Novartis Institutes for
Biomedical Research, Inc.
Amended Secured Note Agreement, dated September 30,
2015, by and between XOMA (US) LLC and Novartis
Institutes for Biomedical Research, Inc.
10‑Q/A
000-14710
10.35
03/05/2010
10‑Q
000-14710
10.1
08/10/2015
10‑Q
000-14710
10.2
11/06/2015
10‑Q
000-14710
10.3
11/06/2015
10.31†
Asset Purchase Agreement dated November 5, 2015 by and
between the Company and Agenus West, LLC
10‑K
000-14710
10.65
03/09/2016
10.32
10.33
Protective Rights Agreement dated December 21, 2016 by
and between XOMA (US) LLC and HealthCare Royalty
Partners II, L.P. relating to the Royalty Interest Acquisition
Agreement dated December 20, 2016, by and between
XOMA Corporation and HealthCare Royalty Partners II,
L.P. and the Amended and Restated License Agreement,
dated effective as of October 27, 2006, between XOMA
(US) LLC and DYAX, Corp.
Protective Rights Agreements dated December 21, 2016 by
and between XOMA (US) LLC and HealthCare Royalty
Partners II, L.P. relating to the Royalty Interest Acquisition
Agreement dated December 20, 2016, by and between
XOMA Corporation and HealthCare Royalty Partners II,
L.P. and the License Agreement, dated effective as of
August 18, 2005, between XOMA (US) LLC and Wyeth
Pharmaceuticals
52
10‑K
000-14710
10.60
03/16/2017
10‑K
000-14710
10.61
03/16/2017
Table of Contents
Exhibit
Number
Exhibit Description
Form SEC File No.
Exhibit
Filing Date
Incorporation By Reference
10.34
Royalty Interest Acquisition Agreement dated December
20, 2016, by and between XOMA Corporation and
HealthCare Royalty Partners II, L.P., relating to the
Amended and Restated License Agreement, dated effective
as of October 27, 2006, between XOMA (US) LLC and
DYAX, Corp.
10.35
Royalty Interest Acquisition Agreement dated December
20, 2016, by and between XOMA Corporation and
HealthCare Royalty Partners II, L.P., relating to the License
Agreement, dated effective as of August 18, 2005, between
XOMA (US) LLC and Wyeth Pharmaceuticals
10.36
10.37
10.38†
Amendment of Section 6.10(a) and (b), dated March 8,
2017, to Royalty Interest Acquisition Agreements dated
December 20, 2016, by and between XOMA Corporation
and HealthCare Royalty Partners II, L.P.
Common Stock Purchase Agreement, dated August 24,
2017, by and between XOMA Corporation and Novartis
Pharma AG
IL‑1b Target License Agreement, dated August 24, 2017,
by and between XOMA Corporation and Novartis Pharma
AG
10.39†
License Agreement, dated August 24, 2017, by and between
XOMA Corporation and Novartis Pharma AG
10.40
Asset Purchase Agreement, dated November 4, 2015,
between XOMA Corporation and Ology Bioservices, Inc.
(formerly Nanotherapeutics Inc.)
10.41†
License Agreement, dated March 23, 2016, between
XOMA Corporation and Ology Bioservices, Inc. (formerly
Nanotherapeutics Inc.)
10.42†
Amendment and Restatement, dated February 2, 2017, to
the Asset Purchase Agreement, dated November 4, 2015,
and License Agreement, dated March 23, 2016, between
XOMA Corporation and Ology Bioservices, Inc. (formerly
Nanotherapeutics Inc.)
10.43*
Officer Employment Agreement, dated August 7, 2017,
10‑K
000-14710
10.62
03/16/2017
10‑K
000-14710
10.63
03/16/2017
10‑K
000-14710
10.64
03/16/2017
10‑Q
000-14710
10.1
11/06/2017
10‑Q
000-14710
10.2
11/06/2017
10‑Q
000-14710
10.3
11/06/2017
10‑Q
000-14710
10.4
11/06/2017
10‑Q
000-14710
10.5
11/06/2017
10‑Q
000-14710
10.6
11/06/2017
between XOMA Corporation and James R. Neal
10‑Q
000-14710
10.7
11/06/2017
53
Table of Contents
Exhibit
Number
Exhibit Description
Form SEC File No.
Exhibit
Filing Date
Incorporation By Reference
10.44*
Officer Employment Agreement, dated August 7, 2017,
between XOMA Corporation and Thomas Burns
10‑Q
000-14710
10.8
11/06/2017
10.45*
Amended and Restated Change of Control Severance
Agreement, dated August 7, 2017, to the Change of Control
Severance Agreement, dated January 3, 2011, between
XOMA Corporation and James R. Neal
10.46*
Amended and Restated Change of Control Severance
Agreement, dated August 7, 2017, to the Change of Control
Severance Agreement, dated October 28, 2015, between
XOMA Corporation and Thomas Burns
10‑Q
000-14710
10.9
11/06/2017
10‑Q
000-14710
10.10
11/06/2017
10.47†
Royalty Purchase Agreement dated September 20, 2018,
between XOMA Corporation and Agenus Inc.
10‑Q
000-14710
10.9
11/07/2018
10.48
Loan and Security Agreement dated May 7, 2018, between
XOMA Corporation, XOMA (US) LLC and XOMA
Technology, Ltd. And Silicon Valley Bank
10.49†
License Agreement, dated December 6, 2017, between
10‑Q
000-14710
10.5
08/07/2018
XOMA (US) LLC and Rezolute, Inc. (formerly AntriaBio)
10‑K
000-14710
10.66
03/07/2018
10.50†
Common Stock Purchase Agreement, dated December 6,
2017, between XOMA (US) LLC and Rezolute, Inc.
(formerly AntriaBio)
10.51†
Amendment No. 1, dated March 30, 2018, to the License
Agreement, dated December 6, 2017, between XOMA (US)
LLC and Rezolute, Inc. (formerly AntriaBio, Inc.)
10.52†
Amendment No. 1, dated March 30, 2018, to the Common
Stock Purchase Agreement, dated December 6, 2017,
between XOMA Corporation and Rezolute, Inc. (formerly
AntriaBio, Inc.)
10.53†
Amendment No. 2, dated January 7, 2019, to the License
Agreement, dated December 6, 2017, between XOMA (US)
LLC and Rezolute, Inc. (formerly AntriaBio)
10‑K
000-14710
10.65
03/07/2018
10‑Q
000-14710
10.1
05/09/2018
10‑Q
000-14710
10.2
05/09/2018
10-K
000-14710
10.71
03/07/2019
54
Table of Contents
Exhibit
Number
Exhibit Description
Form SEC File No.
Exhibit
Filing Date
Incorporation By Reference
10.54†
Amendment No. 2, dated January 7, 2019, to the Common
Stock Purchase Agreement, dated December 6, 2017,
between XOMA (US) LLC and Rezolute, Inc. (formerly
AntriaBio)
10.55
10.56
Common Stock Sales Agreement, dated December 18,
2018, by and between XOMA Corporation and H.C.
Wainwright & Co., LLC
First Amendment, dated March 4, 2019, to the Loan and
Security Agreement dated May 7, 2018, between XOMA
Corporation, XOMA (US) LLC and XOMA Technology,
Ltd. and Silicon Valley Bank
10-K
000-14710
10.72
03/07/2019
8‑K
000-14710
10.1
12/18/2018
10-Q
000-14710
10.3
05/06/2019
10.57#
Royalty Purchase Agreement dated April 7, 2019, between
XOMA (US) LLC and Aronora, Inc.
10-Q
000-14710
10.1
08/06/2019
10.58#
Royalty Purchase Agreement dated September 26, 2019,
between XOMA (US) LLC and Palobiofarma, S.L
10-Q
000-14710
10.1
11/05/2019
10.59#
Separation Agreement dated August 31, 2019 between the
Company and Dee Datta
10-Q
000-14710
10.2
11/05/2019
+
10.60
Lease Termination Agreement, dated December 17, 2019,
by and between XOMA Corporation and 7th Street
Property General Partnership
+
10.61
Lease Termination Agreement, dated December 17, 2019,
by and between XOMA Corporation and 7th Street
Properties II
21.1
+
23.1
+
24.1
+
31.1
+
Subsidiaries of the Company
Consent of Deloitte & Touche LLP, Independent Registered
Public Accounting Firm
Power of Attorney (included on the signature pages hereto)
Certification of Chief Executive Officer, as required by
Rule 13a‑14(a) or Rule 15d‑14(a)
31.2
+
Certification of Chief Financial Officer, as required by Rule
13a‑14(a) or Rule 15d‑14(a)
55
Table of Contents
Exhibit
Number
32.1
+
Exhibit Description
Form SEC File No.
Exhibit
Filing Date
Incorporation By Reference
Certification of Chief Executive Officer and Chief Financial
Officer, as required by Rule 13a‑14(b) or Rule 15d‑14(b)
and Section 1350 of Chapter 63 of Title 18 of the United
States Code (18 U.S.C. §1350)
(1)
101.INS
+
XBRL Instance Document
101.SCH XBRL Taxonomy Extension Schema Document
+
101.CAL XBRL Taxonomy Extension Calculation Linkbase
+
Document
101.DEF XBRL Taxonomy Extension Definition Linkbase
+
Document
101.LAB XBRL Taxonomy Extension Labels Linkbase Document
+
101.PRE XBRL Taxonomy Extension Presentation Linkbase
+
Document
† Confidential treatment has been granted with respect to certain portions of this exhibit. This exhibit omits the information subject to this
confidentiality request. Omitted portions have been filed separately with the SEC.
* Indicates a management contract or compensation plan or arrangement.
+
Filed herewith
# Portions of this exhibit (indicated by asterisks) have been omitted as the Registrant has determined that (i) the omitted information is not
material and (ii) the omitted information would likely cause competitive harm to the Registrant if publicly disclosed.
(1)
This certification accompanies the Form 10‑K to which it relates, is not deemed filed with the Securities and Exchange Commission and is
not to be incorporated by reference into any filing of the Registrant 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 the Form 10‑K), irrespective of any general incorporation
language contained in such filing.
The exhibits listed in the accompanying index to exhibits are filed or incorporated by reference as part of this Annual Report on
Form 10‑K.
Item 16. Form 10‑K Summary
None.
56
Table of Contents
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, on this 10 day of March 2020.
th
SIGNATURES
XOMA Corporation
By:
/s/ JAMES R. NEAL
James R. Neal
Chief Executive Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints James
Neal and Thomas Burns, and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments to this
Annual Report on Form 10‑K, and to file the same, with exhibits thereto and other documents in connection therewith, with the SEC,
granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, and any of them or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
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/ James R. Neal
(James R. Neal)
Chief Executive Officer (Principal Executive Officer) and Director
March 10, 2020
Title
Date
/s/ Thomas Burns
(Thomas Burns)
Senior Vice President, Finance and Chief Financial Officer
(Principal Financial and Principal Accounting Officer)
/s/ W. Denman Van Ness
(W. Denman Van Ness)
Chairman of the Board of Directors
/s/ Joseph M. Limber
(Joseph M. Limber)
Director
/s/ Jack L. Wyszomierski
(Jack L. Wyszomierski)
Director
/s/ Matthew Perry
(Matthew Perry)
/s/ Barbara Kosacz
(Barbara Kosacz)
Director
Director
March 10, 2020
March 10, 2020
March 10, 2020
March 10, 2020
March 10, 2020
March 10, 2020
57
Table of Contents
Index to Consolidated Financial Statements
Reports of Independent Registered Public Accounting Firm
Consolidated Balance Sheets
Consolidated Statements of Operations and Comprehensive Loss
Consolidated Statements of Stockholders’ Equity
Consolidated Statements of Cash Flows
Notes to the Consolidated Financial Statements
F-1
F-3
F-4
F-5
F-6
F-7
58
Table of Contents
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Stockholders and the Board of Directors of XOMA Corporation
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of XOMA Corporation and subsidiaries (the "Company") as of
December 31, 2019 and 2018, the related consolidated statements of operations and comprehensive loss, stockholders' equity, and cash
flows, for the each of the two years in the period ended December 31, 2019, and the related notes (collectively referred to as the "financial
statements"). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of
December 31, 2019 and 2018, and the results of its operations and its cash flows for the each of the two years in the period ended December
31, 2019, in conformity with accounting principles generally accepted in the United States of America.
Change in Accounting Principle
As discussed in Note 1 to the financial statements, effective January 1, 2019, the Company adopted FASB ASC Topic 842,
Leases, using the modified retrospective approach.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the
Company's financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be
independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the
Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or
fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the
amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant
estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide
a reasonable basis for our opinion.
/s/ Deloitte & Touche LLP
San Francisco, California
March 10, 2020
We have served as the Company’s auditor since 2018.
F-1
Table of Contents
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Stockholders and the Board of Directors of XOMA Corporation
Opinion on Internal Control over Financial Reporting
We have audited the internal control over financial reporting of XOMA Corporation and subsidiaries (the “Company”) 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 (COSO). 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 COSO.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States)
(PCAOB), the consolidated financial statements as of and for the year ended December 31, 2019, of the Company and our report dated
March 10, 2020, expressed an unqualified opinion on those financial statements.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its
assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management’s 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 included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists,
testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and 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/ Deloitte & Touche LLP
San Francisco, California
March 10, 2020
F-2
XOMA Corporation
CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
ASSETS
Table of Contents
Current assets:
Cash
Trade and other receivables
Prepaid expenses and other current assets
Total current assets
Property and equipment, net
Operating lease right-of-use assets
Long-term royalty receivables
Equity securities
Other assets
Total assets
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
Accounts payable
Accrued and other liabilities
Contingent consideration under royalty purchase agreements
Operating lease liabilities
Unearned revenue recognized under units-of-revenue method
Contract liabilities
Current portion of long-term debt
Total current liabilities
Unearned revenue recognized under units-of-revenue method – long-term
Long-term debt
Long-term operating lease liabilities
Other liabilities – long-term
Total liabilities
Commitments and Contingencies (Note 15)
Stockholders’ equity:
Convertible preferred stock, $0.05 par value, 1,000,000 shares authorized, 6,256 shares issued and outstanding at
December 31, 2019 and December 31, 2018
Common stock, $0.0075 par value, 277,333,332 shares authorized, 9,758,583 and 8,690,723 shares issued and
outstanding at December 31, 2019 and December 31, 2018, respectively
Additional paid-in capital
Accumulated deficit
Total stockholders’ equity
Total liabilities and stockholders’ equity
December 31,
2019
December 31,
2018
$
$
$
$
$
$
56,688
2,933
352
59,973
34
510
34,375
681
151
95,724
614
945
75
163
1,096
798
5,184
8,875
15,317
27,093
408
43
51,736
45,780
1,468
378
47,626
59
—
15,000
392
708
63,785
1,244
2,382
—
—
490
798
789
5,703
17,017
21,690
—
590
45,000
—
—
73
1,238,299
(1,194,384)
43,988
65
1,211,122
(1,192,402)
18,785
$
95,724
$
63,785
The accompanying notes are an integral part of these consolidated financial statements.
F-3
Table of Contents
XOMA Corporation
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
(in thousands, except per share amounts)
Revenues:
Revenue from contracts with customers
Revenue recognized under units-of-revenue method
Total revenues
Operating expenses:
Research and development
General and administrative
Restructuring
Total operating expenses
Loss from operations
Other income (expense), net:
Interest expense
Other income, net
Loss before income tax
Income tax benefit
Net loss and comprehensive loss
Basic and diluted net loss per share available to common stockholders
Weighted average shares used in computing basic and diluted net loss per share available to
common stockholders
For the Year Ended December 31,
2019
2018
$
17,276 $
1,094
18,370
1,253
21,002
—
22,255
5,068
231
5,299
1,682
18,563
1,911
22,156
(3,885)
(16,857)
(1,919)
3,822
(1,982)
—
(1,982) $
(0.23) $
8,763
(922)
4,338
(13,441)
98
(13,343)
(1.59)
8,373
$
$
The accompanying notes are an integral part of these consolidated financial statements.
F-4
Table of Contents
XOMA Corporation
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
(in thousands)
Convertible Preferred
Stock
Common Stock
Shares Amount
Shares Amount
Additional
Paid-In
Capital
Accumulated Stockholders’
Total
Balance, January 1, 2018
Exercise of stock options
Issuance of common stock related to 401(k) contribution
and ESPP
Vesting of restricted stock units
Stock-based compensation expense
Issuance of warrants
Issuance of convertible preferred stock, net
Issuance of common stock, net
Net loss and comprehensive loss
Balance, December 31, 2018
Exercise of stock options
Issuance of common stock related to 401(k) contribution
and ESPP
Vesting of restricted stock units
Stock-based compensation expense
Issuance of warrants
Issuance of common stock, net
Net loss and comprehensive loss
Balance, December 31, 2019
5
—
—
—
—
—
1
—
—
6
—
—
—
—
—
—
—
6
$
$
$
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
8,249 $
68
4
16
—
—
—
354
—
8,691 $
56
10
2
—
—
1,000
—
9,759 $
62 $ 1,184,783 $
1
366
64
—
3,902
139
16,004
5,864
—
—
—
—
—
—
2
—
65 $ 1,211,122 $
—
273
—
—
—
—
8
—
73 $ 1,238,299 $
136
—
4,948
66
21,754
—
Deficit
(1,179,059) $
—
—
—
—
—
—
—
(13,343)
(1,192,402) $
—
—
—
—
—
—
(1,982)
(1,194,384) $
Equity
5,786
367
64
—
3,902
139
16,004
5,866
(13,343)
18,785
273
136
—
4,948
66
21,762
(1,982)
43,988
The accompanying notes are an integral part of these consolidated financial statements.
F-5
Table of Contents
XOMA Corporation
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
Cash flows from operating activities:
Net loss
Adjustments to reconcile net loss to net cash used in operating activities:
Fair value of Rezolute common stock shares received as consideration for license agreement
Stock-based compensation expense
Common stock contribution to 401(k)
Depreciation and amortization
Amortization of debt issuance costs, debt discount and final payment on debt
Non-cash lease expense
Payments in excess of loss recognized upon early lease termination
Realized gain on foreign currency exchange
Change in fair value of equity securities
Changes in assets and liabilities:
Trade and other receivables
Prepaid expenses and other assets
Accounts payable and accrued liabilities
Unearned revenue recognized under units-of-revenue method
Operating lease liabilities
Income tax payable
Other liabilities
Net cash used in operating activities
Cash flows from investing activities:
Purchase of property and equipment
Payments related to purchase of royalty rights
Net cash used in investing activities
Cash flows from financing activities:
Proceeds from issuance of convertible preferred stock, net of issuance costs
Proceeds from issuance of common stock, net of issuance costs
Proceeds from exercise of options
Proceeds from issuance of long-term debt
Payment of preferred and common stock issuance costs for prior year
Debt issuance costs and loan fees
Principal payments – debt
Principal payments – finance lease
Taxes paid related to net share settlement of equity awards
Net cash provided by financing activities
Effect of exchange rate changes on cash
Net increase in cash
Cash at the beginning of the period
Cash at the end of the period
Supplemental Cash Flow Information:
Cash paid for interest
Cash paid for taxes
Non-cash investing and financing activities:
Interest added to principal balance on long-term debt
Accrued cost related to issuance of preferred and common stock
Prepaid financing cost related to issuance of common stock
Issuance of common stock warrant under SVB loan
Estimated fair value of contingent consideration under the royalty
purchase agreements
Year Ended December 31,
2018
2019
$
(1,982)
$
(13,343)
—
4,948
102
25
592
1,890
(1,476)
—
(289)
(1,558)
240
(242)
(1,094)
(2,202)
—
761
(285)
—
(19,300)
(19,300)
—
21,929
610
9,500
(317)
—
(938)
(15)
(276)
30,493
—
10,908
45,780
56,688
558
—
710
166
—
66
75
$
$
$
$
$
$
$
$
(955)
3,902
20
30
141
—
—
(20)
563
(1,029)
(102)
(1,161)
(231)
—
(1,637)
1,178
(12,644)
(6)
(15,000)
(15,006)
16,269
6,063
583
7,500
—
(217)
—
(13)
(246)
29,939
20
2,309
43,471
45,780
81
1,637
621
417
100
139
—
$
$
$
$
$
$
$
$
The accompanying notes are an integral part of these consolidated financial statements.
F-6
Table of Contents
1. Description of Business
XOMA Corporation
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
XOMA Corporation (referred to as “XOMA” or the “Company”), a Delaware corporation, is a biotech royalty aggregator with a
sizable portfolio of economic rights to future potential milestone and royalty payments associated with partnered pre-commercial
therapeutic candidates. The Company’s portfolio was built through licensing its proprietary products and platforms from its legacy
discovery and development business, combined with acquisitions of rights to future milestones and royalties that the Company has made
since the royalty aggregator business model was implemented in 2017. The Company expects that most of its future revenue will be based
on payments the Company may receive for milestones and royalties related to these programs.
Liquidity and Financial Condition
The Company has incurred significant operating losses and negative cash flows from operations since its inception. As of
December 31, 2019, the Company had cash of $56.7 million. Based on the Company’s current cash balance and its ability to control
discretionary spending, such as royalty acquisitions, the Company has evaluated and concluded its financial condition is sufficient to fund
its planned operations and commitments and contractual obligations for a period of at least one year following the date that these
consolidated financial statements are issued.
2. Basis of Presentation and Significant Accounting Policies
Basis of Presentation
The accompanying consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries. All
intercompany accounts and transactions among consolidated entities were eliminated upon consolidation. The accompanying consolidated
financial statements were prepared in accordance with generally accepted accounting principles (“GAAP”) in the United States for financial
information and with the instructions to Form 10-K and Article 10 of Regulation S-X.
Use of Estimates
The preparation of financial statements in conformity with GAAP in the United States requires management to make estimates and
assumptions that affect the reported amounts of assets, liabilities, revenue and expenses, and related disclosures. On an ongoing basis,
management evaluates its estimates including, but not limited to, those related to revenue recognition, equity securities, operating lease
right-of-use assets and liabilities, legal contingencies, contingent considerations under royalty purchase agreements, royalty receivables,
revenue recognized under units-of-revenue method, income taxes and stock-based compensation. The Company bases its estimates on
historical experience and on various other market-specific and other relevant assumptions that are believed to be reasonable under the
circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not
readily apparent from other sources.
Actual results may differ significantly from these estimates, such as the Company’s billing under government contracts and
amortization of the payments received from HealthCare Royalty Partners II, L.P. (“HCRP”). Under the Company’s contracts with the
National Institute of Allergy and Infectious Diseases (“NIAID”), a part of the National Institutes of Health (“NIH”), the Company billed
using NIH’s provisional rates and thus is subject to future audits at the discretion of NIAID’s contracting office. In October of 2019, NIH
notified the Company that it engaged KPMG to perform an audit of the Company’s incurred cost submissions for 2013, 2014 and 2015.
This audit is not complete and may result in an adjustment to revenue previously reported which potentially could be material. In addition,
under the contracts with HCRP, the amortization for the reporting period is calculated based on the payments expected to be made by the
licensees to HCRP over the term of the arrangement. Any changes to the estimated payments by the licensees to HCRP can result in a
material adjustment to revenue previously reported.
F-7
Table of Contents
Revenue Recognition
Effective January 1, 2018, the Company adopted Accounting Standards Codification (“ASC”) Topic 606, Revenue from Contracts
with Customers ("ASC 606"). ASC 606 applies to all contracts with customers, except for contracts that are within the scope of other
standards, such as leases, insurance, collaboration arrangements and financial instruments. Under ASC 606, the Company recognizes
revenue when its customer obtains control of promised goods or services, in an amount that reflects the consideration which the Company
expects to receive in exchange for those goods or services.
To determine revenue recognition for arrangements that the Company determines are within the scope of ASC 606, the Company
performs the following five steps: (i) identify the contract(s) with a customer; (ii) identify the performance obligations in the contract;
(iii) determine the transaction price; (iv) allocate the transaction price to the performance obligations in the contract; and (v) recognize
revenue when (or as) the Company satisfies a performance obligation. The Company only applies the five-step model to contracts when it is
probable that Company will collect the consideration it is entitled to in exchange for the goods or services it transfers to the customer. At
contract inception, once the contract is determined to be within the scope of ASC 606, the Company assesses the goods or services
promised within each contract and determines those that are performance obligations and assesses whether each promised good or service is
distinct. The Company then recognizes as revenue the amount of the transaction price that is allocated to the respective performance
obligation based on relative fair values, when (or as) the performance obligation is satisfied.
The Company recognizes revenue from its license and collaboration arrangements and royalties. The terms of the arrangements
generally include payment to the Company of one or more of the following: non-refundable, upfront license fees, development, regulatory
and commercial milestone payments, and royalties on net sales of licensed products.
License of intellectual property
If the license to the Company’s intellectual property is determined to be distinct from the other performance obligations identified
in the arrangement, the Company recognizes revenue from non-refundable, upfront fees allocated to the license when the license is
transferred to the customer and the customer is able to use and benefit from the license. For licenses that are bundled with other promises,
such as transfer of related materials, process and know-how, the Company utilizes judgement to assess the nature of the combined
performance obligation to determine whether the combined performance obligation is satisfied over time or at a point in time. Under the
Company’s license agreements, the nature of the combined performance obligation is the granting of licenses to the customers as the other
promises are not separately identifiable in the context of the arrangement. Since the Company grants the license to a customer as it exists at
the point of transfer and is not involved in any future development or commercialization of the products related to the license, the nature of
the license is a right to use the Company’s intellectual property as transferred. As such, the Company recognizes revenue related to the
combined performance obligation upon completion of the delivery of the related materials, process and know-how (i.e., at a point in time).
Milestone payments
At the inception of each arrangement that includes development and regulatory milestone payments, the Company evaluates
whether the milestones are considered probable of being reached and estimates the amount to be included in the transaction price. ASC 606
suggests two alternatives to use when estimating the amount of variable consideration: the expected value method and the most likely
amount method. Under the expected value method, an entity considers the sum of probability-weighted amounts in a range of possible
consideration amounts. Under the most likely amount method, an entity considers the single most likely amount in a range of possible
consideration amounts. The Company uses the most likely amount method for development and regulatory milestone payments.
If it is probable that a significant cumulative revenue reversal would not occur, the associated milestone value is included in the
transaction price. Milestone payments that are not within the control of the Company or the licensee, such as regulatory approvals, are not
considered probable of being achieved until those approvals are received. The transaction price is then allocated to each performance
obligation on a relative stand-alone selling price basis. The Company recognizes revenue as or when the performance obligations under the
contract are satisfied. At the end of each subsequent
F-8
Table of Contents
reporting period, the Company re-evaluates the probability or achievement of each such milestone and any related constraint, and if
necessary, adjusts its estimates of the overall transaction price. Any such adjustments are recorded on a cumulative catch-up basis, which
would affect revenue and earnings in the period of adjustment.
Royalties
For arrangements that include sales-based royalties, including milestone payments based on the level of sales, and the license is
deemed to be the predominant item to which the royalties relate, the Company recognizes revenue at the later of (i) when the related sales
occur, or (ii) when the performance obligation to which some or all of the royalty has been allocated has been satisfied (or partially
satisfied).
Upfront payments and fees are recorded as deferred revenue upon receipt or when due and may require deferral of revenue
recognition to a future period until the Company performs its obligations under these arrangements. Amounts payable to the Company are
recorded as accounts receivable when the Company’s right to consideration is unconditional. The Company does not assess whether a
contract has a significant financing component if the expectation at contract inception is such that the period between payment by the
customer and the transfer of the promised goods or services to the customer will be one year or less.
Sale of Future Revenue Streams
The Company has sold its rights to receive certain milestones and royalties on product sales. In the circumstance where the
Company has sold its rights to future milestones and royalties under a license agreement and also maintains limited continuing involvement
in the arrangement (but not significant continuing involvement in the generation of the cash flows that are due to the purchaser), the
Company defers recognition of the proceeds it receives for the sale of milestone or royalty streams and recognizes such unearned revenue as
revenue under units-of-revenue method over the life of the underlying license agreement. Under the units-of-revenue method, amortization
for a reporting period is calculated by computing a ratio of the proceeds received from the purchaser to the total payments expected to be
made to the purchaser over the term of the agreement, and then applying that ratio to the period’s cash payment.
Estimating the total payments expected to be received by the purchaser over the term of such arrangements requires management to
use subjective estimates and assumptions. Changes to the Company’s estimate of the payments expected to be made to the purchaser over
the term of such arrangements could have a material effect on the amount of revenues recognized in any particular period.
Stock-Based Compensation
The Company recognizes compensation expense for all stock-based payment awards made to the Company’s employees,
consultants and directors that are expected to vest based on estimated fair values. The valuation of stock option awards is determined at the
date of grant using the Black-Scholes Option Pricing Model (the “Black-Scholes Model”). The Black-Scholes Model requires inputs such as
the expected term of the option, expected volatility and risk-free interest rate. To establish an estimate of expected term, the Company
considers the vesting period and contractual period of the award and its historical experience of stock option exercises, post-vesting
cancellations and volatility. The estimate of expected volatility is based on the Company’s historical volatility. The risk-free rate is based on
the yield available on United States Treasury zero-coupon issues corresponding to the expected term of the award. The Company records
forfeitures when they occur.
The Company records compensation expense for service-based awards on a straight-line basis over the requisite service period,
which is generally the vesting period of the award, or to the date on which retirement eligibility is achieved, if shorter. For awards with
performance-based conditions, at the point that it becomes probable that the performance conditions will be met, the Company records a
cumulative catch-up of the expense from the grant date to the current date, and then amortizes the remainder of the expense over the
remaining service period. Management evaluates when the achievement of a performance-based condition is probable based on the expected
satisfaction of the performance conditions as of the reporting date. The amount of stock-based compensation expense recognized during a
period is based on the value of the portion of the awards that are ultimately expected to vest.
F-9
Table of Contents
The valuation of restricted stock units (“RSUs”) is determined at the date of grant using the Company’s closing stock price.
Equity Securities
The Company received shares of common stock from Rezolute (Note 4). Equity investments in Rezolute are classified in the
consolidated balance sheets as equity securities. The equity securities are measured at fair value, with changes in fair value recorded in the
other income (expense), net line item of the consolidated statement of operations and comprehensive loss at each reporting period. The
Company remeasures its equity investments at each reporting period until such time that the investment is sold or disposed of. If the
Company sells an investment, any realized gains and losses on the sale of the securities will be recognized in the consolidated statement of
operations and comprehensive loss in the period of sale.
Purchase of Rights to Future Milestones and Royalties
The Company has purchased rights to receive a portion of certain future developmental, regulatory and commercial sales
milestones, royalties, and option fees on sales of products currently in clinical development. The Company acquired such rights from
various entities and recorded the amount paid for these rights as long-term royalty receivables (see Note 5). In addition, the Company may
be obligated to make contingent payments related to certain product development milestones, fees upon exercise of options related to future
license products and sales-based milestones. The contingent payments are evaluated whether they are freestanding instruments or embedded
derivatives. If freestanding instruments, the contingent payments are measured at fair value at the inception of the arrangement, subject to
remeasurement to fair value each reporting period. Any changes in the estimated fair value is recorded in the consolidated statement of
operations and comprehensive loss. The Company accounts for milestone and royalty rights related to developmental pipeline products on a
non-accrual basis using the cost recovery method. These developmental pipeline products are non-commercialized, non-approved products
that require Food and Drug Administration (“FDA”) or other regulatory approval, and thus have uncertain cash flows. The Company is not
yet able to reliably forecast future cash flows given their pre-commercial stages of development. The related receivable balance is classified
as noncurrent since no payments are probable to be received in the near term. Under the cost recovery method, any milestone or royalty
payment received is recorded as a direct reduction of the recorded receivable balance. When the recorded receivable balance has been fully
collected, any additional amounts collected are recognized as revenue.
The Company reviews any impairment indicators and changes in expected recoverability of the long-term royalty receivable asset
regularly. If expected future cash flows discounted to the current period are less than the carrying value of the asset, the Company will
record impairment. The impairment will be recognized by reducing the financial asset to an amount that represents the present value of the
most recent estimate of cash flows. No impairment was recorded as of December 31, 2019 and December 31, 2018.
Leases
The Company entered into lease agreements for its corporate headquarters in Emeryville, California and for office and laboratory
facilities in Berkeley, California. In connection with the restructuring events in 2017 and 2018, the Company completely vacated its leased
facilities in Berkeley, California, once used for legacy operations, and subleased the space in the vacated buildings. In December 2019, the
Company terminated all operating leases in Berkeley, California and was fully released from any further payment obligations. As a result of
the lease terminations the Company was also released from all financial obligations under its sublease agreements. The Company continues
to lease its headquarters office space in Emeryville, California.
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Effective January 1, 2019, the Company adopted ASC Topic 842, Leases (“ASC 842”) using the optional transition method and
applied the standard only to leases that existed at that date. Under the optional transition method, the Company does not need to restate the
comparative periods in transition and will continue to present financial information and disclosures for periods before January 1, 2019 in
accordance with ASC Topic 840. The Company has elected the package of practical expedients allowed under ASC Topic 842, which
permits the Company to account for its existing operating leases as operating leases under the new guidance, without reassessing the
Company’s prior conclusions about lease identification, lease classification and initial direct costs. As a result of the adoption of the new
lease accounting guidance, on January 1, 2019, the Company recognized operating lease right-of-use assets of $7.4 million and operating
lease liabilities of $9.2 million. The difference in the operating lease right-of-use assets and operating lease liabilities is primarily due to the
carrying amount of lease-related restructuring liabilities of $1.7 million as of December 31, 2018 (Note 8).
The Company determines the initial classification and measurement of its right-of-use assets and lease liabilities at the lease
commencement date and thereafter if modified. The lease term includes any renewal options and termination options that the Company is
reasonably certain to exercise. The present value of lease payments is determined by using the interest rate implicit in the lease, if that rate is
readily determinable; otherwise, the Company uses its incremental borrowing rate. The incremental borrowing rate is determined by using
the rate of interest that the Company would pay to borrow on a collateralized basis an amount equal to the lease payments for a similar term
and in a similar economic environment. The Company built its incremental borrowing rate starting with the interest rate on its fully
collateralized debt and then adjusted it for lease term length.
Rent expense for operating leases is recognized on a straight-line basis, unless the right-of-use asset has been impaired, over the
reasonably assured lease term based on the total lease payments and is included in operating expenses in the consolidated statements of
operations and comprehensive loss.
For operating leases that reflect impairment, the Company will recognize the amortization of the right-of-use asset on a straight-line
basis over the remaining lease term with rent expense still included in operating expenses in the consolidated statements of operations and
comprehensive loss.
For all leases, rent payments that are based on a fixed index or rate at the lease commencement date are included in the measurement
of lease assets and lease liabilities at the lease commencement date.
The Company has elected the practical expedient to not separate lease and non-lease components. The Company’s non-lease
components are primarily related to property maintenance, which varies based on future outcomes, and thus is recognized in rent expense
when incurred.
Income Taxes
The Company accounts for income taxes using the liability method under which deferred tax assets and liabilities are determined
based on differences between financial reporting and tax bases of assets and liabilities and are measured using the enacted tax rates and laws
that will be in effect when the differences are expected to reverse. Valuation allowances are established when necessary to reduce deferred
tax assets to the amount which is more likely than not to be realizable.
The recognition, derecognition and measurement of a tax position is based on management’s best judgment given the facts,
circumstances and information available at each reporting date. The Company’s policy is to recognize interest and penalties related to the
underpayment of income taxes as a component of income tax expense. To date, there have been no interest or penalties charged in relation to
the unrecognized tax benefits.
Net Loss per Share Attributable to Common Stockholders
Basic net loss per share attributable to common stockholders is based on the weighted average number of shares of common stock
outstanding during the period. Net loss attributable to common stockholders consists of net loss, as adjusted for any convertible preferred
stock deemed dividends related to beneficial conversion features on this instrument at issuance. During periods of income, the Company
allocates participating securities a proportional share of net income, after deduction of any deemed dividends on preferred stock, determined
by dividing total weighted average participating securities by the sum of the total weighted average number of common stock and
participating securities (the “two-class
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method”). The Company’s convertible preferred stock participates in any dividends declared by the Company on its common stock and are
therefore considered to be participating securities. For the years ended December 31, 2019 and 2018, the Company did not declare any
dividends.
During periods of loss, the Company allocates no loss to participating securities because they have no contractual obligation to
share in the losses of the Company. Diluted net loss per share attributable to common stockholders is based on the weighted average number
of shares outstanding during the period, adjusted to include the assumed conversion of preferred stock, and the exercise of certain stock
options, RSUs, and warrants for common stock. The calculation of diluted loss per share attributable to common stockholders requires that,
to the extent the average market price of the underlying shares for the reporting period exceeds the exercise price of any outstanding options,
RSUs or warrants and the presumed exercise of such securities are dilutive to loss per share attributable to common stockholders for the
period. Adjustments to the denominator are required to reflect the related dilutive shares.
Comprehensive Loss
Comprehensive loss is comprised of two components: net loss and other comprehensive income (loss). Other comprehensive
income (loss) refers to gains and losses that under U.S. GAAP are recorded as an element of stockholders’ equity but are excluded from net
loss. The Company did not record any transactions within other comprehensive income (loss) in the periods presented and, therefore, the net
loss and comprehensive loss were the same for all periods presented.
Recent Accounting Pronouncements
In June 2016, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2016-13,
Financial Instruments-Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments. ASU 2016-13 replaced the
incurred loss impairment methodology under current GAAP with a methodology that reflects expected credit losses and requires
consideration of a broader range of reasonable and supportable information to inform credit loss estimates. ASU 2016-13 requires use of a
forward-looking expected credit loss model for accounts receivables, loans, and other financial instruments. Adoption of the standard
requires using a modified retrospective approach through a cumulative-effect adjustment to retained earnings as of the effective date to align
existing credit loss methodology with the new standard. Subsequent to issuing ASU 2016-13, the FASB issued ASU 2018-19, Codification
Improvements to Topic 326, Financial Instruments – Credit Losses, or ASU 2018-19, for the purpose of clarifying certain aspects of ASU
2016-13. In May 2019, the FASB issued ASU 2019-05, Financial Instruments – Credit Losses (Topic 326): Targeted Transition Relief, or
ASU 2019-05, to provide entities with more flexibility in applying the fair value option on adoption of the credit impairment standard. ASU
2018-19 and ASU 2019-05 have the same effective date and transition requirements as ASU 2016-13. ASU 2016-13 will be effective for all
entities except public companies that are not smaller reporting companies for fiscal years beginning after December 15, 2022, including
interim periods within those fiscal years, using a modified retrospective approach. Early adoption is permitted. The Company plans to adopt
ASU 2016-13 and related updates as of January 1, 2023. We are evaluating the impact of adopting this new accounting guidance on our
consolidated financial statements.
In August 2018, the FASB issued ASU 2018‑13, Fair Value Measurement (Topic 820) (“ASU 2018-13”), which modifies,
removes and adds certain disclosure requirements on fair value measurements based on the FASB Concepts Statement, Conceptual
Framework for Financial Reporting—Chapter 8: Notes to Financial Statements. The ASU is effective for the Company’s interim and
annual reporting periods during the year ending December 31, 2020, and all annual and interim reporting period thereafter. The
amendments on changes in unrealized gains and losses, the range and weighted average of significant unobservable inputs used to develop
Level 3 fair value measurements and the narrative description of measurement uncertainty should be applied prospectively for only the most
recent interim or annual period presented in the initial fiscal year of adoption. All other amendments should be applied retrospectively to all
periods presented upon their effective date. Early adoption is permitted upon issuance of ASU 2018‑13. An entity is permitted to early adopt
any removed or modified disclosures upon issuance of ASU 2018‑13 and delay adoption of the additional disclosures until their effective
date. The Company early adopted the guidance related to removal of disclosures upon issuance of this ASU and will delay adoption of
additional disclosures as permitted under the ASU. We are evaluating the impact of adopting the rest of the new accounting guidance on our
consolidated financial statements.
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In November 2018, the FASB issued ASU 2018‑18, Collaborative Arrangements (Topic 808) “Clarifying the Interaction between
Topic 808 and Topic 606,” which requires transactions in collaborative arrangements to be accounted for under ASC 606 if the counterparty
is a customer for a good or service that is a distinct unit of account. The new standard also precludes an entity from presenting consideration
from transactions with a collaborator that is not a customer together with revenue recognized from contracts with customers. The ASU is
effective for the Company’s interim and annual reporting periods during the year ending December 31, 2020, and all annual and interim
reporting period thereafter. Early adoption is permitted, but no earlier than an entity’s adoption date of Topic 606. This ASU requires
retrospective adoption to the date the Company adopted ASC 606, January 1, 2018, by recognizing a cumulative-effect adjustment to the
opening balance of retained earnings of the earliest annual period presented. The Company may elect to apply the ASU retrospectively
either to all contracts or only to contracts that are not completed at the date it initially applied ASC 606. The Company is in the process of
accessing the impact of ASU 2018‑18 on its consolidated financial statements, but does not expect the adoption of the guidance will have a
material impact on its consolidated financial statements.
In December 2019, the FASB issued ASU 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes. The
amendments in ASU 2019-12 are intended to simplify various aspects related to accounting for income taxes. ASU 2019-12 removes
certain exceptions to the general principles in Topic 740 and also clarifies and amends existing guidance to improve consistent application.
ASU 2019-12 is effective for the Company beginning January 1, 2021 with early adoption permitted. The Company is evaluating the
impact of adopting this new accounting guidance on its consolidated financial statements.
3. Consolidated Financial Statement Detail
Equity Securities
As of December 31, 2019, equity securities consisted of an investment in Rezolute’s common stock of $0.7 million (see Note 4).
The Company recognized a gain of $0.3 million due to the change in fair value of its investment in Rezolute’s common stock in other
income, net line item of the consolidated statement of operations and comprehensive loss for the year ended December 31, 2019.
Accrued and Other Liabilities
Accrued and other liabilities consisted of the following (in thousands):
Accrued incentive compensation
Accrued legal and accounting fees
Accrued payroll and other benefits
Interest payable
Accrued restructuring
Liability related to sublease
Other
Total
4. Licensing and Other Arrangements
Novartis – Gevokizumab (VPM087) and IL‑1 Beta
December 31,
December 31,
2019
2018
$
$
332 $
256
231
69
—
—
57
945 $
396
1,361
152
36
84
155
198
2,382
On August 24, 2017, the Company and Novartis Pharma AG (“Novartis”) entered into a license agreement (the “XOMA‑052
License Agreement”) under which the Company granted to Novartis an exclusive, worldwide, royalty-bearing license to gevokizumab
(“VPM087”), a novel anti-Interleukin‑1 (“IL‑1”) beta allosteric monoclonal antibody and related know-how and patents (altogether, the
“XOMA IP”). Under the terms of the XOMA-052 License Agreement, Novartis is solely responsible for the development and
commercialization of VPM087 and products containing VPM087.
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On August 24, 2017, pursuant to a separate agreement (the “IL‑1 Target License Agreement”), the Company granted to Novartis
non-exclusive licenses to its intellectual property covering the use of IL‑1 beta targeting antibodies in the treatment and prevention of
cardiovascular disease and other diseases and conditions, and an option to obtain an exclusive license (the “Exclusivity Option”) to such
intellectual property for the treatment and prevention of cardiovascular disease.
Under the XOMA‑052 License Agreement, the Company received total consideration of $30.0 million for the license and rights
granted to Novartis. Of the total consideration, $15.7 million was paid in cash and $14.3 million (equal to €12.0 million) was paid by
Novartis Institutes for BioMedical Research, Inc. (“NIBR”), on behalf of the Company, to settle the Company’s outstanding debt with Les
Laboratories Servier (“Servier”) (the “Servier Loan”). In addition, NIBR extended the maturity date on the Company’s debt to Novartis. The
Company also received $5.0 million cash related to the sale of 539,131 shares of the Company’s common stock, at a purchase price of
$9.2742 per share. The fair market value of the common stock issued to Novartis was $4.8 million, based on the closing stock price of $8.93
per share on August 24, 2017, resulting in a $0.2 million premium paid to the Company.
Based on the achievement of pre-specified criteria, the Company is eligible to receive up to $438.0 million in development,
regulatory and commercial milestones under the XOMA‑052 License Agreement. The Company is also eligible to receive royalties on sales
of licensed products, which are tiered based on sales levels and range from the high single digits to mid-teens. Under the IL‑1 Target
License Agreement, the Company received an upfront cash payment of $10.0 million and is eligible to receive low single-digit royalties on
canakinumab sales in cardiovascular indications covered by the Company’s patents. Should Novartis exercise the Exclusivity Option, the
royalties on canakinumab sales will increase to the mid-single digits.
Unless terminated earlier, the XOMA‑052 License Agreement and IL‑1 Target License Agreement will remain in effect, on a
country-by-country and product-by-product basis, until Novartis’ royalty obligations end. The two agreements contain customary
termination rights relating to material breach by either party. Novartis also has a unilateral right to terminate the XOMA‑052 License
Agreement on a product-by-product and country-by-country basis or in its entirety on six months’ prior written notice to the Company.
Under the IL‑1 Target License Agreement, Novartis has a unilateral right to terminate the agreement on a product-by-product and country-
by-country basis or in its entirety upon a prior written notice.
The XOMA‑052 License Agreement and IL‑1 Target License Agreement were accounted for as one arrangement because they
were entered into at the same time in contemplation of each other. The Company concluded that there are multiple promised goods and
services under the combined arrangement, including the transfer of license to IL‑1 beta targeting antibodies, and the transfer of license,
know-how, process, materials and inventory related to the VPM087 antibody, which were determined to represent two distinct performance
obligations. The Company determined that the Exclusivity Option is not an option with material right because the upfront payments to the
Company were not negotiated to provide an incremental discount for the future additional royalties upon exercise of the Exclusivity Option.
Therefore, the Company concluded that the Exclusivity Option is not a performance obligation. The additional royalties will be recognized
as revenue when, and if, Novartis exercises its option because the Company has no further performance obligations at that point.
At the inception of the arrangement, the Company determined that the transaction price under the arrangement was $40.2 million,
which consisted of the $25.7 million upfront cash payments, the $14.3 million Servier Loan payoff and the $0.2 million premium on the
sale of the common stock. The transaction price was allocated to the two performance obligations based on their standalone selling prices.
The Company determined that the nature of the two performance obligations is the right to use the licenses as they exist at the point of
transfer, which occurred when the transfer of materials, process and know-how, and filings to regulatory authority were completed. During
the year ended December 31, 2017, the Company recognized the entire transaction price of $40.2 million as revenue upon completion of the
delivery of the licenses and related materials, process and know-how and filings to regulatory authority.
The Company concluded that the development and regulatory milestone payments are solely dependent on Novartis’ performance
and achievement of specified events. The Company determined that it is not probable that a significant cumulative revenue reversal will not
occur in future periods for these future payments. Therefore, the
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development and regulatory milestones are fully constrained and excluded from the transaction price as of December 31, 2019. Any
consideration related to commercial milestones (including royalties) will be recognized when the related sales occur as they were
determined to relate predominantly to the licenses granted to Novartis and therefore, have also been excluded from the transaction price. At
the end of each reporting period, the Company will update its assessment of whether an estimate of variable consideration is constrained
and update the estimated transaction price accordingly.
As of December 31, 2019 and December 31, 2018, there are no contract assets or contract liabilities related to this arrangement. In
addition, the Company did not recognize any revenue related to this arrangement during the years ended December 31, 2019 and 2018.
None of the costs to obtain or fulfill the contract were capitalized.
Novartis International – Anti-TGFβ Antibody (NIS793)
On September 30, 2015, the Company and Novartis International Pharmaceutical Ltd. (“Novartis International”) entered into a
license agreement (the “License Agreement”) under which the Company granted Novartis International an exclusive, world-wide, royalty-
bearing license to the Company’s anti-transforming growth factor beta (“TGFβ”) antibody program (now “NIS793”). Under the terms of the
License Agreement, Novartis International has worldwide rights to NIS793 and is responsible for the development and commercialization of
antibodies and products containing antibodies arising from NIS793. Unless terminated earlier, the License Agreement will remain in effect,
on a country-by-country and product-by-product basis, until Novartis International’s royalty obligations end. The License Agreement
contains customary termination rights relating to material breach by either party. Novartis International also has a unilateral right to
terminate the License Agreement on an antibody-by-antibody and country-by-country basis or in its entirety on one hundred eighty days’
notice.
The Company concluded that there are multiple promised goods and services under the License Agreement, including the transfer
of license, regulatory services and transfer of materials, process and know-how, which were determined to represent one combined
performance obligation. The Company recognized the entire upfront payment of $37.0 million as revenue in the consolidated statement of
comprehensive loss in 2015 as it had completed its performance obligations as of December 31, 2015.
During the year ended December 31, 2017, Novartis International achieved a clinical development milestone pursuant to the
License Agreement, and as a result, the Company earned a $10.0 million milestone payment which was recognized as license fees in the
consolidated statement of operations and comprehensive income. The Company is eligible to receive up to a total of $470.0 million in
development, regulatory and commercial milestones under the anti-TGFβ antibody program.
The Company concluded that the development and regulatory milestone payments are solely dependent on Novartis’ performance
and achievement of the specified events. The Company determined that it is not probable that a significant cumulative revenue reversal will
not occur in future periods for these future payments. Therefore, the remaining development and regulatory milestones are fully constrained
and excluded from the transaction price as of December 31, 2019. Any consideration related to commercial milestones (including royalties)
will be recognized when the related sales occur as they were determined to relate predominantly to the licenses granted to Novartis and
therefore, have also been excluded from the transaction price. At the end of each reporting period, the Company will update its assessment
of whether an estimate of variable consideration is constrained and update the estimated transaction price accordingly.
The Company is also eligible to receive royalties on sales of licensed products, which are tiered based on sales levels and range
from a mid-single digit percentage rate to up to a low double-digit percentage rate. Novartis International’s obligation to pay royalties with
respect to a particular product and country will continue for the longer of the date of expiration of the last valid patent claim covering the
product in that country, or ten years from the date of the first commercial sale of the product in that country.
As of December 31, 2019 and December 31, 2018, there are no contract assets or contract liabilities related to this arrangement.
None of the costs to obtain or fulfill the contract were capitalized. No revenue was recognized for the years ended December 31, 2019 and
December 31, 2018.
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Rezolute
On December 6, 2017, the Company entered into a license agreement with Rezolute pursuant to which the Company granted an
exclusive global license to Rezolute to develop and commercialize X358 (now “RZ358”) for all indications. The Company and Rezolute
also entered into a common stock purchase agreement pursuant to which Rezolute agreed to issue to the Company, as consideration for
receiving the license for RZ358, a certain number of its common stock related to its future financing activities.
Under the terms of the license agreement, Rezolute is responsible for all development, regulatory, manufacturing and
commercialization activities associated with RZ358 and is required to make certain development, regulatory and commercial milestone
payments to the Company of up to $232.0 million in the aggregate based on the achievement of pre-specified criteria. Under the license
agreement, the Company is also eligible to receive royalties ranging from the high single digits to the mid-teens based upon annual net sales
of any commercial product incorporating RZ358. Rezolute is obligated to take customary steps to advance RZ358, including using diligent
efforts to commence the next clinical study for RZ358 by a certain deadline and to meet certain spending requirements on an annual basis
for the program until a marketing approval application for RZ358 is accepted by the FDA. Rezolute’s obligation to pay royalties with
respect to a particular RZ358 product and country will continue for the longer of the date of expiration of the last valid patent claim covering
the product in that country, or twelve years from the date of the first commercial sale of the product in that country.
Under the terms of the license agreement, the Company is eligible to receive a low single digit royalty on sales of Rezolute’s other
non-RZ358 products from its current programs. Rezolute’s obligation to pay royalties with respect to a particular Rezolute product and
country will continue for the longer of twelve years from the date of the first commercial sale of the product in that country or for so long as
Rezolute or its licensee is selling such product in such country (the “Royalty Term”), provided that any such licensee royalty will terminate
upon the termination of the licensee’s obligation to make payments to Rezolute based on sales of such product in such country. Rezolute’s
future royalty obligations will be reduced by 20% at any time during the Royalty Term that a valid XOMA patent claim is not outstanding.
Rezolute had an option through June 1, 2019 to obtain an exclusive license for their choice of one of the Company’s preclinical
monoclonal antibody fragments, including X129 (the “Additional Product Option”), in exchange for a $1.0 million upfront option fee and
additional clinical, regulatory and commercial milestone payments to the Company of up to $237.0 million in the aggregate based on the
achievement of pre-specified criteria as well as royalties ranging from the high single digits to the mid-teens based on annual net sales. On
June 1, 2019, Rezolute’s right to the Additional Product Option expired unexercised.
The license agreement contains customary termination rights relating to material breach by either party. Rezolute also has a unilateral
right to terminate the license agreement in its entirety on ninety days’ notice at any time. The Company has the right to terminate the license
agreement if Rezolute challenges the licensed patents.
Under the license agreement and common stock purchase agreement, no consideration was exchanged upon execution of the
arrangement. In consideration for receiving the license for RZ358, Rezolute agreed to issue shares of its common stock and pay cash to the
Company upon the occurrence of Rezolute’s financing activities and the amounts to be paid to be based on the timing of those activities.
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Rezolute License Agreement - First Amendment
In March 2018, the Company and Rezolute amended the license agreement and common stock purchase agreement. Pursuant to the
as-amended terms of the license agreement and common stock purchase agreement, the Company was eligible to receive $6.0 million in
cash, $8.5 million of Rezolute’s common stock, and 7,000,000 shares of Rezolute’s common stock, contingent on the completion of
Rezolute’s financing activities. Further, in the event that Rezolute did not complete a financing that raised at least $20.0 million in aggregate
gross proceeds (“Qualified Financing”) by March 31, 2019 (the “2019 Closing”), the Company would have received an additional number
of shares of Rezolute’s common stock equal to $8.5 million divided by the weighted average of the closing bid and ask prices or the average
closing prices of Rezolute’s common stock on the ten-day trading period prior to March 31, 2019. Finally, in the event that Rezolute was
unable to complete a Qualified Financing by March 31, 2020, the Company would have been eligible to receive $15.0 million in cash in
order for Rezolute to maintain the license. Under the common stock purchase agreement, Rezolute granted the Company the right and
option to sell the greater of (i) 5,000,000 shares of common stock or (ii) one third of the aggregate shares held by the Company upon failure
by Rezolute to list its shares of its common stock on the Nasdaq Stock Market or a similar national exchange on or prior to December 31,
2018.
During the three months ended March 31, 2018, the Company completed the delivery of the license and related materials, product
data/filing, process and know-how to Rezolute. However, the Company determined that it was not probable that the Company would collect
substantially all of the consideration to which it was entitled in exchange for the goods and services transferred to Rezolute. Therefore, the
Company determined no contract existed as of March 31, 2018 and no revenue was recognized during the three months ended March 31,
2018 under the arrangement.
Rezolute completed the Interim Financing Closing and the Initial Closing financing activities, as defined in the common stock
purchase agreement, during the first and second quarter of 2018, respectively. As a result, XOMA received 8,093,010 shares of Rezolute’s
common stock and cash of $0.5 million in April 2018. Under the license agreement, XOMA was also entitled to receive $0.3 million of
reimbursable technology transfer expenses from Rezolute. The Company concluded that the payment associated with the Initial Closing
represented substantially all consideration for the delivered license and technology to Rezolute. Therefore, the Company determined that a
contract existed between Rezolute and XOMA under ASC 606 on April 3, 2018.
The license agreement and common stock purchase agreement were accounted for as one arrangement because they were entered into
at the same time in contemplation of each other. The Company concluded that there were multiple promised goods and services under the
combined arrangement, including the license to RZ358, the transfer of RZ358 materials and product data/filing, and the transfer of process
and know-how related to RZ358, which were determined to represent one combined performance obligation. The Company determined that
the Additional Product Option was not an option with material right because there was no upfront consideration to the Company that would
result to an incremental discount for the future opt in payments. Therefore, the Company concluded that the Additional Product Option was
not a performance obligation. On June 1, 2019, Rezolute’s right to the Additional Product Option expired unexercised.
On April 3, 2018, the Company determined that the transaction price under the arrangement was $1.8 million, which consisted of the
8,093,010 shares of Rezolute’s common stock valued at $1.0 million, $0.5 million in cash, and reimbursable technology transfer expenses
of $0.3 million. During the year ended December 31, 2018, the Company recognized the entire transaction price of $1.8 million as revenue
upon completion of the delivery of the licenses and related materials, product data/filing, process and know-how. The change in fair value of
Rezolute’s common stock after the contract inception date was due to the form of the consideration and therefore, not included in the
transaction price pursuant to the accounting guidance. The Company accounts for the change in the fair value of its investment in Rezolute’s
common stock in the other income (expense), net line item of the consolidated statement of operations and comprehensive loss.
The Company concluded that the development and regulatory milestone payments are solely dependent on Rezolute’s performance
and achievement of the specified events. The Company determined that it is not probable that a significant cumulative revenue reversal will
not occur in future periods for these future payments. Therefore, the development and regulatory milestones are fully constrained and
excluded from the transaction price as of the inception of the arrangement. Any consideration related to commercial milestones (including
royalties) will be recognized when the related sales occur as they were determined to relate predominantly to the licenses granted to Rezolute
and therefore, have also been excluded from the transaction price. At the end of each reporting period, the Company will update its
assessment of whether the estimate of variable consideration is constrained and update the estimated transaction price accordingly.
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Rezolute License Agreement - Second Amendment
On January 7, 2019, the Company and Rezolute further amended the license agreement and common stock purchase agreement. The
parties agreed to replace the issuance of common stock valued at $8.5 million to XOMA upon closing of a Qualified Financing with a
requirement that Rezolute make five future cash payments to XOMA totaling $8.5 million through September 2020 (the “Future Cash
Payments”). The amendment also provides for early payment of the Future Cash Payments (only until the $8.5 million is reached) by
making cash payments to XOMA equal to 15% of the net proceeds of each future financing following the closing of the Qualified Financing,
with such payments to be credited against any remaining unpaid Future Cash Payments in reverse order of their future payment date. In
addition, the license agreement amendment revised the amount Rezolute is required to expend on development of RZ358 and related
licensed products, revised provisions with respect to Rezolute’s diligence efforts in conducting clinical studies and eliminated XOMA’s
right to appoint a member to Rezolute’s board of directors.
The common stock purchase agreement was amended to remove certain provisions related to the issuance of equity to XOMA in
accordance with the new provisions regarding the Future Cash Payments in the license agreement. Lastly, the common stock purchase
agreement was amended to provide the Company the right and option to sell up to 5,000,000 shares of Rezolute’s common stock currently
held by XOMA back to Rezolute upon failure by Rezolute to list its shares of its common stock on the Nasdaq Stock Market or a similar
national exchange on or prior to December 31, 2019. As of December 31, 2019, Rezolute failed to list its shares of common stock on the
Nasdaq Stock Market or a similar exchange. Up to 2,500,000 shares may be sold back to Rezolute during calendar year 2020.
On January 30, 2019, Rezolute closed a preferred stock financing for gross proceeds of $25.0 million, which triggered the Qualified
Financing event defined under the amended common stock purchase agreement resulting in cash consideration due to XOMA of $5.5
million. In addition, the Company received from Rezolute a reimbursable technology transfer expense of $0.3 million. The cash
consideration and technology reimbursement were received in February 2019.
As of March 31, 2019, Rezolute completed all financing activities, as defined in the license agreement and common stock purchase
agreement, and the Company is eligible to receive $8.5 million in Future Cash Payments through September 2020 (in addition to any
clinical, regulatory and annual net sales milestone payments and royalties). The Company concluded that the Future Cash Payments are
dependent on Rezolute’s ability to raise additional capital through future financing activities. The Company applied the variable
consideration constraint to the Future Cash Payments and determined that it was probable that a significant revenue reversal would not occur
in future periods for only $2.5 million of the total amount as of March 31, 2019 and recognized $2.5 million revenue in that quarter.
In July and August 2019, Rezolute received additional cash through two common stock financing events, which triggered early
payment of $3.4 million of the unrecognized $6.0 million of total Future Cash Payments. In addition, the Company received the $1.5 million
payment due September 30, 2019, resulting in a total of $4.9 million cash received from Rezolute in the third quarter of 2019. The
Company re-assessed the outstanding $3.6 million of Future Cash Payments and determined that a significant revenue reversal was not
probable due to Rezolute’s recent common stock financing events. Therefore, in the third quarter of 2019, the Company recognized $6.0
million as revenue related to the remaining Future Cash Payments. In the fourth quarter of 2019, the Company received the scheduled $1.0
million Future Cash Payment from Rezolute. As of December 31, 2019, the Company has an outstanding receivable of $2.6 million
representing its current estimate of the Future Cash Payments expected to be received from Rezolute.
During the year ended December 31, 2019, the Company recognized $14.0 million as revenue from Rezolute, which consisted of the
$5.5 million consideration paid upon the Qualified Financing event and $8.5 million Future Cash Payments. As of December 31, 2019 and
2018, there were no contract assets or contract liabilities related to this arrangement. None of the costs to obtain or fulfill the contract were
capitalized.
The Company reassessed the development and regulatory milestones and concluded that such variable consideration is fully
constrained and excluded from the transaction price as of December 31, 2019 and 2018.
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Janssen Biotech
The Company and Janssen Biotech, Inc. (“Janssen”) were parties to a license agreement which was terminated in 2017. In August
2019, the Company and Janssen entered into a new agreement pursuant to which the Company granted a non-exclusive license to Janssen to
develop and commercialize certain drug candidates under the XOMA patents and know-how. Under the new agreement, Janssen made a
one-time payment of $2.5 million to XOMA. Additionally, for each drug candidate, the Company is entitled to receive milestone payments
of up to $3.0 million upon Janssen’s achievement of certain clinical development and regulatory approval events. Upon commercialization,
the Company is eligible to receive 0.75% royalty on net sales of each product. Janssen’s obligation to pay royalties with respect to a
particular product and country will continue until the eighth-year and sixth-month anniversary of the first commercial sale of the product in
such country. The new agreement will remain in effect unless terminated by mutual written agreement of the parties.
The Company concluded that the new agreement should be accounted for separately from any prior arrangements with Janssen and
that the license grant is the only performance obligation under the new agreement. The Company recognized the entire one-time payment of
$2.5 million as revenue in the consolidated statement of comprehensive income for the year ended December 31, 2019 as it had completed
its performance obligation.
The Company concluded that the development and regulatory milestone payments are solely dependent on Janssen’s performance and
achievement of specified events and thus it is not probable that a significant cumulative revenue reversal will not occur in future periods for
these future payments. Therefore, the development and regulatory milestones are fully constrained and excluded from the transaction price
as of December 31, 2019. Any consideration related to royalties will be recognized when the related sales occur as they were determined to
relate predominantly to the license granted to Janssen and therefore, have also been excluded from the transaction price. At the end of each
reporting period, the Company will update its assessment of whether an estimate of variable consideration is constrained and update the
estimated transaction price accordingly.
As of December 31, 2019, there were no contract assets or contract liabilities related to this arrangement. None of the costs to obtain
or fulfill the contract were capitalized.
NIAID
Prior to the sale of the Company’s biodefense business discussed in Note 7, the Company performed services under a $64.8 million
multiple-year contract funded with federal funds from NIAID (Contract No. HHSN272200800028C), for development of anti-botulinum
antibody product candidates. The contract work was being performed on a cost plus fixed fee basis over a three-year period. The Company
recognized revenue under the arrangement as the services were performed on a proportional performance basis. Consistent with the
Company’s other contracts with the U.S. government, invoices were provisional until finalized. The Company operated under provisional
rates from 2010 through 2014, subject to adjustment based on actual rates upon agreement with the government. In 2014, upon completion
of NIAID’s review of hours and external expenses, XOMA agreed to exclude certain hours and external expenses resulting in a $0.4 million
receivable and $0.8 million deferred revenue balances. As of December 31, 2017, the Company wrote off the $0.4 million receivable from
NIAID as the likelihood of collection is remote. The Company classified $0.8 million as contract liabilities on the consolidated balance
sheets as of December 31, 2019 and December 31, 2018.
Sale of Future Revenue Streams
On December 21, 2016, the Company entered into two Royalty Interest Acquisition Agreements (together, the “Royalty Sale
Agreements”) with HCRP. Under the first Royalty Sale Agreement, the Company sold its right to receive milestone payments and royalties
on future sales of products subject to a License Agreement, dated August 18, 2005, between XOMA and Wyeth Pharmaceuticals
(subsequently acquired by Pfizer, Inc. (“Pfizer”)) for an upfront cash payment of $6.5 million, plus potential additional payments totaling
$4.0 million in the event three specified net sales milestones were met in 2017, 2018 and 2019. Based on actual sales, 2017, 2018, and 2019
sales milestones were not achieved. Under the second Royalty Sale Agreement entered into in December 2016, the Company sold its right to
receive royalties under an Amended and Restated License Agreement dated October 27, 2006 between XOMA and Dyax Corp. for a cash
payment of $11.5 million.
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The Company classified the proceeds received from HCRP as unearned revenue, to be recognized as revenue under units-of-
revenue method over the life of the license agreements because of the Company’s limited continuing involvement in the Acquisition
Agreements. Such limited continuing involvement is related to the Company’s undertaking to cooperate with HCRP in the event of litigation
or a dispute related to the license agreements. Because the transaction was structured as a non-cancellable sale, the Company does not have
significant continuing involvement in the generation of the cash flows due to HCRP and there are no guaranteed rates of return to HCRP, the
Company recorded the total proceeds of $18.0 million as unearned revenue recognized under units-of-revenue method. The Company
allocated the total proceeds between the two Royalty Sale Agreements based on the relative fair value of expected payments to be made to
HCRP under the license agreements. The unearned revenue is being recognized as revenue over the life of the underlying license agreements
under the "units-of-revenue" method. Under this method, amortization for a reporting period is calculated by computing a ratio of the
allocated proceeds received from HCRP to the payments expected to be made by the licensees to HCRP over the term of the Acquisition
Agreements, and then applying that ratio to the period’s cash payment. During the third quarter of 2018, the Shire product underlying the
Dyax Corp. license agreement was approved, and the Company began recognizing revenue under the units-of-revenue method due to sales
of the approved product.
The Company recognized $1.1 million and $0.2 million as revenue under units-of-revenue method under these arrangements
during the years ended December 31, 2019 and December 31, 2018, respectively. As of December 31, 2018, the Company classified $0.5
million and $17.0 million as current and non-current unearned revenue recognized under units-of-revenue method, respectively. As of
December 31, 2019, the current and non-current portion of the remaining unearned revenue recognized under units-of-revenue method was
$1.1 million and $15.3 million, respectively.
5. Royalty Purchase Agreements
Royalty Purchase Agreement with Agenus, Inc.
On September 20, 2018, the Company entered into a Royalty Purchase Agreement (the “Agenus Royalty Purchase Agreement”) with
Agenus, Inc., and certain affiliates (collectively, “Agenus”). Under the Agenus Royalty Purchase Agreement, the Company purchased from
Agenus the right to receive 33% of the future royalties on six Incyte immuno-oncology assets, currently in development, due to Agenus
from Incyte Europe Sarl (“Incyte”) (net of certain royalties payable by Agenus to a third party) and 10% of all future developmental,
regulatory and commercial milestones related to these assets. However, the Company did not have a right to the expected near-term
milestone associated with the entry of INCAGN2390 (anti-TIM-3) into its Phase 1 clinical trial. The future royalties due to Agenus from
Incyte are based on low-single to mid-teen digit percentage of applicable net sales.
In addition, the Company purchased from Agenus the right to receive 33% of the future royalties on MK-4830, an immuno-oncology
product currently in clinical development, due to Agenus from Merck Sharp & Dohme Corp. (“Merck”) and 10% of all future
developmental, regulatory and commercial milestones related to this asset. The future royalties due to Agenus from Merck are based on low
single digit percentage of applicable net sales. Pursuant to the Agenus Royalty Purchase Agreement, the Company’s share in future potential
development, regulatory and commercial milestones is up to $59.5 million. There is no limit on the amount of future royalties on sales that
the Company may receive under the agreements.
Under the terms of the Royalty Purchase Agreement, the Company paid Agenus $15.0 million. The Company financed $7.5 million of
the purchase price with a term loan under its Loan and Security Agreement with Silicon Valley Bank (“SVB”) (see Note 10).
As of December 31, 2019, there were no changes to the previously recorded $15.0 million as long-term royalty receivables in its
consolidated balance sheet. The company continues to assess that no payments are probable to be received under this agreement in the near
term. Under the cost recovery method, the Company does not expect to recognize any income related to milestones and royalties received
until the investment of $15.0 million has been fully collected.
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Royalty Purchase Agreement with Bioasis Technologies, Inc.
On February 25, 2019, the Company entered into a Royalty Purchase Agreement (the “Bioasis Royalty Purchase Agreement”) with
Bioasis Technologies, Inc. and certain affiliates (collectively “Bioasis”). Under the Bioasis Royalty Purchase Agreement, the Company
purchased potential future milestone and royalty rights from Bioasis for product candidates that are being developed pursuant to a license
agreement between Bioasis and Prothena Biosciences Limited. In addition, the Company was granted options to purchase a 1% royalty right
on the next two license agreements entered into between Bioasis and third-party licensees subject to certain payments and conditions as well
as a right of first negotiation on subsequent Bioasis license agreements with third parties. Upon exercise of the option related to the second
license agreement executed by Bioasis, the Company may be obligated to pay up to $0.3 million per licensed product. Upon exercise of the
option related to the third license agreement executed by Bioasis, the Company may be obligated to pay up to $0.4 million per licensed
product.
Under the terms of the Bioasis Royalty Purchase Agreement, the Company paid $0.3 million and will make contingent future cash
payments of up to $0.2 million to Bioasis as the licensed product candidates reach certain development milestones (the “Bioasis Contingent
Consideration”).
At the inception of the agreement, the Company recorded $0.4 million as long-term royalty receivables in its consolidated balance
sheet, including the estimated fair value of the Bioasis Contingent Consideration of $0.1 million. Future changes in the estimated fair value
of the contingent consideration will be recognized in the other income (expense), net line item of the consolidated statement of operations
and comprehensive loss. As of December 31, 2019, there was no change in the fair value of the contingent consideration from its initial
value and no amounts were paid during the year ended December 31, 2019.
Under the cost recovery method, the Company does not expect to recognize any income related to milestones and royalties received
until the investment has been fully collected. No impairment was recorded as of December 31, 2019.
Royalty Purchase Agreement with Aronora, Inc.
On April 7, 2019, the Company entered into a Royalty Purchase Agreement (the “Aronora Royalty Purchase Agreement”) with
Aronora, Inc. (“Aronora”), which closed on June 26, 2019. Under the Aronora Royalty Purchase Agreement, the Company purchased from
Aronora the right to receive future royalties and a portion of upfront, milestone, and option payments (the “Non-Royalties”) related to five
anti-thrombotic hematology drug candidates. Three candidates are subject to Aronora’s collaboration with Bayer Pharma AG (“Bayer”) (the
“Bayer Products”), including one which is subject to an exclusive license option by Bayer. The Company will receive 100% of future
royalties and 10% of future Non-Royalties from these Bayer Products. The other two candidates are unpartnered (the “non-Bayer Products”)
for which the Company will receive low-single digit percentage of net sales and 10% of Non-Royalties. The future payment percentage for
Non-Royalties will be reduced from 10% to 5% upon the Company’s receipt of two times the total cumulative amount of consideration paid
by the Company to Aronora.
Under the terms of the Aronora Royalty Purchase Agreement, the Company paid Aronora a $6.0 million upfront payment at the close
of the transaction. The Company financed $3.0 million of the upfront payment with a term loan under its Loan and Security Agreement
with SVB (see Note 10). The Company was required to make a contingent future cash payment of $1.0 million for each of the three Bayer
Products that were active on September 1, 2019 (up to a total of $3.0 million, the “Aronora Contingent Consideration”). Pursuant to the
Aronora Royalty Purchase Agreement, if the Company receives $250.0 million in cumulative royalties on net sales per product, the
Company will be required to pay associated tiered milestone payments to Aronora in an aggregate amount of up to $85.0 million per
product (the “Royalty Milestones”). The Royalty Milestones are paid based upon various royalty tiers prior to reaching $250.0 million in
cumulative royalties on net sales per product. Royalties per product in excess of $250.0 million are retained by the Company.
At the inception of the agreement, the Company recorded $9.0 million as long-term royalty receivables in its consolidated balance
sheet, including the estimated fair value of the contingent consideration of $3.0 million for the Aronora Contingent Consideration. In
September 2019, the Company paid the $3.0 million contingent consideration to Aronora. During the year ended December 31, 2019, there
was no change in the fair value of the contingent consideration from its initial value. As the Company receives royalties from Aronora for a
product, the Company will recognize the liability for future Royalty Milestones for such product when probable and estimable.
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Under the cost recovery method, the Company does not expect to recognize any income related to milestones and royalties received
until the investment has been fully collected. No impairment was recorded as of December 31, 2019.
Royalty Purchase Agreement with Palobiofarma, S.L.
On September 26, 2019, the Company entered into a Royalty Purchase Agreement (the “Palo Royalty Purchase Agreement”) with
Palobiofarma, S.L. (“Palo”), a company organized and existing under the laws of Spain. Pursuant to the Palo Royalty Purchase Agreement,
the Company acquired the rights to potential royalty payments in low single digit percentages of aggregate Net Sales (as defined in the Palo
Royalty Purchase Agreement) associated with six drug candidates in various clinical development stages, targeting the adenosine pathway
with potential applications in solid tumors, non-Hodgkin’s lymphoma, asthma/chronic obstructive pulmonary disease, inflammatory bowel
disease, idiopathic pulmonary fibrosis, lung cancer, psoriasis and nonalcoholic steatohepatitis and other indications (the “Palo Licensed
Products”) that are being developed by Palo. Novartis (the “Licensee”) is a development partner on NIR178, one of the Palo Licensed
Products, and such NIR178 is being developed pursuant to a license agreement between Palo and the Licensee.
Under the terms of the Palo Royalty Purchase Agreement, the Company paid Palo a $10.0 million payment at the close of the transaction
which occurred simultaneously upon parties’ entrance in the Palo Royalty Purchase Agreement on September 26, 2019. The Company
financed $5.0 million of the payment with a term loan under its Loan and Security Agreement with SVB (see Note 10).
At the inception of the agreement, the Company recorded $10.0 million as long-term royalty receivables in its consolidated balance
sheet. Under the cost recovery method, the Company does not expect to recognize any income related to royalties received until the
investment has been fully collected. No impairment was recorded as of December 31, 2019.
The following table summarizes the acquisition of royalty rights as of December 31, 2019 (in thousands):
Balance at January 1, 2018
Acquisition of royalty rights:
Agenus
Balance at December 31, 2018
Acquisition of royalty rights:
Bioasis
Aronora
Palobiofarma
Balance at December 31, 2019
6. Fair Value Measurements
$
—
$
$
15,000
15,000
375
9,000
10,000
34,375
The Company records its financial assets and liabilities at fair value. The carrying amounts of certain of the Company’s financial
instruments, including cash, trade receivables and accounts payable, approximate their fair value due to their short maturities. Fair value is
defined as the exchange price that would be received from selling an asset or paid to transfer a liability in an orderly transaction between
market participants at the measurement date. The accounting guidance for fair value establishes a framework for measuring fair value and a
fair value hierarchy that prioritizes the inputs used in valuation techniques. The accounting standard describes a fair value hierarchy based
on three levels of inputs, of which the first two are considered observable and the last unobservable, that may be used to measure fair value
which are the following:
Level 1 – Observable inputs, such as quoted prices in active markets for identical assets or liabilities.
Level 2 – Observable inputs, either directly or indirectly, other than quoted prices in active markets for identical assets or liabilities,
such as quoted prices in active markets for similar assets or liabilities, quoted prices in markets
F-22
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that are not active or other inputs that are not observable or can be corroborated by observable market data for substantially the full
term of the assets or liabilities.
Level 3 – Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets
or liabilities; therefore, requiring an entity to develop its own valuation techniques and assumptions.
The following tables set forth the Company’s fair value hierarchy for its financial assets and liabilities measured at fair value on a
recurring basis as follows (in thousands):
Fair Value Measurements at December 31, 2019 Using
Quoted Prices in
Active Markets for
Identical Assets
(Level 1)
Significant Other
Observable
Inputs
(Level 2)
Significant
Unobservable
Inputs
(Level 3)
Total
Assets:
Equity securities
Liabilities:
Contingent consideration
$
$
— $
— $
— $
681 $
681
— $
75 $
75
Fair Value Measurements at December 31, 2018 Using
Quoted Prices in
Active Markets for
Identical Assets
(Level 1)
Significant Other
Observable
Inputs
(Level 2)
Significant
Unobservable
Inputs
(Level 3)
Total
Assets:
Equity securities
$
— $
— $
392 $
392
During the years ended December 31, 2019 and 2018, there were no transfers between Level 1, Level 2, or Level 3 assets reported
at fair value on a recurring basis and the valuation techniques used did not change compared to the Company’s established practice.
Equity Securities
The following table provides a summary of changes in the estimated fair value of the Company’s Level 3 financial assets for
the year ended December 31, 2019 (in thousands):
Balance at December 31, 2018
Change in fair value
Balance at December 31, 2019
$
$
392
289
681
The equity securities consisted of an investment in Rezolute’s common stock and are classified as long-term assets on the
consolidated balance sheet as of December 31, 2018 and 2019. The equity securities are revalued each reporting period with changes in fair
value recorded in the other income (expense), net line item of the consolidated statements of operations and comprehensive loss.
As of December 31, 2018, the Company and its valuation specialist used a probability-weighted expected return model to measure
the fair value of the securities. This valuation methodology is based on unobservable estimates and judgements, and therefore is classified as
a Level 3 fair value measurement. Scenarios and probabilities were based on the Company’s management estimates and were incorporated
into the determination of the fair value of the equity securities.
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Table of Contents
The estimated fair value of the equity securities was calculated based on the following assumptions as of December 31, 2018:
Discount for lack of marketability
Estimated time to liquidity of shares
Scenario probabilities
Liquidation
Near-term sale
Near-term financing
35 %
1.45 years
20 %
5 %
75 %
In the first quarter of 2019, the Company updated the methodology used to value the equity securities due to Rezolute’s completion of
a Qualified Financing (see Note 4). As of December 31, 2019, the Company and its valuation specialist valued the equity securities using
the closing price for Rezolute’s common stock traded on the over-the-counter exchange and adjusted for an illiquidity discount. The inputs
used to calculate the illiquidity discount are based on observable and unobservable estimates and judgments and therefore is classified as a
Level 3 fair value measurement. As the Company has the right and option to sell up to 5,000,000 shares of Rezolute’s common stock back
to Rezolute after December 31, 2019 (see Note 4), the fair value of the equity securities was determined by dividing the total shares of
Rezolute’s common stock held by the Company into two tranches based on the estimated time to a potential liquidity event.
The estimated fair value of the equity securities was calculated based on the following assumptions as of December 31, 2019.
Closing common stock price on the Over-the-counter (OTC) exchange
$
0.12
Tranche 1:
Discount for lack of marketability
Estimated time to liquidity of shares
Tranche 2:
Discount for lack of marketability
Estimated time to liquidity of shares
13 %
0.25 years
33 %
1.5 years
Changes in any of the assumptions related to the unobservable inputs identified above may change the fair value of the equity
securities.
Contingent Consideration
The estimated fair value of the contingent consideration liability at the inception of the Bioasis Royalty Purchase Agreement
represents the future consideration that is contingent upon the achievement of specified development milestones for a product candidate. The
fair value measurement is based on significant Level 3 inputs such as anticipated timelines and probability of achieving development
milestones of each licensed product candidate. Changes in the fair value of the liability for contingent consideration will be recorded in the
other income (expense), net line item of the consolidated statements of operations and comprehensive loss until settlement. As of December
31, 2019, there were no changes in the estimated fair value of the contingent consideration from its initial value of $0.1 million.
The estimated fair value of the contingent consideration liability at the inception of the Aronora Royalty Purchase Agreement
represented the future consideration that was contingent upon the active status of Bayer Product programs on September 1, 2019. The fair
value measurement for the contingent consideration was based on significant Level 3 inputs such as management’s expectation for the
success and development of each of the products. As of December 31, 2019, there was no outstanding balance remaining, as the Company
paid the full $3.0 million contingent consideration to Aronora in September 2019.
F-24
Table of Contents
Debt
The estimated fair value of the Company’s outstanding debt is estimated using the net present value of the payments, discounted at
an interest rate that is consistent with market interest rates, which is a Level 2 input. The carrying amount and the estimated fair value of the
Company’s outstanding long-term debt at December 31, 2019 and 2018, are as follows (in thousands):
December 31, 2019
December 31, 2018
SVB Loans
Novartis note
Total
7. Dispositions
Carrying Amount Fair Value Carrying Amount Fair Value
7,281
$
14,825
15,193
22,479 $ 22,106
16,374 $ 16,048 $
15,903
32,277 $ 31,761 $
15,713
7,286 $
$
On November 4, 2015, XOMA and Ology Bioservices, Inc. (“Ology Bioservices”) entered into an asset purchase agreement under
which Ology Bioservices agreed to acquire XOMA’s biodefense business and related assets (including certain contracts with the U.S.
government), and to assume certain liabilities of XOMA. As part of the transaction, the parties entered into an intellectual property license
agreement (the “Ology Bioservices License Agreement”), under which XOMA agreed to license to Ology Bioservices certain intellectual
property rights related to the purchased assets. In addition, the Company is eligible to receive 15% royalties on net sales of any future Ology
Bioservices products covered by or involving the related patents or know-how.
In February 2017, the Company executed an Amendment and Restatement to both the asset purchase agreement and Ology
Bioservices License Agreement Based on the payment terms pursuant to the amended Ology Bioservices License Agreement, the Company
was entitled to receive cash consideration in aggregate of $4.6 million, all of which was received as of December 31, 2018. No further
payments remain under the agreement, but the Company is still eligible to receive royalties in the future.
The Company received $2.5 million during the year ended December 31, 2018, which was recognized as other income, net in the
consolidated statements of operations and comprehensive loss.
8. Lease Agreements
The Company leases one facility in Emeryville, California under an operating lease that expires in February 2023. The Emeryville
lease contains both an option to early terminate the lease and an option to extend the lease for an additional term, however, the Company is
not reasonably certain to exercise either option.
th
The Company also previously leased two facilities in Berkeley, California under operating leases that had a remaining lease term until
2021 and 2023. On December 18, 2019, the Company entered into a Lease Termination Agreement with each of the 7 Street Properties II
(“7 Street LP”) and 7 Street Property General Partnership (“7 Street GP”) to early terminate the Company’s two operating leases in
Berkeley, California. As a result of the lease terminations the Company was also released from all financial obligations under its sublease
agreements. The Company agreed to pay an early termination fee of $1.6 million in total and recognized a loss on lease termination of $0.4
million for the year ended December 31, 2019, which was included in other income (loss), net in the consolidated statements of operations
and comprehensive loss.
th
th
th
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Table of Contents
The following table summarizes maturity of the Company’s operating lease liabilities as of December 31, 2019 (in thousands):
Undiscounted lease payments
2020
2021
2022
2023
Thereafter
Total undiscounted lease payments
Present value adjustment
Total net lease liabilities
Operating
Leases
189
196
204
35
—
624
(51)
573
$
$
The following table summarizes the Company’s future undiscounted lease payments under operating leases (as defined by prior
guidance) as of December 31, 2018 (in thousands):
Year Ending December 31,
2019
2020
2021
2022
2023
Thereafter
Total minimum lease payments
Rent Payments
4,381
3,923
3,156
2,611
854
—
14,925
$
$
Rent expense recognized for operating leases was $2.3 million and $2.1 million for the years ended December 31, 2019 and 2018,
respectively. Under the terms of the lease agreements, the Company is also responsible for certain variable lease payments that are not
included in the measurement of the lease liability. Variable lease payments for operating leases were $1.7 million for the year ended
December 31, 2019, including non-lease components such as common area maintenance fees.
The following information represents supplemental disclosure for the statement of cash flows related to operating leases (in
thousands):
Cash paid for amounts included in the measurement of lease liabilities
Operating cash flows under operating leases
Weighted-average remaining lease term
Operating leases
Weighted-average discount rate
Operating leases
Sublease Agreements
December 31,
2019
$
2,629
December 31,
2019
3.17 years
5.51 %
On December 18, 2019, upon termination of the leases in Berkeley, California, the Company’s rights and obligations under its
sublease arrangements for the two facilities transferred to 7th Street LP and 7th Street GP and XOMA was released from all financial
obligations under its sublease agreements. Upon termination the Company recognized a $0.4 million in Other income (expense).
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Table of Contents
In connection with restructuring events in 2017 and 2018 the Company completely vacated its leased facilities in Berkeley, California
and subleased the space in the vacated buildings to four subtenants. On November 21, 2017, the Company entered into a non-cancellable
sublease agreement for a portion of one of its three leased facilities. The term of the sublease agreement commenced on December 26, 2017.
The sublease provided for a tenant improvement allowance of $0.8 million to the subtenant, which was funded by the Company in January
2018. Upon execution of the sublease agreement, the Company recognized a loss on the sublease equal to the tenant improvement
allowance. Under the sublease agreement, the sub-lessee executed a standby letter of credit naming the Company as the beneficiary
amounting to $1.0 million as security under the sublease in the event of uncured default by the sub-lessee. As of the termination date the
Company had not drawn any funds from the letter of credit as there was no default by the sub-lessee. For the years ended December 31,
2019 and 2018, the Company recognized $1.4 million and $1.5 million, respectively, of sublease income under this agreement.
On April 14, 2018, the Company entered into a non-cancellable sublease agreement for a portion of one of its three leased facilities.
The term of the sublease agreement commenced on May 1, 2018. The sublease provided for a tenant improvement allowance of $65,000 to
the subtenant, and payment of broker commissions of $89,000. Upon execution of the sublease agreement, the Company recognized a loss
on the sublease of $0.6 million, which was recorded in the restructuring charges line item of the consolidated statement of operations and
comprehensive loss during the three months ended June 30, 2018. For the years ended December 31, 2019 and 2018, the Company
recognized $0.4 million and $0.3 million, respectively, of sublease income under this agreement in Other income (expense).
In October 2018, the Company entered into a non-cancellable sublease agreement for a portion of one of its three leased facilities. The
term of the sublease agreement commenced on October 24, 2018. During the years ended December 31, 2019 and 2018 the Company
recognized $0.6 million and $0.1 million, respectively, of sublease income under this agreement in Other income (expense).
In January 2019, the Company entered into a non-cancellable sublease agreement for a portion of one of its three leased facilities. The
term of the sublease agreement commenced on January 18, 2019. The sublease provided for a tenant improvement allowance of $91,000 to
the subtenant, and payment of broker commissions of $53,000. During the year ended December 31, 2019, the Company recognized $0.6
million of sublease income under this agreement in Other income (expense).
9. Restructuring Charges
In 2016 and 2017 the Board of Directors approved a series of restructurings of its business to prioritize out-licensing activities and
curtail research and development spending. The restructuring included a reduction-in-force in which the Company terminated 62 employees
in total. Charges related to both these initiatives were complete by the end of fiscal 2017.
Prior to 2017, the Company’s operations were located in two buildings in Berkeley, California. Due to the restructuring activity and
reduction in headcount, the Company determined that it did not need the building space in Berkeley, California and consolidated all of its
personnel in a new office facility in Emeryville, California. During the year ended December 31, 2018, the Company completely vacated
both of its leased facilities in Berkeley, California and subleased the space to subtenants. In connection with vacating this space, the
Company recorded a discounted lease-related restructuring liability, which was calculated as the present value of the estimated future
facility costs for which the Company would obtain no future economic benefit over the term of the lease, net of estimated future sublease
income, and adjusted for the remaining balance of deferred rent. In addition, in connection with a sublease agreement executed in April
2018, the Company recognized a loss on the sublease of $0.6 million during the second quarter of 2018 (Note 8).
As of December 31, 2018, the Company classified the current portion of the combined lease-related liabilities of $1.4 million within
accrued and other liabilities and the non-current portion of $0.3 million within long-term other liabilities in its consolidated balance sheet.
Upon adoption of ASC 842, the Company consolidated all its lease-related liabilities in the consolidated balance sheet as of January 1, 2019
and reported as operating lease liabilities (Note 2).
During the year ended December 31, 2019, no lease-related restructuring charges were recognized in the consolidated statements of
operations and comprehensive loss. During the year ended December 31, 2018, the Company recorded $1.9 million of restructuring costs in
its consolidated statements of operations and comprehensive loss.
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10. Long-Term Debt and Other Financings
Silicon Valley Bank Loan Agreement
On May 7, 2018 (the “Effective Date”), the Company executed a Loan and Security Agreement (the “Loan Agreement”) with
SVB. Under the Loan Agreement, upon the Company’s request, SVB may make advances (each, a “Term Loan Advance”) available to the
Company up to $20.0 million (the “Term Loan”). The available fund may be increased up to $40.0 million upon the Company’s request and
approval by the bank subject to the Company’s compliance with certain internal and credit requirements. The Company was allowed to
borrow advances under the Term Loan from the Effective Date until the earlier of March 31, 2019 or an event of default (the “Draw
Period”). Unless an event of default occurs, the period to draw may have been extended to March 31, 2020, if the Company received $20.0
million in gross cash proceeds from milestone/licensing payments by March 31, 2019. In the event of a default related to the
Note Agreement with Novartis, SVB’s obligation to make any credit extensions to the Company under the Loan Agreement will
immediately terminate. The interest rate will be calculated at a rate equal to the greater of (i) 4.75%, and (ii) 0.25% plus the prime rate as
reported from time to time in The Wall Street Journal.
Payments under the Loan Agreement are interest only until the first anniversary of the funding date of each Term Loan Advance.
The interest-only period will be followed by equal monthly payments of principal and interest over 24 months. Each Term Loan Advance
will mature at the earlier of (i) the 23 months following the applicable term loan amortization date for each such Term Loan Advance
(ii) March 1, 2023, or (iii) 30 days prior to the earliest maturity of any portion of the Company’s loan with Novartis (the “Loan Maturity
Date”). After repayment, no Term Loan Advance (or any portion thereof) may be reborrowed.
The entire principal balance, including a final payment fee equal to 8.5% of the principal, will be due and payable on the Loan
Maturity Date. If the Company prepays the Term Loan Advance prior to the Loan Maturity Date, it will pay SVB a prepayment premium,
based on a prepayment fee equal to 3.00% of the amount prepaid, if the prepayment occurs on or before the first anniversary of the Effective
Date, 2.00% of the amount prepaid, if the prepayment occurs after the first anniversary of the Effective Date but prior to the second
anniversary of the Effective Date, and 1.00% of the amount prepaid if the prepayment occurs after the second anniversary of the Effective
Date. In the event of a default, a default interest rate of an additional 4% may be applied to the outstanding payments due to SVB, and SVB
may declare all outstanding obligations immediately due and payable and take such other actions as set forth in the Loan Agreement.
The Company’s obligations under the Loan Agreement are secured by a security interest in substantially all of its assets, other than
its intellectual property. The Loan Agreement includes customary affirmative and restrictive covenants, but does not include any financial
maintenance covenants, and also includes standard events of default, including payment defaults.
In connection with the Loan Agreement, the Company issued a warrant to SVB which is exercisable in whole or in part for up to an
aggregate of 6,332 shares of common stock with an exercise price of $23.69 per share (the “Warrant”). The Warrant may be exercised on a
cashless basis and is exercisable within 10 years from the date of issuance or upon the consummation of certain acquisitions of the
Company. The fair value of the Warrant issued to SVB was determined using the Black-Scholes Model and was estimated to be $0.1
million. In addition, the Company incurred debt issuance costs of $0.2 million in connection with the Loan Agreement.
On March 4, 2019, the Loan Agreement was amended to extend the Draw Period from March 31, 2019 to March 31, 2020. In
connection with the amendment, the Company issued a second warrant to SVB which is exercisable in whole or in part for up to an
aggregate of 4,845 shares of common stock with an exercise price of $14.71 per share. The fair value of the second warrant issued to SVB
was determined using the Black-Scholes Model and was estimated to be $0.1 million.
As of December 31, 2019, both warrants are outstanding. In addition, both warrants may be exercised on a cashless basis and are
exercisable within 10 years from the date of issuance or upon the consummation of certain acquisitions of the Company.
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In September 2018, the Company borrowed advances of $7.5 million under the Loan Agreement in connection with the Agenus
Royalty Purchase Agreement (see Note 5). The Company recorded a discount of $0.3 million against the debt, which is being amortized to
interest expense over the term of the Term Loan Advance using the effective interest method.
During the year ended December 31, 2019, the Company borrowed advances totaling $9.5 million under the Loan Agreement in
connection with the Aronora Royalty Purchase Agreement, Palo Royalty Purchase Agreement and payment of the Aronora Contingent
Consideration (see Note 5). The Company recorded a discount of $45,000 against the debt, which is being amortized to interest expense
over the term of the Term Loan Advance using the effective interest method.
The Company recorded $0.5 million of non-cash interest expense resulting from the amortization of the discount and accretion of the
final payment for the year ended December 31, 2019, respectively. The Company recorded $0.1 million of non-cash interest expense
resulting from the amortization of the discount and accretion of the final payment for the year ended December 31, 2018.
As of December 31, 2019, the carrying value of the debt under the Loan Agreement was $16.4 million. Of this amount, $5.2 million
is classified as current portion of long-term debt and $11.2 million is classified as long-term debt on the consolidated balance sheet. As of
December 31, 2018, the carrying value of the debt under the Loan Agreement was $7.3 million. Of this amount, $0.8 million was classified
as current portion of long-term debt and $6.5 million was classified as long-term debt on the consolidated balance sheet.
Novartis Note
In May 2005, the Company executed a secured note agreement (the “Note Agreement”) with Novartis, which was due and payable
in full in June 2015. Under the Note Agreement, the Company borrowed semi-annually to fund up to 75% of the Company’s research and
development and commercialization costs under its collaboration arrangement with Novartis, not to exceed $50.0 million in aggregate
principal amount. Interest on the principal amount of the loan accrued at six-month LIBOR plus 2%, which was equal to 3.91% at
December 31, 2019 is payable semi-annually in June and December of each year. Additionally, the interest rate resets in June and
December of each year. At the Company’s election, the semi-annual interest payments could be added to the outstanding principal amount,
in lieu of a cash payment, as long as the aggregate principal amount did not exceed $50.0 million. The Company made this election for all
interest payments. Loans under the Note Agreement were secured by the Company’s interest in its collaboration with Novartis, including
any payments owed to it thereunder.
On September 30, 2015, concurrent with the execution of a license agreement with Novartis International as discussed in Note 4,
XOMA and NIBR, who assumed the rights to the note from Novartis Vaccines Diagnostics, Inc. executed an amendment to the
Note Agreement (the “Secured Note Amendment”) under which the parties extended the maturity date of the note from September 30, 2015
to September 30, 2020, and eliminated the mandatory prepayment previously required to be made with certain proceeds of pre-tax profits
and royalties. In addition, upon achievement of a specified development and regulatory milestone, the then-outstanding principal amount of
the note will be reduced by $7.3 million rather than the Company receiving such amount as a cash payment.
On September 22, 2017, in connection with the XOMA‑052 License Agreement with Novartis, the Company and NIBR executed
an amendment to the Secured Note Amendment under which the parties further extended the maturity date of the Secured Note Amendment
from September 30, 2020 to September 30, 2022.
As of December 31, 2019 and December 31, 2018, the outstanding principal balance under the Secured Note Amendment was
$15.9 million and $15.2 million, respectively, and was included in long-term debt in the accompanying consolidated balance sheets.
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Payments of Long-Term Debt
Aggregate future principal, final payment fees and discounts of the Company’s long-term debt as of December 31, 2019, are as
follows (in thousands):
Year ending December 31, 2020
Year ending December 31, 2021
Year ending December 31, 2022
Thereafter
Total payments
Less: interest, final payment fees, discount and issuance costs
Total payments, net of interest, final payment fees, discount and issuance costs
Less: current portion of long-term debt
Long-term debt
$
$
6,030
8,551
21,801
—
36,382
(4,105)
32,277
(5,184)
27,093
Interest Expense
Amortization of debt issuance costs and discounts are included in interest expense. Interest expense in the consolidated statements
of operations and comprehensive loss for the years ended December 31, 2019 and 2018, relates to the following debt instruments (in
thousands):
SVB loan
Novartis note
Other
Total interest expense
11. Income Taxes
Year Ended December 31,
2019
2018
$
$
1,207 $
706
6
1,919 $
258
627
37
922
The Company has no income tax provision for the year ended December 31, 2019 and $0.1 million of income tax benefit for
the year ended December 31, 2018.
The provision (benefit) for income taxes (all current) consists of the following (in thousands):
Federal
State
Total
Year Ended December 31,
2019
2018
$
$
— $
—
— $
(97)
(1)
(98)
Reconciliation between the tax provision computed at the federal statutory income tax rate and the Company’s actual effective
income tax rate is as follows:
Federal tax at statutory rate
Stock compensation and other permanent differences
Tax credits
Valuation allowance
Total
F-30
Year Ended December 31,
2019
2018
21 %
(31) %
— %
10 %
— %
21 %
2 %
1 %
(23) %
1 %
Table of Contents
The significant components of net deferred tax assets at December 31, 2019 and 2018 were as follows (in thousands):
Capitalized research and development expenses
Net operating loss carryforwards
Research and development and other tax credit carryforwards
Stock compensation
Deferred revenue
Other
Total deferred tax assets
Valuation allowance
Net deferred tax assets
December 31,
$
2019
15,735 $
18,181
12,343
4,737
3,635
930
55,561
(55,561)
$
— $
2018
21,979
12,901
12,343
4,732
4,100
1,483
57,538
(57,538)
—
The net (decrease) increase in the valuation allowance was $(2.0) million and $5.8 million, for the years ended December 31, 2019
and 2018, respectively.
Accounting standards provide for the recognition of deferred tax assets if realization of such assets is more likely than not. Based
upon the weight of available evidence, which includes the Company’s four sources of taxable income including historical operating
performance and the repeal of net operating loss carryback, the Company has determined that total deferred tax assets should be fully offset
by a valuation allowance.
Based on an analysis under Section 382 of the Internal Revenue Code (which subjects the amount of pre-change Net Operating
Losses ("NOLs") and certain other pre-change tax attributes that can be utilized to annual limitations), the Company experienced an
ownership change in February 2017 which substantially limits the future use of its pre-change NOLs and certain other pre-change tax
attributes per year. The Company has excluded the related tax attributes that will expire as a result of the annual limitations in the deferred
tax assets as of December 31, 2019 and December 31, 2018. To the extent that the Company does not utilize its carry-forwards within the
applicable statutory carryforward periods, either because of Section 382 limitations or the lack of sufficient taxable income, the
carryforwards will expire unused.
As of December 31, 2019, the Company had federal net operating loss carry-forwards of approximately $73.4 million and state net
operating loss carry-forwards of approximately $41.0 million to offset future taxable income. The net operating loss carryforwards begin to
expire in 2036 for federal and 2033 for state purposes. The Company had federal orphan credit of $1.2 million which if not utilized will
expire in 2037. The Company also had $19.8 million of California research and development tax credits which have no expiration date.
Under the US tax legislation enacted in December 2017, although the treatment of tax losses generated in taxable years ending
before December 31, 2017 has generally not changed, tax losses generated in taxable years beginning after December 31, 2017 can be
carried forward indefinitely but may only be utilized to offset 80% of taxable income annually.
The Company files income tax returns in the U.S. federal jurisdiction and various states. The Company’s federal income tax returns
for tax years 2016 and beyond remain subject to examination by the Internal Revenue Service. The Company’s state income tax returns for
tax years 2015 and beyond remain subject to examination by state tax authorities. In addition, all of the net operating losses and research and
development credit carry-forwards that may be used in future years are still subject to adjustment.
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The following table summarizes the Company’s activity related to its unrecognized tax benefits (in thousands):
Balance at January 1
Increase related to current year tax position
Increase (decrease) related to prior year tax position
Balance at December 31
Year Ended December 31,
2019
2018
$
$
5,517 $
—
—
5,517 $
5,501
—
16
5,517
As of December 31, 2019, the Company had a total of $5.5 million of gross unrecognized tax benefits, none of which would affect
the effective tax rate upon realization. The Company currently has a full valuation allowance against its U.S. net deferred tax assets which
would impact the timing of the effective tax rate benefit should any of these uncertain tax positions be favorably settled in the future.
The Company does not expect its unrecognized tax benefits to change significantly over the next twelve months. The Company
will recognize interest and penalties accrued on any unrecognized tax benefits as a component of income tax expense. Through
December 31, 2019, the Company has not accrued interest or penalties related to uncertain tax positions.
12. Compensation and Other Benefit Plans
The Company grants qualified and non-qualified stock options, RSUs, common stock and other stock-based awards under various
plans to directors, officers, employees and other individuals. Stock options are granted at exercise prices of not less than the fair market
value of the Company’s common stock on the date of grant. Additionally, the Company has an Employee Stock Purchase Plan (“ESPP”)
that allows employees to purchase Company shares at a purchase price equal to 85% of the lower of the fair market value of the Company’s
common stock on the first trading day of the offering period or on the last day of the offering period.
Employee Stock Purchase Plan
In May 2015, the Company’s stockholders approved the 2015 Employee Stock Purchase Plan (the “2015 ESPP”), which replaced
the Company’s legacy 1998 ESPP. Under the 2015 ESPP, the Company reserved 15,000 shares of common stock for issuance as of its
effective date of July 1, 2015, subject to adjustment in the event of a stock split, stock dividend, combination or reclassification or similar
event. The 2015 ESPP allows eligible employees to purchase shares of the Company’s common stock at a discount through payroll
deductions of up to 10% of their eligible compensation, subject to any plan limitations. The 2015 ESPP provides for six-month offering
periods ending on May 31 and November 30 of each year. At the end of each offering period, employees are able to purchase shares at 85%
of the lower of the fair market value of the Company’s common stock on the first trading day of the offering period or on the last day of the
offering period.
In February 2017, the Compensation Committee and the Board of Directors adopted, and in May 2017, the Company’s
stockholders approved, an amendment to the Company’s 2015 ESPP. The amendment (a) increased by 250,000 the shares of common stock
(from 15,000 shares to a total of 265,000 shares) available for issuance under the 2015 ESPP; and (b) increased the maximum number of
shares of common stock an employee may purchase in any offering period to 2,500.
During the years ended December 31, 2019 and 2018, employees purchased 2,365 and 2,948 shares of common stock,
respectively, under the 2015 ESPP.
Deferred Savings Plan
Under section 401(k) of the Internal Revenue Code of 1986, the Board of Directors adopted, effective June 1, 1987, a tax-qualified
deferred compensation plan for employees of the Company. Participants may make contributions which defer up to 50% of their eligible
compensation per payroll period, up to a maximum for 2019 of $19,000 (or $25,000
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for employees over 50 years of age) and for 2018 of $18,500 (or $24,500 for employees over 50 years of age). The Company may, at its
sole discretion, make contributions each plan year, in cash or in shares of the Company’s common stock, in amounts which match up to 50%
of the salary deferred by the participants. The expense related to these contributions was $0.1 million each for the years ended December 31,
2019 and December 31, 2018, and 100% was paid in common stock for each year. The Company applies shares from plan forfeitures of
terminated employees toward the Company’s matching contribution.
Stock Option Plans
In May 2010, the Compensation Committee and the full Board adopted, and in July 2010 the Company’s stockholders approved, a
new equity-based compensation plan, the 2010 Long Term Incentive and Share Award Plan, which has since been amended and restated as
the Amended and Restated 2010 Long Term Incentive and Stock Award Plan (the “2010 Plan”). The 2010 Plan replaced the Company’s
legacy Option Plan, Restricted Plan and 1992 Directors Share Option Plan (the “Directors Plan”) and provided a more current set of terms
under which to provide this type of compensation.
In February 2016, the Compensation Committee and the Board of Directors adopted, and in May 2016, the Company’s
stockholders approved an amendment to the 2010 Plan to, among other things, allow for an increase in the number of shares of common
stock reserved for issuance by 170,000 shares to an aggregate of 1,108,560 shares.
In February 2017, the Compensation Committee and the Board of Directors adopted, and in May 2017, the Company’s
stockholders approved, an amendment to the 2010 Plan. The amendment (a) increases the number of shares of common stock issuable over
the term of the plan by an additional 1,470,502 to 2,579,062 shares in the aggregate; (b) increases the number of shares of common stock
issuable under the plan as incentive stock options by an additional 2,004,087 to 2,579,062 shares; (c) increases the per person award limits
for purposes of compliance with Section 162(m) of the Internal Revenue Code to 2,000,000 shares for options and stock appreciation rights
and to 2,000,000 shares for other types of stock awards; and (d) for purposes of Section 162(m) (i) confirms existing performance criteria
upon which performance goals may be based with respect to performance awards under the 2010 Plan, and (ii) confirms existing means of
adjustment when calculating the attainment of performance goals for performance awards granted under the 2010 Plan.
In May 2019, the Compensation Committee and the Board of Directors adopted, and in May 2019, the Company’s stockholders
approved, an amendment to the 2010 Plan. The amendment (a) increases the number of shares of common stock issuable over the term of
the plan by an additional 450,000 to 3,029,062 shares in the aggregate; (b) increases the number of shares of common stock issuable under
the plan as incentive stock options by an additional 450,000 to 3,029,062 shares; (c) extended the term of the Plan until April 1, 2029; (d)
for purposes of Section 162(m) (i) eliminates performance cash awards, and (ii) eliminates individual grant limits that applied under the
2010 Long Term Incentive Plan to awards that were intended to comply with the exemption for “performance-based compensation” under
Code Section 162(m).
From the 2010 Plan, the Company grants stock options, RSUs, and other stock-based awards to eligible employees, consultants
and directors. No further grants or awards will be made under the Option Plan, the Restricted Share Plan or the Directors Plan. Shares
underlying options previously issued under the Option Plan, the Restricted Share Plan or the Directors Plan that are currently outstanding
will, upon forfeiture, cancellation, surrender or other termination, become available under the 2010 Plan. Stock-based awards granted under
the 2010 Plan may be exercised when vested and generally expire ten years from the date of the grant or three to six months from the date of
termination of employment (longer in case of death or certain retirements).
As of December 31, 2019, the Company had 525,020 shares available for grant under the stock option plan. As of December 31,
2019, options covering 1,839,623 shares of common stock were outstanding under the stock option plan.
Stock Options
Stock options generally vest monthly over three years for employees and one year for directors. Stock options held by employees
who qualify for retirement age (defined as employees that are a minimum of 55 years of age and the
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sum of their age plus years of full-time employment with the Company exceeds 70 years) vest on the earlier of scheduled vest date or the
date of retirement.
Stock Option Plans Summary
The following table summarizes the Company’s stock option activity for the year ended December 31, 2019:
Outstanding at beginning of year
Granted
Exercised
Forfeited, expired or cancelled
Outstanding at end of period
Exercisable at end of period
Average
Exercise Contractual
Weighted Weighted Aggregate
Intrinsic
Average
Value
(in
thousands)
8,104
Term
(in years)
7.5 $
Number of
Price
shares
Per Share
1,624,746 $ 23.09
14.84
438,814
4.90
(55,759)
(168,178)
36.78
1,839,623 $ 20.42
1,471,669 $ 21.60
6.88 $ 26,829
6.37 $ 22,569
The aggregate intrinsic value of stock options exercised in 2019 and 2018 was $0.7 million and $1.1 million, respectively. The
weighted-average grant-date fair value per share of the options granted in 2019 and 2018 was $11.72 and $18.25, respectively.
As of December 31, 2019, $3.5 million of total unrecognized compensation expense related to stock options is expected to be
recognized over a weighted average period of 1.87 years.
Performance-Based Stock Options
Stock-based compensation expense associated with the corporate performance-based stock options is recognized if the performance
condition is considered probable of achievement using management’s best estimates. In 2019, the Company had 41,250 shares remaining
related to outstanding performance-based stock options with a grant date fair value of $0.2 million that had vesting criteria based solely on
the achievement of fiscal year 2019 corporate goals as set by the Compensation Committee of the Company’s Board of Directors. For the
year ended December 31, 2019, the Company determined that all remaining options were probable of achievement in fiscal year 2019 and
therefore the related expense of $0.2 million was recognized for the year ended December 31, 2019. As of December 31, 2019, there was no
unrecognized compensation costs related to these outstanding performance-based stock options.
Modification of Stock Options
In September 2019, the Company entered into a separation agreement with its former Chief Business Officer which resulted in the
extension of the exercise period for all of her vested options. As a result of the modification, the Company recorded stock-based
compensation expense of $0.5 million during the three months ended September 30, 2019 to reflect the revised expected term based on the
modified exercise period for these stock options in 2019.
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Stock-based Compensation Expense
The fair value of stock options granted during the years ended December 31, 2019 and 2018, was estimated based on the following
weighted average assumptions for:
Dividend yield
Expected volatility
Risk-free interest rate
Expected term
Year Ended December 31,
2019
2018
0 %
102 %
2.42 %
0 %
101 %
2.72 %
5.62 years
5.60 years
The following table shows total stock-based compensation expense for stock options, RSUs and ESPP in the consolidated
statements of operations and comprehensive loss (in thousands):
Research and development
General and administrative
Total stock-based compensation expense
13. Net Loss Per Share Attributable to Common Stockholders
Year Ended December 31,
2019
2018
$
$
204 $
4,744
4,948 $
369
3,533
3,902
Potentially dilutive securities are excluded from the calculation of diluted net loss per share attributable to common stockholders if
their inclusion is anti-dilutive.
The following table shows the weighted-average outstanding securities considered anti-dilutive and therefore excluded from the
computation of diluted net loss per share attributable to common stockholders (in thousands):
Convertible preferred stock
Common stock options and RSUs
Warrants for common stock
Total
Year Ended December 31,
2019
2018
6,256
924
9
7,189
5,048
1,639
21
6,708
The following is a reconciliation of the numerator (net income or loss) and denominator (number of shares) used in the calculation
of basic and diluted net loss per share attributable to common stockholders (in thousands):
Numerator
Net loss available to common stockholders
Year Ended December 31,
2019
2018
$
(1,982) $ (13,343)
Denominator
Weighted average shares used in computing basic and diluted net loss per share
available to common stockholders
Basic and diluted net loss per share of common stock
8,763
(0.23) $
8,373
(1.59)
$
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14. Capital Stock
Convertible Preferred Stock
Rights Offering 2019
On December 2, 2019, the Company commenced a rights offering to raise up to $22.0 million through the distribution of subscription
rights to holders of its common stock, Series X preferred stock and Series Y preferred stock (the “2019 Rights Offering”). In December
2019, the Company sold a total of 1,000,000 shares of common stock under the 2019 Rights Offering for aggregate gross proceeds of $22.0
million. Total offering costs of $0.2 million were offset against the proceeds from the sale of common stock, for total net proceeds of $21.8
million.
The 2019 Rights Offering was fully backstopped by Biotechnology Value Fund, L.P. (“BVF”). In total, BVF purchased 845,463
shares of common stock and the Company will pay approximately $18,000 for BVF’s reasonable legal fees and expenses in connection with
the 2019 Rights Offering. One of the Company’s Directors, Matthew Perry, is the President of BVF. Each share of common stock has a
stated value of $22.00 per share. As of December 31, 2019, BVF owned approximately 27.1% of the Company’s total outstanding shares of
common stock, and if all of the Series X and Series Y convertible preferred shares were converted, BVF would own 55.6% of the
Company’s total outstanding shares of common stock. Due to its significant equity ownership, BVF is considered a related party of the
Company.
Rights Offering 2018
On November 19, 2018, the Company initiated a rights offering to raise $20.0 million through the distribution of subscription
rights to holders of its common stock and Series X preferred stock (the “2018 Rights Offering”). In December 2018, the Company sold a
total of 285,689 shares of common stock and 1,252.772 shares of Series Y preferred stock under the 2018 Rights Offering for aggregate
gross proceeds of $20.0 million. Total offering costs of $0.3 million were offset against the proceeds from the sale of common stock and
preferred stock, for total net proceeds of $19.7 million.
All Series Y convertible preferred shares were issued to BVF. Each share of Series Y convertible preferred stock has a stated
value of $13,000 per share and is convertible into 1,000 shares of registered common stock based on a conversion price of $13.00 per share
of common stock. The total number of shares of common stock issued upon conversion of all issued Series Y convertible preferred stock
will be 1,252,772 shares. Each share is convertible at the option of the holder at any time, provided that the holder will be prohibited from
converting into common stock if, as a result of such conversion, the holder, together with its affiliates, would beneficially own a number of
shares above a conversion blocker, which is initially set at 19.99% of the total common stock then issued and outstanding immediately
following the conversion of such shares. A holder of Series X or Y preferred shares may elect to increase or decrease the conversion blocker
above or below 19.99% on 61 days’ notice, provided the conversion blocker does not exceed the limits under Nasdaq Marketplace Rule
5635(b), to the extent then applicable.
Preferred Stock
The Series X and Series Y convertible preferred stock have the following characteristics, which are set forth in Certificates of
Designation of Preferences, Rights and Limitations filed with the Delaware Secretary of State.
Dividends— Holders of convertible preferred stock are entitled to receive dividends on shares of convertible preferred stock equal
(on an as if converted to common stock basis) to and in the same form as dividends actually paid on the Company’s common stock.
Liquidation Rights— In the event of the Company’s liquidation, dissolution or winding up, holders of convertible preferred stock
will participate, on a pro-rata basis, with any distribution of proceeds to holders of common stock.
Conversion— Each share of Series X and Series Y is convertible into 1,000 shares of registered common stock based on a
conversion price of $4.03 per share and $13.00 per share of common stock, respectively.
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Voting Rights— Convertible preferred stock will generally have no voting rights, except as required by law and except that the
consent of the holders of the outstanding convertible preferred stock will be required to amend the terms and to issue additional shares of
the preferred stock.
Classification— The Company evaluated the convertible preferred stock for liability or equity classification under the applicable
accounting guidance and determined that equity treatment was appropriate because the convertible preferred stock did not meet the
definition of the liability instruments defined thereunder for convertible instruments. Specifically, the convertible preferred shares are not
mandatorily redeemable and do not embody an obligation to buy back the shares outside of the Company’s control in a manner that could
require the transfer of assets. Additionally, the Company determined that the convertible preferred stock would be recorded as permanent
equity, not temporary equity, given that they are not redeemable for cash or other assets (i) on a fixed or determinable date, (ii) at the option
of the holder, and (iii) upon the occurrence of an event that is not solely within control of the Company. The Company has also evaluated
the embedded conversion and contingent redemption features within the convertible preferred stock in accordance with the accounting
guidance for derivatives and determined that bifurcation is not required for any embedded feature.
Beneficial Conversion Feature— The fair value of the common stock into which the Series X convertible preferred stock is
convertible exceeded the allocated purchase price of the Series X convertible preferred stock by $5.6 million on the date of issuance, as such
the Company recorded a deemed dividend. The Company recognized the resulting beneficial conversion feature as a deemed dividend equal
to the number of shares of Series X convertible preferred stock sold on February 16, 2017 multiplied by the difference between the fair
value of the common stock and the Series X convertible preferred stock effective conversion price per share on that date. The dividend was
reflected as a one-time, non-cash, deemed dividend to the holders of Series X convertible preferred stock on the date of issuance, which is
the date the stock first became convertible. There was no beneficial conversion feature associated with the issuance of Series Y convertible
preferred stock.
2018 ATM Agreement
On December 18, 2018, the Company entered into an At The Market Issuance Sales Agreement (the “2018 ATM Agreement”)
with H.C. Wainwright & Co., LLC (“HCW”), under which the Company may offer and sell from time to time at its sole discretion shares of
its common stock through HCW as its sales agent, in an aggregate amount not to exceed $30.0 million. HCW may sell the shares by any
method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, and will use its
commercially reasonable efforts consistent with its normal trading and sales practices to sell the shares up to the amount specified. The
Company will pay HCW a commission of 3% of the gross proceeds of any shares of common stock sold under the 2018 ATM Agreement.
The Company has not sold any shares of common stock under the 2018 ATM Agreement.
Common Stock Warrants
As of December 31, 2019 and 2018, the following common stock warrants were outstanding:
Issuance Date
February 2015
February 2016
May 2018
March 2019
Expiration Date Balance Sheet Classification
February 2020 Stockholders’ equity
February 2021 Stockholders’ equity
May 2028 Stockholders’ equity
March 2029 Stockholders’ equity
$
$
$
$
per Share
2019
2018
66.20
15.40
23.69
14.71
9,063
8,249
6,332
4,845
28,489
9,063
8,249
6,332
—
23,644
Exercise Price December 31, December 31,
In February 2015, the Company issued Hercules Technology Growth Capital, Inc. (“Hercules”) a five-year warrant that entitles
Hercules to purchase up to an aggregate of 9,063 unregistered shares of the Company’s common stock at an exercise price equal to $66.20
per share. The warrant was issued in connection with a term loan that was repaid in full in 2017. The warrant is classified in stockholders’
equity on the consolidated balance sheets. As of December 31, 2019, no shares have been issued upon exercise of the warrant.
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In February 2016, in conjunction with services provided by a third-party consultant, the Company issued a warrant to purchase up
to an aggregate of 8,249 unregistered shares of the Company’s common stock at an exercise price equal to $15.40 per share. The warrant is
exercisable immediately and has a five-year term expiring in February 2021. The estimated fair value of the warrant of $0.1 million was
calculated using the Black-Scholes Model and was classified in stockholders’ equity on the consolidated balance sheet. As of December 31,
2018, no shares have been issued upon exercise of the warrant.
In May 2018, the Company issued SVB a warrant in connection with the SVB Loan Agreement (see Note 9) which is exercisable
in whole or in part for up to an aggregate of 6,332 shares of common stock with an exercise price of $23.69 per share. The warrant may be
exercised on a cashless basis and is exercisable within 10 years from the date of issuance or upon the consummation of certain acquisitions
of the Company. The fair value of the warrant issued to SVB was determined using the Black-Scholes Model and was estimated to be $0.1
million. The warrant is classified in stockholders’ equity on the consolidated balance sheets.
In March 2019, the Loan Agreement was amended to extend the Draw Period from March 31, 2019 to March 31, 2020. In
connection with the amendment, the Company issued a second warrant to SVB which is exercisable in whole or in part for up to an
aggregate of 4,845 shares of common stock with an exercise price of $14.71 per share. The second warrant may be exercised on a cashless
basis and is exercisable within 10 years from the date of issuance or upon the consummation of certain acquisitions of the Company. The
fair value of the second warrant issued to SVB was determined using the Black-Scholes Model and was estimated to be $0.1 million. As of
December 31, 2019, both warrants are outstanding and no shares have been issued upon exercise of the warrants.
15. Commitments and Contingencies
Collaborative Agreements, Royalties and Milestone Payments
The Company has committed to make potential future milestone payments and legal fees to third parties as part of licensing and
development programs. Payments under these agreements become due and payable only upon the achievement of certain developmental,
regulatory and commercial milestones by the Company’s licensees. Because it is uncertain if and when these milestones will be achieved,
such contingencies, aggregating up to $7.6 million (assuming one product per contract meets all milestones events) have not been recorded
on the accompanying consolidated balance sheets. The Company is unable to determine precisely when and if payment obligations under the
agreements will become due as these obligations are based on milestone events, the achievement of which is subject to a significant number
of risks and uncertainties.
Contingent Consideration
Pursuant to the Company’s royalty purchase agreements with Bioasis and Aronora, the Company has committed to pay the Bioasis
Contingent Consideration, the Aronora Contingent Consideration and the Aronora Royalty Milestones. The Company recorded $0.1 million
and $3.0 million for the Bioasis Contingent Consideration and the Aronora Contingent Consideration, respectively, which represent the
estimated fair value of these potential future payments at the inception of the agreements. These contingent consideration payments are
remeasured at fair value at each reporting period, with changes in fair value recorded in other income (expense), net. In September 2019, the
Company paid the Aronora Contingent Consideration of $3.0 million. The liability for future Aronora Royalty Milestones will be recorded
when the amounts by product are estimable and probable. As of December 31, 2019, none of these Aronora Royalty Milestones were
assessed to be probable and as such, none was recorded on the consolidated balance sheet.
16. Concentration of Risk, Segment and Geographic Information
Concentration of Risk
Cash and receivables are financial instruments which potentially subject the Company to concentrations of credit risk, as well as
liquidity risk.
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Table of Contents
The Company has not experienced any significant credit losses and does not generally require collateral on receivables. For the year
ended December 31, 2019, two partners represented 76% and 14% of total revenues. For the year ended December 31, 2018, three partners
represented 34%, 25%, and 14% of total revenues. As of December 31, 2019, one partner represented 100% of the trade receivables
balance. As of December 31, 2018, two partners represented 67% and 28% of the trade receivables balance.
Segment Information
The Company has determined that it operates in one business segment as it only reports operating results on an aggregate basis to
the chief operating decision maker of the Company.
Geographic Information
Revenue attributed to the following geographic regions was as follows (in thousands) based on the location of the licensees:
United States
Europe
Asia Pacific
Total
The Company’s property and equipment is held in the United States.
Year Ended December 31,
2019
17,670 $
100
600
18,370 $
2018
3,935
1,014
350
5,299
$
$
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Table of Contents
17. Quarterly Financial Information (unaudited)
The following is a summary of the quarterly results of operations for the years ended December 31, 2019 and 2018:
(1)
2019
Total revenues
Operating costs and expenses
Income (loss) from operations
Other income (expense), net
Net income (loss) before income tax
Income tax (expense) benefit
Net income (loss)
Basic net income (loss) per share attributable to common stockholders
(2)
Diluted net income (loss) per share attributable to common stockholders
(3)
2018
Total revenues
Restructuring (charge) credit
Operating costs and expenses
Loss from operations
Other income, net
Net loss before income tax
Income tax benefit
Net loss
Basic net loss per share attributable to common stockholders
Diluted net loss per share attributable to common stockholders
Consolidated Statements of Operations Data
Quarter Ended
March 31
June 30
September 30 December 31
(In thousands, except per share amounts)
$
$
$
$
$
$
$
$
8,131 $
(6,195)
1,936
1,297
3,233
—
3,233 $
0.22 $
0.21 $
463 $
—
(5,600)
(5,137)
1,331
(3,806)
—
(3,806) $
(0.46) $
(0.46) $
962 $
(5,673)
(4,711)
639
(4,072)
—
(4,072) $
(0.47) $
(0.47) $
2,255 $
(459)
(4,787)
(2,991)
1,044
(1,947)
—
(1,947) $
(0.23) $
(0.23) $
8,855 $
(5,964)
2,891
287
3,178
—
3,178 $
0.21 $
0.20 $
896 $
(909)
(5,294)
(5,307)
729
(4,578)
—
(4,578) $
(0.55) $
(0.55) $
422
(4,423)
(4,001)
(320)
(4,321)
—
(4,321)
(0.49)
(0.49)
1,685
(543)
(4,564)
(3,422)
312
(3,110)
98
(3,012)
(0.35)
(0.35)
(1) Total revenues mainly include $14.0 million of revenue recognized in the first and the third quarter in 2019 under the license
agreement and common stock purchase agreement with Rezolute, and $2.5 million in milestone revenue earned in the third quarter of
2019 under our license agreement with Janssen.
(2) For the quarters ended March 31, 2019 and September 30, 2019, the Company’s diluted net income per share of common stock was
computed by giving effect to all potentially dilutive common stock equivalents outstanding during each of these periods.
(3) Total revenues include upfront fees, milestone payments and royalties relating to various out-licensing arrangements, which includes
$1.8 million of revenue recognized in the second quarter of 2018 under the license agreement and common stock purchase agreement
with Rezolute, and $0.8 million in milestone revenue earned in the fourth quarter of 2018 under our license agreement with Janssen.
F-40
Exhibit 4.6
DESCRIPTION OF XOMA CORPORATION CAPITAL STOCK
The following is a description of the Common Stock, $0.0075 par value (the “Common Stock”), which is the only security of the
Company registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Preferred
Stock, $0.05 par value (the “Preferred Stock”) of XOMA Corporation (the “Company”).
Common Stock
General. The Company is authorized to issue up to 277,333,332 shares of Common Stock. The following description is based on
(i) the Company’s Certificate of Incorporation, as currently in effect (the “Certificate of Incorporation”), (ii) the Company’s By-laws,
as currently in effect (the “By-laws”), and (iii) the Delaware General Corporation Law (the “DGCL”). The following summary
description of the Common Stock of the Company is qualified in its entirety by reference to the provisions of the Certificate of
Incorporation and By-laws, copies of which have been filed as exhibits to the Company’s Annual Report filed herewith, and the
applicable provisions of the DGCL.
Dividend Rights. The holders of our Common Stock have the right to receive dividends and distributions, whether payable in
cash or otherwise, as may be declared from time to time by our board of directors, from legally available funds.
Voting Rights. Each holder of our Common Stock is generally entitled to one vote for each share of Common Stock owned of
record on all matters submitted to a vote of our stockholders. Except as otherwise required by law, holders of Common Stock (as well
as holders of any Preferred Stock entitled to vote with the common stockholders) will generally vote together as a single class on all
matters presented to the stockholders for their vote or approval, including the election of directors. Any matter brought before the
stockholders for a vote, other than the election of directors, will generally be decided by a majority of the votes cast on the matter,
unless the matter is one in which an express provision of the DGCL, the Certificate of Incorporation, the By-laws, the rules or
regulations of any stock exchange applicable to us, applicable law or pursuant to any regulation applicable to us or our securities
requires a different vote, in which case the express provision will govern and control the decision of the matter. Directors will be
elected by a plurality of the votes cast and entitled to vote generally on the election of directors. There are no cumulative voting rights
with respect to the election of directors or any other matters.
No Preemptive or Similar Rights. Holders of our Common Stock have no redemption rights, conversion rights or preemptive
rights to purchase or subscribe for our securities.
Right to Receive Liquidation Distributions. In the event of our liquidation, dissolution or winding-up, holders of our Common
Stock will be entitled to share equally in the assets available for distribution after payment of all creditors and the liquidation
preferences of our Preferred Stock (if any).
The rights of the holders of our Common Stock are subject o, and may be adversely affected by, the rights of holders of shares of any
Preferred Stock that we may designate and issue in the future.
Preferred Stock
General. Under our Certificate of Incorporation, our board of directors is authorized to issue up to 1,000,000 shares of Preferred
Stock, and, by resolution, to divide the Preferred Stock into series and, with respect to each series, to determine the designations and
the powers, preferences and rights, and the qualifications, limitations and restrictions thereof, including the dividend rights, conversion
or exchange rights, voting rights, redemption rights and terms, liquidation preferences, sinking fund provisions and the number of
shares constituting the series. Our board of directors can, without stockholder approval but subject to the terms of the Certificate of
Incorporation and to any resolution of the stockholders approved by at least 75% of all issued shares entitled to vote in respect thereof,
issue Preferred Stock with voting and other rights that could adversely affect the voting power of the holders of our Common
Stock and which could have certain anti-takeover effects. Before we may issue any series of Preferred Stock, our board of directors
will be required to adopt resolutions creating and designating such series of Preferred Stock.
The following summary description of the Preferred Stock of the Company is qualified in its entirety by reference to the
provisions of the Certificate of Incorporation, By-laws and the certificates of designation of preferences, rights and limitations of each
series of the Preferred Stock, copies of which have been filed as exhibits to the Company’s Annual Report on Form 10-K, and the
applicable provisions of the DGCL. As of December 31, 2019, 5,003 shares of Series X Preferred Stock and 1,252.772 shares of
Series Y Preferred Stock were issued and outstanding.
The Series X Preferred Stock. We have designated 5,003 shares of our Preferred Stock as Series X Preferred Stock. The Series X
Preferred Stock ranks:
· senior to any class or series of our capital stock created specifically ranking by its terms junior to the Series X Preferred
Stock;
· on parity to our Common Stock;
· on parity to any class or series of our capital stock created specifically ranking by its terms on parity with the Series X
Preferred Stock; and
·
junior to any class or series of our capital stock created specifically ranking by its terms senior to the Series X Preferred
Stock;
in each case, as to distributions of assets upon our liquidation, dissolution or winding up whether voluntarily or involuntarily.
Dividends. Holders of Series X Preferred Stock are entitled to receive dividends on shares of Series X Preferred Stock equal (on
an as-converted basis) to and in the same form as dividends actually paid on our Common Stock or other junior securities.
Liquidation Preference. In the event of our liquidation, dissolution, or winding up, holders of our Series X Preferred Stock will
participate pari passu (on an as-converted basis, without regard to any blocker provisions) with any distribution of proceeds to holders
of our Common Stock.
Redemption. We are not obligated to redeem or repurchase any shares of Series X Preferred Stock. Shares of Series X Preferred
Stock are not otherwise entitled to any redemption rights or mandatory sinking fund or analogous fund provisions.
Conversion. The Series X Preferred Stock is convertible at the option of the holders thereof at any time after issuance into the
number of registered shares of Common Stock determined by dividing the aggregate stated value of the Series X Preferred Stock
being converted by the conversion price then in effect. The initial conversion price is $4.03 and is subject to adjustment as described
below. No holder may request a conversion of its Series X Preferred Stock to the extent such conversion would result in the holder and
its affiliates beneficially owning more than a pre-set conversion blocker threshold, which will initially be set at 19.99% of our
Common Stock then outstanding (the “Beneficial Ownership Limitation”). The amount of beneficial ownership of a holder and its
affiliates will be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations of that section.
Conversion Price Adjustment—Stock Dividends and Stock Splits. If we pay a stock dividend or otherwise make a distribution
payable in Common Stock on our Common Stock or any Common Stock equivalents, subdivide or combine our outstanding Common
Stock, or reclassify our Common Stock in such a way that we issue additional shares of our capital stock, the conversion price will be
adjusted by multiplying the then-existing conversion price by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately before the distribution, dividend, adjustment or recapitalization and the denominator of which is the
number of shares of Common Stock outstanding immediately after such action.
Fundamental Transaction. If we effect a “fundamental transaction” (as defined below), then upon any future conversion of the
Series X Preferred Stock, the holders will have the right to receive, for each share of Common Stock
they would have received upon such conversion, the same kind and amount of securities, cash or property as such holder would have
been entitled to receive in the fundamental transaction had it been the holder of Common Stock immediately prior to the fundamental
transaction. The term “fundamental transaction” means any of the following:
· a merger or consolidation of the Company with or into another entity or any stock sale to, or other business combination in
which the Company is not the surviving entity;
· the sale of all or substantially all of our assets in one transaction or a series of related transactions;
· any completed tender offer or exchange offer involving holders of Common Stock in which more than 50% of the Common
Stock is converted or exchanged into other securities, cash or property, regardless of who makes such offer; or
·
any reclassification of Common Stock or any compulsory share exchange by which our Common Stock is effectively
converted into or exchanged for other securities, cash or property (but not a reverse stock split).
If the holders of Common Stock are given a choice as to the securities, cash or property to be received in a fundamental transaction,
the holders of Series X Preferred Stock will be given the same choice on conversion of such holders’ shares.
Voting Rights. The Series X Preferred Stock has no voting rights, except to the extent expressly provided in our Certificate of
Incorporation or as otherwise required by law. However, so long as 2,502 shares of Series X Preferred Stock are outstanding, we may
not take any of the following actions without the affirmative consent of holders of a majority of the outstanding Series X Preferred
Stock:
· amend our Certificate of Incorporation, By-laws or other charter documents so as to materially, specifically and adversely
affect the preferences, rights, privileges of the Series X Preferred Stock;
·
issue additional shares of Series X Preferred Stock or increase or decrease the number of authorized shares of Series X
Preferred Stock;
· sell, assign, monetize, pledge or otherwise divest or encumber our rights under any material license agreement, joint venture
or other partnership agreement to which we are a party as of the date of this offering and involving any drug or drug candidate;
· issue or commit to issue any other equity securities, with certain exceptions;
· issue any equity-based award or compensation to certain of our officers, unless the award has been unanimously approved by
our compensation committee at a time when a designee appointed by the Series X Preferred holders is then serving on that
committee; or
· enter into any agreement or understanding to take any of the actions listed above.
The Series Y Preferred Stock. We have designated 1,539 shares of our Preferred Stock as Series Y Preferred Stock. The Series Y
Preferred Stock ranks:
· senior to any class or series of our capital stock created specifically ranking by its terms junior to the Series Y Preferred
Stock;
· on parity to our Common Stock and Series X Preferred Stock;
· on parity to any class or series of our capital stock created specifically ranking by its terms on parity with the Series Y
Preferred Stock; and
·
junior to any class or series of our capital stock created specifically ranking by its terms senior to the Series Y Preferred
Stock;
in each case, as to distributions of assets upon our liquidation, dissolution or winding up whether voluntarily or involuntarily.
Dividends. Holders of Series Y Preferred Stock are entitled to receive dividends on shares of Series Y Preferred Stock equal (on
an as if converted to Common Stock basis) to and in the same form as dividends actually paid on our Common Stock or other junior
securities.
Liquidation Preference. In the event of our liquidation, dissolution, or winding up, holders of our Series Y Preferred Stock will
participate pari passu (on an as-converted basis, without regard to any blocker provisions) with any distribution of proceeds to holders
of our Common Stock.
Redemption. We are not obligated to redeem or repurchase any shares of Series Y Preferred Stock. Shares of Series Y Preferred
Stock are not otherwise entitled to any redemption rights or mandatory sinking fund or analogous fund provisions.
Conversion. The Series Y Preferred Stock is convertible at the option of the holders thereof at any time after issuance into the
number of registered shares of Common Stock determined by dividing the aggregate stated value of the Series Y Preferred Stock
being converted by the conversion price then in effect. The initial conversion price is $13.00 and is subject to adjustment as described
below. No holder may request a conversion of its Series Y Preferred Stock to the extent such conversion would result in the holder and
its affiliates beneficially owning more than a pre-set conversion blocker threshold, which will initially be set at 19.99% of our
Common Stock then outstanding (the “Beneficial Ownership Limitation”). The amount of beneficial ownership of a holder and its
affiliates will be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations of that section.
Conversion Price Adjustment—Stock Dividends and Stock Splits. If we pay a stock dividend or otherwise make a distribution
payable in Common Stock on our Common Stock or any Common Stock equivalents, subdivide or combine our outstanding Common
Stock, or reclassify our Common Stock in such a way that we issue additional shares of our capital stock, the conversion price will be
adjusted by multiplying the then-existing conversion price by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately before the distribution, dividend, adjustment or recapitalization and the denominator of which is the
number of shares of Common Stock outstanding immediately after such action.
Fundamental Transaction. If we effect a “fundamental transaction” (as defined below), then upon any future conversion of the
Series Y Preferred Stock, the holders will have the right to receive, for each share of Common Stock they would have received upon
such conversion, the same kind and amount of securities, cash or property as such holder would have been entitled to receive in the
fundamental transaction had it been the holder of Common Stock immediately prior to the fundamental transaction. The term
“fundamental transaction” means any of the following:
· a merger or consolidation of the Company with or into another entity or any stock sale to, or other business combination in
which the Company is not the surviving entity;
· the sale of all or substantially all of our assets in one transaction or a series of related transactions;
· any completed tender offer or exchange offer involving holders of Common Stock in which more than 50% of the Common
Stock is converted or exchanged into other securities, cash or property, regardless of who makes such offer; or
·
any reclassification of Common Stock or any compulsory share exchange by which our Common Stock is effectively
converted into or exchanged for other securities, cash or property (but not a reverse stock split).
If the holders of Common Stock are given a choice as to the securities, cash or property to be received in a fundamental transaction,
the holders of Series Y Preferred Stock will be given the same choice on conversion of such holders’ shares.
Voting Rights. The Series Y Preferred Stock has no voting rights, except to the extent expressly provided in our Certificate of
Incorporation or as otherwise required by law. However, so long as 770 shares of Series Y Preferred
Stock are outstanding, we may not take any of the following actions without the affirmative consent of holders of a majority of the
outstanding Series Y Preferred Stock:
· amend our Certificate of Incorporation, By-laws or other charter documents so as to materially, specifically and adversely
affect the preferences, rights, privileges of the Series Y Preferred Stock;
·
issue additional shares of Series Y Preferred Stock or increase or decrease the number of authorized shares of Series Y
Preferred Stock;
Anti-takeover Effects of Provisions of our Certificate of Incorporation and By-laws and Delaware Law
Certificate of Incorporation and By-laws Provisions. Our certificate of incorporation authorizes our board of directors to issue
up to 1,000,000 shares of Preferred Stock without stockholder approval and to set the rights, preferences and other designations,
including voting rights, of those shares as the board of directors may determine. In addition, our bylaws require certain procedures to
be followed and time periods to be met for any stockholder to propose matters to be considered at annual meetings of stockholders,
including nominating directors for election at those meetings. Our bylaws also provide that our board of directors is able to elect a
director to fill a vacancy created by the expansion of the board of directors or due to the resignation or departure of an existing board
member. Provisions of Delaware law and our certificate of incorporation and bylaws could make the acquisition of our company
through a tender offer, a proxy contest or other means more difficult and could make the removal of incumbent officers and directors
more difficult. We expect these provisions to discourage coercive takeover practices and inadequate takeover bids and to encourage
persons seeking to acquire control of our company to first negotiate with our board of directors. We believe that the benefits provided
by our ability to negotiate with the proponent of an unfriendly or unsolicited proposal outweigh the disadvantages of discouraging
these proposals. We believe the negotiation of an unfriendly or unsolicited proposal could result in an improvement of its terms.
Delaware Law. We are subject to Section 203 of the DGCL, an anti-takeover law. In general, Section 203 prohibits a publicly
held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years
following the date the person became an interested stockholder, unless:
· prior to the date of the transaction, the board of directors of the corporation approved either the business combination or the
transaction which resulted in the stockholder becoming an interested stockholder;
·
upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares outstanding (a) shares owned by persons who are directors and
also officers, and (b) shares owned by employee stock plans in which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
· on or subsequent to the date of the transaction, the business combination is approved by the board and authorized at an annual
or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66% of the outstanding voting
stock which is not owned by the interested stockholder.
Generally, a “business combination” includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to
the interested stockholder. An “interested stockholder” is a person who, together with affiliates and associates, beneficially owns, or is
an affiliate of the corporation and within three years prior to the determination of interested stockholder status did own, 15% or more
of a corporation’s outstanding voting securities. We expect the existence of this provision to have an anti-takeover effect with respect
to transactions our board of directors does not approve in advance.
LEASE TERMINATION AGREEMENT
Exhibit 10.60
THIS LEASE TERMINATION AGREEMENT (this “Termination Agreement”) is made as of
December 17, 2019 (the “Effective Date”), by and between 7TH STREET PROPERTY GENERAL
PARTNERSHIP, a California general partnership (“Landlord”) and XOMA CORPORATION, a
Delaware corporation (“Tenant”).
RECITALS:
A.
B.
C.
Landlord and Tenant are parties to that certain lease dated as of February 13, 2013 (the “Original
Lease”), which Original Lease has been amended by that certain First Amendment to Lease dated
February 22, 2013, and that certain Second Amendment to Lease dated November 18, 2014
(collectively, the “Lease”) relating to approximately 43,759 rentable square feet (the “Premises”)
comprising the entire building located at 2910 Seventh Street, Berkeley, California (the “Building”),
all as more particularly described in the Lease. The capitalized terms used in this Termination
Agreement shall have the same definitions as set forth in the Lease to the extent that such capitalized
terms are defined therein and not redefined in this Termination Agreement.
Tenant, as sublandlord, and Pivot Bio, Inc., a Delaware corporation, as subtenant (the “Subtenant”),
are parties to that certain Sublease Agreement dated September 28, 2018 (the “Sublease”), pertaining
to approximately 21,314 rentable square feet, described as a portion of the ground floor of the
Premises. Landlord consented to the Sublease by that certain Consent to Sublease dated October 24,
2018 (the “Consent”). The Sublease by its terms is scheduled to expire on May 31, 2021.
The Term is scheduled to expire on May 31, 2021 (the “Stated Expiration Date”), and Tenant desires
to terminate the Lease prior to the Stated Expiration Date. Landlord has agreed to such termination on
the terms and conditions contained in this Termination Agreement.
NOW, THEREFORE, in consideration of the above recitals which by this reference are incorporated
herein, the mutual covenants and conditions contained herein and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
1.
Effective as of the Effective Date (the “Early Termination Date”) and subject to the agreements,
representations, warranties and indemnities contained in this Termination Agreement, including,
without limitation, payment of the Termination Fee described in Section 9 below, the Lease is
terminated and the Term of the Lease shall expire with the same force and effect as if the Term was,
by the provisions thereof, fixed to expire on the Early Termination Date, provided, Tenant’s
obligation to pay Monthly Base Rent and Rent Adjustments under the Lease shall be terminated
effective as of September 15, 2019 (the “Rent Termination Date”). Subject to the terms and
conditions of Section 5 below, effective as of the Early Termination Date, that certain letter
agreement dated July 27,
077212\11436539v1
2016, between Wareham Property Group (on behalf of Landlord) and XOMA (US) LLC (on behalf of
Tenant) regarding the performance of certain preventative maintenance, repair and capital equipment
replacement work at 804 Heinz Avenue and 2910 Seventh Street, Berkeley, California (the “ Letter
Agreement”) is also terminated and Wareham Property Group, XOMA (US) LLC, Landlord, and
Tenant shall have no further rights, obligations, or liabilities under the Letter Agreement arising after
the Early Termination Date.
On or about the Early Termination Date, Landlord shall tender an attornment letter, in substantially
the form attached hereto as Exhibit A , to Subtenant, pursuant to the terms and conditions of the
Consent, establishing a direct contract between Landlord and Subtenant on the terms and conditions
of the Sublease. Following such attornment, Landlord, as landlord, and Subtenant, as tenant, may
elect to modify or alter the legal relationship between Landlord and Subtenant. Except with respect to
the Maintenance Claims as set forth in and limited by Section 5 below, Tenant hereby assigns the
right to pursue any Claims (defined below) it may have against Subtenant arising from any acts or
omissions of Subtenant under the Sublease to Landlord, and Landlord shall pursue such Claims
solely and directly against Subtenant, on a nonexclusive basis, such that either Landlord or Tenant
may pursue such Claims against Subtenant; provided, however, Tenant agrees that it shall make
commercially reasonable efforts to assist and cooperate with Landlord in the enforcement of the
terms and conditions of the Sublease and Landlord shall promptly reimburse Tenant for any
reasonable, actual, out-of-pocket expenses reasonably approved by Landlord related thereto,
following Tenant’s request for such reimbursement.
Subject to the agreements, representations, warranties and indemnities contained in this Termination
Agreement, Tenant remises, releases, quitclaims and surrenders to Landlord, its successors and
assigns, the Lease and all of the estate and rights of Tenant in and to the Lease and the Premises
effective as of the Early Termination Date. Subject to the agreements, representations, warranties
and indemnities contained in this Termination Agreement, Landlord accepts the surrender of the
Lease and the Premises effective as of the Early Termination Date.
Effective as of the Early Termination Date, Tenant forever releases and discharges Landlord from (a)
any and all claims, demands, damages, liabilities, losses or causes of action whatsoever arising prior
to the Early Termination Date (collectively, “ Claims”) that Tenant or its successors and assigns may
have against Landlord arising out of or in connection with the Premises, the Lease, or the Letter
Agreement, and (b) any obligations to be observed or performed by Landlord under the Lease or the
Letter Agreement; provided, however, that any Claims related to Landlord’s representations,
covenants and obligations under this Termination Agreement or surviving indemnification
obligations under the Lease are expressly excluded from the foregoing release.
Effective as of the Early Termination Date, Landlord forever releases and discharges Tenant from (a)
any Claims that Landlord or its successors and assigns may have against Tenant arising out of or in
connection with the Premises, the Lease, or the Letter Agreement arising on or after the Early
Termination Date, and (b) any obligations to be observed and performed by Tenant under the Lease
or Letter Agreement arising on or after the Early
2.
3.
4.
5.
077212\11436539v1
2
Termination Date; provided, however, that any Claims related to Tenant’s representations, covenants,
and obligations under this Termination Agreement or surviving indemnification obligations under the
Lease are expressly excluded from the foregoing release. With respect to any Claims related to
Tenant’s maintenance, repair, and/or replacement obligations under the Lease or the Letter Agreement
(“Maintenance Claims”), Landlord shall notify Tenant in writing of any such Maintenance Claim
within sixty (60) days of the Early Termination Date, and if Landlord does not notify Tenant of any
Maintenance Claim during such sixty (60) day period, then, notwithstanding any other provision of
this Termination Agreement or the Lease to the contrary, Landlord shall have no further right to bring
or make any Maintenance Claim against Tenant and all such Maintenance Claims shall thereafter be
released and waived by Landlord. Except to the extent described above, the foregoing shall not amend
or otherwise modify the parties’ indemnity obligations set forth in Section 11 below.
6.
With respect to the releases set forth in Section 4 and Section 5 above, Landlord and Tenant each
acknowledge that it may hereafter discover facts different from or in addition to those it now knows
or believes to be true with respect to the Claims which are the subject of the releases, and each
expressly agrees to assume the risk of the possible discovery of additional or different facts, and
agrees that the releases shall be and remain effective in all respects, regardless of such additional or
different facts.
Each of Landlord and Tenant hereby expressly waives and relinquishes all rights and benefits, if any,
each may have under Section 1542 of the California Civil Code with respect to the Claims which are
the subject of the releases above. California Civil Code Section 1542 reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR
RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT IF KNOWN BY HIM OR HER WOULD
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR
RELEASED PARTY.”
THE UNDERSIGNED, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY
WAIVE ALL RIGHTS THEY MAY HAVE THEREUNDER, AS WELL AS ANY OTHER
STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT PERTAINING TO THE
RELEASES SET FORTH HEREIN.
/s/ RR
Landlord Initials
/s/ TB
Tenant Initials
7.
Subject to the agreements, representations, warranties and indemnities contained in this Termination
Agreement, effective as of the Early Termination Date:
(a)
Tenant shall completely vacate and surrender the second (2nd) floor of the Premises to
Landlord in accordance with the terms of the Lease. Without limitation, Tenant shall leave
the second (2nd) floor of the Premises in a broom-clean condition and
077212\11436539v1
3
free of all movable furniture and equipment and shall deliver the keys to the second (2nd)
floor of the Premises to Landlord or Landlord's designee.
(b)
(c)
(d)
(e)
Tenant releases any and all claims to the Security Deposit, in the amount of $74,195.76, held
by Landlord pursuant to Article 5 of the Original Lease.
Tenant releases any and all claims to any remaining amounts of the Tenant Improvement
Allowance which may be due to Tenant pursuant to Section 9.1(c) of the Original Lease.
Tenants assigns and delivers to Landlord the security deposit or letter of credit (together with
any documents and fees necessary to transfer the beneficial interest in any such letter of credit
to Landlord), as applicable, held by Tenant as sublandlord pursuant to the Sublease.
Tenant shall pay to Subtenant any allowance, improvement allowance, or other sums due to
Subtenant by Tenant as sublandlord, if any, within five (5) business days of the Early
Termination Date. In connection therewith, Tenant agrees to indemnify and hold Landlord
and
its members, principals, beneficiaries, partners, officers, directors, employees,
mortgagee(s) and agents, and their respective principals and members harmless from any and
all claims of Subtenant with respect to any allowance, improvement allowance, or other sums
due to Subtenant by Tenant pursuant to the Sublease.
Tenant represents and warrants that (a) Tenant is the rightful owner of all of the Tenant's interest in
the Lease; (b) except with respect to the Sublease, Tenant has not made any disposition, assignment,
sublease, or conveyance of the Lease or Tenant's interest therein; (c) as of the Early Termination
Date, Tenant has no knowledge of any fact or circumstance which would give rise to any claim,
demand, obligation, liability, action or cause of action arising out of or in connection with Tenant's
and/or Subtenant’s occupancy of the Premises; (d) no other person or entity has an interest in the
Lease, collateral or otherwise; and (e) there are no outstanding contracts for the supply of labor or
material made by Tenant, and no work has been done or is being done in, to or about the Premises,
by or at the request of Tenant, which has not been fully paid for and for which appropriate waivers of
mechanic's liens have not been obtained. Landlord represents and warrants to Tenant that, as of the
Early Termination Date, Landlord has no knowledge of any fact or circumstance which would give
rise to any claim, demand, obligation, liability, action or cause of action arising out of or in
connection with Tenant's occupancy of the Premises (including related to Tenant’s repair,
maintenance, and replacement obligations under the Lease or Letter Agreement). For purposes of the
foregoing representation, Landlord’s knowledge shall be limited to the current actual knowledge of
Chris Barlow, Lisa Vogel, Grant Gabbard and Seth Battaglia, at the time of execution of this
Termination Agreement and not any constructive knowledge of said individuals or of Landlord,
without any duty of investigation, it being understood and agreed that such individuals shall have no
personal liability in any manner whatsoever hereunder or otherwise related to the matters
contemplated hereby.
8.
077212\11436539v1
4
9.
In consideration for Landlord’s agreement to enter into this Termination Agreement, Tenant shall
pay to Landlord a “Termination Fee,” calculated as follows:
(a)
(b)
(c)
The sum of One Million One Hundred Thousand Dollars ($1,100,000.00), defined herein as
the “Base Fee”;
The Base Fee shall be increased by any Sublease Payments (defined below) actually received
by Tenant from Subtenant pursuant to the Sublease for that portion of the calendar year up to
and including the Early Termination Date, which amount is currently estimated to be
$205,147.25; and,
The Base Fee shall be decreased by the Base Rent and Rent Adjustments paid by Tenant to
Landlord during the period commencing as of the Rent Termination Date and ending on the
Early Termination Date, which amount is currently estimated to be $417,342.66.
The Termination Fee shall be paid by Tenant to Landlord within one (1) business day of the mutual
execution and delivery of this Termination Agreement by cashier's or certified check or by wire transfer
of immediately available funds to an account designated by Landlord. Within thirty (30) days of the
Early Termination Date, the parties shall reconcile any difference(s) between the estimated and actual
amounts set forth in this Section 9, and pay any actual amounts due as a result of such reconciliation.
10.
11.
12.
13.
For purposes of this Termination Agreement, any payments of Base Rent, Monthly Base Rent and
funds or sums due to Tenant under the Sublease of a nature that would be conceptually characterized
as Rent, Rent Adjustments, Operating Expenses or Taxes pursuant to the Master Lease shall be
defined herein as “Sublease Payments.” Tenant acknowledges and agrees that there may be an
outstanding balance of Sublease Payments pertaining to unpaid Rent Adjustments due and owing by
Subtenant pursuant to the Sublease for that portion of the calendar year up to and including the Early
Termination Date. Tenant hereby assigns to Landlord the right to collect all such Sublease Payments
from Subtenant, which Landlord shall keep for its own account upon the successful collection of any
such amounts and Tenant hereby releases any claim it may have to such Sublease Payments.
Except as otherwise set forth in this Termination Agreement, all of Landlord’s and Tenant’s
indemnity obligations set forth in the Lease, including, without limitation, Article 17 of the Original
Lease, shall survive the termination of the Lease pursuant to this Termination Agreement.
Each signatory of this Termination Agreement represents hereby that he or she has the authority to
execute and deliver the same on behalf of the party hereto for which such signatory is acting.
Tenant hereby represents to Landlord that, except for Cushman &Wakefield of California, Inc.
(“Tenant’s Broker ”), Tenant has dealt with no broker, and that no broker is entitled to
any commission or compensation, in connection with this Termination Agreement. Tenant shall pay
the commission due to Tenant’s Broker in connection with this
077212\11436539v1
5
Termination Agreement pursuant to a separate agreement with Tenant’s Broker. Tenant agrees to
indemnify and hold Landlord and its members, principals, beneficiaries, partners, officers, directors,
employees, mortgagee(s) and agents, and the respective principals and members of any such agents
harmless from all claims of any brokers claiming to have represented Tenant in connection with this
Termination Agreement.
Landlord hereby represents to Tenant that Landlord has dealt with no broker, and that no broker is
entitled to any commission or compensation, in connection with this Termination Agreement.
Landlord agrees to indemnify and hold Tenant and its members, principals, beneficiaries, partners,
officers, directors, employees, mortgagee(s) and agents, and the respective principals and members
of any such agents harmless from all claims of any brokers claiming to have represented Landlord in
connection with this Termination Agreement.
This Termination Agreement shall be binding upon and inure to the benefit of Landlord and Tenant
and their respective successors, assigns and related entities.
Tenant agrees that neither Tenant nor its agents or any other parties acting on behalf of Tenant shall
disclose any matters set forth in this Termination Agreement or disseminate or distribute any
information concerning the terms, details or conditions hereof to any person, firm or entity without
obtaining the express written consent of Landlord except (a) as otherwise provided or required by
applicable law or court order, and (b) to Tenant’s attorneys, financial advisors, and other consultants
for the purpose of complying with the terms of this Termination Agreement.
Redress for any claim against Landlord under the Lease and this Termination Agreement shall be
limited to and enforceable only against and to the extent of Landlord’s interest in the Building. The
obligations of Landlord under the Lease and this Termination Agreement are not intended to and
shall not be personally binding on, nor shall any resort be had to the private properties of, any of its
trustees or board of directors and officers, as the case may be, its investment manager, the general
partners thereof, or any beneficiaries, stockholders, employees, or agents of Landlord or the
investment manager.
The obligations of Tenant under the Lease and this Termination Agreement are not intended to and
shall not be personally binding on, nor shall any resort be had to the private properties of, any of its
board of directors, officers, stockholders, employees, or agents of Tenant.
Landlord agrees that Tenant shall not be required to remove any Tenant Alterations, Leasehold
Improvements, or Required Removables from the Premises in connection with Tenant’s surrender of
the Premises pursuant to this Termination Agreement (including but not limited to any improvements
constructed or installed by or for Subtenant). On or about the Early Termination Date, Landlord shall
tender an attornment letter to Subtenant, as provided above.
14.
15.
16.
17.
18.
19.
20.
The provisions of this Termination Agreement shall be construed and enforced in accordance with
the laws of the State of California. Each party hereto acknowledges that:
077212\11436539v1
6
(i) each party hereto is of equal bargaining strength; (ii) each such party has actively participated in
the drafting, preparation, and negotiation of this Termination Agreement; (iii) each such party has had
the opportunity to consult with such party's attorneys and advisors relative to entering into this
Termination Agreement; and (iv) any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply in the interpretation of this Termination Agreement,
any portion hereof or any amendments hereto.
21.
22.
23.
24.
25.
This Termination Agreement, including Exhibit A , contains all of the agreements of the parties
hereto with respect to the matters contained herein, and no prior agreement, arrangement or
to any such matters shall be effective for any purpose. No
understanding pertaining
alterations, modifications, or interpretations hereof shall be binding unless in writing and signed by
the parties hereto.
In the event of any conflict between the terms, covenants, and conditions of this Termination
Agreement and the terms, covenants, and conditions of the Consent, the terms, covenants, and
conditions of this Termination Agreement shall control as between Landlord and Tenant.
Each party hereto covenants to execute, with acknowledgment, verification, or affidavit, if required,
any and all documents and writings, and to perform any and all other acts, that may be necessary or
desirable to implement, accomplish, and/or consummate the terms of this Termination Agreement.
Every provision of this Termination Agreement is intended to be severable. If any term or provision
hereof is illegal or invalid for any reason whatsoever, then such illegality or invalidity shall not affect
the validity of the remainder of this Termination Agreement.
This Termination Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which, together, shall constitute one and the same Termination Agreement. For
purposes of this Termination Agreement, signatures by facsimile or electronic PDF shall be binding
to the same extent as original signatures.
077212\11436539v1
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Termination Agreement on the
day and year first above written.
LANDLORD:
TENANT:
7 STREET PROPERTY GENERAL
TH
PARTNERSHIP,
a California general partnership
XOMA CORPORATION,
a Delaware corporation
Wareham-NZI, LLC,
By:
Managing General Partner
Its:
By:
/s/ Richard Robbins
Name: Richard K. Robbins
Title: Manager
Dated: 12/18/2019
/s/ Tom Burns
By:
Name: Tom Burns
Title: CFO
Dated: 12/17/2019
[signatures continue on following page]
077212\11436539v1
8
AGREED AND ACKNOWLEDGED:
XOMA (US) LLC,
a Delaware limited liability company
/s/ Tom Burns
By:
Name: Tom Burns
Title:
Dated:
CFO
12/17/2019
AGREED AND ACKNOWLEDGED SPECIFICALLY WITH RESPECT TO THE TERMINATION
OF THE LETTER AGREEMENT:
WAREHAM PROPERTY GROUP, INC.,
a California corporation
By:
/s/ Richard Robbins
Name: Richard K. Robbins
Title: Manager
Dated:
12/18/2019
077212\11436539v1
9
Exhibit A
Form of Attornment Letter
December ___, 2019
Via Federal Express
[SUBTENANT]
[ADDRESS]
RE:
Sublease Agreement dated
Ladies and Gentlemen:
Please be advised that effective as of December __, 2019, the Master Lease underlying your Sublease,
by and between Landlord and Sublandlord, terminated. Pursuant to Section 8 of the Consent, Landlord has
the right to require Subtenant to attorn to Landlord upon the terms and conditions of the Sublease for the
remainder of the term of the Sublease. A copy of the Consent is attached hereto and incorporated herein by
reference. Accordingly, please take notice that Landlord hereby exercises its option of attornment, Subtenant
has agreed to attorn to Landlord as its landlord and such attornment is effective and self-operative without the
execution of any further instruments, immediately upon Landlord’s exercise of such option.
Effective as of December ___, 2019, therefore, Landlord succeeded to Sublandlord’s interest in the
Sublease, and Subtenant will attorn to Landlord as sublandlord under the Sublease. The Sublease shall remain
in effect as a direct sublease between Landlord and Subtenant, on all of the terms and conditions of the
Sublease, including the payment of all Base Rent and Operating Expenses and Taxes and all other amounts
due and owing under the Sublease, including unpaid amounts, provided that Landlord shall be deemed to be
both landlord under the Master Lease and sublandlord under the Sublease.
Please note that all rent due shall be paid directly to Landlord at the following address:
[TO BE PROVIDED]
Checks should be made payable to “[INSERT LANDLORD ENTITY]”.
Landlord's address for notices under the Sublease shall be as follows:
[INSERT ADDRESS]
With a copy to:
[INSERT ADDRESS]
Please contact Ms. Lisa Vogel at (415) 457-4964 with any questions.
077212\11436539v1
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Sincerely,
[LANDLORD SIGNATURE BLOCK]
Enclosure
cc: Pamela A. Lakey, Esq.
SSL Law Firm, LLP
077212\11436539v1
11
LEASE TERMINATION AGREEMENT
Exhibit 10.61
THIS LEASE TERMINATION AGREEMENT (this “Termination Agreement”) is made as of
December 17, 2019 (the “Effective Date”), by and between 7TH STREET PROPERTIES II, a California
limited partnership (“Landlord”) and XOMA CORPORATION, a Delaware corporation (“Tenant”).
RECITALS:
A.
B.
C.
D.
Landlord and Tenant are parties to that certain lease dated as of February 13, 2013 (the “Lease”)
relating to approximately 35,000 rentable square feet (the “Premises”) comprising the entire building
located at 804 Heinz Avenue, Berkeley, California (the “ Building”), all as more particularly described
in the Lease. The capitalized terms used in this Termination Agreement shall have the same definitions
as set forth in the Lease to the extent that such capitalized terms are defined therein and not redefined in
this Termination Agreement.
Tenant, as sublandlord, and Memphis Meats, Inc., a Delaware corporation (“Memphis Meats”), as
subtenant, are parties to that certain Sublease Agreement dated November 21, 2017, as amended by
that certain First Amendment to Sublease Agreement dated December 13, 2018 (as amended, the
“Memphis Meats Sublease”), pertaining to approximately 20,038 rentable square feet, described as
the entire second (2nd) floor of the Premises. Landlord consented to the Memphis Meats Sublease by
that certain Consent to Sublease dated December 13, 2017 and Consent to First Amendment to
Sublease Agreement dated January 16, 2019 (collectively, the “ Memphis Meats Consent”). The
Sublease by its terms is scheduled to expire on April 30, 2023.
Tenant, as sublandlord, and Newomics, Inc., a Delaware corporation (“Newomics”), as subtenant, are
parties to that certain Sublease Agreement dated April 14, 2018, as amended by that certain First
Amendment to Sublease Agreement dated December 13, 2018 (as amended, the “Newomics
Sublease”), pertaining to approximately 6,676 rentable square feet, described as a portion of the ground
floor of the Premises. Landlord consented to the Sublease by that certain Consent to Sublease dated
April 27, 2018, and Consent to First Amendment to Sublease Agreement dated January 16, 2019
(collectively, the “Newomics Consent”). The Sublease by its terms is scheduled to expire on April 30,
2023.
Tenant, as sublandlord, and Rodan & Fields, LLC, a Delaware limited liability company
(“Rodan/Fields”), as subtenant, are parties to that certain Sublease Agreement dated January 10, 2019
(the “Rodan/Fields Sublease”), pertaining to approximately 8,286 rentable square feet, described as a
portion of the ground floor of the Premises. Landlord consented to the Sublease by that certain Consent
to Sublease dated January 18, 2019 (the “Rodan/Fields Consent”). The Sublease by its terms is
scheduled to expire on April 30, 2023.
077212\11436554v1
E.
F.
The Memphis Meats Sublease, the Newomics Sublease, and the Rodan/Fields Sublease are sometimes
referred to herein collectively as the “Subleases.” Memphis Meats, Newomics, and Rodan/Fields are
sometimes referred to herein collectively as the “Subtenants.” The Memphis Meats Consent,
Newomics Consent, and Rodan/Fields Consent are sometimes referred to herein collectively as the
“Consents.”
The Term is scheduled to expire on April 30, 2023 (the “ Stated Expiration Date”), and Tenant
desires to terminate the Lease prior to the Stated Expiration Date. Landlord has agreed to such
termination on the terms and conditions contained in this Termination Agreement.
NOW, THEREFORE, in consideration of the above recitals which by this reference are incorporated
herein, the mutual covenants and conditions contained herein and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
1.
2.
Effective as of the Effective Date (the “Early Termination Date”) and subject to the agreements,
representations, warranties and indemnities contained in this Termination Agreement, including,
without limitation, payment of the Termination Fee described in Section 9 below, the Lease is
terminated and the Term of the Lease shall expire with the same force and effect as if the Term was,
by the provisions thereof, fixed to expire on the Early Termination Date, provided, Tenant’s
obligation to pay Monthly Base Rent and Rent Adjustments under the Lease shall be terminated
effective as of September 15, 2019 (the “Rent Termination Date”). Subject to the terms and
conditions of Section 5 below, effective as of the Early Termination Date, that certain letter
agreement dated July 27, 2016, between Wareham Property Group (on behalf of Landlord) and
XOMA (US) LLC (on behalf of Tenant) regarding the performance of certain preventative
maintenance, repair and capital equipment replacement work at 804 Heinz Avenue and 2910
Seventh Street, Berkeley, California (the “Letter Agreement”) is also terminated and Wareham
Property Group, XOMA (US) LLC, Landlord, and Tenant shall have no further rights, obligations, or
liabilities under the Letter Agreement arising after the Early Termination Date.
On or about the Early Termination Date, Landlord shall tender an attornment letter, in substantially
the form attached hereto as Exhibit A , to each of the Subtenants, pursuant to the terms and
conditions of the Consents, establishing a direct contract between Landlord and each Subtenant on
the terms and conditions of the applicable Sublease. Following such attornment, Landlord, as
landlord, and each Subtenant, as tenant, may elect to modify or alter the legal relationship between
Landlord and Subtenants. Except with respect to the Maintenance Claims as set forth in and limited
by Section 5 below, Tenant hereby assigns the right to pursue any Claims (defined below) it may
have against Subtenants arising from any acts or omissions of each Subtenant under the applicable
Sublease to Landlord, and Landlord shall pursue such Claims solely and directly against such
Subtenant, on a non-exclusive basis, such that either Landlord or Tenant may pursue such Claims
against Subtenants; provided, however, Tenant agrees that it shall make commercially reasonable
efforts to assist and cooperate with Landlord in the enforcement of the terms and conditions of the
Subleases and Landlord shall promptly reimburse Tenant for any reasonable, actual,
077212\11436554v1
2
3.
4.
5.
6.
out-of-pocket expenses reasonably approved by Landlord related thereto, following Tenant’s request
for such reimbursement.
Subject to the agreements, representations, warranties and indemnities contained in this Termination
Agreement, Tenant remises, releases, quitclaims and surrenders to Landlord, its successors and
assigns, the Lease and all of the estate and rights of Tenant in and to the Lease and the Premises
effective as of the Early Termination Date. Subject to the agreements, representations, warranties
and indemnities contained in this Termination Agreement, Landlord accepts the surrender of the
Lease and the Premises effective as of the Early Termination Date.
Effective as of the Early Termination Date, Tenant forever releases and discharges Landlord from (a)
any and all claims, demands, damages, liabilities, losses or causes of action whatsoever arising prior
to the Early Termination Date (collectively, “ Claims”) that Tenant or its successors and assigns may
have against Landlord arising out of or in connection with the Premises, the Lease, or the Letter
Agreement, and (b) any obligations to be observed or performed by Landlord under the Lease or the
Letter Agreement; provided, however, that any Claims related to Landlord’s covenants and
obligations under this Termination Agreement or surviving indemnification obligations under the
Lease are expressly excluded from the foregoing release.
Effective as of the Early Termination Date, Landlord forever releases and discharges Tenant from (a)
any Claims that Landlord or its successors and assigns may have against Tenant arising out of or in
connection with the Premises, the Lease, or the Letter Agreement arising on or after the Early
Termination Date, and (b) any obligations to be observed and performed by Tenant under the Lease
or Letter Agreement arising on or after the Early Termination Date; provided, however, that any
Claims related to Tenant’s representations, covenants, and obligations under this Termination
Agreement or surviving indemnification obligations under the Lease are expressly excluded from the
foregoing release. With respect to any Claims related to Tenant’s maintenance, repair, and/or
replacement obligations under the Lease or the Letter Agreement (“Maintenance Claims”),
Landlord shall notify Tenant in writing of any such Maintenance Claim within sixty (60) days of the
Early Termination Date, and if Landlord does not notify Tenant of any Maintenance Claim during
such sixty (60) day period, then, notwithstanding any other provision of this Termination Agreement
or the Lease to the contrary, Landlord shall have no further right to bring or make any Maintenance
Claim against Tenant and all such Maintenance Claims shall thereafter be released and waived by
Landlord. Except to the extent described above, the foregoing shall not amend or otherwise modify
the parties’ indemnity obligations set forth in Section 11 below.
With respect to the releases set forth in Section 4 and Section 5 above, Landlord and Tenant each
acknowledge that it may hereafter discover facts different from or in addition to those it now knows
or believes to be true with respect to the Claims which are the subject of the releases, and each
expressly agrees to assume the risk of the possible discovery of additional or different facts, and
agrees that the releases shall be and remain effective in all respects, regardless of such additional or
different facts.
077212\11436554v1
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Each of Landlord and Tenant hereby expressly waives and relinquishes all rights and benefits, if any,
each may have under Section 1542 of the California Civil Code with respect to the Claims which are
the subject of the releases above. California Civil Code Section 1542 reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR
RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT IF KNOWN BY HIM OR HER WOULD
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR
RELEASED PARTY.”
THE UNDERSIGNED, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY
WAIVE ALL RIGHTS THEY MAY HAVE THEREUNDER, AS WELL AS ANY OTHER
STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT PERTAINING TO THE
RELEASES SET FORTH HEREIN.
/s/ RR
Landlord Initials
/s/ TB
Tenant Initials
7.
Subject to the agreements, representations, warranties and indemnities contained in this Termination
Agreement, effective as of the Early Termination Date:
(a)
(b)
(c)
Tenant releases any and all claims to the Security Deposit, in the amount of $146,486.89,
held by Landlord pursuant to Article 5 of the Lease.
Tenant assigns and delivers to Landlord the security deposits or letters of credit (together with
any documents and fees necessary to transfer the beneficial interest in any such letter of credit
to Landlord), as applicable, held by Tenant as sublandlord under each of the Memphis Meats
Sublease, the Newomics Sublease and the Rodan/Fields Sublease.
Tenant shall pay to Rodan/Fields any amounts remaining from the “Allowance” due to
Rodan/Fields pursuant to Section 6 of the Rodan/Fields Sublease, if any, within five (5)
business days of the Early Termination Date. In addition to the foregoing, Tenant shall pay to
Memphis Meats and/or Newomics, within five (5) business days of the Early Termination
Date, any amounts remaining from the “Allowance” due to such subtenant by Tenant as
sublandlord in connection with either of the Memphis Meats Sublease and/or the Newomics
Sublease, if any, as the case may be. Tenant agrees to indemnify and hold Landlord and its
members, principals, beneficiaries, partners, officers, directors, employees, mortgagee(s) and
agents, and their respective principals and members harmless from any and all claims of
either Rodan/Fields, Memphis Meats and/or Newomics, as the case may be, with respect to
any improvement allowance due to such Subtenant by Tenant pursuant to the applicable
Sublease.
8.
Tenant represents and warrants that (a) Tenant is the rightful owner of all of the Tenant's interest in
the Lease; (b) except with respect to the Memphis Meats Sublease, the Newomics Sublease and the
Rodan/Fields Sublease, Tenant has not made any disposition,
077212\11436554v1
4
assignment, sublease, or conveyance of the Lease or Tenant's interest therein; (c) as of the Early
Termination Date, Tenant has no knowledge of any fact or circumstance which would give rise to any
claim, demand, obligation, liability, action or cause of action arising out of or in connection with
Tenant's and/or Subtenants’ occupancy of the Premises, except with respect to the previous dispute
between Landlord and Tenant regarding the so-called “Remedial and Deferred Work” costs which
have been resolved and settled by the parties pursuant to this Termination Agreement; (d) no other
person or entity has an interest in the Lease, collateral or otherwise; and (e) there are no outstanding
contracts for the supply of labor or material made by Tenant, and no work has been done or is being
done in, to or about the Premises, by or at the request of Tenant, which has not been fully paid for and
for which appropriate waivers of mechanic's liens have not been obtained. Landlord represents and
warrants to Tenant that, as of the Early Termination Date, Landlord has no knowledge of any fact or
circumstance which would give rise to any claim, demand, obligation, liability, action or cause of
action arising out of or in connection with Tenant's occupancy of the Premises (including related to
Tenant’s repair, maintenance, and replacement obligations under the Lease or Letter Agreement),
except with respect to the previous dispute between Landlord and Tenant regarding the so-called
“Remedial and Deferred Work” costs which have been resolved and settled by the parties pursuant to
this Termination Agreement. For purposes of the foregoing representation, Landlord’s knowledge
shall be limited to the current actual knowledge of Chris Barlow, Lisa Vogel, Grant Gabbard and Seth
Battaglia, at the time of execution of this Termination Agreement and not any constructive knowledge
of said individuals or of Landlord, without any duty of investigation, it being understood and agreed
that such individuals shall have no personal liability in any manner whatsoever hereunder or otherwise
related to the matters contemplated hereby.
9.
In consideration for Landlord’s agreement to enter into this Termination Agreement, Tenant shall
pay to Landlord a “Termination Fee,” calculated as follows:
(a)
(b)
(c)
The sum of Five Hundred Thousand Dollars ($500,000.00), defined herein as the “Base
Fee”;
The Base Fee shall be increased by any Sublease Payments (defined below) actually received
by Tenant from Subtenants pursuant to the Subleases for that portion of the calendar year up
to and including the Early Termination Date, which amount is currently estimated to be
$618,655.42; and,
The Base Fee shall be decreased by the Base Rent and Rent Adjustments paid by Tenant to
Landlord during the period commencing as of the Rent Termination Date and ending on the
Early Termination Date, which amount is currently estimated to be $747,583.38.
The Termination Fee shall be paid by Tenant to Landlord within one (1) business day of the mutual
execution and delivery of this Termination Agreement by cashier's or certified check or by wire transfer
of immediately available funds to an account designated by Landlord. Within thirty (30) days of the
Early Termination Date, the parties shall reconcile
077212\11436554v1
5
any difference(s) between the estimated and actual amounts set forth in this Section 9, and pay any
actual amounts due as a result of such reconciliation.
10.
11.
12.
13.
14.
15.
16.
For purposes of this Termination Agreement, any payments of Base Rent, Monthly Base Rent and
funds or sums due to Tenant under the Subleases of a nature that would be conceptually
characterized as Rent, Rent Adjustments, Operating Expenses or Taxes pursuant to the Master Lease
shall be defined herein as “Sublease Payments.” Tenant acknowledges and agrees that there may be
an outstanding balance of Sublease Payments pertaining to unpaid Rent Adjustments due and owing
by Subtenants pursuant to the Subleases for that portion of the calendar year up to and including the
Early Termination Date. Tenant hereby assigns to Landlord the right to collect all such Sublease
Payments from Subtenants, which Landlord shall keep for its own account upon the successful
collection of any such amounts and Tenant hereby releases any claim it may have to such Sublease
Payments.
Except as otherwise set forth in this Termination Agreement, all of Landlord’s and Tenant’s
indemnity obligations set forth in the Lease, including, without limitation, Article 17 of the Original
Lease, shall survive the termination of the Lease pursuant to this Termination Agreement.
Each signatory of this Termination Agreement represents hereby that he or she has the authority to
execute and deliver the same on behalf of the party hereto for which such signatory is acting.
Tenant hereby represents to Landlord that, except for Cushman &Wakefield of California, Inc.
(“Tenant’s Broker ”), Tenant has dealt with no broker, and that no broker is entitled to
any commission or compensation, in connection with this Termination Agreement. Tenant shall pay
the commission due to Tenant’s Broker in connection with this Termination Agreement pursuant to a
separate agreement with Tenant’s Broker. Tenant agrees to indemnify and hold Landlord and its
members, principals, beneficiaries, partners, officers, directors, employees, mortgagee(s) and agents,
and the respective principals and members of any such agents harmless from all claims of any
brokers claiming to have represented Tenant in connection with this Termination Agreement.
Landlord hereby represents to Tenant that Landlord has dealt with no broker, and that no broker is
entitled to any commission or compensation, in connection with this Termination Agreement.
Landlord agrees to indemnify and hold Tenant and its members, principals, beneficiaries, partners,
officers, directors, employees, mortgagee(s) and agents, and the respective principals and members
of any such agents harmless from all claims of any brokers claiming to have represented Landlord in
connection with this Termination Agreement.
This Termination Agreement shall be binding upon and inure to the benefit of Landlord and Tenant
and their respective successors, assigns and related entities.
Tenant agrees that neither Tenant nor its agents or any other parties acting on behalf of Tenant shall
disclose any matters set forth in this Termination Agreement or disseminate
077212\11436554v1
6
or distribute any information concerning the terms, details or conditions hereof to any person, firm or
entity without obtaining the express written consent of Landlord except (a) as otherwise provided or
required by applicable law or court order, and (b) to Tenant’s attorneys, financial advisors, and other
consultants for the purpose of complying with the terms of this Termination Agreement.
Redress for any claim against Landlord under the Lease and this Termination Agreement shall be
limited to and enforceable only against and to the extent of Landlord’s interest in the Building. The
obligations of Landlord under the Lease and this Termination Agreement are not intended to and
shall not be personally binding on, nor shall any resort be had to the private properties of, any of its
trustees or board of directors and officers, as the case may be, its investment manager, the general
partners thereof, or any beneficiaries, stockholders, employees, or agents of Landlord or the
investment manager.
The obligations of Tenant under the Lease and this Termination Agreement are not intended to and
shall not be personally binding on, nor shall any resort be had to the private properties of, any of its
board of directors, officers, stockholders, employees, or agents of Tenant.
Landlord acknowledges that, except for the Subtenants occupying the Premises pursuant to the
Subleases, Tenant has vacated the Premises as of the Early Termination Date, and Tenant shall not
be required to remove any Tenant Alterations, Leasehold Improvements, or Required Removables
from the Premises in connection with Tenant’s surrender of the Premises pursuant to this
Termination Agreement (including but not limited to any improvements constructed or installed by
or for the Subtenants). On or about the Early Termination Date, Landlord shall tender an attornment
letter to each Subtenant, as provided above.
The provisions of this Termination Agreement shall be construed and enforced in accordance with
the laws of the State of California. Each party hereto acknowledges that: (i) each party hereto is of
equal bargaining strength; (ii) each such party has actively participated in the drafting, preparation,
and negotiation of this Termination Agreement; (iii) each such party has had the opportunity to
consult with such party's attorneys and advisors relative to entering into this Termination Agreement;
and (iv) any rule of construction to the effect that ambiguities are to be resolved against the drafting
party shall not apply in the interpretation of this Termination Agreement, any portion hereof or any
amendments hereto.
This Termination Agreement, including Exhibit A , contains all of the agreements of the parties
hereto with respect to the matters contained herein, and no prior agreement, arrangement or
to any such matters shall be effective for any purpose. No
understanding pertaining
alterations, modifications, or interpretations hereof shall be binding unless in writing and signed by
the parties hereto.
17.
18.
19.
20.
21.
22.
In the event of any conflict between the terms, covenants, and conditions of this Termination
Agreement and the terms, covenants, and conditions of the Consent, the terms,
077212\11436554v1
7
covenants, and conditions of this Termination Agreement shall control as between Landlord and
Tenant.
23.
24.
25.
Each party hereto covenants to execute, with acknowledgment, verification, or affidavit, if required,
any and all documents and writings, and to perform any and all other acts, that may be necessary or
desirable to implement, accomplish, and/or consummate the terms of this Termination Agreement.
Every provision of this Termination Agreement is intended to be severable. If any term or provision
hereof is illegal or invalid for any reason whatsoever, then such illegality or invalidity shall not affect
the validity of the remainder of this Termination Agreement.
This Termination Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which, together, shall constitute one and the same Termination Agreement. For
purposes of this Termination Agreement, signatures by facsimile or electronic PDF shall be binding
to the same extent as original signatures.
077212\11436554v1
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[signatures on following page]
IN WITNESS WHEREOF, Landlord and Tenant have executed this Termination Agreement on the
day and year first above written.
LANDLORD:
TENANT:
7TH STREET PROPERTIES II,
a California general partnership
XOMA CORPORATION,
a Delaware corporation
/s/ Tom Burns
By:
Name: Tom Burns
Title: CFO
Dated: 12/17/2019
By:
Its:
Seventh II Corporation,
Managing General Partner
By:
/s/ Richard Robbins
Name: Richard K. Robbins
Title:
President
Dated: 12/18/2019
AGREED AND ACKNOWLEDGED:
XOMA (US) LLC,
a Delaware limited liability company
/s/ Tom Burns
By:
Name: Tom Burns
Title: CFO
Dated: 12/17/2019
AGREED AND ACKNOWLEDGED SPECIFICALLY WITH RESPECT TO THE TERMINATION
OF THE LETTER AGREEMENT:
WAREHAM PROPERTY GROUP, INC.,
a California corporation
By:
/s/ Richard Robbins
Name: Richard K. Robbins
Title: Manager
Dated: 12/18/2019
077212\11436554v1
9
Exhibit A
Form of Attornment Letter
December ___, 2019
Via Federal Express
[SUBTENANT]
[ADDRESS]
RE:
Sublease Agreement dated
Ladies and Gentlemen:
Please be advised that effective as of December __, 2019, the Master Lease underlying your Sublease,
by and between Landlord and Sublandlord, terminated. Pursuant to Section 8 of the Consent, Landlord has
the right to require Subtenant to attorn to Landlord upon the terms and conditions of the Sublease for the
remainder of the term of the Sublease. A copy of the Consent is attached hereto and incorporated herein by
reference. Accordingly, please take notice that Landlord hereby exercises its option of attornment, Subtenant
has agreed to attorn to Landlord as its landlord and such attornment is effective and self-operative without the
execution of any further instruments, immediately upon Landlord’s exercise of such option.
Effective as of December ___, 2019, therefore, Landlord succeeded to Sublandlord’s interest in the
Sublease, and Subtenant will attorn to Landlord as sublandlord under the Sublease. The Sublease shall remain
in effect as a direct sublease between Landlord and Subtenant, on all of the terms and conditions of the
Sublease, including the payment of all Base Rent and Operating Expenses and Taxes and all other amounts
due and owing under the Sublease, including unpaid amounts, provided that Landlord shall be deemed to be
both landlord under the Master Lease and sublandlord under the Sublease.
Please note that all rent due shall be paid directly to Landlord at the following address:
[TO BE PROVIDED]
Checks should be made payable to “[INSERT LANDLORD ENTITY]”.
Landlord's address for notices under the Sublease shall be as follows:
[INSERT ADDRESS]
With a copy to:
[INSERT ADDRESS]
Please contact Ms. Lisa Vogel at (415) 457-4964 with any questions.
077212\11436554v1
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Sincerely,
[LANDLORD SIGNATURE BLOCK]
Enclosure
cc: Pamela A. Lakey, Esq.
SSL Law Firm, LLP
077212\11436554v1
11
Subsidiaries of the Company
XOMA Technology Ltd.
XOMA (US) LLC
XOMA UK Limited
Jurisdiction of Organization
Bermuda
Delaware
United Kingdom
Exhibit 21.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statements (Form S-8 Nos. 333-108306, 333-151416, 333-171429, 333-174730, 333-181849,
333-198719, 333-204367, 333-212238, 333-218378 and 333-232398) pertaining to the 1981 Share Option Plan, the Restricted Share Plan, the 2015 Employee
Stock Purchase Plan, the Amended and Restated 2010 Long Term Incentive and Stock Award Plan, and the Amended 2015 Employee Share Purchase Plan of
XOMA Corporation and in the Registration Statement (Form S-3 Nos. 333-196707 and 333- 223493) of XOMA Corporation and in the related Prospectus of
our reports dated March 10, 2020, relating to the consolidated financial statements of XOMA Corporation and the effectiveness of XOMA Corporation’s
internal control over financial reporting appearing in this Annual Report on Form 10-K for the year ended December 31, 2019.
Exhibit 23.1
/s/ Deloitte & Touche LLP
San Francisco, California
March 10, 2020
Exhibit 31.1
I, James R. Neal, certify that:
1. I have reviewed this annual report on Form 10-K of XOMA Corporation;
Certification
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the
period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this
report;
4. The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e) and internal control over financial reporting (as defined in Exchange Act
Rules 13a-15(f))) for the registrant and we have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed
under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles.
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions
about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such
evaluation; and
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s
most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control
over financial reporting; and
5. The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial
reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent
function):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which
are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s
internal control over financial reporting.
Date: March 10, 2020
/s/ JAMES R. NEAL
James R. Neal
Chief Executive Officer
Exhibit 31.2
I, Thomas Burns, certify that:
1. I have reviewed this annual report on Form 10-K of XOMA Corporation;
Certification
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the
period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this
report;
4. The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e) and internal control over financial reporting (as defined in Exchange Act
Rules 13a-15(f))) for the registrant and we have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed
under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles.
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions
about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such
evaluation; and
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s
most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control
over financial reporting; and
5. The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial
reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent
function):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which
are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s
internal control over financial reporting.
Date: March 10, 2020
/s/ THOMAS BURNS
Thomas Burns
Senior Vice President, Finance and Chief Financial Officer
CERTIFICATION
Exhibit 32.1
Pursuant to the requirement set forth in Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”) and
Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350), James R. Neal, Chief Executive Officer of
XOMA Corporation (the “Company”), and Thomas Burns, Senior Vice President, Finance and Chief Financial Officer of the
Company, each hereby certifies that, to the best of his or her knowledge:
1. The Company’s Annual Report on Form 10-K for the year ended December 31, 2019, to which this Certification is attached
as Exhibit 32.1, fully complies with the requirements of Section 13(a) or Section 15(d) of the Exchange Act; and
2. The information contained in Exhibit 32.1 fairly presents, in all material respects, the financial condition and results of
operations of the Company.
IN WITNESS WHEREOF, the undersigned have set their hands hereto as of the 10 day of March, 2020
th
/s/ JAMES R. NEAL
James R. Neal
Chief Executive Officer
3. This certification accompanies the Form 10-K to which it relates, is not deemed filed with the Securities and Exchange
Commission and is not to be incorporated by reference into any filing of XOMA Corporation 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 the Form
10-K), irrespective of any general incorporation language contained in such filing.
/s/ THOMAS BURNS
Thomas Burns
Senior Vice President, Finance and Chief Financial Officer