UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

 

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2016

OR

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                       to                     

Commission file number 001-36150

 

SORRENTO THERAPEUTICS, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

 

Delaware

 

33-0344842

(State or Other Jurisdiction of

Incorporation or Organization)

 

(I.R.S. Employer

Identification Number)

9380 Judicial Drive

San Diego, California 92121

(Address of Principal Executive Offices)

(858) 210-3700

(Registrant’s Telephone Number, Including Area Code)

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes       No   .

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes       No  

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated file or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer

 

  

Accelerated filer

 

 

 

 

 

Non-accelerated filer

 

  (Do not check if a smaller reporting company)

  

Smaller reporting company

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes       No   .

The number of shares of the issuer’s common stock, par value $0.0001 per share, outstanding as of November 7, 2016 was 57,939,967.

 

 

 

 

 

 


 

Sorrento Therapeutics, Inc.

Form 10-Q for the Quarter Ended September 30, 2016

Table of Contents

 

Part I

 

Financial Information

 

1

Item 1.

 

Consolidated Financial Statements

  

1

 

 

Condensed Consolidated Balance Sheets as of September 30, 2016 and December 31, 2015

  

1

 

 

Condensed Consolidated Statements of Operations for the Three and Nine Months Ended September 30, 2016 and 2015

  

2

 

 

Condensed Consolidated Statements of Comprehensive Income (Loss) for the Three and Nine Months Ended September 30, 2016 and 2015

 

3

 

 

Condensed Consolidated Statements of Cash Flows for the Nine Months Ended September 30, 2016 and 2015

  

4

 

 

Notes to Condensed Consolidated Financial Statements

  

5

Item 2.

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations

  

31

Item 3.

 

Quantitative and Qualitative Disclosures About Market Risk

  

40

Item 4.

 

Controls and Procedures

  

40

 

 

 

Part II

 

Other Information

 

41

Item 1.

 

Legal Proceedings

  

41

Item 1A.

 

Risk Factors

  

42

Item 6.

 

Exhibits

  

42

Signatures

  

43

 

 

 

 


 

P ART I. FINANCIAL INFORMATION

I tem 1.

Consolidated Financial Statements.

SORRENTO THERAPEUTICS, INC.

CONDENSED CONSOLIDATED BALANCE SHEETS

(Unaudited)

(In thousands, except for share amounts)

 

 

 

September 30,

 

 

December 31,

 

 

 

2016

 

 

2015

 

 

 

 

 

 

 

 

 

 

ASSETS

 

 

 

 

 

 

 

 

Current assets:

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

66,480

 

 

$

39,038

 

Marketable securities

 

 

1,241

 

 

 

97,366

 

Grants and accounts receivables, net

 

 

526

 

 

 

903

 

Income tax receivable

 

 

1,927

 

 

 

1,715

 

Notes receivable

 

 

600

 

 

 

 

Prepaid expenses and other, net

 

 

1,062

 

 

 

1,996

 

Total current assets

 

 

71,836

 

 

 

141,018

 

Property and equipment, net

 

 

10,083

 

 

 

7,246

 

Intangibles, net

 

 

3,579

 

 

 

3,912

 

Goodwill

 

 

20,626

 

 

 

20,626

 

Investments in common stock

 

 

112,008

 

 

 

112,008

 

Equity method investments

 

 

59,413

 

 

 

58,119

 

Other, net

 

 

1,513

 

 

 

590

 

Total assets

 

$

279,058

 

 

$

343,519

 

LIABILITIES AND STOCKHOLDERS' EQUITY

 

 

 

 

 

 

 

 

Current liabilities:

 

 

 

 

 

 

 

 

Accounts payable

 

$

1,377

 

 

$

1,339

 

Accrued payroll and related

 

 

2,834

 

 

 

2,361

 

Current portion of deferred compensation

 

 

984

 

 

 

891

 

Accrued expenses

 

 

4,474

 

 

 

3,877

 

Current portion of deferred revenue

 

 

9,186

 

 

 

50

 

Acquisition consideration payable

 

 

12,000

 

 

 

12,000

 

Derivative liability

 

 

 

 

 

5,520

 

Current portion of debt

 

 

5,188

 

 

 

4,835

 

Total current liabilities

 

 

36,043

 

 

 

30,873

 

Long-term debt

 

 

458

 

 

 

4,394

 

Deferred compensation

 

 

 

 

 

12

 

Deferred tax liabilities

 

 

35,047

 

 

 

49,341

 

Deferred revenue

 

 

127,612

 

 

 

110,900

 

Deferred rent and other

 

 

7,404

 

 

 

7,061

 

Total liabilities

 

 

206,564

 

 

 

202,581

 

Commitments and contingencies

 

 

 

 

 

 

 

 

Equity:

 

 

 

 

 

 

 

 

Sorrento Therapeutics, Inc. equity

 

 

 

 

 

 

 

 

Preferred stock, $0.0001 par value; 100,000,000 shares authorized and no shares

   issued or outstanding

 

 

 

 

 

 

Common stock, $0.0001 par value; 750,000,000 shares authorized and

   57,580,051 and 37,771,459 shares issued and outstanding at

   September 30, 2016 and December 31, 2015, respectively

 

 

26

 

 

 

4

 

Additional paid-in capital

 

 

336,594

 

 

 

184,898

 

Accumulated other comprehensive income

 

 

328

 

 

 

73,579

 

Treasury stock

 

 

(51,491

)

 

 

 

Stock subscription receivable

 

 

(43,502

)

 

 

 

Accumulated deficit

 

 

(162,299

)

 

 

(113,329

)

Total Sorrento Therapeutics, Inc. stockholders' equity

 

 

79,656

 

 

 

145,152

 

Noncontrolling interests

 

 

(7,162

)

 

 

(4,214

)

Total equity

 

 

72,494

 

 

 

140,938

 

Total liabilities and stockholders' equity

 

$

279,058

 

 

$

343,519

 

 

See accompanying unaudited notes

 

1


 

SORRENTO THERAPEUTICS, INC.

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(Unaudited)

(In thousands, except per share amounts)

 

 

 

Three Months Ended September 30,

 

 

Nine Months Ended September 30,

 

 

 

2016

 

 

2015

 

 

2016

 

 

2015

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Grant

 

$

167

 

 

$

367

 

 

$

899

 

 

$

1,064

 

Royalty and license

 

 

1,535

 

 

 

 

 

 

1,560

 

 

 

 

Sales and services

 

 

541

 

 

 

736

 

 

 

1,674

 

 

 

2,189

 

Total revenues

 

 

2,243

 

 

 

1,103

 

 

 

4,133

 

 

 

3,253

 

Operating costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Costs of revenues

 

 

418

 

 

 

604

 

 

 

1,072

 

 

 

1,427

 

Research and development

 

 

10,212

 

 

 

7,244

 

 

 

28,620

 

 

 

23,055

 

Acquired in-process research and development

 

 

 

 

 

24,068

 

 

 

45,000

 

 

 

24,068

 

General and administrative

 

 

5,267

 

 

 

4,711

 

 

 

13,982

 

 

 

10,002

 

Intangible amortization

 

 

112

 

 

 

111

 

 

 

334

 

 

 

1,046

 

Total operating costs and expenses

 

 

16,009

 

 

 

36,738

 

 

 

89,008

 

 

 

59,598

 

Loss from operations

 

 

(13,766

)

 

 

(35,635

)

 

 

(84,875

)

 

 

(56,345

)

Gain on sale of IgDraSol, net

 

 

 

 

 

69,274

 

 

 

 

 

 

69,274

 

Gain on sale of marketable securities

 

 

27,193

 

 

 

 

 

 

27,193

 

 

 

 

Gain on trading securities

 

 

491

 

 

 

 

 

 

491

 

 

 

 

Gain on expiration of derivative liability

 

 

 

 

 

 

 

 

5,520

 

 

 

 

Income on equity investments

 

 

323

 

 

 

 

 

 

294

 

 

 

 

Interest expense

 

 

(236

)

 

 

(396

)

 

 

(816

)

 

 

(1,277

)

Interest income

 

 

26

 

 

 

1

 

 

 

84

 

 

 

1

 

Income (loss) before income tax

 

 

14,031

 

 

 

33,244

 

 

 

(52,109

)

 

 

11,653

 

Income tax expense

 

 

 

 

 

 

35,323

 

 

 

 

 

 

 

35,128

 

Income tax benefit

 

 

(195

)

 

 

 

 

 

(195

)

 

 

 

Net income (loss)

 

 

14,226

 

 

 

(2,079

)

 

 

(51,914

)

 

 

(23,475

)

Net loss attributable to noncontrolling interests

 

 

(147

)

 

 

(1,140

)

 

 

(2,948

)

 

 

(1,140

)

Net income (loss) attributable to Sorrento

 

$

14,373

 

 

$

(939

)

 

$

(48,966

)

 

$

(22,335

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net income (loss) per share - basic per share attributable

   to Sorrento

 

$

0.22

 

 

$

(0.03

)

 

$

(1.03

)

 

$

(0.61

)

Net income (loss) per share - diluted per share attributable

   to Sorrento

 

$

0.22

 

 

$

(0.03

)

 

$

(1.03

)

 

$

(0.61

)

Weighted-average shares used during period - basic

   per share attributable to Sorrento

 

 

66,193

 

 

 

37,328

 

 

 

47,581

 

 

 

36,618

 

Weighted-average shares used during period - diluted

   per share attributable to Sorrento

 

 

66,527

 

 

 

37,328

 

 

 

47,581

 

 

 

36,618

 

 

See accompanying unaudited notes

2


 

SORRENTO THERAPEUTICS, INC.

CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)

(Unaudited)

(In thousands)

 

 

 

Three Months Ended September 30,

 

 

Nine Months Ended September 30,

 

 

 

2016

 

 

2015

 

 

2016

 

 

2015

 

Net income (loss) attributable to Sorrento

 

$

14,373

 

 

$

(939

)

 

$

(48,966

)

 

$

(22,335

)

Other comprehensive income:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Unrealized gain (loss) on marketable securities

 

 

2,067

 

 

 

54,386

 

 

 

(60,353

)

 

 

54,386

 

Tax impact related to unrealized (loss) gain on

   marketable securities

 

 

 

 

 

 

 

 

14,295

 

 

 

 

Reclassification adjustment of unrealized gain included

   in net income (loss)

 

 

(27,193

)

 

 

 

 

 

(27,193

)

 

 

 

Total other comprehensive income

 

 

(25,126

)

 

 

54,386

 

 

 

(73,251

)

 

 

54,386

 

Comprehensive income (loss)

 

$

(10,753

)

 

$

53,447

 

 

$

(122,217

)

 

$

32,051

 

 

See accompanying unaudited notes

3


 

SORRENTO THERAPEUTICS, INC.

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(Unaudited)

(In thousands)

 

 

 

 

 

 

 

Nine Months Ended September 30,

 

 

 

2016

 

 

2015

 

Operating activities

 

 

 

 

 

 

 

 

Net loss

 

$

(51,914

)

 

$

(23,475

)

Adjustments to reconcile net loss to net cash used in operating activities:

 

 

 

 

 

 

 

 

Depreciation and amortization

 

 

1,223

 

 

 

1,837

 

Non-cash interest expense

 

 

181

 

 

 

298

 

Gain on sale of IgDraSol

 

 

 

 

 

(69,274

)

Gain on sale of marketable securities

 

 

(27,193

)

 

 

 

Gain on trading securities

 

 

(491

)

 

 

 

Stock-based compensation

 

 

3,442

 

 

 

5,483

 

Acquired in-process research and development

 

 

 

 

 

13,855

 

Provision for doubtful accounts

 

 

29

 

 

 

4

 

Gain on expiration of derivative liability

 

 

(5,520

)

 

 

 

Income on equity investments

 

 

(294

)

 

 

 

Deferred tax provision

 

 

 

 

 

32,798

 

Changes in operating assets and liabilities:

 

 

 

 

 

 

 

 

Grants and other receivables

 

 

136

 

 

 

106

 

Prepaid expenses and other

 

 

(1,028

)

 

 

293

 

Accounts payable

 

 

38

 

 

 

(352

)

Deferred revenue

 

 

25,848

 

 

 

9,888

 

Accrued expenses and other liabilities

 

 

1,414

 

 

 

2,632

 

Net cash used for operating activities

 

 

(54,129

)

 

 

(25,907

)

Investing activities

 

 

 

 

 

 

 

 

Purchases of property and equipment

 

 

(3,688

)

 

 

(1,950

)

Proceeds from sale of IgDraSol

 

 

 

 

 

27,759

 

Note receivable

 

 

(600

)

 

 

 

Investments in common stock

 

 

(750

)

 

 

(11,500

)

Net cash (used in) provided by investing activities

 

 

(5,038

)

 

 

14,309

 

Financing activities

 

 

 

 

 

 

 

 

Net principal payments under loan and security agreement

 

 

(3,683

)

 

 

(1,915

)

Net payments of deferred compensation

 

 

 

 

 

(1,000

)

Proceeds from issuance of common stock, net of issuance costs

 

 

105,477

 

 

 

 

Purchase of treasury stock

 

 

(15,639

)

 

 

 

Proceeds from exercise of stock options

 

 

454

 

 

 

1,678

 

Net cash provided by (used in) financing activities

 

 

86,609

 

 

 

(1,237

)

Net change in cash and cash equivalents

 

 

27,442

 

 

 

(12,835

)

Cash and cash equivalents at beginning of period

 

 

39,038

 

 

 

71,902

 

Cash and cash equivalents at end of period

 

$

66,480

 

 

$

59,067

 

Supplemental disclosures:

 

 

 

 

 

 

 

 

Cash paid during the period for:

 

 

 

 

 

 

 

 

Income taxes

 

$

1

 

 

$

3

 

Interest paid

 

$

778

 

 

$

720

 

Supplemental disclosures of non-cash investing and financing activities:

 

 

 

 

 

 

 

 

Increase in cost method investment in deferred revenue

 

$

 

 

$

(100,000

)

Contributions to equity method investment made on Company's behalf

 

$

 

 

$

(60,000

)

Issuance of common stock for note receivable

 

$

43,502

 

 

$

 

Purchase of treasury stock and warrant with marketable securities

 

$

37,193

 

 

$

 

Property and equipment costs incurred but not paid

 

$

 

 

$

315

 

 

See accompanying unaudited notes

 

 

4


 

SORRENTO THERAPEUTICS, INC.

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2016

 

 

1 . Nature of Operations and Business Activities

Na t ure of Operations and Basis of Presentation

Sorrento Therapeutics, Inc. (NASDAQ: SRNE), together with its subsidiaries (collectively, the “Company”) is a biopharmaceutical company focused on the discovery, acquisition, development and commercialization of proprietary drug therapeutics for addressing significant unmet medical needs worldwide. The Company’s primary therapeutic focus is oncology, including the treatment of chronic cancer pain, but is also developing therapeutic products for other indications, including immunology and infectious diseases. The Company currently has multiple clinical development programs underway: (i) Chimeric Antigen Receptor-T Cell (“CAR-T”) programs for solid tumors, (ii) resiniferatoxin (“RTX”), a non-opiate, ultra-potent and selective agonist of the TRPV-1 receptor for intractable pain in end-stage disease, and (iii) its clinical development programs for its biosimilar/biobetter antibodies.

The Company’s pipeline also includes preclinical fully human therapeutic monoclonal antibodies (“mAbs”), including its biosimilars/biobetters, its fully human anti-PD-L1 and anti-PD-1 checkpoint inhibitors derived from its proprietary G-MAB ® library platform, antibody drug conjugates (“ADCs”), bispecific antibodies (“BsAbs”), as well as CAR-T and Chimeric Antigen Receptor Natural Killer cells (“CAR.NK™”) for adoptive cellular immunotherapy. The Company’s objective is to develop its antibody drug products and adoptive cellular immunotherapies as First in Class, and/or Best in Class, which may offer greater efficacy and/or fewer adverse events or side effects as compared to existing drugs, as well as fully human therapeutic antibodies derived from its proprietary G-MAB ® antibody platform and ADCs.  

The accompanying interim condensed consolidated financial statements have been prepared by the Company, without audit, in accordance with the instructions to Form 10-Q and, therefore, do not necessarily include all information and footnotes necessary for a fair statement of its financial position, results of operations and cash flows in accordance with United States generally accepted accounting principles (“GAAP”). The accompanying condensed consolidated financial statements include the accounts of the Company’s wholly-owned subsidiaries and those of a variable interest entity where the Company is the primary beneficiary. For consolidated entities where the Company owns or is exposed to less than 100% of the economics, the Company records net income (loss) attributable to noncontrolling interests in its condensed consolidated statements of operations equal to the percentage of the economic or ownership interest retained in such entities by the respective noncontrolling parties.  Sorrento Therapeutics, Inc. Hong Kong Limited had no operating activity through September 2016.  All intercompany balances and transactions have been eliminated in consolidation.

In determining whether the Company is the primary beneficiary of an entity, the Company applies a qualitative approach that determines whether it has both (i) the power to direct the economically significant activities of the entity and (ii) the obligation to absorb losses of, or the right to receive benefits from, the entity that could potentially be significant to that entity. These considerations impact the way the Company accounts for its existing collaborative relationships and other arrangements. The Company continuously assesses whether it is the primary beneficiary of a variable interest entity as changes to existing relationships or future transactions may result in the Company consolidating or deconsolidating one or more of its collaborators or partners.

The balance sheet at December 31, 2015 is derived from the audited consolidated financial statements at that date which are not presented herein.

In the opinion of management, the unaudited financial information for the interim periods presented reflects all adjustments, which are only normal, recurring and necessary for a fair statement of financial position, results of operations and cash flows. These condensed consolidated financial statements should be read in conjunction with the consolidated financial statements included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015. Operating results for interim periods are not expected to be indicative of operating results for the Company’s 2016 fiscal year, or any subsequent period.    

Liquidity

The Company anticipates that it will continue to incur net losses in the foreseeable future as it (i) advances clinical stage product candidates such as biosimilar/biobetter antibodies, CAR-T programs and RTX in the clinic and potentially pursues other development, (ii) continues to identify a number of potential mAb and ADC drug candidates and further advances various preclinical and development activities, (iii) advances its product candidates into the clinic, (iv) invests in additional joint ventures or third party collaborations or acquisition agreements, and (v) expands corporate infrastructure, including the costs associated with being a NASDAQ-listed public company. Based on currently available resources, the Company believes it has the ability to meet all obligations due over the course of the next twelve months.

5


 

The Company plans to continue to fund its operating losses and capital funding needs through public or private equity or debt financings, strategic collaborations, licensing arrangements, asset sales, government grants or other arrangements.

Servier Agreement

On July 11, 2016, the Company announced a license and collaboration agreement with Les Laboratoires Servier, SAS, a corporation incorporated under the laws of France, and Institut de Recherches Internationales Servier, a company duly organized and existing under the laws of France (individually and collectively, “Servier”) for the development, manufacture and commercialization of products using the Company’s fully human immuno-oncology anti-PD-1 mAb STI-A1110 and will provide support for Sevier’s initial development efforts. Pursuant to the financial terms of the agreement, the Company received a non-refundable up-front payment of $27.4 million in July of 2016, which has been recorded as deferred revenue in the Company’s condensed consolidated balance sheet.  The Company will recognize the upfront payment over the expected period of performance of three years.  During the three and nine months ended September 30, 2016, the Company recognized $1.5 million in license fee revenue pursuant to the agreement.

Sale of NantKwest and Share Repurchase

In July 2016, the Company completed the transactions contemplated by a letter agreement (the “Letter Agreement”) with the Chan Soon-Shiong Family Foundation (“Foundation”) and Cambridge Equities, LP (“Cambridge”). Pursuant to the terms of the Letter Agreement, among other things, (i) the Company agreed to sell to Foundation, and Foundation agreed to purchase from the Company, an aggregate of 5,618,326 shares of common stock of NantKwest, Inc. (“NantKwest”) held by the Company, (ii) Foundation agreed to sell to the Company, and the Company agreed to purchase all reported shares held by Foundation and Cambridge, constituting an aggregate of 7,878,098 shares of common stock of the Company (“Common Stock”), (iii) Cambridge agreed to forfeit its right to purchase 500,000 shares of Common Stock issuable pursuant to a warrant to purchase 1,724,138 shares of Common Stock issued by the Company, and (iv) the Company agreed to pay to Foundation an aggregate of approximately $15.6 million. Effective upon closing, the Company repurchased the 7,878,098 shares.  The Company recognized a gain of $27.2 million on the sale of the NantKwest stock in its condensed consolidated statement of operations for the three and nine months ended September 30, 2016 as a result of the transaction.

Proposed Scilex Transaction

On August 2, 2016, the Company, the Company’s subsidiary, Scintilla Pharmaceuticals, Inc. (“Scintilla”), and Scilex Pharmaceuticals Inc. (“Scilex”) entered into a binding term sheet (the “Scilex Binding Term Sheet”) setting forth the terms and conditions by which Scintilla would, through a subsidiary, purchase all of the issued and outstanding equity of Scilex (the “Proposed Scilex Acquisition”). Subject to certain conditions, and in exchange for all of the issued and outstanding equity of Scilex, the Scilex Binding Term Sheet provided that Scintilla would: (i) at the closing of the Proposed Scilex Acquisition (the “Proposed Scilex Closing”), pay to the equityholders of Scilex an aggregate of $100 (the “Cash Consideration”), and (ii) following the earlier to occur of (a) the closing of the next third party equity financing of Scintilla or the initial public offering of shares of common stock of Scintilla (“Scintilla Common Stock”) in the United States (a “Financing”), or (b) the two-year anniversary of the Proposed Scilex Closing, issue to the equityholders of Scilex an aggregate of $70.0 million of shares of Scintilla Common Stock, subject to adjustment in certain circumstances, based upon the valuation of Scintilla immediately after such Financing or otherwise as of the two-year anniversary of the Proposed Scilex Closing (the “Scilex Stock Consideration”).

In exchange for Scilex’s agreement under the Scilex Binding Term Sheet to negotiate exclusively with the Company and Scintilla with respect to the Proposed Scilex Acquisition, Scintilla paid $0.5 million to Scilex upon execution of the Scilex Binding Term Sheet (the “Standstill Payment”). The Scilex Binding Term Sheet provided that if the Proposed Scilex Closing occurs, the Standstill Payment would be credited against the value of the Scilex Stock Consideration payable by Scintilla to the Scilex equityholders. If the Proposed Scilex Closing does not occur by a specified deadline, unless otherwise agreed to by the Company and Scilex, the Standstill Payment would be deemed to be an investment by the Company in Scilex’s next third party financing. Additionally, pursuant to the terms of the Scilex Binding Term Sheet, the Company agreed that, upon the Proposed Scilex Closing, it would contribute $10.0 million to Scintilla to fund, among other things, Scintilla’s working capital expenses, the development of Scintilla’s lead program RTX for the treatment of intractable cancer pain, as well as the development of ZTlido™ (lidocaine), Scilex’s lead product candidate, and the development of certain of Scintilla’s other technologies and product candidates.

The Company’s President and Chief Executive Officer and a member of the Company’s Board of Directors (the “Board”), through one or more of his affiliated entities, and the Company’s Executive Vice President, Chief Administrative Officer and Chief Legal Officer, are stockholders of Scilex and owned approximately 6.5% and 8.6%, respectively, of Scilex’s total outstanding capital stock as of September 30, 2016.  

6


 

As of September 30, 2016, the Proposed Scilex Acquisition had not closed. The Scilex Binding Term Sheet was terminated by the parties, effective as of November 8, 2016. Accordingly, Scintill a will not complete the Proposed Scilex Acquisition.

Completed Scilex Transaction

On November 8, 2016, the Company entered into a Stock Purchase Agreement (the “Scilex Purchase Agreement”) with Scilex and a majority of the stockholders of Scilex (the “Scilex Stockholders”) pursuant to which, on November 8, 2016, the Company acquired from the Scilex Stockholders, and the Scilex Stockholders sold to the Company, approximately 72% of the outstanding capital stock of Scilex (the “Scilex Acquisition”).

The total value of the consideration payable to the Scilex Stockholders in the Scilex Acquisition is equal to approximately $47.6 million, subject to certain post-closing adjustments (the “Adjusted Base Consideration”).

At the closing of the Scilex Acquisition (the “Scilex Closing”), the Company issued to the Scilex Stockholders that were accredited investors (the “Accredited Scilex Stockholders”) an aggregate of 752,481 shares of Common Stock (the “Closing Shares”) based on a $6.33 per share price; provided, however, that twenty percent of the Closing Shares will be held in escrow for a period of six months, and be used, among other things, to satisfy the indemnification obligations of the Scilex Stockholders. In addition to issuing shares of Common Stock at the Scilex Closing, the Company paid cash in the aggregate amount of approximately $4,840 to Scilex Stockholders that were not accredited investors in exchange for such Scilex Stockholders’ shares of the capital stock of Scilex.

Subject to certain customary limitations, the Scilex Stockholders have agreed to indemnify the Company and its officers, directors, employees and other authorized agents against certain losses related to, among other things, breaches of Scilex’s and the Scilex Stockholders’ representations and warranties, certain specified liabilities and the failure to perform covenants or obligations under the Scilex Purchase Agreement.

Under the terms of the Scilex Purchase Agreement, the Company agreed to provide additional consideration to the Accredited Scilex Stockholders upon the achievement of certain milestones, as follows: (i) 10% of the Adjusted Base Consideration will be payable in shares of Common Stock upon receipt of notice from the U.S. Food and Drug Administration (the “FDA”) that the FDA has accepted Scilex’s resubmitted new drug application for ZTlido for the treatment of postherpetic neuralgia (the “NDA”), and (ii) 80% of the Adjusted Base Consideration will be payable in shares of Common Stock upon receipt of notice from the FDA that the FDA has approved the NDA for commercialization. The Common Stock price per share to be used to calculate the number of shares of Common Stock issuable upon the achievement of these milestones will be based on a formula set forth in the Scilex Purchase Agreement, which provides that the Common Stock price per share will not be greater than $25.32 or less than $6.33 (in each case subject to adjustment for stock splits, stock dividends, recapitalizations and the like).

The Company’s President and Chief Executive Officer and a member of the Board, through one or more of his affiliated entities, and the Company’s Executive Vice President, Chief Administrative Officer and Chief Legal Officer, were formerly stockholders of Scilex, held approximately 6.5% and 8.6%, respectively, of Scilex’s total outstanding capital stock and sold all of their shares of the capital stock of Scilex to the Company in the Scilex Acquisition on the same terms as the other Scilex Stockholders.

In connection with the Scilex Acquisition, on November 8, 2016, the Company and the Accredited Scilex Stockholders entered into a Registration Rights Agreement (the “Registration Rights Agreement”) pursuant to which, among other things, the Company agreed to prepare and file one or more registration statements with the Securities and Exchange Commission (the “SEC”) for the purpose of registering for resale the Closing Shares and any additional shares of Common Stock that may be issued by the Company upon the achievement of milestones in accordance with the Scilex Purchase Agreement (collectively, the “Securities”). Under the Registration Rights Agreement, the Company must file a registration statement with the SEC registering all of the Closing Shares for resale by no later than December 8, 2016, and the Company will also be required to file one or more additional registration statements registering any other Securities for resale within 30 days of the issuance thereof.

Scintilla and Scilex agreed to terminate the Scilex Binding Term Sheet on November 8, 2016. As a result of the termination of the Scilex Binding Term Sheet, notwithstanding the provisions set forth in the Scilex Binding Term Sheet, Scintilla and Scilex agreed that the $0.5 million standstill payment that Scintilla made to Scilex pursuant to the Scilex Binding Term Sheet shall be deemed a loan made by Scintilla to Scilex, evidenced by a promissory note, dated November 8, 2016, by and between Scintilla and Scilex (the “November Scilex Note”). The November Scilex Note accrues interest at an annual rate equal to the lesser of 10.0% and the maximum interest rate permitted under law, will be due and payable in full upon the earlier of December 31, 2016 and the occurrence of an event of default, and may be prepaid in full or in part. The November Scilex Note was assigned in full by Scintilla to the Company on November 8, 2016.  On November 8, 2016, following the Scilex Closing, the November Scilex Note was repaid by Scilex in full.

7


 

Proposed Semnur Transaction

On August 15, 2016, the Company, Scintilla and Semnur Pharmaceuticals, Inc. (“Semnur”) entered into a binding term sheet (the “Semnur Binding Term Sheet”) setting forth the terms and conditions by which Scintilla will, through a subsidiary, purchase all of the issued and outstanding equity of Semnur (the “Semnur Acquisition”). Contingent upon the execution of a definitive agreement between the parties (the “Definitive Agreement”) and subject to certain conditions, Scintilla will, at the closing of the Semnur Acquisition (the “Semnur Closing”), make an initial payment of $60.0 million (the “Initial Consideration”) to the equityholders of Semnur in exchange for all of the issued and outstanding equity of Semnur. Under the Semnur Binding Term Sheet, the Initial Consideration will consist of $40.0 million in cash and $20.0 million in shares of Common Stock (the “Semnur Stock Consideration”). The number of shares of Common Stock comprising the Semnur Stock Consideration will be calculated based on the volume weighted average closing price of the Common Stock for the 30 consecutive trading days ending on the date that is three days prior to the execution of the Definitive Agreement. The Semnur Binding Term Sheet also provides that $6.0 million of the Semnur Stock Consideration will be placed into escrow, a portion of which will be held for a period of up to six or 12 months to secure certain obligations of Semnur and its equityholders in connection with the Semnur Acquisition. At the Semnur Closing, the Company will enter into a registration rights agreement with certain of Semnur’s equityholders, pursuant to which the Company will agree to seek the registration for resale of the shares of its common stock comprising the Semnur Stock Consideration.  

In addition to the Initial Consideration, Scintilla may pay additional consideration of up to $140.0 million to Semnur’s equityholders upon Scintilla’s completion of certain clinical studies and trials, receipt of certain regulatory approvals and the achievement of certain sales targets following the Semnur Closing.

Under the Semnur Binding Term Sheet, Semnur has agreed to negotiate exclusively with the Company and Scintilla with respect to the Semnur Acquisition for a period of 60 days (the “Exclusivity Period”). The Exclusivity Period will be automatically extended for an additional 30 days in certain circumstances. If a Definitive Agreement has not been executed by the end of the Exclusivity Period, either party may terminate the Semnur Binding Term Sheet (a “Termination”). If a party elects a Termination without the other party’s written consent, the party electing a Termination may be required to pay an aggregate of $5.0 million in cash to the other party as liquidated damages under certain circumstances.

As of September 30, 2016, the Semnur Acquisition had not closed.  The final terms of the Semnur Acquisition are subject to the negotiation and finalization of the Definitive Agreement and any other agreements relating to the Semnur Acquisition, and the material terms of the Semnur Acquisition are expected to differ from those set forth in the Semnur Binding Term Sheet. In addition, the Semnur Closing will be subject to various customary and other closing conditions.

A member of the Board is Semnur’s Chief Executive Officer and a member of its Board of Directors and currently owns approximately 5.5% of Semnur’s total outstanding capital stock.

Shelf Registration

In November 2014, the Company filed a universal shelf registration statement on Form S-3 with the SEC, which was declared effective by the SEC in December 2014 (the “2014 Shelf Registration Statement”). The 2014 Shelf Registration Statement provides the Company with the ability to offer up to $250.0 million of securities, including equity and other securities as described in the registration statement. Included in the 2014 Shelf Registration Statement is a sales agreement prospectus covering the offering, issuance and sale by the Company of up to a maximum aggregate offering price of $50.0 million of the Company’s common stock that may be issued and sold under a sales agreement (the “ATM Facility”) with MLV & Co. LLC (“MLV”).   During the nine months ended September 30, 2016 the Company sold approximately $3.6 million in shares of Common Stock under the ATM Facility.  Commencing with the second quarter 2016, the Company has the ability to offer up to $46.4 million of additional shares of Common Stock under the ATM Facility.  The Company cannot be sure that additional funds will be available to the Company through the ATM Facility or any other financing alternative on reasonable terms, or at all. If the Company is unable to secure adequate additional funding, the Company may be forced to make reductions in spending, extend payment terms with suppliers, liquidate assets where possible, and/or suspend or curtail planned programs. Any of these actions could materially harm the Company’s business, results of operations, and future prospects.

If the Company raises additional funds by issuing equity securities, substantial dilution to existing stockholders would result. If the Company raises additional funds by incurring debt financing, the terms of the debt may involve significant cash payment obligations as well as operating and financial covenants that may restrict the Company’s ability to operate its business.

 

 

8


 

2. Significant Accounting Policies

Use of Estimates

The preparation of consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of expenses during the reporting period.  On an ongoing basis, the Company evaluates its estimates, including those related to the valuation of warrants, stock-based compensation and the valuation allowance for deferred tax assets. The Company bases its estimates on historical experience and on various other market-specific and relevant assumptions that it believes to be reasonable under the circumstances. Management believes that these estimates are reasonable; however, actual results may differ from these estimates.

Cash and Cash Equivalents

The Company considers all highly liquid investments purchased with original maturities of three months or less to be cash equivalents. The Company minimizes its credit risk associated with cash and cash equivalents by periodically evaluating the credit quality of its primary financial institution. The balance at times may exceed federally insured limits. The Company has not experienced any losses on such accounts.

Fair Value of Financial Instruments

The Company follows accounting guidance on fair value measurements for financial instruments measured on a recurring basis, as well as for certain assets and liabilities that are initially recorded at their estimated fair values. Fair value is defined as the exit price, or the amount 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 Company uses the following three-level hierarchy that maximizes the use of observable inputs and minimizes the use of unobservable inputs to value its financial instruments:

 

Level 1: Observable inputs such as unadjusted quoted prices in active markets for identical instruments.

 

Level 2: Quoted prices for similar instruments that are directly or indirectly observable in the marketplace.

 

Level 3: Significant unobservable inputs which are supported by little or no market activity and that are financial instruments whose values are determined using pricing models, discounted cash flow methodologies, or similar techniques, as well as instruments for which the determination of fair value requires significant judgment or estimation.

Financial instruments measured at fair value are classified in their entirety based on the lowest level of input that is significant to the fair value measurement. The Company’s assessment of the significance of a particular input to the fair value measurement in its entirety requires it to make judgments and consider factors specific to the asset or liability. The use of different assumptions and/or estimation methodologies may have a material effect on estimated fair values. Accordingly, the fair value estimates disclosed or initial amounts recorded may not be indicative of the amount that the Company or holders of the instruments could realize in a current market exchange.

The carrying amounts of cash equivalents and marketable securities approximate their fair value based upon quoted market prices. Certain of the Company’s financial instruments are not measured at fair value on a recurring basis, but are recorded at amounts that approximate their fair value due to their liquid or short-term nature, such as cash, accounts receivable and payable, and other financial instruments in current assets or current liabilities.

Marketable Securities

Marketable securities are designated as available-for-sale securities and are accounted for at fair value. Marketable securities are classified as short-term or long-term based on the nature of the securities and their availability to meet current operating requirements. Marketable securities that are readily available for use in current operations are classified as short-term available-for-sale securities and are reported as a component of current assets in the accompanying condensed consolidated balance sheets. Marketable securities that are not considered available for use in current operations are classified as long-term available-for-sale securities and are reported as a component of long-term assets in the accompanying condensed consolidated balance sheets.

Securities that are classified as available-for-sale are carried at fair value, with temporary unrealized gains and losses reported as a component of stockholders' equity until their disposition. The cost of securities sold is based on the specific identification method.

The Company holds an investment in MedoveX Corporation (“MedoveX”), which it has classified as a trading security.  Trading securities are stated at market value at the balance sheet date with gains and losses reported in net income.  See Note 4.

9


 

All of the Company’s marketable securities are subject to a periodic impairment review. The Company recognizes an impairment charge when a decline i n the fair value of its investments below the cost basis is judged to be other-than-temporary.  For the three and nine months ended September 30, 2016, no other-than-temporary impairment charges were recorded.

Grants and Accounts Receivable

Grants receivable at September 30, 2016 and December 31, 2015 represent amounts due under several federal contracts with the National Institute of Allergy and Infectious Diseases (“NIAID”), a division of the National Institutes of Health (“NIH”). The Company considers the grants receivable to be fully collectible; accordingly, no allowance for doubtful amounts has been established. If amounts become uncollectible, they are charged to operations.

Accounts receivable at September 30, 2016 and December 31, 2015 consists of trade receivables from sales and services provided to certain customers, which are generally unsecured and due within 30 days. Estimated credit losses related to trade accounts receivable are recorded as general and administrative expenses and as an allowance for doubtful accounts within grants and accounts receivable, net. The Company reviews reserves and makes adjustments based on historical experience and known collectability issues and disputes. When internal collection efforts on accounts have been exhausted, the accounts are written off by reducing the allowance for doubtful accounts. As of September 30, 2016 and December 31, 2015, the allowance for doubtful accounts was $26,000 and $4,000, respectively.

Property and Equipment

Property and equipment are carried at cost less accumulated depreciation. Depreciation of property and equipment is computed using the straight-line method over the estimated useful lives of the assets, which are generally three to five years. Leasehold improvements are amortized over the lesser of the life of the lease or the life of the asset. Repairs and maintenance are charged to expense as incurred.

Acquisitions and Intangibles

The Company has engaged in business combination activity. The accounting for business combinations requires management to make judgments and estimates of the fair value of assets acquired, including the identification and valuation of intangible assets, as well as liabilities assumed. Such judgments and estimates directly impact the amount of goodwill recognized in connection with each acquisition, as goodwill presents the excess of the purchase price of an acquired business over the fair value of its net tangible and identifiable intangible assets.

Goodwill and Other Long-Lived Assets

Goodwill, which has an indefinite useful life, represents the excess of cost over fair value of net assets acquired. Goodwill is reviewed for impairment at least annually during the fourth quarter, or more frequently if events occur indicating the potential for impairment. During its goodwill impairment review, the Company may assess qualitative factors to determine whether it is more likely than not that the fair value of its reporting unit is less than its carrying amount, including goodwill. The qualitative factors include, but are not limited to, macroeconomic conditions, industry and market considerations, and the overall financial performance of the Company. If, after assessing the totality of these qualitative factors, the Company determines that it is more likely than not that the fair value of its reporting unit is less than its carrying amount, then the Company proceeds to perform the two-step test for goodwill impairment. Otherwise, no additional assessment is deemed necessary.  The first step of the test for goodwill impairment involves comparing the estimated fair value of the reporting unit with its carrying value, including goodwill. If the carrying amount of the reporting unit exceeds its fair value, the Company performs the second step of the goodwill impairment test to determine the amount of loss, which involves comparing the implied fair value of the goodwill to the carrying value of the goodwill. The Company may also elect to bypass the qualitative assessment in a period and elect to proceed to perform the first step of the goodwill impairment test. The Company performed its annual assessment for goodwill impairment in the fourth quarter of 2015, noting no impairment.  There have not been any triggering events through September 30, 2016.

The Company evaluates its long-lived assets with definite lives, such as property and equipment, acquired technology, customer relationships, and patent and license rights, for impairment by considering competition by products prescribed for the same indication, the likelihood and estimated future entry of non-generic and generic competition with the same or similar indication and other related factors. The factors that drive the estimate of the life are often uncertain and are reviewed on a periodic basis or when events occur that warrant review. Recoverability is measured by comparison of the assets’ book value to future net undiscounted cash flows that the assets are expected to generate. There have not been any impairment losses of long-lived assets through September 30, 2016.

10


 

Derivative Liabilities

Derivative liabilities are recorded on the condensed consolidated balance sheets at fair value on the date of issuance and are revalued on each balance sheet date until such instruments are exercised or expire, with changes in the fair value between reporting periods recorded as other income or expense.  The Company estimates the fair value of derivative liabilities using the Black-Scholes option pricing model.

Investments in Other Entities

The Company holds a portfolio of investments in equity securities that are accounted for under either the equity method or cost method. Investments in entities over which the Company has significant influence but not a controlling interest are accounted for using the equity method, with the Company’s share of earnings or losses reported in other income (expense), net.

The Company’s cost method investments are included in investments in common stock on the condensed consolidated balance sheets.  The Company’s equity method investments are included in equity method investments on the condensed consolidated balance sheets.

All investments are reviewed on a regular basis for possible impairment. If an investment's fair value is determined to be less than its net carrying value and the decline is determined to be other-than-temporary, the investment is written down to its fair value. Such an evaluation is judgmental and dependent on specific facts and circumstances. Factors considered in determining whether an other-than-temporary decline in value has occurred include: market value or exit price of the investment based on either market-quoted prices or future rounds of financing by the investee; length of time that the market value was below its cost basis; financial condition and business prospects of the investee; the Company’s intent and ability to retain the investment for a sufficient period of time to allow for recovery in market value of the investment; issues that raise concerns about the investee's ability to continue as a going concern; and any other information that the Company may be aware of related to the investment. The Company does not report the fair value of its equity investments in non-publicly traded companies because it is not practical to do so.

Research and Development Costs and Collaborations

All research and development costs are charged to expense as incurred. Such costs primarily consist of lab supplies, contract services, stock-based compensation expense, salaries and related benefits.

Acquired In-Process Research and Development Expense

The Company has acquired and may continue to acquire the rights to develop and commercialize new drug candidates. The up-front payments to acquire a new drug compound, as well as future milestone license payments, are immediately expensed as acquired in-process research and development provided that the drug has not achieved regulatory approval for marketing and, absent obtaining such approval, has no alternative future use.

Income Taxes

The provisions of the Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 740-10, Uncertainty in Income Taxes, address the determination of whether tax benefits claimed or expected to be claimed on a tax return should be recorded in the financial statements. Under ASC Topic 740-10, the Company may recognize the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained on examination by taxing authorities, based on the technical merits of the position. The Company has determined that it has uncertain tax positions.

The Company accounts for income taxes using the asset and liability method to compute the differences between the tax basis of assets and liabilities and the related financial amounts, using currently enacted tax rates.

The Company has deferred tax assets, which are subject to periodic recoverability assessments. Valuation allowances are established, when necessary, to reduce deferred tax assets to the amount that more likely than not will be realized. As of September 30, 2016 and December 31, 2015, the Company maintained a full valuation allowance against its deferred tax assets, with the exception of an amount equal to its deferred tax liabilities, which can be expected to reverse over a definite life.

Revenue Recognition

The Company’s revenues are generated primarily from various NIH grant awards, and from the sale of customized reagents and the provision of contract development services. The revenue from the NIH grant awards is based upon subcontractor and internal costs

11


 

incurred that are specifically covered by the grant, and where applicable, a facilities and administrative rate that provides funding for overhead expenses. These revenues are recognized when expenses have been incurred by subcontractors or when the Company incurs internal expenses that are related to the grant.

Revenues from sales are generated from the sale of customized reagents which include industrial standard cytotoxins, linkers, and linker-toxins used for preparing ADCs.  Contract development services include providing synthetic expertise to customer’s synthesis by delivering proprietary cytotoxins, linkers and linker-toxins and ADC service using industry standard toxin and antibodies provided by customers. Revenue is recognized when, (i) persuasive evidence of an arrangement exists, (ii) the product has been shipped or the services have been rendered, (iii) the price is fixed or determinable, and (iv) collectability is reasonably assured.

License fees for the licensing of product rights are recorded as deferred revenue upon receipt of cash and recognized as revenue on a straight-line basis over the period of performance.  Royalty revenues will be recognized as earned per the terms of underlying royalty bearing contracts.

The Company is obligated to accept from customers the return of products sold that are damaged or do not meet certain specifications. The Company may authorize the return of products sold in accordance with the terms of its sales contracts, and estimates allowances for such amounts at the time of sale. The Company has not experienced any sales returns.

Stock-based Compensation

The Company accounts for stock-based compensation in accordance with FASB ASC Topic 718, which establishes accounting for equity instruments exchanged for employee services. Under such provisions, stock-based compensation cost is generally measured at the grant date, based on the calculated fair value of the award and an estimate of forfeitures, and is recognized as an expense, under the straight-line method, over the employee’s requisite service period (generally the vesting period of the equity grant).

The Company accounts for equity instruments, including restricted stock or stock options, issued to non-employees in accordance with authoritative guidance for equity based payments to non-employees. Stock options issued to non-employees are accounted for at their estimated fair value determined using the Black-Scholes option-pricing model. The fair value of options and restricted stock granted to non-employees is re-measured over the vesting period, and the resulting changes in fair value are recognized as expense in the period of the change in proportion to the services rendered to date.

Net Earnings (Loss) per Share

Basic net earnings (loss) per share is computed by dividing net income (loss) for the period by the weighted average number of common shares outstanding during the period. Diluted net earnings (loss) per share reflects the additional dilution from potential issuances of common stock, such as stock issuable pursuant to the exercise of stock options or the exercise of outstanding warrants. The treasury stock method and if-converted method are used to calculate the potential dilutive effect of these common stock equivalents. Potentially dilutive shares are excluded from the computation of diluted net earnings (loss) per share when their effect is anti-dilutive. In periods where a net loss is presented, all potentially dilutive securities are anti-dilutive and are excluded from the computation of diluted net loss per share.

Comprehensive Income (Loss )

Comprehensive income (loss) is comprised of net income (loss) and adjustments for the change in unrealized gains and losses on the Company’s investments in available-for-sale marketable securities, net of taxes. The Company displays comprehensive income (loss) and its components in its condensed consolidated statements of comprehensive income (loss).

Segment Information

The Company is engaged primarily in the discovery and development of innovative therapies focused on oncology and the treatment of chronic cancer pain as well as immunology and infectious diseases based on its platform technologies. Accordingly, the Company has determined that it operates in one operating segment.

Recent Accounting Pronouncements

In June 2016, the FASB issued Accounting Standards Update (“ASU”) No. 2016-13, Financial Instruments – Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments . This update provides financial statement users with more decision-useful information about the expected credit losses on financial instruments and other commitments to extend credit held by a

12


 

reporting entity at each reporting date. T o achieve this objective, the amendments in this update replace the incurred loss impairment methodology in current GAAP with a methodology that reflects expected credit losses and requires consideration of a broader range of reasonable and supportable inf ormation to inform credit loss estimates. The new standard is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2019. The Company is currently evaluating the effect that the updated standard will have o n its consolidated results of operations, financial position or cash flows.

In February 2016, the FASB issued ASU No. 2016-02, Leases (Subtopic 842). ASU No. 2016-02 will require companies to recognize lease assets and lease liabilities on the balance sheet and disclose key information about leasing arrangements. For public companies, this standard is effective for annual reporting periods beginning after December 15, 2018, and early adoption is permitted. The Company is currently evaluating the impact of this standard on its consolidated financial position, results of operation, and cash flows.

In March 2016, the FASB issued ASU No. 2016-09, Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting. The objective of this ASU is to simplify several aspects of the accounting for employee share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities and classification on the statement of cash flows. This ASU is effective for fiscal years beginning after December 15, 2016, including interim periods within those fiscal years. Early adoption is permitted. The Company is currently evaluating the new guidance to determine the impact it may have on its consolidated financial statements.

In May 2014, the FASB issued ASU No. 2014-09, " Revenue from Contracts with Customers (Topic 606)" (ASU 2014-9), a converged standard on revenue recognition . The new pronouncement requires revenue recognition to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. The guidance also specifies the accounting for some costs to obtain or fulfill a contract with a customer, as well as enhanced disclosure requirements. ASU 2014-9 is effective for annual reporting periods beginning after December 15, 2017, including interim reporting periods within that reporting period. ASU 2014-9 is effective for annual reporting periods beginning after December 15, 2017, including interim reporting periods within that reporting period.  The Company is currently evaluating the impact this standard may have on it consolidated financial statements.

 

 

3. Fair Value Measurements

 

The Company measures the fair value of financial assets and liabilities based on authoritative guidance that defines fair value, establishes a framework consisting of three levels for measuring fair value, and requires disclosures about fair value measurements.  Fair value is defined as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants at the measurement date.

The Company’s marketable securities were classified within Level 1 of the fair value hierarchy because they were valued using quoted market prices in active markets.  The Company’s marketable securities related to warrants are classified within Level 3 of the fair value hierarchy because the value was calculated using the Black-Scholes option-pricing method.  The Company’s derivative liability was classified within Level 3 of the fair value hierarchy because the value was calculated using significant judgment based on the Company’s own assumptions in the valuation of this liability.  

13


 

The following table presents the Company’s financial assets and liabilities that are measured at fair value on a recurring basis.  (in thousands):

 

 

 

Fair Value Measurements at September 30, 2016

 

 

 

Balance

 

 

Quoted Prices in Active Markets (Level 1)

 

 

Significant Other Observable Inputs (Level 2)

 

 

Significant Unobservable Inputs (Level 3)

 

Assets:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Trading securities

 

$

1,241

 

 

$

925

 

 

$

 

 

$

316

 

Total assets

 

$

1,241

 

 

$

925

 

 

$

 

 

$

316

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fair Value Measurements at December 31, 2015

 

 

 

Balance

 

 

Quoted Prices in Active Markets (Level 1)

 

 

Significant Other Observable Inputs (Level 2)

 

 

Significant Unobservable Inputs (Level 3)

 

Assets:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Marketable securities

 

$

97,366

 

 

$

97,366

 

 

$

 

 

$

 

Total assets

 

$

97,366

 

 

$

97,366

 

 

$

 

 

$

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Liabilities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Derivative liability

 

$

5,520

 

 

$

 

 

$

 

 

$

5,520

 

Total liabilities

 

$

5,520

 

 

$

 

 

$

 

 

$

5,520

 

 

The following table includes a summary of the derivative liability measured at fair value using significant unobservable inputs (Level 3) during the nine months ended September 30, 2016 (in thousands): 

 

 

 

 

 

 

 

 

Derivative Liability

 

Beginning balance at December 31, 2015

 

$

5,520

 

Gain on expiration of derivative liability

 

 

(5,520

)

Ending balance at September 30, 2016

 

$

 

 

 

4 . Marketable Securities

Marketable securities consisted of the following as of September 30, 2016 (in thousands):

 

 

 

September 30, 2016

 

 

 

Cost

 

 

Gross Realized Gains

 

 

Gross Realized Losses

 

 

Fair Value

 

Trading securities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MedoveX common shares and warrants

 

$

750

 

 

$

491

 

 

$

 

 

$

1,241

 

 

On August 5, 2016, the Company entered a Unit Purchase Agreement (the “Unit Purchase Agreement”) with MedoveX . Pursuant to the terms of the Unit Purchase Agreement, the Company purchased three Units for $750,000.  Each Unit had a purchase price of $250,000 and consisted of (i) 208,333 shares of MedoveX common stock (the “MedoveX Common Stock”), and (ii) a warrant to purchase 104,167 shares of MedoveX Common Stock (the “MedoveX Warrant”).  The MedoveX Warrant has an initial exercise price of $1.52 per share, subject to adjustment, and is initially exercisable six months following the date of issuance for a period of five years from the date of issuance.  In addition, the Company entered a Registration Rights Agreement with MedoveX pursuant to which MedoveX was required to file a registration statement registering for resale all shares of MedoveX Common Stock and shares of MedoveX Common Stock issuable pursuant to the MedoveX Warrant issued as part of the Units. 

The Company recorded a gain on trading securities of $491,000, representing the difference between the $750,000 cost basis and the estimated fair value as of September 30, 2016, in the Company’s condensed consolidated statements of operations.  The Company’s investment in MedoveX will be revalued on each balance sheet date.  The fair value of the Company’s holding in MedoveX Common Stock at September 30, 2016 is a Level 1 measurement.  The fair value of the Company’s holdings in the MedoveX Warrant was estimated using the Black-Scholes option-pricing method. The risk-free rate was derived from the U.S.

14


 

Treasury yield curve, matching the MedoveX Warrant’s term, in effect at the measurement date. The volatility factor was determined based on MedoveX’s historical sto ck prices. The warrant valuation is a Level 3 measurement.

As more fully described in Note 1, in July 2016, the Company closed on the transactions contemplated by the Letter Agreement with the Chan Soon-Shiong Family Foundation and Cambridge Equities, LP. Pursuant to the terms of the Letter Agreement, among other things, the Company sold its shares of NantKwest common stock. Effective with the close of the transaction, the Company recognized a gain of $27.2 million on the sale of NantKwest stock in its condensed consolidated statement of operations for the three and nine months ended September 30, 2016.

 

 

5. Notes Receivable

 

In June 2016, the Company closed its previously announced securities purchase agreements with certain investors. In addition to the cash received, the Company received consideration in the form of secured promissory notes for 9,640,060 shares totaling $53.5 million (the “Secured Notes”).  The Secured Notes accrue interest at 5% per annum, and all principal and interest is due and payable in December, 2016.  The Secured Notes are collateralized by the assets of the investors.  On July 14, 2016, one of the holders of the Secured Notes repaid $10.0 million of outstanding principal under its Secured Note. The Company expects to receive the remaining $43.5 million by December 31, 2016. The $43.5 million in notes outstanding is reflected as a stock subscription receivable in the Company’s condensed consolidated balance sheets as of September 30, 2016.

 

On August 2, 2016, Scintilla made a $0.5 million payment to Scilex in conjunction with the execution of the Scilex Binding Term Sheet. Scintilla and Scilex agreed to terminate the Scilex Binding Term Sheet on November 8, 2016. As a result of the termination of the Scilex Binding Term Sheet, notwithstanding the provisions set forth in the Scilex Binding Term Sheet, Scintilla and Scilex agreed that the $0.5 million standstill payment that Scintilla made to Scilex pursuant to the Scilex Binding Term Sheet shall be deemed a loan made by Scintilla to Scilex evidenced by the November Scilex Note. The November Scilex Note accrues interest at an annual rate equal to the lesser of 10.0% and the maximum interest rate permitted under law, will be due and payable in full upon the earlier of December 31, 2016 and the occurrence of an event of default, and may be prepaid in full or in part. The November Scilex Note was assigned in full by Scintilla to the Company on November 8, 2016.  On September 19, 2016, the Company loaned $100,000 to Scilex, which is evidenced by a promissory note (the “September Scilex Note”). The September Scilex Note accrues interest at an annual rate equal to the lesser of 10.0% and the maximum interest rate permitted under law, will be due and payable in full upon the earlier of December 31, 2016 and the occurrence of an event of default, and may be prepaid in full or in part.  On November 8, 2016, following the Scilex Closing, the November Scilex Note and the September Scilex Note were repaid by Scilex in full.

Subsequent to September 30, 2016 on November 1, 2016, the Company loaned $5.0 million to Celularity, Inc., a research and development company (“Celularity”), pursuant to a promissory note issued by Celularity to the Company (the “Celularity Note”) in connection with the entry into a nonbinding term sheet by the Company, TNK Therapeutics, Inc. and Celularity described in more detail in Note 18 below.  Pursuant to the terms of the Celularity Note, the loan will be due and payable in full on the earlier of November 1, 2017 and the occurrence of an event of default under the Celularity Note (the “Maturity Date”). The Celularity Note also provides that, in certain circumstances, the Company shall loan Celularity up to an additional $5.0 million over the next 12 months. In the event that Celularity meets certain minimum financing conditions prior to the Maturity Date, all outstanding amounts under the Celularity Note shall be forgiven.

 

 

6. Investments

As of September 30, 2016 and December 31, 2015, the aggregate carrying amount of the Company’s cost-method investments in non-publicly traded companies was $112.0 million and included an ownership interest in NantCell, Inc., NantBioScience, Inc., Brink Biologics, Inc., Coneksis, Inc., and Globavir Biosciences, Inc. The Company’s cost-method investments are assessed for impairment quarterly. The Company has determined that it is not practicable to estimate the fair value of its cost-method investments on a regular basis and does not reassess the fair value of cost-method investments if there are no identified events or changes in circumstances that may have a significant adverse effect on the fair value of the investments.  No impairment losses were recorded during the three and nine months ended September 30, 2016 and 2015.

 

 

CARgenix

I n August 2015,  the Company and TNK Therapeutics, Inc., its subsidiary (“TNK”) entered into a Membership Interest Purchase Agreement (the “Membership Interest Purchase Agreement”) with CARgenix Holdings LLC (“CARgenix”) and the members of CARgenix (the “Members”) pursuant to which the Members sold all of their membership interests in CARgenix to TNK for: (1) a cash payment of $100.00, and (2) $6.0 million in shares of TNK Class A common stock (“TNK Class A Stock”), subject to adjustment in certain circumstances, to be issued to the Members upon a financing resulting in gross proceeds (individually or in the aggregate) to

15


 

TNK of at least $50.0 million (a “Qualified Financing”). In accordance with an amendment to the Membership Interest Purchase Agreement entered into in March 2016, in the event a Qualified Financing does not occur by September 15, 2016 or TNK does not complete an initial public offering of shares of its capital stock by October 15, 2016, in lieu of receiving shares of TNK pursuant to the acquisition, t he Members would receive an aggregate of 309,917 shares of Common Stock, subject to adjustment in certain circumstances. TNK did not complete a Qualified Financing by the amended financing deadline and the Company issued 309,917 shares of Common Stock to t he Members on October 7, 2016.  The aggregate purchase price of $6.0 million was recognized as acquired in-process research and development expense in the condensed consolidated statement of operations during the three months ended September 30, 2015.    

BDL

In August 2015, the Company and TNK entered into a Stock Purchase Agreement (the “Stock Purchase Agreement”) with BDL Products, Inc. (“BDL”) and the stockholders of BDL (“Stockholders”) pursuant to which the Stockholders sold all of their shares of capital stock in BDL to TNK for: (1) a cash payment of $100.00, and (2) $6.0 million in shares of TNK Class A Stock, subject to adjustment in certain circumstances, to be issued to the Stockholders upon a Qualified Financing.  In accordance with an amendment to the Stock Purchase Agreement entered into in September 2016, in the event a Qualified Financing does not occur by March 15, 2017 or TNK does not complete an initial public offering of shares of its capital stock by March 15, 2017, in lieu of receiving shares of TNK pursuant to the acquisition, the Stockholders shall receive an aggregate of 309,917 shares of Common Stock by no later than March 30, 2017, subject to adjustment in certain circumstances. The aggregate purchase price of $6.0 million was recognized as acquired in-process research and development expense in the condensed consolidated statement of operations during the three months ended September 30, 2015.  The corresponding acquisition liability will remain until settlement.  

 

 

7 . Equity Method Investments

NANTibody

In April 2015, the Company and NantCell, Inc. (“NantCell”), a wholly-owned subsidiary of NantWorks, Inc. (“NantWorks”) a private company owned by Dr. Patrick Soon-Shiong, established a new joint venture called Immunotherapy NANTibody, LLC, (“NANTibody”), as a stand-alone biotechnology company with $100.0 million initial joint funding.  NantCell owns 60% of the equity interest of NANTibody and agreed to contribute $60.0 million to NANTibody.  The Company owns 40% of NANTibody and in July 2015, the Company had NantPharma, LLC (“NantPharma”) contribute its portion of the initial joint funding of $40.0 million to NANTibody from the proceeds of the sale of IgDraSol, Inc. (“IgDraSol”), a former subsidiary of the Company.  NANTibody will focus on accelerating the development of multiple immuno-oncology mAbs for the treatment of cancer, including but not limited to anti-PD-1, anti-PD-L1, anti-CTLA4 mAbs, and other immune-check point antibodies as well as ADCs and bispecific antibodies.

The Company is accounting for its interest in NANTibody as an equity method investment, due to the significant influence the Company has over the operations of NANTibody through its board representation and 40% voting interest.  The Company’s investment in NANTibody is reported in equity method investments on the condensed consolidated balance sheets and its share of NANTibody’s income or loss is recorded in income (loss) on equity investments on the condensed consolidated statement of operations.  The financial statements of NANTibody are not received sufficiently timely for the Company to record its portion of earnings or loss in the current financial statements and therefore the Company reports its portion of earnings or loss on a quarter lag.  As of September 30, 2016, the carrying value of the Company’s investment in NANTibody was approximately $40.0 million.

NANTibody recorded a total net income of $305,000 for the three months ended June 30, 2016 and net income of $1,111,000 for the six months ended June 30, 2016.  The Company recorded a total net income of $122,000 for the three months ended September 30, 2016 and a loss of $59,000 for the nine months ended September 30, 2016 from NANTibody in income (loss) on equity investments on the condensed consolidated statement of operations. As of June 30, 2016, NANTibody had $100.9 million in current assets and $862,000 in current liabilities.

NantStem

In July 2015, the Company and NantBioScience, Inc. (“NantBioScience”), a wholly-owned subsidiary of NantWorks, established a new joint venture called NantCancerStemCell, LLC, (“NantStem”), as a stand-alone biotechnology company with $100.0 million initial joint funding.  As initially organized, NantBioScience was obligated to make a $60.0 million cash contribution to NantStem for a 60% equity interest in NantStem, and the Company was obligated to make a $40.0 million cash contribution to NantStem for a 40% equity interest in NantStem.  Fifty percent of these contributions were funded in July 2015 and the remaining amounts were to be made by no later than September 30, 2015. The Company had NantPharma contribute its portion of the initial joint funding of $20.0 million to NantStem from the proceeds of the sale of IgDraSol.   Pursuant to a side letter dated October 13, 2015 (the “NantStem Side Letter”), the NantStem joint venture agreement was amended to relieve the Company of the obligation to contribute

16


 

the second $20.0 million payment, and its ownership interest in NantStem was reduced to 20%.  NantBioScience’s fundin g obligations were unchanged.  The NantStem Side Letter was negotiated at the same time the Company issued a call option on shares of NantKwest that it owned to Cambridge.  The call option was a derivative as defined in ASC 815 and was recognized at fair v alue every reporting period the call option agreement was in effect, with changes in fair value recognized in current operations.  The call option expired unexercised on March 31, 2016 and the Company recorded a gain of $5.5 million upon the cancellation o f the derivative liability.

The Company is accounting for its interest in NantStem as an equity method investment due to the significant influence the Company has over the operations of NantStem through its board representation and 20% voting interest.  The Company’s investment in NantStem is reported in equity method investments on the condensed consolidated balance sheets and its share of NantStem’s income or loss is recorded in income (loss) on equity investments on the condensed consolidated statement of operations.  The financial statements of NantStem are not received sufficiently timely for the Company to record its portion of earnings or loss in the current financial statements and therefore the Company reports its portion of earnings or loss on a quarter lag.  As of September 30, 2016, the carrying value of the Company’s investment in NantStem was approximately $18.4 million.

NantStem recorded a total net income of $201,000 for the three months ended June 30, 2016 and net income of $1,744,000 for the six months ended June 30, 2016.  For the three and nine months ended Sepember 30, 2016, the Company recorded $201,000 and $236,000, respectively, in income from NantStem in income (loss) on equity investments on the condensed consolidated statement of operations.  As of June 30, 2016, NantStem had $81.3 million in current assets and $141,000 in current liabilities.

Shanghai Three

The Company is accounting for its interest in Shanghai Three-Alliance Biotech Co. LTD (“Shanghai Three”), a China based company, as an equity method investment, due to the significant influence the Company has over the operations of Shanghai Three through its 25% voting interest.  The Company’s investment in Shanghai Three is reported in equity method investments on the condensed consolidated balance sheets and its share of Shanghai Three’s income or loss is recorded in income (loss) on equity investments on the condensed consolidated statement of operations.  The financial statements of Shanghai Three are not received sufficiently timely for the Company to record its portion of earnings or loss in the current financial statements and therefore the Company reports its portion of earnings or loss on a quarter lag.  As of September 30, 2016, the carrying value of the Company’s investment in Shanghai Three was approximately $1.0 million. 

Shanghai Three incurred no operating expenses for the three and six months ended June 30, 2016.  As of June 30, 2016, Shanghai Three had $0.5 million in current assets and $3.0 million in current liabilities.

3SBio

In June 2016, the Company and TNK entered into a joint venture agreement with Shenyang Sunshine Pharmaceutical Company Ltd (“3SBio”), a China based company, to develop and commercialize proprietary immunotherapies, including those developed from, including or using TNK’s “CAR-T” technology targeting carcinoembryonic antigen (“CEA”) positive cancers.  In June 2016, 3SBio purchased $10.0 million of Common Stock and warrants as part of the Company’s private placement offering.

Under the terms of the agreement 3SBio will contribute an initial investment of $10.0 million to the joint venture and TNK will grant the joint venture an exclusive license to the CEA CAR-T technology and two additional CARs for cellular therapy for the Greater China market, including Mainland China, Hong Kong and Macau. 3SBio will own 51% of the joint venture while TNK will own 49%.  As of September 30, 2016, funding and operations of the joint venture had not yet begun, as a result no investment has been recorded as of September 30, 2016.

Yuhan

In March 2016, the Company and Yuhan Corporation, a South Korea company (“Yuhan”), entered into an agreement to form a joint venture company called ImmuneOncia Therapeutics, LLC (“ImmuneOncia”) to develop and commercialize a number of immune checkpoint antibodies against undisclosed targets for both hematological malignancies and solid tumors.  During the three months ended June 30, 2016, Yuhan purchased $10.0 million of Common Stock and warrants as part of the Company’s private placement offering.

Under the terms of the joint venture agreement, Yuhan will contribute an initial investment of $10.0 million to ImmuneOncia, and the Company will grant ImmuneOncia an exclusive license for one of its immune checkpoint antibodies for specified countries while retaining the rights for the U.S., European, and Japanese markets, as well as global rights for ImmuneOncia to two additional antibodies that will be selected by ImmuneOncia from a group of pre-specified antibodies from the Company’s immuno-oncology

17


 

antibody portfolio. Yuhan will own 51% of ImmuneOncia, while the Company will own 49%. Yuhan’s Chief Scientific Officer Dr. Su Youn Nam will be appointed CEO of ImmuneOncia.   As of September 30, 2016, funding and operations of the joint ventur e had not yet begun, as a result no investment has been recorded as of September 30, 2016.

 

 

8. Goodwill and Intangible Assets

As of both September 30, 2016 and December 31, 2015, the Company had goodwill of $20.6 million.  The Company performed a qualitative test for goodwill impairment as of December 31, 2015. Based upon the results of the qualitative testing the Company concluded that it is more-likely-than-not that the fair values of the Company’s goodwill was in excess of its carrying value and therefore performing the first step of the two-step impairment test was unnecessary. No goodwill impairment was recognized for the three or nine months ended September 30, 2016 and 2015.

The Company’s intangible assets, excluding goodwill, include patent rights, core technologies and customer relationships. Amortization for the intangible assets that have finite useful lives is generally recorded on a straight-line basis over their useful lives.  A summary of the Company’s identifiable intangible assets is as follows (in thousands):

 

 

 

September 30, 2016

 

 

 

Gross Carrying Amount

 

 

Accumulated Amortization

 

 

Intangibles, net

 

Customer relationships

 

$

1,320

 

 

$

733

 

 

$

587

 

Acquired technology

 

 

3,410

 

 

 

490

 

 

 

2,920

 

Patent rights

 

 

90

 

 

 

18

 

 

 

72

 

Total intangible assets

 

$

4,820

 

 

$

1,241

 

 

$

3,579

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31, 2015

 

 

 

Gross Carrying Amount

 

 

Accumulated Amortization

 

 

Intangibles, net

 

Customer relationships

 

$

1,320

 

 

$

536

 

 

$

784

 

Acquired technology

 

 

3,410

 

 

 

358

 

 

 

3,052

 

Patent rights

 

 

90

 

 

 

14

 

 

 

76

 

Total intangible assets

 

$

4,820

 

 

$

908

 

 

$

3,912

 

 

As of September 30, 2016, the remaining weighted average life for identifiable intangible assets is 15 years.

Patent rights are stated at cost and depreciated on a straight-line basis over the estimated useful lives of the assets, determined to be approximately 19 years from the date of transfer of the rights to the Company in April 2013. Amortization expense for both the three months ended September 30, 2016 and 2015 was $1,250.  Amortization expense for both the nine months ended September 30, 2016 and 2015 was $3,750, which has been included in intangibles amortization.

Acquired technology is stated at cost and depreciated on a straight-line basis over the estimated useful lives of the assets, determined to be approximately 19 years from the date of acquisition of the technology in December 2013. Amortization expense for both the three months ended September 30, 2016 and 2015 was $44,000.  Amortization expense for both the nine months ended September 30, 2016 and 2015 was $132,000, which has been included in intangibles amortization.

Customer relationships are stated at cost and depreciated on a straight-line basis over the estimated useful lives of the assets, determined to be approximately five years from the date of acquisition in December 2013. Amortization expense for both the three months ended September 30, 2016 and 2015 was $66,000.  Amortization expense for both the nine months ended September 30, 2016 and 2015 was $198,000, which has been included in intangibles amortization.

18


 

Estimated future amortization expense related to intangible assets at September 30, 2016 is as follows (in thousands):

 

Years Ending December 31,

 

Amount

 

2016 (remaining 3 months)

 

$

112

 

2017

 

 

445

 

2018

 

 

436

 

2019

 

 

181

 

2020

 

 

181

 

Thereafter

 

 

2,224

 

Total

 

$

3,579

 

 

 

9. Significant Agreements and Contracts

License Agreement with The Scripps Research Institute

In January 2010, the Company entered into a license agreement (the “TSRI License”), with The Scripps Research Institute (“TSRI”). Under the TSRI License, TSRI granted the Company an exclusive, worldwide license to certain TSRI patent rights and materials based on quorum sensing for the prevention and treatment of Staphylococcus aureus (“Staph”) infections, including Methicillin-resistant Staph. In consideration for the license, the Company: (i) issued TSRI a warrant for the purchase of Common Stock, (ii) agreed to pay TSRI a certain annual royalty commencing in the first year after certain patent filing milestones are achieved, (iii) agreed to pay a royalty on any sales of licensed products by the Company or its affiliates and a royalty for any revenues generated by the Company through its sublicense of patent rights and materials licensed from TSRI under the TSRI License. The TSRI License requires the Company to indemnify TSRI for certain breaches of the agreement and other matters customary for license agreements. The parties may terminate the TSRI License at any time by mutual agreement. In addition, the Company may terminate the TSRI License by giving 60 days’ notice to TSRI and TSRI may terminate the TSRI License immediately in the event of certain breaches of the agreement by the Company or upon the Company’s failure to undertake certain activities in furtherance of commercial development goals. Unless terminated earlier by either or both parties, the term of the TSRI License will continue until the final expiration of all claims covered by the patent rights licensed under the agreement. The warrant was exercised in February 2015.  For the three months ended September 30, 2016 and 2015, the Company recorded $18,000   and $48,000 in patent prosecution and maintenance costs associated with the TSRI License, respectively.  For the nine months ended September 30, 2016 and 2015, the Company recorded $40,000   and $94,000 in patent prosecution and maintenance costs associated with the TSRI License, respectively.  All such costs have been included in general and administrative expenses.

License Agreement with Mabtech Limited

I n August 2015, the Company entered into an exclusive licensing agreement to develop and commercialize multiple prespecified biosimilar and biobetter antibodies from Mabtech Limited.  Under the terms of the agreement, the Company will develop and market these four mAbs for the North American, European and Japanese markets. The Company made an initial license payment of $10.0 million and in February 2016, paid an additional $10.0 million license payment, both of which were recognized as acquired in-process research and development expense in the condensed consolidated statements of operations as the Company determined there was no alternative future use for the license.  In June 2016, the Company agreed to accelerate and pay a $30.0 million milestone license payment which has been recognized as acquired in-process research and development expense in the condensed consolidated statements of operations, in exchange for the purchase by Mabtech Limited and one or more of its affiliates in June 2016, of $20.0 million of Common Stock and warrants.  The amended agreement includes additional milestone payments totaling $150.0 million payable over the next three years.

License Agreement with NantCell

In April 2015, the Company and NantCell entered into a license agreement. Under the terms of the agreement the Company granted an exclusive license to NantCell covering patent rights, know-how, and materials related to certain antibodies, ADCs and two CAR-TNK products.  NantCell agreed to pay a royalty not to exceed five percent (5%) to the Company on any net sales of products (as defined in the license agreement) from the assets licensed by the Company to NantCell.  In addition to the future royalties payable under this agreement, NantCell paid an upfront payment of $10.0 million to the Company and issued 10 million shares of NantCell common stock to the Company valued at $100.0 million based on recent NantCell equity activity with a third party.  As of September 30, 2016, the Company had not yet provided all of the items noted in the agreement and therefore has recorded the entire upfront payment and value of the equity interest received as deferred revenue.  The Company will recognize the upfront payment and the value of the equity interest received over the expected license period of approximately ten years on a straight line basis.  The Company’s ownership interest in NantCell does not

19


 

provide the Company with control or the ability to exercise significant influence, therefore the $100.0 million investment will be carried at cost in the condensed consolidated balance sheets and evaluated for other-than-temporary impairment on a quarterly basis.

NIH Grants

In June 2014, the NIAID awarded the Company a Phase II STTR grant (the “Staph Grant III Award”) to support the advanced preclinical development of human bispecific antibody therapeutics to prevent and treat Staph infections, including methicillin-resistant Staph (“MRSA”). The project period for the Staph Grant III Award covers a two-year period which commenced in June 2014, with total funds available of approximately $1.0 million per year for up to 2 years. During the three months ended September 30, 2016 and 2015, the Company recorded $135,000 and $243,000 of revenue, respectively, associated with the Staph Grant III Award. During the nine months ended September 30, 2016 and 2015, the Company recorded $592,000 and $660,000 of revenue, respectively, associated with the Staph Grant III Award.

In June 2014, the NIAID awarded the Company a Phase I STTR grant entitled “Anti-Pseudomonas Immunotherapy and Targeted Drug Delivery”. This grant will support the preclinical development of novel anti- Pseudomonas aeruginosa mAb immunotherapy or an antibody-mediated targeted antibiotic delivery vehicle. Each modality may be an effective and safe stand-alone therapy and/or a component of a “cocktail” therapeutic option for prevention and treatment of P. aeruginosa infections. The project period for this Phase I grant covers a two-year period which commenced in July 2014, with total funds available of approximately $300,000 per year for up to 2 years. During the three months ended September 30, 2016 and 2015, the Company recorded $32,000 and $73,000 of revenue, respectively, associated with the Phase I STTR grant award.  During the nine months ended September 30, 2016 and 2015, the Company recorded $256,000 and $167,000 of revenue, respectively, associated with the Phase I STTR grant award.

In July 2014, the National Cancer Institute, a division of the NIH, awarded the Company a Phase I STTR grant, entitled “Targeting of Myc-Max Dimerization for the Treatment of Cancer”. This grant will support the preclinical development of the Myc inhibitor, which interferes with the protein-protein interaction between Myc and its obligatory dimerization partner, Max, preventing sequence-specific binding to DNA and subsequent initiation of oncogenic transformation. The project period for this Phase I grant covers a one-year period which commenced in August 2014, with total funds available of approximately $225,000. During the three months ended September 30, 2016 and 2015, the Company recorded $0 and $9,000 of revenue, respectively, associated with the Phase I Myc grant award.  During the nine months ended September 30, 2016 and 2015, the Company recorded $0 and $139,000 of revenue, respectively, associated with the Phase I Myc grant award.

In August 2014, the National Heart, Lung, and Blood Institute, a division of the NIH, awarded the Company a Phase I Small Business Technology Transfer grant entitled “Human Anti-WISP-1 Antibodies for Treatment of Idiopathic Pulmonary Fibrosis”. This grant will advance the Company’s immunotherapy targeting WNT-1 Inducible Signaling Protein-1 (“WISP1”) for the treatment of Idiopathic Pulmonary Fibrosis (“IPF”). WISP1 is a protein that has been shown to be upregulated in IPF, linked to key growth factors, cellular proliferation, hyperplasia and is correlated with late stage cancers. IPF is a fatal disease, which results in progressive loss of lung function due to fibrosis of the lungs. The project period for this Phase I grant covers a one-year period which commenced in August 2014, with total funds available of approximately $225,000.  During the three months ended September 30, 2016 and 2015, the Company recorded $0 and $31,000 of revenue, respectively, associated with the Phase I WISP1 grant award. During the nine months ended September 30, 2016 and 2015, the Company recorded $52,000 and $61,000 of revenue, respectively, associated with the Phase I WISP1 grant award.

 

 

10. Loan and Security Agreement

In September 2013, the Company entered into a $5.0 million loan and security agreement with two banks pursuant to which: (i) the lenders provided the Company a term loan which was funded at closing, (ii) the Company repaid its then outstanding equipment loan balance of $762,000, and (iii) the lenders received a warrant to purchase an aggregate 31,250 shares of Common Stock at an exercise price of $8.00 per share exercisable for seven years from the date of issuance. The value of the warrants, totaling $215,000, was recorded as debt discount and additional paid-in capital.

20


 

In March 2014, the Company entered into an amended and restate d loan and security agreement, increasing the September 2013 facility to $12.5 million from $5.0 million, with the same two banks. Such loan was funded at closing and is secured by a lien covering substantially all of the Company’s assets, excluding intell ectual property, which is subject to a negative pledge. In October 2014, the Company entered into a second amendment to its amended and restated loan and security agreement to extend the interest only payments on the outstanding amount of the loan from Oct ober 1, 2014 to May 1, 2015, after which equal monthly payments of principal and interest are due until the loan maturity date of September 30, 2017. The amended and restated loan: (i) interest rate is 7.95% per annum, and (ii) provided the lenders additi onal warrants to purchase an aggregate of 34,642 shares of the Common Stock at an exercise price of $12.99 per share, exercisable for seven years from the date of issuance. The value of the warrants, totaling $322,000, was recorded as debt discount and add itional paid-in capital.

At the Company’s option, it may prepay all of the outstanding principal balance, subject to certain pre-payment fees ranging from 1% to 3% of the prepayment amount. In the event of a final payment of the loans under the loan agreement, either in the event of repayment of the loan at maturity or upon any prepayment, the Company is obligated to pay the amortized portion of the final fee of $781,000.

The Company is also subject to certain affirmative and negative covenants under the amended and restated loan and security agreement, including limitations on its ability to: undergo certain change of control events; convey, sell, lease, license, transfer or otherwise dispose of any equipment financed by loans under the amended and restated loan and security agreement; create, incur, assume, guarantee or be liable with respect to indebtedness, subject to certain exceptions; grant liens on any equipment financed under the loan agreement; and make or permit any payment on specified subordinated debt. In addition, under the amended and restated loan and security agreement, subject to certain exceptions, the Company is required to maintain with the lender its primary operating, other deposit and securities accounts.

Long-term debt and unamortized discount balances are as follows (in thousands):

 

Face value of amended and restated loan

 

$

5,722

 

Fair value of all warrants

 

 

(536

)

Accretion of debt discount

 

 

460

 

Balance at September 30, 2016

 

$

5,646

 

 

Future minimum payments under the amended and restated loan and security agreement are as follows (in thousands):

 

Year Ending December 31,

 

 

 

 

2016

 

$

1,374