e10vq
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form 10-Q
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(Mark One)
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þ
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the quarterly period ended
March 31, 2010
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or
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the transition period
from to
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Commission File Number:
001-34703
Alimera Sciences,
Inc.
(Exact name of registrant as
specified in its charter)
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Delaware
(State or other jurisdiction
of
incorporation or organization)
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20-0028718
(I.R.S. Employer
Identification No.)
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6120 Windward Parkway, Suite 290
Alpharetta, GA
(Address of principal
executive offices)
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30005
(Zip
Code)
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(678) 990-5740
(Registrants 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 o No þ
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 o No o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, 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):
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Large
accelerated
filer o
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Accelerated
filer o
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Non-accelerated
filer þ
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Smaller
reporting
company o
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(Do not check if a 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 o No þ
As of June 1, 2010, there were 31,052,069 shares of the
registrants common stock issued and outstanding.
ALIMERA
SCIENCES, INC.
QUARTERLY
REPORT ON
FORM 10-Q
INDEX
PART I.
FINANCIAL INFORMATION
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ITEM 1
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Financial
Statements
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March 31,
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December 31
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2010
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2009
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(Unaudited)
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(In thousands except share and per share data)
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CURRENT ASSETS:
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Cash and cash equivalents
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$
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14,178
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$
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4,858
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Prepaid expenses and other current assets
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751
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634
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Deferred offering costs
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1,093
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815
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Total current assets
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16,022
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6,307
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PROPERTY AND EQUIPMENT at cost less accumulated
depreciation
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229
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254
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TOTAL ASSETS
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$
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16,251
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$
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6,561
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CURRENT LIABILITIES:
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Accounts payable
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$
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1,940
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$
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1,215
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Accrued expenses
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2,258
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3,314
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Accrued interest
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901
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543
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Outsourced services payable
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1,440
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1,157
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Note payable (Note 6)
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6,000
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4,500
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Capital lease obligations
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5
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6
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Total current liabilities
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12,544
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10,735
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LONG-TERM LIABILITIES:
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Note payable less current portion (Note 6)
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9,000
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10,500
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Fair value of preferred stock conversion feature
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36,907
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36,701
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Other long-term liabilities
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524
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708
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PREFERRED STOCK:
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Series A preferred stock, $.01 par value
6,624,866 shares authorized and 6.624,844 shares
issued, and outstanding at March 31, 2010 and
December 31, 2009; liquidation preference of $37,546 and
$37,019 at March 31, 2010 and December 31, 2009
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37,026
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36,467
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Series B preferred stock, $.01 par value
7,147,912 shares authorized and 7,147,894 shares
issued, and outstanding at March 31, 2010 and
December 31, 2009; liquidation preference of $41,686 and
$41,057 at March 31, 2010 and December 31, 2009
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41,271
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40,617
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Series C preferred stock, $.01 par value
5,807,131 shares authorized and 5,807,112 shares
issued and outstanding at March 31, 2010 and
December 31, 2009; liquidation preference of $34,873 and
$34,281 at March 31, 2010 and December 31, 2009
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34,092
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33,452
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Series C-1
preferred stock, $.01 par value
2,903,565 shares authorized and 2,903,545 shares
issued and outstanding at March 31, 2010 and
967,845 shares issued and outstanding at December 31,
2009; liquidation preference of $15,419 and $5,140 at
March 31, 2010 and December 31, 2009
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11,382
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2,853
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STOCKHOLDERS DEFICIT:
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Common stock, $.01 par value
29,411,764 shares authorized and 1,637,359 shares
issued and outstanding at March 31, 2010 and
29,411,764 shares authorized and 1,598,571 shares
issued and outstanding at December 31, 2009
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56
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54
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Additional paid-in capital
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5,090
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4,836
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Series C-1
preferred stock warrants
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1,472
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Common stock warrants
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57
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57
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Accumulated deficit
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(171,698
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(171,891
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TOTAL STOCKHOLDERS DEFICIT
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(166,495
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(165,472
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TOTAL LIABILITIES AND STOCKHOLDERS DEFICIT
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$
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16,251
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$
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6,561
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See Notes to Financial Statements.
2
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Three Months Ended March 31,
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2010
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2009
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(Unaudited)
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(In thousands except share
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and per share data)
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RESEARCH AND DEVELOPMENT EXPENSES
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$
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3,065
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$
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4,528
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GENERAL AND ADMINISTRATIVE EXPENSES
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904
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771
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MARKETING EXPENSES
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247
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191
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OPERATING EXPENSES
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4,216
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5,490
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INTEREST INCOME
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2
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23
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INTEREST EXPENSE
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(474
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(474
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DECREASE (INCREASE) IN FAIR VALUE OF PREFERRED STOCK CONVERSION
FEATURE
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3,265
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(4,237
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)
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LOSS FROM CONTINUING OPERATIONS
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(1,423
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(10,178
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INCOME FROM DISCONTINUED OPERATIONS (NOTE 4)
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4,000
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NET INCOME ( LOSS)
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2,577
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(10,178
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PREFERRED STOCK ACCRETION
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(359
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(107
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PREFERRED STOCK DIVIDENDS
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(2,025
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(1,747
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NET INCOME (LOSS) APPLICABLE TO COMMON STOCKHOLDERS
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$
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193
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$
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(12,032
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NET INCOME (LOSS) PER SHARE APPLICABLE TO COMMON
STOCKHOLDERS Basic and diluted
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$
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0.12
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$
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(8.07
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WEIGHTED AVERAGE SHARES OUTSTANDING
Basic and diluted
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1,619,011
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1,490,138
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See Notes to Financial Statements.
3
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Three Months Ended March 31,
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2010
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2009
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(Unaudited)
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(In thousands)
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CASH FLOWS FROM OPERATING ACTIVITIES:
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Net income (loss)
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$
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2,577
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$
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(10,178
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Income from discontinued operations (Note 4)
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(4,000
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Depreciation and amortization
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48
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494
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Change in fair value of preferred stock conversion feature
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(3,265
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4,237
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Stock compensation expense and other
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108
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104
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Changes in assets and liabilities:
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Prepaid expenses and other current assets
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(118
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251
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Accounts payable
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962
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489
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Accrued expenses and other current liabilities
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(767
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899
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Other long-term liabilities
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(184
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174
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Net cash used in operating activities of continuing operations
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(4,639
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(3,530
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Net cash used in operating activities
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(4,639
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(3,530
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CASH FLOWS FROM INVESTING ACTIVITIES:
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Purchases of property and equipment
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(23
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Net cash used in investing activities of continuing operations
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(23
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Net cash provided by investing activities of discontinued
operations (Note 4)
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4,000
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Net cash provided by investing activities
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3,977
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CASH FLOWS FROM FINANCING ACTIVITIES:
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Proceeds from exercise of
Series C-1
preferred warrants
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9,998
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Proceeds from exercise of common warrants
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148
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Deferred offering costs
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(163
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)
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Payments on capital lease obligations
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(1
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(3
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Net cash provided by (used in) financing activities
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9,982
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(3
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NET INCREASE (DECREASE) IN CASH
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9,320
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(3,533
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CASH Beginning of period
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4,858
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17,875
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CASH End of period
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$
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14,178
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$
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14,342
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Three Months Ended March 31,
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2010
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2009
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SUPPLEMENTAL DISCLOSURES:
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Cash paid for interest
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$
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300
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$
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300
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There were no income tax or dividend payments made for the three
months ended March 31, 2010 and 2009.
See Notes to Financial Statements.
4
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1.
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Description
of Business
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Alimera Sciences, Inc. (the Company) is a biopharmaceutical
company that specializes in the research, development, and
commercialization of ophthalmic pharmaceuticals. The Company was
formed on June 4, 2003 under the laws of the State of
Delaware.
During the year ended December 31, 2006, management and the
board of directors approved a plan to discontinue the operations
of its non-prescription business (see Note 4). As a result
of the completion of the disposal of its non-prescription
business in July 2007, the Company no longer has active products
and will not have active products until the Company receives
U.S. Food and Drug Administration (FDA) approval and
launches its initial prescription product (see Note 5).
The Company is presently focused on diseases affecting the back
of the eye, or retina, because the Companys management
believes these diseases are not well treated with current
therapies and represent a significant market opportunity. The
Companys most advanced product candidate is Iluvien, which
is being developed for the treatment of diabetic macular edema
(DME). DME is a disease of the retina which affects individuals
with diabetes and can lead to severe vision loss and blindness.
The Company has completed enrollment of its two Phase 3 pivotal
clinical trials (collectively referred to as the Companys
FAME Study) for Iluvien involving 956 patients in sites
across the United States, Canada, Europe and India to assess the
efficacy and safety of Iluvien in the treatment of DME.
On April 21, 2010, the Companys Registration
Statement on
Form S-1
(as amended) was declared effective by the Securities and
Exchange Commission (SEC) for the Companys initial public
offering (IPO), pursuant to which the Company sold
6,550,000 shares of its common stock at a public offering
price of $11.00 per share. The Company received net proceeds of
approximately $68,395,000 from this transaction, after
underwriting discounts and commissions.
The Company has prepared the accompanying unaudited interim
financial statements and notes thereto in accordance with
accounting principles generally accepted in the United States of
America (U.S. GAAP) for interim financial information and
the instructions to
Form 10-Q
and
Article 10-01
of Regulations S-X of the Securities and Exchange Commission.
Accordingly, they do not include all of the information and
disclosures required by U.S. GAAP for complete financial
statements. In the opinion of management, the accompanying
unaudited interim financial statements reflect all adjustments,
which include normal recurring adjustments, necessary to present
fairly the Companys interim financial information.
The accompanying unaudited interim financial statements and
related notes should be read in conjunction with the
Companys audited financial statements for the year ended
December 31, 2009 and related notes included in the
Companys Registration Statement on
Form S-1
(as amended). The financial results for any interim period are
not necessarily indicative of the expected financial results for
the full year.
On April 21, 2010, the Company effected a
1-for-3.4
reverse split of the Companys common and preferred stock.
All share and per share amounts in the accompanying financial
statements and notes have been retroactively adjusted for all
periods presented to give effect to the reverse stock split.
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3.
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Recent
Accounting Pronouncements
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In January 2010, the FASB issued amendments to the existing fair
value measurements and disclosures guidance which requires new
disclosures and clarifies existing disclosure requirements. The
purpose of these amendments is to provide a greater level of
disaggregated information as well as more disclosure around
valuation techniques and inputs to fair value measurements. The
guidance was effective commencing with the
5
ALIMERA
SCIENCES, INC.
NOTES TO
FINANCIAL STATEMENTS (Continued)
Companys 2010 fiscal year. The adoption of this guidance
did not have a material impact on the Companys financial
statements.
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4.
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Discontinued
Operations
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In October 2006, management and the board of directors of the
Company approved a plan to discontinue the operations of its
non-prescription ophthalmic pharmaceutical business (the OTC
Business). The plan included the sale of the assets of the
Companys OTC Business and also the termination of its
sales and marketing personnel. The Company previously determined
that the discontinued OTC Business comprised operations and cash
flows that could be clearly distinguished, operationally and for
financial reporting purposes, from the rest of the Company.
Accordingly, the results of operations for the discontinued OTC
Business have been presented as discontinued operations. During
the three months ended March 31, 2010 the Company received
a $4,000,000 option payment from the acquirer of the assets of
the OTC Business to provide it with an additional two years to
develop one of the acquired products. There were no revenues or
expenses from discontinued operations during the three months
ended March 31, 2009. The following table presents basic
and diluted earnings per share from discontinued operations for
the three months ended March 31, 2010 (in thousands except
share and per share data):
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Net income from discontinued operations
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$
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4,000
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Net income from discontinued operations per share
Basic and diluted
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$
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2.47
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Weighted-average shares outstanding Basic and diluted
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1,619,011
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5.
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Factors
Affecting Operations
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To date the Company has incurred recurring losses, negative cash
flow from operations, and has accumulated a deficit of
$171,698,000 from the Companys inception through
March 31, 2010. The Company does not expect to generate
revenues from its product, Iluvien, until 2011, if at all, and
therefore will have no cash flow from operations until that
time. On a pro forma as adjusted basis to give effect to its
IPO, as of March 31, 2010 the Company had approximately
$65,400,000 in cash and cash equivalents, which management
believes is sufficient to fund its operations through the
projected commercialization of Iluvien and the expected
generation of revenue in 2011. The commercialization of Iluvien
is dependent upon approval by the FDA, however, and management
cannot be sure that Iluvien will be approved by the FDA or that,
if approved, future sales of Iluvien will generate enough
revenue to fund the Companys operations beyond its
commercialization. If Iluvien is not approved, or if approved,
does not generate sufficient revenue, the Company may adjust its
commercial plans so that it can continue to operate with its
existing cash resources or seek to raise additional financing.
In March 2008, in conjunction with the amendment and restatement
of the Companys collaboration agreement with pSivida US,
Inc. (pSivida), the licensor of the Iluvien technology, the
Company issued to pSivida a note payable of $15,000,000. The
note payable accrued interest at 8% per annum, payable
quarterly. The principal was payable upon the earliest of a
liquidity event as defined in the agreement, the occurrence of
an event of default under the Companys agreement with
pSivida or September 30, 2012. If the note was not paid in
full by March 31, 2010, the interest rate was to increase
to 20% per annum effective April 1, 2010, and the Company
was required to begin making principal payments of $500,000 per
month. The effective interest rate on the note payable was
12.64%. As of March 31, 2010 and December 31, 2009,
the Company had accrued and unpaid interest payable to pSivida
of $524,000 and $708,000, respectively, which is classified as
other long-term liabilities, and $901,000 and $543,000,
respectively, which is included in accrued interest in the
accompanying balances.
6
ALIMERA
SCIENCES, INC.
NOTES TO
FINANCIAL STATEMENTS (Continued)
On April 27, 2010 the Company paid pSivida $15,225,000 in
principal and interest to satisfy the note payable.
Upon commercialization, the Company must share 20% of net
profits, as defined by the agreement, with pSivida. In
connection with this arrangement the Company is entitled to
recover 20% of commercialization costs, as defined in the
amendment, incurred prior to product profitability out of
pSividas share of net profits. As of March 31, 2010
and December 31, 2009 the Company was owed $1,072,000 and
$958,000, respectively, in commercialization costs. Due to the
uncertainty of FDA approval, the Company has fully reserved
these amounts in the accompanying financial statements.
|
|
7.
|
Earnings
(Loss) Per Share (EPS)
|
Basic EPS is calculated in accordance with Accounting Standards
Codification 260 (ASC 260), by dividing net income or loss
attributable to common stockholders by the weighted average
common stock outstanding. Diluted EPS is calculated in
accordance with ASC 260 by adjusting weighted average common
shares outstanding for the dilutive effect of common stock
options, warrants, convertible preferred stock and accrued but
unpaid convertible preferred stock dividends. In periods where a
net loss from continuing operations is recorded, no effect is
given to potentially dilutive securities, since the effect would
be anti-dilutive. Total securities that could potentially dilute
basic EPS in the future were not included in the computation of
diluted EPS because to do so would have been anti-dilutive were
as follows:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Three Months Ended
|
|
|
|
March 31,
|
|
|
March 31,
|
|
|
|
2010
|
|
|
2009
|
|
|
|
unaudited
|
|
|
unaudited
|
|
|
Series A preferred stock and convertible accrued dividends
|
|
|
7,005,145
|
|
|
|
7,005,145
|
|
Series B preferred stock
|
|
|
7,147,894
|
|
|
|
7,147,894
|
|
Series C preferred stock
|
|
|
5,807,112
|
|
|
|
5,807,112
|
|
Series C-1
preferred stock
|
|
|
2,752,990
|
|
|
|
|
|
Common stock warrants
|
|
|
150,703
|
|
|
|
29,931
|
|
Stock options
|
|
|
1,792,764
|
|
|
|
1,019,146
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
24,656,608
|
|
|
|
21,009,228
|
|
|
|
|
|
|
|
|
|
|
Prior to the Companys IPO, the Company had four series of
preferred stock. Significant terms of all series of the
preferred stock were as follows:
|
|
|
|
|
Dividends were cumulative and accrued on a daily basis at the
rate of 8% per annum beginning on the date of issuance and based
on the original issue price, as adjusted for any stock dividend,
stock split, combination, or other event involving the preferred
stock. Dividends accrued, whether or not declared, annually and
were due and payable when and if declared by the Board of
Directors, upon a liquidating event, as defined, upon redemption
of the preferred stock, as defined, or on the date that the
preferred stock was otherwise acquired by the Company.
Accumulated, accrued, and unpaid dividends were $25,961,000 and
$23,934,000 at March 31, 2010 and December 31, 2009,
respectively.
|
|
|
|
Upon any liquidation, dissolution, or winding up of the Company,
the preferred stockholders were entitled to a liquidation
preference payment equal to (i) the sum of the liquidation
value plus all accumulated, accrued, and unpaid dividends and
(ii) the pro rata share of any remaining amounts such
holder would have been entitled to receive had such
holders shares been converted into common stock
|
7
ALIMERA
SCIENCES, INC.
NOTES TO
FINANCIAL STATEMENTS (Continued)
|
|
|
|
|
immediately prior to the liquidation, dissolution, or winding
up. The liquidation value plus accumulated, accrued, and unpaid
dividends were $129,524,000 and $117,497,000 at March 31,
2010 and December 31, 2009, respectively.
|
|
|
|
|
|
At any time subsequent to March 17, 2013, the holders of a
majority of the preferred stock could have required the Company
to redeem all or any portion of the preferred stock. If the
preferred stock was redeemed, the redemption would have occurred
in equal installments over a three-year period. The price paid
by the Company to redeem the shares would have been the greater
of (i) the original issue price, plus all accumulated,
accrued, and unpaid dividends, and (ii) the fair market
value of the preferred stock being redeemed at the time of the
redemption.
|
Because the preferred stock provided the holders the right to
require the Company to redeem such shares for cash after
March 17, 2013 at the greater of (i) the original
issue price plus any accrued but unpaid dividends and
(ii) the fair market value of the preferred stock being
redeemed, the embedded conversion feature required separate
accounting. Consequently, the conversion feature had to be
bifurcated from the preferred stock and accounted for separately
at each issuance date. The carrying value of the embedded
derivative was adjusted to fair value at the end of each
reporting period and the change in fair value was recognized in
the statement of operations.
At each reporting date, the Company adjusted the carrying value
of the embedded derivatives to estimated fair value and
recognized the change in such estimated value in its statement
of operations. The estimated fair value of the derivatives at
March 31, 2010 and December 2009 were $36,907,000 and
$36,701,000, respectively. The Company recognized a gain of
$3,265,000 associated with the change in fair value for the
three months ended March 31, 2010 and a loss of $4,237,000
associated with the change in fair value for the three months
ended March 31, 2009.
On January 8, 2010 warrants to purchase shares of the
Companys
Series C-1
preferred stock were exercised resulting in $10,000,000 in cash
proceeds and the issuance of 1,935,700 additional shares of
Series C-1
preferred stock. The Company recorded a derivative liability of
$3,471,000 upon the exercise of the warrants and the issuance of
1,935,700 shares of
Series C-1
preferred stock in January 2010.
In connection with the IPO, all outstanding shares of the
Companys preferred stock were converted into
22,863,696 shares of common stock in April 2010 and all
preferred stock dividends were eliminated.
During the three months ended March 31, 2010 and 2009, the
Company recorded compensation expense of approximately $108,000
and $104,000, respectively. As of March 31, 2010, the total
unrecognized compensation cost related to non-vested stock
options granted was $1,386,000 and is expected to be recognized
over a weighted average period of 2.52 years. The Company
did not grant any stock options and no stock options were
forfeited or exercised during the three months ended
March 31, 2010 and 2009.
The following table provides additional information related to
outstanding stock options, fully vested stock options, and stock
options expected to vest as of March 31, 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
|
|
Weighted
|
|
|
|
|
|
|
Average
|
|
Average
|
|
Aggregate
|
|
|
|
|
Exercise
|
|
Contractual
|
|
Intrinsic
|
|
|
Shares
|
|
Price
|
|
Term
|
|
Value
|
|
|
(In thousands)
|
|
Outstanding
|
|
|
2,225,778
|
|
|
$
|
2.14
|
|
|
|
7.00 years
|
|
|
$
|
19,720
|
|
Exercisable
|
|
|
1,491,507
|
|
|
|
1.71
|
|
|
|
6.29 years
|
|
|
|
13,856
|
|
Expected to vest
|
|
|
660,844
|
|
|
|
3.00
|
|
|
|
8.44 years
|
|
|
|
5,287
|
|
8
ALIMERA
SCIENCES, INC.
NOTES TO
FINANCIAL STATEMENTS (Continued)
The following table provides additional information related to
outstanding stock options, fully vested stock options, and stock
options expected to vest as of December 31, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
|
|
Weighted
|
|
|
|
|
|
|
Average
|
|
Average
|
|
Aggregate
|
|
|
|
|
Exercise
|
|
Contractual
|
|
Intrinsic
|
|
|
Shares
|
|
Price
|
|
Term
|
|
Value
|
|
|
|
|
|
|
|
|
(In thousands)
|
|
Outstanding
|
|
|
2,225,778
|
|
|
$
|
2.14
|
|
|
|
7.28 years
|
|
|
$
|
14,251
|
|
Exercisable
|
|
|
1,427,649
|
|
|
|
1.70
|
|
|
|
6.52 years
|
|
|
|
9,765
|
|
Expected to vest
|
|
|
718,320
|
|
|
|
2.92
|
|
|
|
8.63 years
|
|
|
|
4,037
|
|
In accordance with Accounting Standards Codification 740 (ASC
740) the Company recognizes deferred tax assets and
liabilities for temporary differences between the financial
reporting basis and the tax basis of its assets and liabilities.
The Company records a valuation allowance against its net
deferred tax asset to reduce the net carrying value to an amount
that is more likely than not to be realized.
Income tax positions are considered for uncertainty in
accordance with FASB Interpretation No. 48, Accounting for
Uncertainty in Income Taxes an interpretation of
ASC 740-10.
The Company believes that its income tax filing positions and
deductions will be sustained on audit and does not anticipate
any adjustments that will result in a material change to its
financial position; therefore, no ASC
740-10
liabilities have been recorded. The Company recognizes accrued
interest and penalties related to unrecognized tax benefits as
interest expense and income tax expense, respectively, in the
statements of operations.
Significant management judgment is involved in determining the
provision for income taxes, deferred tax assets and liabilities,
and any valuation allowance recorded against net deferred tax
assets. Due to uncertainties with respect to the realization of
deferred tax assets due to the history of operating losses, a
valuation allowance has been established against the entire net
deferred tax asset balance. The valuation allowance is based on
managements estimates of taxable income in the
jurisdictions in which the Company operates and the period over
which deferred tax assets will be recoverable. In the event that
actual results differ from these estimates or the Company
adjusts these estimates in future periods, a change in the
valuation allowance may be needed, which could materially impact
the Companys financial position and results of operations.
At March 31, 2010 and December 31, 2009, the Company
had federal net operating loss (NOL) carryforwards of
approximately $80,601,000 and $79,494,000 and state NOL
carryforwards of approximately $63,773,000 and $62,666,000,
respectively, that are available to reduce future income unless
otherwise taxable. If not utilized, the federal NOL
carryforwards will expire at various dates between 2023 and 2029
and the state NOL carryforwards will expire at various dates
between 2018 and 2029.
NOL carryforwards may be subject to annual limitations under
Internal Revenue Code Section 382 (or comparable provisions
of state law) in the event that certain changes in ownership of
the Company were to occur. The Company is currently evaluating
the impact of its IPO (see Note 1) on the
Companys NOL carryforwards and whether certain changes in
ownership have occurred that would limit the Companys
ability to utilize a portion of its NOL carryforwards.
|
|
11.
|
Fair
Value Measurements
|
The Company adopted Accounting Standards Codification 820,
effective January 1, 2008. Under this standard, fair value
is defined as the price that would be received to sell an asset
or paid to transfer a liability (i.e., the exit price) in an
orderly transaction between market participants at the
measurement date.
9
ALIMERA
SCIENCES, INC.
NOTES TO
FINANCIAL STATEMENTS (Continued)
In determining fair value, the Company uses various valuation
approaches. The hierarchy of those valuation approaches is
broken down into three levels based on the reliability of inputs
as follows:
Level 1 inputs are quoted prices in active markets for
identical assets or liabilities that the reporting entity has
the ability to access at the measurement date. An active market
for the asset or liability is a market in which transactions for
the asset or liability occur with sufficient frequency and
volume to provide pricing information on an ongoing basis. The
valuation under this approach does not entail a significant
degree of judgment.
Level 2 inputs are inputs other than quoted prices included
within Level 1 that are observable for the asset or
liability, either directly or indirectly. Level 2 inputs
include: quoted prices for similar assets or liabilities in
active markets, inputs other than quoted prices that are
observable for the asset or liability, (e.g., interest rates and
yield curves observable at commonly quoted intervals or current
market) and contractual prices for the underlying financial
instrument, as well as other relevant economic measures.
Level 3 inputs are unobservable inputs for the asset or
liability. Unobservable inputs shall be used to measure fair
value to the extent that observable inputs are not available,
thereby allowing for situations in which there is little, if
any, market activity for the asset or liability at the
measurement date.
The following fair value tables present information about the
Companys assets and liabilities measured at fair value on
a recurring basis:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, 2010
|
|
|
|
Level 1
|
|
|
Level 2
|
|
|
Level 3
|
|
|
Total
|
|
|
|
(In thousands)
|
|
|
Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Government-backed money market funds(1)
|
|
$
|
13,781
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
13,781
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assets measured at fair value
|
|
$
|
13,781
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
13,781
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beneficial conversion feature of preferred stock(2)
|
|
$
|
|
|
|
$
|
|
|
|
$
|
36,907
|
|
|
$
|
36,907
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities measured at fair value
|
|
$
|
|
|
|
$
|
|
|
|
$
|
36,907
|
|
|
$
|
36,907
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2009
|
|
|
|
Level 1
|
|
|
Level 2
|
|
|
Level 3
|
|
|
Total
|
|
|
|
(In thousands)
|
|
|
Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Government-backed money market funds(1)
|
|
$
|
4,668
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
4,668
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assets measured at fair value
|
|
$
|
4,668
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
4,668
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beneficial conversion feature of preferred stock(2)
|
|
$
|
|
|
|
$
|
|
|
|
$
|
36,701
|
|
|
$
|
36,701
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities measured at fair value
|
|
$
|
|
|
|
$
|
|
|
|
$
|
36,701
|
|
|
$
|
36,701
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The carrying amounts approximate fair value due to the
short-term maturities of the cash and cash equivalents. |
10
ALIMERA
SCIENCES, INC.
NOTES TO
FINANCIAL STATEMENTS (Continued)
|
|
|
(2) |
|
The fair value of the beneficial conversion feature of preferred
stock (see note 8) is established using a probability
weighted expected return method (PWERM) and Black Scholes
valuation model. Significant inputs to the valuation include: |
|
|
|
|
|
probability of various scenarios occurring, including the
potential for an initial public offering, sale of the Company or
its assets, decision to remain a private company or liquidation
of the Company;
|
|
|
|
at March 31, 2010, the fair value of common stock as
determined by the IPO; at March 31, 2009, fair value of
common stock as determined under each of the scenarios under the
PWERM, adjusted for a lack of control and lack of marketability
discount;
|
|
|
|
volatility estimated as an average of volatilities of publicly
traded companies deemed similar to the Company in terms of
product composition, stage of lifecycle, capitalization, and
scope of operations;
|
|
|
|
exercise price and weighted-average expected life estimated
based on the underlying and the expected remaining life of the
underlying instrument;
|
|
|
|
risk-free interest rate estimated as the daily treasury yield
for the period that most closely approximates the
weighted-average expected life as the valuation date as
published by the United States Department of Treasury.
|
The method described above may produce a fair value calculation
that may not be indicative of net realizable value or reflective
of future fair values. Furthermore, while the Company believes
its valuation methods are appropriate, the use of different
methodologies or assumptions to determine the fair value of
certain financial instruments could result in a different fair
value measurement at the reporting date.
The following table presents the changes to the fair value of
the beneficial conversion feature of preferred stock during the
three months ended March 31, 2010 (in thousands):
|
|
|
|
|
Balance of beneficial conversion feature of preferred stock at
December 31, 2009
|
|
$
|
36,701
|
|
Issuance of
Series C-1
preferred stock (See Note 8)
|
|
|
3,471
|
|
Change in fair value of beneficial conversion feature of
preferred stock during the three months ended March 31, 2010
|
|
|
(3,265
|
)
|
|
|
|
|
|
Balance of beneficial conversion feature of preferred stock at
March 31, 2010
|
|
$
|
36,907
|
|
|
|
|
|
|
11
PART I.
FINANCIAL INFORMATION
|
|
ITEM 2
|
Managements
Discussion and Analysis of Financial Condition and Results of
Operations
|
This Quarterly Report on
Form 10-Q
contains forward-looking statements that involve substantial
risks and uncertainties. All statements, other than statements
of historical facts, included in this Quarterly Report on
Form 10-Q
regarding our strategy, future operations, future financial
position, future revenues, projected costs, prospects, plans and
objectives of management are forward-looking statements. These
statements are subject to risks and uncertainties and are based
on information currently available to our management. Words such
as anticipate, believe,
estimate, expect, intend,
may, plan, predict,
project, likely, will,
would, could and similar expressions are
intended to identify forward-looking statements, although not
all forward-looking statements contain these identifying words.
We may not actually achieve the plans, intentions or
expectations disclosed in our forward-looking statements, and
you should not place undue reliance on our forward-looking
statements. Actual results or events could differ materially
from the plans, intentions and expectations disclosed in the
forward-looking statements we make. We have included important
factors in the cautionary statements included in Part II
Item 1A Risk Factors of this
Quarterly Report on
Form 10-Q,
that we believe could cause actual results or events to differ
materially from the forward-looking statements that we make. Our
forward-looking statements do not reflect the potential impact
of any future acquisitions, mergers, dispositions, joint
ventures, collaborations or investments we may make.
You should read this Quarterly Report on
Form 10-Q
in conjunction with the documents that we reference herein. Our
forward-looking statements speak only as of the date of this
Quarterly Report on
Form 10-Q
(unless another date is indicated), and we undertake no
obligation to update or revise any forward-looking statements,
whether as a result of new information, future events or
otherwise.
Overview
We are a biopharmaceutical company that specializes in the
research, development and commercialization of prescription
ophthalmic pharmaceuticals. We are presently focused on diseases
affecting the back of the eye, or retina, because we believe
these diseases are not well treated with current therapies and
represent a significant market opportunity. Our most advanced
product candidate is Iluvien, which we are developing for the
treatment of diabetic macular edema (DME). DME is a disease of
the retina that affects individuals with diabetes and can lead
to severe vision loss and blindness. We are currently conducting
two Phase 3 pivotal clinical trials (collectively, our FAME
Study) for Iluvien involving 956 patients in sites across
the United States, Canada, Europe and India to assess the
efficacy and safety of Iluvien in the treatment of DME. In
December 2009 we received the month 24 clinical readout from our
FAME Study. Based upon our analysis of this data, we plan to
file a New Drug Application (NDA) in the United States for the
low dose of Iluvien in the second quarter of 2010, followed by
registration filings in certain European countries and Canada.
We intend to request Priority Review of our NDA from the
U.S. Food and Drug Administration (FDA). If Priority Review
is granted, we can expect a response to our NDA from the FDA in
the fourth quarter of 2010. If our NDA is approved, we plan to
commercialize Iluvien in the United States by marketing and
selling Iluvien to retinal specialists as early as the first
quarter of 2011. In addition to treating DME, Iluvien is being
studied in three Phase 2 clinical trials for the treatment of
the dry form of age-related macular degeneration (AMD), the wet
form of AMD and retinal vein occlusion (RVO). We are also
conducting testing on two classes of nicotinamide adenine
dinucleotide phosphate (NADPH) oxidase inhibitors, for which we
have acquired exclusive, worldwide licenses from Emory
University, in the treatment of dry AMD. We plan to evaluate the
use of NADPH oxidase inhibitors in the treatment of other eye
diseases of the eye, including wet AMD and diabetic retinopathy.
We intend to seek a collaboration partner for sales and
marketing activities outside North America. We currently
contract with development partners or outside firms for various
operational aspects of our development activities, including the
preparation of clinical supplies and have no plans to establish
inhouse manufacturing capabilities.
12
We commenced operations in June 2003. Since our inception we
have incurred significant losses. As of March 31, 2010, we
have accumulated a deficit of $171.7 million. We expect to
incur substantial losses through the projected commercialization
of Iluvien through at least the first quarter of 2011 as we:
|
|
|
|
|
complete the clinical development and registration of Iluvien;
|
|
|
|
build our sales and marketing capabilities for the anticipated
commercial launch of Iluvien as early as the first quarter of
2011;
|
|
|
|
add the necessary infrastructure to support our growth;
|
|
|
|
evaluate the use of Iluvien for the treatment of other
diseases; and
|
|
|
|
advance the clinical development of other new product candidates
either currently in our pipeline, or that we may license or
acquire in the future.
|
To date we have funded our operations through the private
placement of common stock, preferred stock and convertible debt,
as well as by the sale of certain assets of the non-prescription
business in which we were previously engaged. As of
March 31, 2010, we had $14.2 million in cash and cash
equivalents including the January 2010 receipt of
$10.0 million in proceeds from the exercise of outstanding
Series C-1
warrants, and a $4.0 million option payment from
Bausch & Lomb Incorporated (Bausch & Lomb)
upon the exercise by Bausch & Lomb of its option to
extend the period during which it may continue to develop an
allergy product acquired from us in 2006 by two years.
On April 21, 2010, our Registration Statement on
Form S-1
(as amended) was declared effective by the Securities and
Exchange Commission (SEC) for our initial public offering (IPO),
pursuant to which we sold 6,550,000 shares of our common
stock at a public offering price of $11.00 per share. We
received net proceeds of approximately $68.4 million from
this transaction, after deducting underwriting discounts and
commissions. To date we have incurred recurring losses, negative
cash flow from operations, and have accumulated a deficit of
$171.7 million from our inception through March 31,
2010. We do not expect to generate revenues from our product,
Iluvien, until 2011, if at all, and therefore we will have no
cash flow from operations until that time. On a pro forma as
adjusted basis to give effect to our IPO, as of March 31,
2010 we had approximately $65.4 million in cash and cash
equivalents, which we believe is sufficient to fund our
operations through the projected commercialization of Iluvien
and the expected generation of revenue in 2011. The
commercialization of Iluvien is dependent upon approval by the
FDA, however, and we cannot be sure that Iluvien will be
approved by the FDA or that, if approved, future sales of
Iluvien will generate enough revenue to fund our operations
beyond its commercialization. If Iluvien is not approved, or if
approved, does not generate sufficient revenue, we may adjust
our commercial plans so that we can continue to operate with our
existing cash resources or seek to raise additional financing.
Our
Agreement with pSivida US, Inc.
In February 2005, we entered into an agreement with pSivida US,
Inc. (pSivida) for the use of fluocinolone acetonide (FA) in
pSividas proprietary delivery device. pSivida is a global
drug delivery company committed to the biomedical sector and the
development of drug delivery products. Our agreement with
pSivida provides us with a worldwide exclusive license to
develop and sell Iluvien, which consists of a tiny polyimide
tube with membrane caps that is filled with FA in a polyvinyl
alcohol matrix, for delivery to the back of the eye for the
treatment and prevention of eye diseases in humans (other than
uveitis). This agreement also provided us with a worldwide
non-exclusive license to develop and sell pSividas
proprietary delivery device to deliver other corticosteroids to
the back of the eye for the treatment and prevention of eye
diseases in humans (other than uveitis) or to treat DME by
delivering a compound to the back of the eye through a direct
delivery method through an incision required for a 25-gauge or
larger needle. We do not have the right to develop and sell
pSividas proprietary delivery device for indications for
diseases outside of the eye or for the treatment of uveitis.
Further, our agreement with pSivida permits pSivida to grant to
any other party the right to use its intellectual property
(i) to treat DME through an incision smaller than that
required for a 25-gauge needle, unless using a corticosteroid
delivered to the back of the eye, (ii) to deliver any
compound outside the back of the eye unless it is to treat DME
through an incision required for a 25-gauge or
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larger needle, or (iii) to deliver non-corticosteroids to
the back of the eye, unless it is to treat DME through an
incision required for a 25-gauge or larger needle.
We made initial license fee payments totaling $750,000 to
pSivida in 2004 and additional license fee payments of $750,000
in 2005 upon the initiation of our FAME Study. Under the
February 2005 agreement, we and pSivida agreed to collaborate on
the development of Iluvien for DME, and share financial
responsibility for the development expenses equally. Per the
terms of the agreement, we each reported our monthly
expenditures on a cash basis, and the party expending the lesser
amount of cash during the period was required to make a cash
payment to the party expending the greater amount to balance the
cash expenditures. We retained primary responsibility for the
development of the product, and therefore, were generally the
party owed a balancing payment. Between February 2006 and
December 2006, pSivida failed to make payments to us for its
share of development costs totaling $2.0 million. For each
payment not made, pSivida incurred a penalty of 50% of the
missed payment and interest began accruing at the rate of 20%
per annum on the missed payment and the penalty amount. In
accordance with the terms of the agreement, pSivida was able to
remain in compliance with the terms of the February 2005
agreement as long as the total amount of development payments
past due did not exceed $2.0 million, and pSivida began
making payments again in December 2006 in order to maintain
compliance with the agreement. For financial reporting purposes
we fully reserved the $2.0 million in past due development
payments and all penalties and interest due with respect to such
past due payment, due to the uncertainty of future collection.
The February 2005 agreement provided that after
commercialization of Iluvien, profits, as defined in our
agreement, would be shared equally. In March 2008, we and
pSivida amended and restated the agreement to provide us with
80% of the net profits and pSivida with 20% of the net profits.
Total consideration to pSivida in connection with the execution
of the March 2008 agreement was $33.8 million, which
consisted of a payment of $12.0 million, the issuance of a
$15.0 million note payable, and the forgiveness of
$6.8 million in outstanding receivables. The
$15.0 million promissory note accrued interest at 8% per
annum, payable quarterly and was payable in full to pSivida upon
the earliest of a liquidity event as defined in the agreement,
the occurrence of an event of default under our agreement with
pSivida, or September 30, 2012. If the note was not paid in
full by March 31, 2010, the interest rate was to increase
to 20% effective as of April 1, 2010, and we were required
to begin making principal payments of $500,000 per month.
On April 27, 2010, we paid pSivida approximately
$15.2 million in principal and interest to satisfy the note
payable.
We will owe pSivida an additional milestone payment of
$25.0 million upon FDA approval of Iluvien.
Our
Discontinued Non-Prescription Business
At the inception of our company, we were focused primarily on
the development and commercialization of non-prescription
over-the-counter
ophthalmic products. In October 2006, due to the progress and
resource requirements related to the development of Iluvien, we
decided to discontinue our non-prescription business. As a
result, we received proceeds of $10.0 million from the sale
of our allergy products in December 2006 and $6.7 million
from the sale of our dry eye product in July 2007, both to
Bausch & Lomb. If one of the allergy products receives
FDA approval, we are entitled to an additional $8.0 million
payment from Bausch & Lomb under the sales agreement.
In January 2010 we received a $4.0 million option payment
from Bausch & Lomb upon the exercise by
Bausch & Lomb of its option to extend the period
during which it may continue to develop an allergy product
acquired from us in 2006 by two years. However, there can be no
assurance that Bausch & Lomb will continue the
development of this allergy product, that it will receive FDA
approval or that we will receive the $8.0 million payment.
As a result of the discontinuance of our non-prescription
business, all revenues and expenses associated with our
over-the-counter
portfolio are included in the income (loss) from discontinued
operations in the accompanying statements of operations.
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Financial
Operations Overview
Revenue
To date we have only generated revenue from our dry eye
non-prescription product. From the launch of that product in
September 2004 to its sale in July 2007, we generated
$4.4 million in net revenues. We do not expect to generate
any significant additional revenue unless or until we obtain
regulatory approval of, and commercialize, our product
candidates or in-license additional products that generate
revenue. In addition to generating revenue from product sales,
we intend to seek to generate revenue from other sources such as
upfront fees, milestone payments in connection with
collaborative or strategic relationships, and royalties
resulting from the licensing of our product candidates and other
intellectual property. We expect any revenue we generate will
fluctuate from quarter to quarter as a result of the nature,
timing and amount of any milestone payments we may receive from
potential collaborative and strategic relationships, as well as
revenue we may receive upon the sale of our products to the
extent any are successfully commercialized.
Research
and Development Expenses
Substantially all of our research and development expenses
incurred to date related to our continuing operations have been
related to the development of Iluvien. We anticipate that we
will incur expenses of approximately $11.6 million and
$1.8 million during 2010 and 2011, respectively, to
complete the clinical development and registration of Iluvien
for DME. Upon the approval of Iluvien by the FDA, we will owe an
additional milestone payment of $25.0 million to pSivida.
We anticipate that we will incur additional research and
development expenses in the future as we evaluate and possibly
pursue the development of Iluvien for additional indications, or
develop additional product candidates. We recognize research and
development expenses as they are incurred. Our research and
development expenses consist primarily of:
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salaries and related expenses for personnel;
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fees paid to consultants and contract research organizations in
conjunction with independently monitoring clinical trials and
acquiring and evaluating data in conjunction with clinical
trials, including all related fees such as investigator grants,
patient screening, lab work and data compilation and statistical
analysis;
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costs incurred with third parties related to the establishment
of a commercially viable manufacturing process for our product
candidates;
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costs related to production of clinical materials, including
fees paid to contract manufacturers;
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costs related to upfront and milestone payments under
in-licensing agreements;
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costs related to compliance with FDA regulatory requirements;
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consulting fees paid to third-parties involved in research and
development activities; and
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costs related to stock options or other stock-based compensation
granted to personnel in development functions.
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We expense both internal and external development costs as they
are incurred.
We expect that a large percentage of our research and
development expenses in the future will be incurred in support
of our current and future technical, preclinical and clinical
development programs. These expenditures are subject to numerous
uncertainties in terms of both their timing and total cost to
completion. We expect to continue to develop stable formulations
of our product candidates, test such formulations in preclinical
studies for toxicology, safety and efficacy and to conduct
clinical trials for each product candidate. We anticipate
funding clinical trials for Iluvien ourselves, but we may engage
collaboration partners at certain stages of clinical
development. As we obtain results from clinical trials, we may
elect to discontinue or delay clinical trials for certain
product candidates or programs in order to focus our resources
on more promising product candidates or programs. Completion of
clinical trials by us or our future collaborators may take
several years or more, the length of time generally varying with
the type, complexity, novelty and intended use
15
of a product candidate. The costs of clinical trials may vary
significantly over the life of a project owing to but not
limited to the following:
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the number of sites included in the trials;
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the length of time required to enroll eligible patients;
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the number of patients that participate in the trials;
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the number of doses that patients receive;
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the drop-out or discontinuation rates of patients;
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the duration of patient
follow-up;
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the phase of development the product candidate is in; and
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the efficacy and safety profile of the product candidate.
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Our expenses related to clinical trials are based on estimates
of the services received and efforts expended pursuant to
contracts with multiple research institutions and contract
research organizations that conduct and manage clinical trials
on our behalf. The financial terms of these agreements are
subject to negotiation and vary from contract to contract and
may result in uneven payment flows. Generally, these agreements
set forth the scope of work to be performed at a fixed fee or
unit price. Payments under the contracts depend on factors such
as the successful enrollment of patients or the completion of
clinical trial milestones. Expenses related to clinical trials
generally are accrued based on contracted amounts applied to the
level of patient enrollment and activity according to the
protocol. If timelines or contracts are modified based upon
changes in the clinical trial protocol or scope of work to be
performed, we modify our estimates of accrued expenses
accordingly on a prospective basis.
None of our product candidates has received FDA or foreign
regulatory marketing approval. In order to grant marketing
approval, a health authority such as the FDA or foreign
regulatory agencies must conclude that clinical and preclinical
data establish the safety and efficacy of our product candidates
with an appropriate benefit to risk profile relevant to a
particular indication, and that the product can be manufactured
under current Good Manufacturing Practice (cGMP) in a
reproducible manner to deliver the products intended
performance in terms of its stability, quality, purity and
potency. Until our submission is reviewed by a health authority,
there is no way to predict the outcome of their review. Even if
the clinical studies meet their predetermined primary endpoints,
and a registration dossier is accepted for filing, a health
authority could still determine that an appropriate benefit to
risk relationship does not exist for the indication that we are
seeking. We cannot forecast with any degree of certainty which
of our product candidates will be subject to future
collaborations or how such arrangements would affect our
development plan or capital requirements. As a result of the
uncertainties discussed above, we are unable to determine the
duration and completion costs of our development projects or
when and to what extent we will receive cash inflows from the
commercialization and sale of an approved product candidate.
General
and Administrative Expenses
General and administrative expenses consist primarily of
compensation for employees in executive and administrative
functions, including finance, accounting and human resources.
Other significant costs include facilities costs and
professional fees for accounting and legal services, including
legal services associated with obtaining and maintaining
patents. We anticipate incurring a significant increase in
general and administrative expenses, as we operate as a public
company following our IPO. These increases will include
increased costs for insurance, costs related to the hiring of
additional personnel and payments to outside consultants,
lawyers and accountants. We also expect to incur significant
costs to comply with the corporate governance, internal control
and similar requirements applicable to public companies.
16
Marketing
Expenses
Marketing expenses consist primarily of compensation for
employees responsible for assessing the commercial opportunity
of and developing market awareness and launch plans for our
product candidates. Other costs include professional fees
associated with developing brands for our product candidates and
maintaining public relations. We expect significant increases in
our marketing and selling expenses as we hire additional
personnel and establish our sales and marketing capabilities in
anticipation of the commercialization of our product candidates.
We intend to capitalize on our managements past experience
and expertise with eye-care products by marketing and selling
Iluvien to the approximately 1,600 retinal specialists
practicing in the approximately 900 retina centers across the
United States and Canada. We intend to seek a commercialization
partner for sales and marketing activities outside North America.
Our plan is to develop our own specialized domestic sales and
marketing infrastructure, comprised of approximately
40 people, to market Iluvien and other ophthalmic products
that we acquire or develop in the future. We will begin
recruiting sales representatives and regional managers with
extensive ophthalmic-based sales experience in 2010 in advance
of an expected commercial launch of Iluvien as early as the
first quarter of 2011. We expect that our domestic sales force
will be able to access and form relationships with retinal
specialists in the approximately 900 retina centers prior to the
commercial launch of Iluvien.
Interest
Income
Interest income consists primarily of interest earned on our
cash and cash equivalents.
Interest
Expense
Beginning in March 2008, we began recognizing interest on our
$15.0 million note payable to pSivida at an effective
interest rate of 12.64% per annum (this note accrued interest at
the rate of 8% per annum from inception through March 31,
2010 and at the rate of 20% per annum effective as of
April 1, 2010). Accrued interest in excess of amounts
payable currently at the stated rate are included in accrued
expenses and in other long-term liabilities in the accompanying
balance sheets. Interest expense also includes interest on our
capital leases. On April 27, 2010, we paid pSivida
approximately $15.2 million in principal and interest to
satisfy the note payable.
Change
in Fair Value of Preferred Stock Conversion
Feature
Prior to being converted into common stock in connection with
our IPO, our preferred stock contained certain conversion
features which were considered embedded derivatives. We
accounted for such embedded derivative financial instruments in
accordance with Accounting Standards Codification 815. We
recorded derivative financial instruments as assets or
liabilities in our balance sheet measured at their fair value.
We recorded the changes in fair value of such instruments as
non-cash gains or losses in the statement of operations.
Preferred
Stock Accretion
Our preferred stock was recorded at issuance at the proceeds
received net of any issuance discounts, issuance costs and the
fair value of the conversion features at issuance. The
difference between the amount recorded at issuance and the
original issue price is accreted on a straight-line basis over a
period extending from the date of issuance to the date at which
the preferred stock becomes redeemable at the option of the
holder.
Preferred
Stock Dividends
Our preferred stock accrued dividends at 8% per annum which were
recorded as an increase in the carrying amount of the respective
preferred stock. At the time our preferred stock was converted
into common stock in connection with our IPO, $1.5 million
of dividends accrued on our Series A preferred stock prior
to
17
November 17, 2005 were converted into 380,301 shares
of our common stock. All other preferred stock dividends were
eliminated upon conversion of the underlying preferred stock in
April 2010.
Basic
and Diluted Net Loss Applicable to Common Stockholders per
Common Share
We calculated net loss per share in accordance with Accounting
Standards Codification 260 (ASC 260). We have determined that
the Series A, Series B, Series C and
Series C-1
preferred stock represent participating securities in accordance
with ASC 260. However, since we operate at a loss, and
losses are not allocated to the preferred stock, the two class
method does not affect our calculation of earnings per share. We
had a net loss from continuing operations for all periods
presented; accordingly, the inclusion of common stock options
and warrants would be antidilutive. Dilutive common stock
equivalents would include the dilutive effect of convertible
securities, common stock options, warrants for convertible
securities and warrants for common stock equivalents.
Potentially dilutive weighted average common stock equivalents
totaled approximately 24,656,608 and 21,009,228 for the three
months ended March 31, 2010 and 2009, respectively.
Potentially dilutive common stock equivalents were excluded from
the diluted earnings per share denominator for all periods of
net loss from continuing operations because of their
anti-dilutive effect. Therefore, for the three months ended
March 31, 2010 and 2009, respectively, the weighted average
shares used to calculate both basic and diluted loss per share
are the same.
Critical
Accounting Policies and Estimates
Our discussion and analysis of our financial condition and
results of operations are based on our financial statements
which have been prepared in accordance with accounting
principles generally accepted in the United States. The
preparation of these financial statements requires us to make
estimates and judgments that affect the reported amounts of
assets, liabilities, revenues and expenses. On an ongoing basis,
we evaluate these estimates and judgments, including those
described below. We base our estimates on historical experience
and on various other assumptions that we believe to be
reasonable under the circumstances. These estimates and
assumptions form the basis for making judgments about the
carrying values of assets and liabilities that are not readily
apparent from other sources. Actual results and experiences may
differ materially from these estimates. While our significant
accounting policies are more fully described in Note 1 to
our financial statements included within this prospectus, we
believe that the following accounting policies are the most
critical to aid you in fully understanding and evaluating our
reported financial results and affect the more significant
judgments and estimates that we use in the preparation of our
financial statements.
Clinical
Trial Prepaid and Accrued Expenses
We record prepaid assets and accrued liabilities related to
clinical trials associated with contract research organizations,
clinical trial investigators and other vendors based upon
amounts paid and the estimated amount of work completed on each
clinical trial. The financial terms of agreements vary from
vendor to vendor and may result in uneven payment flows. As
such, if we have advanced funds exceeding our estimate of the
work completed, we record a prepaid asset. If our estimate of
the work completed exceeds the amount paid, an accrued liability
is recorded. All such costs are charged to research and
development expenses based on these estimates. Our estimates may
or may not match the actual services performed by the
organizations as determined by patient enrollment levels and
related activities. We monitor patient enrollment levels and
related activities to the extent possible through internal
reviews, correspondence and discussions with our contract
research organization and review of contractual terms. However,
if we have incomplete or inaccurate information, we may
underestimate or overestimate activity levels associated with
various clinical trials at a given point in time. In this event,
we could record significant research and development expenses in
future periods when the actual level of activities becomes
known. To date, we have not experienced material changes in
these estimates. Additionally, we do not expect material
adjustments to research and development expenses to result from
changes in the nature and level of clinical trial activity and
related expenses that are currently subject to estimation. In
the future, as we expand our clinical trial activities, we
expect to have increased levels of research and development
costs that will be subject to estimation.
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Research
and Development Costs
Research and development expenditures are expensed as incurred,
pursuant to Accounting Standards Codification 730. Costs to
license technology to be used in our research and development
that have not reached technological feasibility, defined as FDA
approval for our current product candidates, and have no
alternative future use are expensed when incurred. Payments to
licensors that relate to the achievement of preapproval
development milestones are recorded as research and development
expense when incurred.
Income
Taxes
We recognize deferred tax assets and liabilities for temporary
differences between the financial reporting basis and the tax
basis of its assets and liabilities in accordance with
Accounting Standards Codification 740 (ASC 740). We
evaluate the positive and negative evidence bearing upon the
realizability of our deferred tax assets on an annual basis.
Significant management judgment is involved in determining the
provision for income taxes, deferred tax assets and liabilities,
and any valuation allowance recorded against net deferred tax
assets. Due to uncertainties with respect to the realization of
our deferred tax assets due to our history of operating losses,
a valuation allowance has been established against our deferred
tax asset balances to reduce the net carrying value to an amount
that is more likely than not to be realized. As a result we have
fully reserved against the deferred tax asset balances. The
valuation allowances are based on our estimates of taxable
income in the jurisdictions in which we operate and the period
over which deferred tax assets will be recoverable. In the event
that actual results differ from these estimates or we adjust
these estimates in future periods, a change in the valuation
allowance may be needed, which could materially impact our
financial position and results of operations. Our deferred tax
assets primarily consist of net operating loss (NOL)
carry-forwards. At March 31, 2010 we had federal NOL
carry-forwards of approximately $80.6 million and state NOL
carry-forwards of approximately $63.8 million,
respectively, that are available to reduce future income
otherwise taxable. If not utilized, the federal NOL
carry-forwards will expire at various dates between 2023 and
2029 and the state NOL carry-forwards will expire at various
dates between 2018 and 2029. If it is determined that
significant ownership changes have occurred since these NOLs
were generated, we may be subject to annual limitations on the
use of these NOLs under Internal Revenue Code Section 382
(or comparable provisions of state law). We are currently
evaluating the impact of our IPO on our NOL carryforwards and
whether certain changes in ownership have occurred that would
limit our ability to utilize a portion of our NOL carryforwards.
In the event that we were to determine that we are able to
realize any of our net deferred tax assets in the future, an
adjustment to the valuation allowance would increase net income
in the period such determination was made. We believe that the
most significant uncertainty that will impact the determination
of our valuation allowance will be our estimation of the extent
and timing of future net income, if any.
We considered our income tax positions for uncertainty in
accordance with ASC 740. We believe our income tax filing
positions and deductions are more likely than not of being
sustained on audit and do not anticipate any adjustments that
will result in a material change to our financial position;
therefore, we have not recorded ASC 740 liabilities. We
recognize accrued interest and penalties related to unrecognized
tax benefits as interest expense and income tax expense,
respectively, in our statements of operations. Our tax years
since 2003 remain subject to examination in Georgia, Tennessee,
and on the federal level. We do not anticipate any material
changes to our uncertain tax positions within the next
12 months.
Results
of Operations
Research
and Development Expenses
Research and development expenses decreased by approximately
$1.4 million, or 31%, to $3.1 million for the three
months ended March 31, 2010, compared to $4.5 million
for the three months ended March 31, 2009. The decrease was
primarily attributable to decreases of $1.1 million in
technology transfer costs associated with establishing
manufacturing capabilities with a third-party manufacturer for
Iluvien and $287,000 for manufacture of registration batches
incurred in the three months ended March 31, 2009, while no
such costs were incurred during the three months ended
March 31, 2010.
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General
and Administrative Expenses
General and administrative expenses increased by approximately
$133,000, or 17%, to $904,000 for the three months ended
March 31, 2010, compared to $771,000 for the three months
ended March 31, 2009. The increase was primarily due to
incremental professional service fees incurred in the assessment
of strategic financing options during the three months ended
March 31, 2010.
Marketing
Expenses
Marketing expenses increased by approximately $55,000, or 29%,
to $247,000 for the three months ended March 31, 2010,
compared to $191,000 for the three months ended March 31,
2009. The increase was primarily attributable to an increased
presence at meetings and conventions during the three months
ended March 31, 2010 to disseminate data from the FAME
study that was not available during the three months ended
March 31, 2009.
Interest
Income
Interest income decreased by approximately $21,000 to
approximately $2,000 for the three months ended March 31,
2010, compared to approximately $23,000 for the three months
ended March 31, 2009. The decrease in interest income was
primarily attributable to a decrease in the rates of return on
our money market accounts from approximately 0.14% for the three
months ended March 31, 2009 to 0.01% for the three months
ended March 31, 2010.
Interest
expense
Interest expense was approximately $474,000 for the three months
ended March 31, 2010 and 2009. Our interest expense is
associated with our $15.0 million note to pSivida issued in
March 2008.
Increase
in fair value of preferred stock conversion
feature
For the three months ended March 31, 2010, we recognized a
gain of approximately $3.3 million related to the decrease
in the fair value of the conversion feature of our preferred
stock. The change in fair value is primarily attributable to
change in the estimated fair value of our common stock.
For the three months ended March 31, 2009 we recognized
expense of approximately $4.2 million related to the
increase in the fair value of the conversion feature of our
preferred stock. The change in fair value is primarily
attributable to change in the estimated fair value of our common
stock.
Income
(loss) from discontinued operations
We recognized income from discontinued operations of
$4.0 million for an option payment we received from
Bausch & Lomb upon the exercise by Bausch &
Lomb of its option to extend the period during which it may
continue to develop an allergy product acquired from us in 2006
by two years during the three months ended March 31, 2010.
We did not have any income (loss) from discontinued operations
for the three months ended March 31, 2009 due to the sale
of our dry eye product to Bausch & Lomb in July 2007.
Liquidity
and Capital Resources
To date we have incurred recurring losses, negative cash flow
from operations, and have accumulated a deficit of
$171.7 million from our inception through March 31,
2010. Prior to our IPO, we funded our operations through the
private placement of common stock, preferred stock and
convertible debt, as well as by the sale of certain assets of
the non-prescription business in which we were previously
engaged.
As of March 31, 2010, we had $14.2 million in cash and
cash equivalents. On April 21, 2010, our Registration
Statement on
Form S-1
(as amended) was declared effective by the SEC for our IPO,
pursuant to which we sold 6,550,000 shares of our common
stock at a public offering price of $11.00 per share. We
received net proceeds of approximately $68.4 million from
this transaction, after deducting underwriting
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discounts and commissions. On a pro forma as adjusted basis to
give effect to our IPO, as of March 31, 2010 we had
approximately $65.4 million in cash and cash equivalents,
which we believe is sufficient to fund our operations through
the projected commercialization of Iluvien and the expected
generation of revenue in 2011. The commercialization of Iluvien
is dependent upon approval by the FDA, however, and we cannot be
sure that Iluvien will be approved by the FDA or that, if
approved, future sales of Iluvien will generate enough revenue
to fund our operations beyond its commercialization. If Iluvien
is not approved, or if approved, does not generate sufficient
revenue, we may adjust our commercial plans so that we can
continue to operate with our existing cash resources or seek to
raise additional financing.
In the event additional financing is needed, we may seek to fund
our operations through the sale of equity securities, strategic
collaboration agreements and debt financing. We cannot be sure
that additional financing from any of these sources will be
available when needed or that, if available, the additional
financing will be obtained on terms favorable to us or our
stockholders. If we raise additional funds by issuing equity
securities, substantial dilution to existing stockholders would
likely result and the terms of any new equity securities may
have a preference over our common stock. If we attempt to raise
additional funds through strategic collaboration agreements and
debt financing, we may not be successful in obtaining
collaboration agreements, or in receiving milestone or royalty
payments under those agreements, or the terms of the debt may
involve significant cash payment obligations as well as
covenants and specific financial ratios that may restrict our
ability to commercialize our product candidates or operate as a
business.
For the three months ended March 31, 2010, cash used in our
continuing operations of $4.6 million was primarily due to
our net loss of $1.4 million increased by a non-cash gain
of $3.3 million related to the change in fair value of our
preferred stock conversion feature and offset by a non-cash
charge of $110,000 in stock compensation and other expense.
Further increasing our cash used in continuing operations were
an increase in prepaid expenses and other current assets of
$120,000 and a decrease in other long-term liabilities of
$180,000. These uses of cash were offset by an increase in
accounts payable and accrued expenses and other current
liabilities of $200,000. Prepaid expenses and other current
assets increased primarily due to $220,000 of advances to
third-party manufacturers of Iluvien. The decrease in other
long-term liabilities is due to a portion of the interest
accrued on our promissory note to pSivida moving to a current
liability. The increase in accounts payable and accrued and
other current liabilities is primarily attributable to increases
of $400,000 of clinical trial expenses, $360,000 of accrued
short-term interest on the pSivida note payable, and $170,000 of
professional services fees accrued for the preparation of our
new drug application for Iluvien, offset by a decrease of
$1.5 million of clinical trial site accruals for payments
to our investigators.
For the three months ended March 31, 2009, cash used in our
continuing operations of $3.5 million was primarily due to
our net loss of $10.3 million offset by non-cash charges of
$4.3 million related to the change in fair value of our
preferred stock conversion feature, $490,000 in depreciation and
amortization expense associated primarily with equipment used
for the manufacture of Iluvien registration batches and $100,000
in stock compensation and other expense. Further offsetting our
cash used in continuing operations were increases in accounts
payable and accrued liabilities and other current liabilities of
$1.4 million and other long-term liabilities of $170,000,
and a decrease in prepaid expenses and other current assets of
$250,000. Accounts payable and accrued liabilities and other
current liabilities increased due to increases of $570,000
payable to our third-party manufacturers, $380,000 payable to
our CROs and $380,000 in clinical trial expenses. The increase
in other long-term liabilities is due to interest being accrued
on our promissory note to pSivida. Prepaid expenses and other
current assets decreased primarily due to the expensing of
$70,000 of prepaid clinical trial site payments and the
expensing of $150,000 of prepaid third-party manufacturing
deposits and payments.
For the three months ended March 31, 2010, cash provided by
our investing activities of $4.0 million was provided by
our discontinued operations when we received $4.0 million
from Bausch & Lomb upon the exercise by
Bausch & Lomb of its option to extend the period
during which it may continue to develop an allergy product
acquired from us in 2006 by two years. For the three months
ended March 31, 2009, there were no cash flows from our
investing activities.
21
Net cash provided by our financing activities was
$10.1 million for the three months ended March 31,
2010, and is primarily attributable to the net proceeds of
$9.9 million received from the exercise of warrants to
purchase shares of our
Series C-1
preferred stock and proceeds of $150,000 from the exercise of
warrants to purchase shares of our common stock. Cash flows from
our financing activities for the three months ended
March 31, 2009 was not material.
Contractual
Obligations and Commitments
On April 27, 2010, we paid $15.2 million to pSivida to
satisfy our $15.0 million note payable and all accrued
interest. There have been no other material changes to our
contractual obligations and commitments outside the ordinary
course of business from those disclosed in our final prospectus
filed pursuant to Rule 424(b) under the Securities Act with
the SEC on April 22, 2010.
Off-Balance
Sheet Arrangements
We do not have any relationships with unconsolidated entities or
financial partnerships, such as entities often referred to as
structured finance or special purpose entities, that would have
been established for the purpose of facilitating off-balance
sheet arrangements (as that term is defined in
Item 303(a)(4)(ii) of
Regulation S-K)
or other contractually narrow or limited purposes. As such, we
are not exposed to any financing, liquidity, market or credit
risk that could arise if we had engaged in those types of
relationships. We enter into guarantees in the ordinary course
of business related to the guarantee of our own performance and
the performance of our subsidiaries.
New
Accounting Pronouncements
From time to time, new accounting pronouncements are issued by
the Financial Accounting Standards Board, or FASB, or other
standard setting bodies that are adopted by us as of the
specified effective date. Unless otherwise discussed, we believe
that the impact of recently issued standards that are not yet
effective will not have a material impact on our financial
position or results of operations upon adoption.
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ITEM 3
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Qualitative
and Quantitative Disclosures about Market Risk
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We are exposed to market risk related to changes in interest
rates. As of March 31, 2010, we had cash and cash
equivalents of $14.2 million. Our primary exposure to
market risk is interest income sensitivity, which is affected by
changes in the general level of U.S. interest rates,
particularly because our investments are in short-term
marketable securities. Due to the short-term duration of our
investment portfolio and the low risk profile of our
investments, an immediate 10% change in interest rates would not
have a material effect on the fair market value of our
portfolio. Accordingly, we would not expect our operating
results or cash flows to be affected to any significant degree
by the effect of a sudden change in market interest rates on our
securities portfolio.
We contract for the conduct of some of our clinical trials and
other research and development activities with contract research
organizations and investigational sites in the United States,
Europe and India. We may be subject to exposure to fluctuations
in foreign exchange rates in connection with these agreements.
We do not hedge our foreign currency exposures. We have not used
derivative financial instruments for speculation or trading
purposes.
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ITEM 4
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Controls
and Procedures
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Evaluation
of Disclosure Controls and Procedures
We maintain disclosure controls and procedures that are designed
to ensure that information required to be disclosed in our
periodic reports filed with the SEC is recorded, processed and
summarized and reported within the time periods specified in the
rules and forms of the SEC and that such information is
accumulated and communicated to our management, including our
Chief Executive Officer and Chief Financial Officer, as
appropriate, to allow for timely decisions regarding required
disclosure. In designing and evaluating the
22
disclosure controls and procedures, our management recognizes
that any controls and procedures, no matter how well designed
and operated, can provide only reasonable assurance of achieving
the desired control objectives, and no evaluation of controls
and procedures can provide absolute assurance that all control
issues and instances of fraud, if any, have been detected. Our
management is required to apply its judgment in evaluating the
cost-benefit relationship of possible controls and procedures.
Under the supervision and with the participation of the our
management, including the Chief Executive Officer and Chief
Financial Officer, we evaluated the effectiveness of the design
and operation of our disclosure controls and procedures (as
defined in
Rules 13a-15(e)
and
15d-15(e)
under the Exchange Act) as of March 31, 2010. Based upon
that evaluation, our Chief Executive Officer and Chief Financial
Officer concluded that our disclosure controls and procedures
are effective as of March 31, 2010, the end of the period
covered by this Quarterly Report on
Form 10-Q,
to ensure that the information required to be disclosed by us in
the reports that we file or submit under the Exchange Act is
recorded, processed, summarized and reported within the time
periods specified in the SECs rules and forms, and that
such information is accumulated and communicated to our
management, including our Chief Executive Officer and Chief
Financial Officer, as appropriate to allow timely decisions
regarding required disclosures.
Changes
in Internal Control over Financial Reporting
There has been no change in our internal control over financial
reporting (as defined in
Rules 13a-15(f)
and
15d-15(f) of
the Exchange Act) during the first quarter of 2010 that has
materially affected, or is reasonably likely to materially
affect, our internal control over financial reporting.
23
PART II.
OTHER INFORMATION
Our business is subject to numerous risks. We caution you that
the following important factors, among others, could cause our
actual results to differ materially from those expressed in
forward-looking statements made by us or on our behalf in
filings with the SEC, press releases, communications with
investors and oral statements. Any or all of our forward-looking
statements in this Quarterly Report on
Form 10-Q
and in any other public statements we make may turn out to be
wrong. They can be affected by inaccurate assumptions we might
make or by known or unknown risks and uncertainties. Many
factors mentioned in the discussion below will be important in
determining future results. Consequently, no forward-looking
statement can be guaranteed. Actual future results may differ
materially from those anticipated in forward-looking statements.
We undertake no obligation to update any forward-looking
statements, whether as a result of new information, future
events or otherwise. You are advised, however, to consult any
further disclosure we make in our reports filed with the SEC.
Risks
Related to Our Business and Industry
We are
heavily dependent on the success of our lead product candidate,
Iluvien, which is still under development. If we are unable to
commercialize Iluvien, or experience significant delays in doing
so, our business will be materially harmed.
We have invested a significant portion of our time and financial
resources in the development of Iluvien, our only product
candidate in clinical development. We anticipate that in the
near term our ability to generate revenues will depend solely on
the successful development and commercialization of Iluvien.
Based on our analysis of the month 24 clinical readout from our
Phase 3 pivotal clinical trials for the use of Iluvien in the
treatment of diabetic macular edema, or DME (collectively, our
FAME Study), we plan to file a New Drug Application (NDA) for
the low dose of Iluvien in the United States in the second
quarter of 2010, followed by registration filings in certain
European countries and Canada. However, we may not complete our
registration filings in our anticipated time frame. Even after
we complete our NDA filing, the U.S. Food and Drug
Administration (FDA) may not accept our submission, may request
additional information from us, including data from additional
clinical trials, and, ultimately, may not grant marketing
approval for Iluvien. In addition, although we believe the month
24 clinical readout from our FAME Study demonstrates that
Iluvien is effective in the treatment of DME, clinical data
often is susceptible to varying interpretations and many
companies that have believed that their products performed
satisfactorily in clinical trials have nonetheless failed to
obtain FDA approval for their products.
If we are not successful in commercializing Iluvien, or are
significantly delayed in doing so, our business will be
materially harmed and we may need to curtail or cease
operations. Our ability to successfully commercialize Iluvien
will depend, among other things, on our ability to:
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successfully complete our clinical trials;
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produce, through a validated process, batches of Iluvien in
quantities sufficiently large to permit successful
commercialization;
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receive marketing approvals from the FDA and similar foreign
regulatory authorities;
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establish commercial manufacturing arrangements with third-party
manufacturers;
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launch commercial sales of Iluvien; and
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secure acceptance of Iluvien in the medical community and with
third-party payors.
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24
We
face heavy government regulation, and approval of Iluvien and
our other product candidates from the FDA and from similar
entities in other countries is uncertain.
The research, testing, manufacturing and marketing of drug
products are subject to extensive regulation by
U.S. federal, state and local government authorities,
including the FDA, and similar entities in other countries. To
obtain regulatory approval of a product, we must demonstrate to
the satisfaction of the regulatory agencies that, among other
things, the product is safe and effective for its intended use.
In addition, we must show that the manufacturing facilities used
to produce the products are in compliance with current Good
Manufacturing Practice (cGMP) regulations.
The process of obtaining regulatory approvals and clearances
will require us to expend substantial time and capital. Despite
the time and expense incurred, regulatory approval is never
guaranteed. The number of preclinical and clinical tests that
will be required for regulatory approval varies depending on the
drug candidate, the disease or condition for which the drug
candidate is in development and the regulations applicable to
that particular drug candidate. Regulatory agencies, including
those in the United States, Canada, the European Union and other
countries where drugs are regulated, can delay, limit or deny
approval of a drug candidate for many reasons, including that:
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a drug candidate may not be safe or effective;
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regulatory agencies may interpret data from preclinical and
clinical testing in different ways from those which we do;
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they may not approve of our manufacturing process;
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they may conclude that the drug candidate does not meet quality
standards for stability, quality, purity and potency; and
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they may change their approval policies or adopt new regulations.
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The FDA may make requests or suggestions regarding conduct of
our clinical trials, resulting in an increased risk of
difficulties or delays in obtaining regulatory approval in the
United States. For example, the FDA may object to the use of a
sham injection in our control arm or may not approve of certain
of our methods for analyzing our trial data, including how we
evaluate the risk/benefit relationship. Further, we intend to
market Iluvien, and may market other product candidates, outside
the United States and specifically in the European Union and
Canada. Regulatory agencies within these countries will require
that we obtain separate regulatory approvals and comply with
numerous and varying regulatory requirements. The approval
procedures within these countries can involve additional
testing, and the time required to obtain approval may differ
from that required to obtain FDA approval. Additionally, the
foreign regulatory approval process may include all of the risks
associated with obtaining FDA approval. For all of these
reasons, we may not obtain foreign regulatory approvals on a
timely basis, if at all. Approval by the FDA does not ensure
approval by regulatory authorities in other countries or
jurisdictions, and approval by one foreign regulatory authority
does not ensure approval by regulatory authorities in other
foreign countries or jurisdictions or by the FDA.
We plan to submit an NDA in the United States for the low dose
of Iluvien in the second quarter of 2010 with 24 months of
clinical data from our FAME Study, followed by registration
filings in certain European countries and Canada. Consistent
with recommendations regarding the appropriate population for
primary analysis as described in the FDA-adopted International
Conference on Harmonization of Technical Requirements for
Registration of Pharmaceuticals for Human Use (ICH) Guidance E9,
Statistical Principals for Clinical Trials, we
believe that the FDA will consider the most relevant population
for determining safety and efficacy to be the full data set of
all 956 patients randomized into our FAME Study, with data
imputation employed using last observation carried
forward, for data missing because of patients who
discontinued the trial or are unavailable for
follow-up
(the Full Analysis Set). The primary efficacy endpoint was met
with statistical significance for both the low dose and the high
dose of Iluvien in both trials using the Full Analysis Set and
we intend to submit an analysis based on this data set for the
low dose to the FDA. However, our FAME Study protocol did not
include the Full Analysis Set and provides that the primary
assessment of efficacy will be based on another data set that
excludes from the Full Analysis Set three patients who were
25
enrolled but never treated as well as data collected for
patients subsequent to their use of treatments prohibited by our
FAME Study protocol (the Modified ART Data Set). Statistical
significance was not achieved for either the low dose or the
high dose in one trial using the Modified ART Data Set. There is
no assurance that the FDA will utilize the Full Analysis Set and
not the Modified ART Data Set or another data set in determining
whether Iluvien is safe and effective, which could result in the
FDA not granting marketing approval for Iluvien.
Regulatory agencies require carcinogenicity studies in animals
to identify tumorigenic potential in animals to assess the
relevant risk in humans. Based on month 18 readouts from our
open-label Phase 2 human pharmacokinetic clinical trial (PK
Study), which indicate that there is negligible systemic
absorption of fluocinolone acetonide (FA) in patients being
treated with Iluvien, we expect to obtain a waiver from these
regulatory agencies from the requirement to perform
carcinogenicity studies. However, we may not be able to
demonstrate negligible systemic absorption of FA in our PK Study
beyond 18 months or may not obtain a waiver from regulatory
agencies for the requirement to perform carcinogenicity studies
in animals. If we are required to perform carcinogenicity
studies in animals, the approval of Iluvien could be delayed by
up to 36 months.
Any delay or failure by us to obtain regulatory approvals for
our product candidates could diminish competitive advantages
that we may attain and would adversely affect the marketing of
our products. We have not yet received regulatory approval to
market any of our product candidates in any jurisdiction.
Iluvien
utilizes FA, a corticosteroid that has demonstrated undesirable
side effects in the eye; therefore, the success of Iluvien will
be dependent upon the achievement of an appropriate relationship
between the benefits of its efficacy and the risks of its
side-effect profile.
The use of corticosteroids in the eye has been associated with
undesirable side effects, including increased incidence of
intraocular pressure (IOP), which may increase the risk of
glaucoma, and cataract formation. We have received only the
month 24 clinical readout from our FAME Study and the extent of
Iluviens long-term side effect profile is not yet known.
Upon review of our NDA for the low dose of Iluvien in the
treatment of DME, the FDA may conclude that our FAME Study did
not demonstrate that Iluvien has sufficient levels of efficacy
to outweigh the risks associated with its side-effect profile.
Conversely, the FDA may conclude that Iluviens side-effect
profile does not demonstrate an acceptable risk/benefit
relationship in line with Iluviens demonstrated efficacy.
In the event of such conclusions, we may not receive regulatory
approval from the FDA or from similar regulatory agencies in
other countries.
Even
if we do receive regulatory approval for Iluvien, the FDA or
other regulatory agencies may impose limitations on the
indicated uses for which Iluvien may be marketed, subsequently
withdraw approval or take other actions against us or Iluvien
that would be adverse to our business.
Regulatory agencies generally approve products for particular
indications. If any such regulatory agency approves Iluvien for
a limited indication, the size of our potential market for
Iluvien will be reduced. For example, our potential market for
Iluvien would be reduced if the FDA limited the indications of
use to patients diagnosed with only clinically significant DME
as opposed to DME or restricted the use to patients exhibiting
IOP below a certain level at the time of treatment. Product
approvals, once granted, may be withdrawn if problems occur
after initial marketing. If and when Iluvien does receive
regulatory approval or clearance, the marketing, distribution
and manufacture of Iluvien will be subject to regulation in the
United States by the FDA and by similar entities in other
countries. We will need to comply with facility registration and
product listing requirements of the FDA and similar entities in
other countries and adhere to the FDAs Quality System
Regulations. Noncompliance with applicable FDA and similar
entities requirements can result in warning letters,
fines, injunctions, civil penalties, recall or seizure of
Iluvien, total or partial suspension of production, refusal of
regulatory agencies to grant approvals, withdrawal of approvals
by regulatory agencies or criminal prosecution. We would also
need to maintain compliance with federal, state and foreign laws
regarding sales incentives, referrals and other programs.
26
Iluvien
may not be granted Priority Review by the FDA and, even if
Iluvien receives Priority Review, Iluvien may not receive
approval within the six-month review/approval
cycle.
We believe that Iluvien may be eligible for Priority Review
under FDA procedures. We will request Priority Review for
Iluvien at the time we submit our NDA. Although the FDA has
granted Priority Review to other products that treat retinal
disease (including Visudyne, Retisert, Macugen, Lucentis and
Ozurdex), Iluvien may not receive similar consideration.
However, even in the event that Iluvien is designated for
Priority Review, such a designation does not necessarily mean a
faster regulatory review process or necessarily confer any
advantage with respect to approval compared to conventional FDA
procedures. Receiving Priority Review from the FDA does not
guarantee approval within the six-month review/approval cycle.
Our
product candidates may never achieve market acceptance even if
we obtain regulatory approvals.
Even if we receive regulatory approvals for the sale of our
product candidates, the commercial success of these products
will depend, among other things, on their acceptance by retinal
specialists, patients, third-party payors and other members of
the medical community as a therapeutic and cost-effective
alternative to competing products and treatments. The degree of
market acceptance of any of our product candidates will depend
on a number of factors, including the demonstration of its
safety and efficacy, its cost-effectiveness, its potential
advantages over other therapies, the reimbursement policies of
government and third-party payors with respect to the product
candidate, and the effectiveness of our marketing and
distribution capabilities. If our product candidates fail to
gain market acceptance, we may be unable to earn sufficient
revenue to continue our business. If our product candidates are
not accepted by retinal specialists, patients, third-party
payors and other members of the medical community, it is
unlikely that we will ever become profitable.
Our
ability to pursue the development and commercialization of
Iluvien depends upon the continuation of our license from
pSivida US, Inc.
Our license rights to pSivida US, Inc.s (pSividas)
proprietary delivery device could revert to pSivida if we
(i) fail twice to cure our breach of an obligation to make
certain payments to pSivida following receipt of written notice
thereof; (ii) fail to cure other breaches of material terms
of our agreement with pSivida within 30 days after notice
of such breaches or such longer period (up to 90 days) as
may be reasonably necessary if the breach cannot be cured within
such 30-day
period; (iii) file for protection under the bankruptcy
laws, make an assignment for the benefit of creditors, appoint
or suffer appointment of a receiver or trustee over our
property, file a petition under any bankruptcy or insolvency act
or have any such petition filed against us and such proceeding
remains undismissed or unstayed for a period of more than
60 days; or (iv) notify pSivida in writing of our
decision to abandon our license with respect to a certain
product using pSividas proprietary delivery device. If our
agreement with pSivida were terminated, we would lose our rights
to develop and commercialize Iluvien, which would materially and
adversely affect our business, results of operations and future
prospects.
We
will rely on a single manufacturer for Iluvien, a single
manufacturer for the Iluvien inserter and a single active
pharmaceutical ingredient formulator for Iluviens active
pharmaceutical ingredient. Our business would be seriously
harmed if these third-parties are not able to satisfy our demand
and alternative sources are not available.
We do not have in-house manufacturing capability and will depend
completely on a single third-party manufacturer for the
manufacture of the Iluvien insert (Alliance Medical Products,
Inc. (Alliance)), a single third-party manufacturer for the
manufacture of the Iluvien inserter (Flextronics International,
Ltd. or an affiliate of Flextronics International, Ltd.
(Flextronics)) and a single third-party manufacturer for the
manufacture of Iluviens active pharmaceutical ingredient
(FARMABIOS S.R.L./Byron Chemical Company Inc. (FARMABIOS)).
Although we have finalized a long-term agreement for the
manufacture of the Iluvien insert (with Alliance), we have not
yet finalized long-term agreements for the manufacture of the
Iluvien inserter (with Flextronics) or for the manufacture of
Iluviens active pharmaceutical ingredient (with
FARMABIOS), and if any of the third-party manufacturers are
unable or unwilling to perform for any reason, we may not be
able to locate alternative acceptable manufacturers or
formulators, enter into favorable agreements with them
27
or get them approved by the FDA in a timely manner. Further, all
of our manufacturers rely on additional third-parties for the
manufacture of component parts. Any inability to acquire
sufficient quantities of Iluvien, the Iluvien inserter or the
active pharmaceutical ingredient in a timely manner from these
third-parties could delay commercial production of, and impact
our ability to fulfill demand for, Iluvien. Any inability to
acquire information necessary to file for regulatory approval
from such third-parties could also prevent us from obtaining
regulatory approval for Iluvien in a timely manner. In addition,
all our third-party manufacturers are subject to cGMP and
comparable requirements of foreign regulatory bodies, and
certain of our manufacturers utilize production facilities
outside the U.S. that are subject to local regulations with
respect to those operations, and we do not have control over
compliance with these regulations by our manufacturer. If our
manufacturer fails to maintain compliance, the production of
Iluvien could be interrupted, resulting in delays and additional
costs. In addition, if the facilities of our manufacturer do not
pass a pre-approval plant inspection, the FDA will not grant
market approval for Iluvien.
Materials
necessary to manufacture Iluvien and our other product
candidates may not be available on commercially reasonable
terms, or at all, which may delay the development, regulatory
approval and commercialization of our product
candidates.
We will rely on our manufacturers to purchase materials from
third-party suppliers necessary to produce Iluvien and our other
product candidates for our clinical trials. Suppliers may not
sell these materials to our manufacturers at the times we need
them or on commercially reasonable terms. We do not have any
control over the process or timing of the acquisition of these
materials by our manufacturers. Moreover, we currently have not
finalized any agreements for the commercial production of these
materials. If our manufacturers are unable to obtain these
materials for our clinical trials, product testing and potential
regulatory approval of Iluvien and our other product candidates
could be delayed, significantly affecting our ability to develop
Iluvien and our other product candidates. If we or our
manufacturers are unable to purchase these materials after
regulatory approval has been obtained for Iluvien and our other
product candidates, the commercial launch of Iluvien and our
other product candidates would be delayed or there would be a
shortage in supply, which would materially affect our ability to
generate revenues from the sale of Iluvien and our other product
candidates. Moreover, although we have finalized an agreement
for the commercial production of the Iluvien insert, we
currently have not yet finalized any agreements for the
commercial production of the active pharmaceutical ingredient in
Iluvien or the Iluvien inserter.
The
manufacture and packaging of pharmaceutical products such as
Iluvien are subject to the requirements of the FDA and similar
foreign regulatory entities. If we or our third-party
manufacturers fail to satisfy these requirements, our product
development and commercialization efforts may be materially
harmed.
The manufacture and packaging of pharmaceutical products such as
Iluvien and our future product candidates are regulated by the
FDA and similar foreign regulatory entities and must be
conducted in accordance with the FDAs cGMP and comparable
requirements of foreign regulatory entities. There are a limited
number of manufacturers that operate under these cGMP
regulations which are both capable of manufacturing Iluvien and
willing to do so. Failure by us or our third-party manufacturers
to comply with applicable regulations, requirements, or
guidelines could result in sanctions being imposed on us,
including fines, injunctions, civil penalties, failure of
regulatory authorities to grant marketing approval of our
products, delays, suspension or withdrawal of approvals, license
revocation, seizures or recalls of product, operating
restrictions and criminal prosecutions, any of which could
significantly and adversely affect our business.
Changes in the manufacturing process or procedure, including a
change in the location where the product is manufactured or a
change of a third-party manufacturer, will require prior FDA
review
and/or
approval of the manufacturing process and procedures in
accordance with the FDAs cGMP regulations. There are
comparable foreign requirements. This review may be costly and
time consuming and could delay or prevent the launch of a
product. If we elect to manufacture products in our own facility
or at the facility of another third-party, we would need to
ensure that the new facility and the manufacturing process are
in substantial compliance with cGMP regulations. The new
facility will also be subject to pre-approval inspection. In
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addition, we have to demonstrate that the product made at the
new facility is equivalent to the product made at the former
facility by physical and chemical methods, which are costly and
time consuming. It is also possible that the FDA may require
clinical testing as a way to prove equivalency, which would
result in additional costs and delay.
Furthermore, in order to obtain approval of our products,
including Iluvien, by the FDA and foreign regulatory agencies,
we need to complete testing on both the active pharmaceutical
ingredient and on the finished product in the packaging that we
propose for commercial sales. This includes testing of
stability, identification of impurities and testing of other
product specifications by validated test methods. In addition,
we will be required to consistently produce Iluvien in
commercial quantities and of specified quality in a reproducible
manner and document our ability to do so. This requirement is
referred to as process validation. With respect to Iluvien,
although we have validated the manufacturing process at pilot
scale batches, some of the steps in the manufacturing processes
will need to be revalidated when we begin to manufacture
commercial scale batches. If the required testing or process
validation is delayed or produces unfavorable results, we may
have to launch the product using smaller pilot scale batches,
which may impact our ability to fulfill demand for the product.
The FDA and similar foreign regulatory bodies may also implement
new standards, or change their interpretation and enforcement of
existing standards and requirements, for the manufacture,
packaging, or testing of products at any time. If we are unable
to comply, we may be subject to regulatory or civil actions or
penalties that could significantly and adversely affect our
business.
Any
failure or delay in completing clinical trials for our product
candidates could severely harm our business.
Preclinical studies and clinical trials required to demonstrate
the safety and efficacy of our product candidates are time
consuming and expensive and together take several years to
complete. The completion of clinical trials for our product
candidates may be delayed by many factors, including:
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our inability to manufacture or obtain from third-parties
materials sufficient for use in preclinical studies and clinical
trials;
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delays in patient enrollment and variability in the number and
types of patients available for clinical trials;
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difficulty in maintaining contact with patients after treatment,
resulting in incomplete data;
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poor effectiveness of product candidates during clinical trials;
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unforeseen safety issues or side effects; and
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governmental or regulatory delays and changes in regulatory
requirements and guidelines.
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If we fail to successfully complete our clinical trials for any
of our product candidates, we may not receive the regulatory
approvals needed to market that product candidate. Therefore,
any failure or delay in commencing or completing these clinical
trials would harm our business materially.
If we are required to conduct additional clinical trials or
other studies with respect to any of our product candidates
beyond those that we initially contemplated, if we are unable to
successfully complete our clinical trials or other studies or if
the results of these trials or studies are not positive or are
only modestly positive, we may be delayed in obtaining marketing
approval for that product candidate, we may not be able to
obtain marketing approval or we may obtain approval for
indications that is not as broad as intended. Our product
development costs will also increase if we experience delays in
testing or approvals. Significant clinical trial delays could
allow our competitors to bring products to market before we do
and impair our ability to commercialize our products or
potential products. If any of this occurs, our business will be
materially harmed.
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We
currently have no sales or marketing organization. If we are
unable to establish satisfactory sales and marketing
capabilities, we may not succeed in commercializing
Iluvien.
At present, we have no sales personnel and a limited number of
marketing personnel. In anticipation of receiving FDA approval
for the commercial launch of Iluvien, we plan to begin hiring
additional sales and marketing personnel to establish our own
sales and marketing capabilities in the United States in time
for our anticipated commercial launch of Iluvien. We plan to add
our first sales representatives in the fourth quarter of 2010.
Therefore, at the time of our commercial launch of Iluvien,
assuming regulatory approval by the FDA, our sales and marketing
team will have worked together for only a limited period of time.
We may not be able to establish a direct sales force in a
cost-effective manner or realize a positive return on this
investment. In addition, we will have to compete with other
pharmaceutical and biotechnology companies to recruit, hire,
train and retain sales and marketing personnel. Factors that may
inhibit our efforts to commercialize our products without
strategic partners or licensees include:
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our inability to recruit and retain adequate numbers of
effective sales and marketing personnel;
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the inability of sales personnel to obtain access to or persuade
adequate numbers of retinal specialists to prescribe our
products;
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the lack of complementary products to be offered by sales
personnel, which may put us at a competitive disadvantage
relative to companies with more extensive product lines; and
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unforeseen costs and expenses associated with creating an
independent sales and marketing organization.
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If appropriate regulatory approvals are obtained, we intend to
commercialize Iluvien and our other product candidates in
international markets through collaboration arrangements with
third-parties. We have not yet entered into any agreements
related to the marketing of Iluvien or any of our other product
candidates in international markets and we may not be able to
enter into any arrangements with respect to international
collaborations on favorable terms or at all. In addition, these
arrangements could result in lower levels of income to us than
if we marketed our product candidates entirely on our own. If we
are unable to enter into appropriate marketing arrangements for
our product candidates in international markets, we may not be
able to develop an effective international sales force to
successfully commercialize Iluvien and our other product
candidates in international markets. If we fail to enter into
marketing arrangements for our products and are unable to
develop an effective international sales force, our ability to
generate revenue outside of North America would be limited.
If we are not successful in recruiting sales and marketing
personnel or in building a sales and marketing infrastructure or
if we do not successfully enter into appropriate collaboration
arrangements with third-parties, we will have difficulty
commercializing Iluvien and our other product candidates, which
would adversely affect our business, operating results and
financial condition.
In
order to establish our sales and marketing infrastructure, we
will need to grow the size of our organization, and we may
experience difficulties in managing this growth.
As of March 31, 2010, we had 21 employees. As our
development and commercialization plans and strategies develop,
we will need to expand the size of our employee base for
managerial, operational, sales, marketing, financial and other
resources. Future growth would impose significant added
responsibilities on members of management, including the need to
identify, recruit, maintain, motivate and integrate additional
employees. Also, our management may have to divert a
disproportionate amount of its attention away from our
day-to-day
activities and devote a substantial amount of time to managing
these growth activities. Our future financial performance and
our ability to commercialize Iluvien and our other product
candidates and compete effectively will depend, in part, on our
ability to effectively manage any future growth.
30
Iluvien
and our other potential products may not be commercially viable
if we fail to obtain an adequate level of reimbursement for
these products from private insurers, the Medicare program and
other
third-party
payors which could be affected by the recently enacted U.S.
healthcare reform. The market for our products may also be
limited by the indications for which their use may be reimbursed
or the frequency at which they may be
administered.
The availability and levels of reimbursement by governmental and
other third-party payors affect the market for products such as
Iluvien and others that we may develop. These third-party payors
continually attempt to contain or reduce the costs of health
care by challenging the prices charged for medical products and
services. In the United States, we will need to obtain approvals
for payment for Iluvien from private insurers, including managed
care organizations, and from the Medicare program. In recent
years, through legislative and regulatory actions, the federal
government has made substantial changes to various payment
systems under the Medicare program. Comprehensive reforms to the
U.S. healthcare system were recently enacted, including
changes to the methods for, and amounts of, Medicare
reimbursement. These reforms could significantly reduce payments
from Medicare and Medicaid over the next ten years. Reforms or
other changes to these payment systems, including modifications
to the conditions on qualification for payment, bundling
payments or the imposition of enrollment limitations on new
providers, may change the availability, methods and rates of
reimbursements from Medicare, private insurers and other
third-party payors for Iluvien and our other potential products.
Some of these changes and proposed changes could result in
reduced reimbursement rates for Iluvien and our other potential
products, which would adversely affect our business strategy,
operations and financial results.
We expect that private insurers will consider the efficacy, cost
effectiveness and safety of Iluvien in determining whether to
approve reimbursement for Iluvien and at what level. Obtaining
these approvals can be a time consuming and expensive process.
Our business would be materially adversely affected if we do not
receive approval for reimbursement of Iluvien from private
insurers on a timely or satisfactory basis. Although drugs that
are not self-administered are covered by Medicare, the Medicare
program has taken the position that it can decide not to cover
particular drugs if it determines that they are not
reasonable and necessary for Medicare beneficiaries.
Limitations on coverage could also be imposed at the local
Medicare carrier level or by fiscal intermediaries. Our business
could be materially adversely affected if the Medicare program,
local Medicare carriers or fiscal intermediaries were to make
such a determination and deny or limit the reimbursement of
Iluvien. Our business also could be adversely affected if
retinal specialists are not reimbursed by Medicare for the cost
of the procedure in which they administer Iluvien on a basis
satisfactory to the administering retinal specialists. If the
local contractors that administer the Medicare program are slow
to reimburse retinal specialists for Iluvien, the retinal
specialists may pay us more slowly, which would adversely affect
our working capital requirements.
Our business could also be adversely affected if private
insurers, including managed care organizations, the Medicare
program or other reimbursing bodies or payors limit the
indications for which Iluvien will be reimbursed to a smaller
set than we believe it is effective in treating or establish a
limitation on the frequency with which Iluvien may be
administered that is less often than we believe would be
effective.
In some foreign countries, particularly Canada and the countries
of the European Union, the pricing of prescription
pharmaceuticals is subject to governmental control. In Canada,
each province has a publicly funded drug plan with each having
its own formulary citing specific criteria for reimbursement and
prior authorization. Each provincial government except
Québec considers the clinical and cost-effectiveness
recommendations of the Common Drug Review performed by the
Canadian Agency for Drugs and Technologies in Health.
Québec has a separate drug review process that is performed
by its Medication Council. In the European Union, each country
has a different reviewing body that evaluates reimbursement
dossiers submitted by manufacturers of new drugs and then makes
recommendations as to whether or not the drug should be
reimbursed. In these countries, pricing negotiations with
governmental authorities can take 12 months or longer after
the receipt of regulatory approval and product launch. To obtain
reimbursement or pricing approval in some countries, we may be
required to conduct a clinical trial that compares the
cost-effectiveness of our products, including Iluvien, to other
available therapies. If reimbursement for our products is
31
unavailable, limited in scope or amount, or if pricing is set at
unsatisfactory levels, our business could be materially harmed.
We expect to experience pricing pressures in connection with the
sale of Iluvien and our future products due to the potential
healthcare reforms discussed above, as well as the trend toward
programs aimed at reducing health care costs, the increasing
influence of health maintenance organizations and additional
legislative proposals.
We
face substantial competition, which may result in others
discovering, developing or commercializing products before or
more successfully than we do.
The development and commercialization of new drugs is highly
competitive and the commercial success of Iluvien will depend on
several factors, including, but not limited to, its efficacy and
side effect profile, reimbursement acceptance by private
insurers and Medicare, acceptance of pricing, the development of
our sales and marketing organization, an adequate payment to
physicians for the insertion procedure (based on a cost assigned
by the American Medical Association to the procedure, also known
as a CPT code) and our ability to differentiate Iluvien from our
competitors products. We will face competition from major
pharmaceutical companies, specialty pharmaceutical companies and
biotechnology companies worldwide with respect to Iluvien and
any products that we may develop or commercialize in the future.
Our competitors may develop products or other novel technologies
that are more effective, safer or less costly than any that we
are developing. Our competitors may also obtain FDA or other
regulatory approval for their products more rapidly than we may
obtain approval for ours. The active pharmaceutical ingredient
in Iluvien is FA, which is not protected by currently valid
patents. As a result, our competitors could develop an
alternative formulation or delivery mechanisms to treat diseases
of the eye with FA. We do not have the right to develop and sell
pSividas proprietary delivery device for indications for
diseases outside of the eye or for the treatment of uveitis.
Further, our agreement with pSivida permits pSivida to grant to
any other party the right to use its intellectual property
(i) to treat DME through an incision smaller than that
required for a 25-gauge needle, unless using a corticosteroid
delivered to the back of the eye, (ii) to deliver any
compound outside the back of the eye unless it is to treat DME
through an incision required for a 25-gauge or larger needle, or
(iii) to deliver non-corticosteroids to the back of the
eye, unless it is to treat DME through an incision required for
a 25-gauge or larger needle.
There are no ophthalmic drug therapies approved by the FDA for
the treatment of DME. Retinal specialists are currently using
laser photocoagulation and off-label therapies for the treatment
of DME, and may continue to use these therapies in competition
with Iluvien. Additional treatments for DME are in various
stages of preclinical or clinical testing. Later stage products
include Lucentis, a drug sponsored by Genentech, Inc., a
wholly-owned member of the Roche Group and Ozurdex, a drug
sponsored by Allergan, Inc. If approved, these treatments would
also compete with Iluvien. Other laser, surgical or
pharmaceutical treatments for DME may also compete against
Iluvien. These competitive therapies may result in pricing
pressure if we receive marketing approval for Iluvien, even if
Iluvien is otherwise viewed as a preferable therapy.
Many of our competitors have substantially greater financial,
technical and human resources than we have. Additional mergers
and acquisitions in the pharmaceutical and biotechnology
industries may result in even more resources being concentrated
by our competitors. Competition may increase further as a result
of advances made in the commercial applicability of technologies
and greater availability of capital for investment in these
fields.
We
currently do not have any collaborations with third-parties. We
expect to depend on collaborations to develop and commercialize
our products. If we are unable to identify or enter into an
agreement with any material third-party collaborator, if our
collaborations with any such third-party are not scientifically
or commercially successful or if our agreement with any such
third-party is terminated or allowed to expire, we could be
adversely affected financially or our business reputation could
be harmed.
Our business strategy includes entering into collaborations with
corporate and academic collaborators for the research,
development and commercialization of additional product
candidates. We currently do not have
32
any collaborations with third-parties. Areas in which we
anticipate entering into third-party collaboration arrangements
include joint sales and marketing arrangements for sales and
marketing of Iluvien outside of North America, and future
product development arrangements. If we are unable to identify
or enter into an agreement with any material third-party
collaborator we could be adversely affected financially or our
business reputation could be harmed. Any arrangements we do
enter into may not be scientifically or commercially successful.
The termination of any of these future arrangements might
adversely affect our ability to develop, commercialize and
market our products.
The success of our future collaboration arrangements will depend
heavily on the efforts and activities of our collaborators. Our
collaborators will have significant discretion in determining
the efforts and resources that they will apply to these
collaborations. We expect that the risks which we face in
connection with these future collaborations will include the
following:
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our collaboration agreements are expected to be for fixed terms
and subject to termination under various circumstances,
including, in many cases, on short notice without cause;
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we expect to be required in our collaboration agreements not to
conduct specified types of research and development in the field
that is the subject of the collaboration. These agreements may
have the effect of limiting the areas of research and
development that we may pursue, either alone or in cooperation
with third-parties;
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our collaborators may develop and commercialize, either alone or
with others, products and services that are similar to or
competitive with our products which are the subject of their
collaboration with us; and
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our collaborators may change the focus of their development and
commercialization efforts. In recent years there have been a
significant number of mergers and consolidations in the
pharmaceutical and biotechnology industries, some of which have
resulted in the participant companies reevaluating and shifting
the focus of their business following the completion of these
transactions. The ability of our products to reach their
potential could be limited if any of our future collaborators
decreases or fails to increase spending relating to such
products.
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Collaborations with pharmaceutical companies and other
third-parties often are terminated or allowed to expire by the
other party. With respect to our future collaborations, any such
termination or expiration could adversely affect us financially
as well as harm our business reputation.
We may
not be successful in our efforts to expand our portfolio of
products.
A key element of our strategy is to commercialize a portfolio of
new ophthalmic drugs in addition to Iluvien. We are seeking to
do so through our internal research programs and through
licensing or otherwise acquiring the rights to potential new
drugs and drug targets for the treatment of ophthalmic disease.
A significant portion of the research that we are conducting
involves new and unproven technologies. Research programs to
identify new disease targets and product candidates require
substantial technical, financial and human resources whether or
not we ultimately identify any candidates. Our research programs
may initially show promise in identifying potential product
candidates, yet fail to yield product candidates for clinical
development for a number of reasons, including:
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the research methodology used may not be successful in
identifying potential product candidates; or
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potential product candidates may on further study be shown to
have harmful side effects or other characteristics that indicate
they are unlikely to be effective drugs.
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We may be unable to license or acquire suitable product
candidates or products from third-parties for a number of
reasons. In particular, the licensing and acquisition of
pharmaceutical products is a competitive area. A number of more
established companies are also pursuing strategies to license or
acquire products in the ophthalmic field. These established
companies may have a competitive advantage over us due to their
size,
33
cash resources and greater clinical development and
commercialization capabilities. Other factors that may prevent
us from licensing or otherwise acquiring suitable product
candidates include the following:
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we may be unable to license or acquire the relevant technology
on terms that would allow us to make an appropriate return from
the product;
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companies that perceive us to be their competitors may be
unwilling to assign or license their product rights to
us; or
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we may be unable to identify suitable products or product
candidates within our areas of expertise.
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Additionally, it may take greater human and financial resources
to develop suitable potential product candidates through
internal research programs or by obtaining rights than we will
possess, thereby limiting our ability to develop a diverse
product portfolio.
If we are unable to develop suitable potential product
candidates through internal research programs or by obtaining
rights to novel therapeutics from third-parties, our business
will suffer.
We may
acquire additional businesses or form strategic alliances in the
future, and we may not realize the benefits of such
acquisitions.
We may acquire additional businesses or products, form strategic
alliances or create joint ventures with third-parties that we
believe will complement or augment our existing business. If we
acquire businesses with promising markets or technologies, we
may not be able to realize the benefit of acquiring such
businesses if we are unable to successfully integrate them with
our existing operations and company culture. We may have
difficulty in developing, manufacturing and marketing the
products of a newly acquired company that enhances the
performance of our combined businesses or product lines to
realize value from expected synergies. We cannot assure that,
following an acquisition, we will achieve the revenues or
specific net income that justifies the acquisition.
We
face the risk of product liability claims and may not be able to
obtain insurance.
Our business exposes us to the risk of product liability claims,
which is inherent in the manufacturing, testing and marketing of
drugs and related products. If the use of one or more of our
products harms people, we may be subject to costly and damaging
product liability claims. We have primary product liability
insurance that covers our clinical trials for a
$5.0 million general aggregate limit and excess product
liability insurance that covers our clinical trials for an
additional $5.0 million general aggregate limit. We intend
to expand our insurance coverage to include the sale of
commercial products if we obtain marketing approval for any of
the products that we may develop. We may not be able to obtain
or maintain adequate protection against potential liabilities.
If we are unable to obtain insurance at acceptable cost or
otherwise protect against potential product liability claims, we
will be exposed to significant liabilities, which may materially
and adversely affect our business and financial position. These
liabilities could prevent or interfere with our product
development and commercialization efforts.
In addition, our business is exposed to the risk of product
liability claims related to our sale and distribution of our
over-the-counter
dry eye product prior to its acquisition by Bausch &
Lomb Incorporated in July 2007. Our primary product liability
insurance and excess product liability insurance policies cover
product liability claims related to the product. To the extent
this insurance is insufficient to cover any product related
claims we may be exposed to significant liabilities, which may
materially and adversely affect our business and financial
condition.
If we
lose key management personnel, or if we fail to recruit
additional highly skilled personnel, it will impair our ability
to identify, develop and commercialize product
candidates.
We are highly dependent on principal members of our management
team, including C. Daniel Myers, our President and Chief
Executive Officer, Susan Caballa, our Senior Vice President of
Regulatory Affairs, and Kenneth Green, Ph.D., our Senior
Vice President and Chief Scientific Officer. These executives
each have
34
significant ophthalmic and regulatory industry experience. The
loss of any such executives or any other principal member of our
management team, would impair our ability to identify, develop
and market new products.
In addition, our growth will require us to hire a significant
number of qualified technical, commercial and administrative
personnel. There is intense competition from other companies and
research and academic institutions for qualified personnel in
the areas of our activities. If we cannot continue to attract
and retain, on acceptable terms, the qualified personnel
necessary for the continued development of our business, we may
not be able to sustain our operations or grow.
If our
contract research organizations (CROs), third-party vendors and
investigators do not successfully carry out their duties or if
we lose our relationships with them, our development efforts
with respect to Iluvien or any of our other product candidates
could be delayed.
We are dependent on CROs, third-party vendors and investigators
for preclinical testing and clinical trials related to our
discovery and development efforts with respect to Iluvien or any
of our other product candidates and we will likely continue to
depend on them to assist in our future discovery and development
efforts. These parties are not our employees and we cannot
control the amount or timing of resources that they devote to
our programs. If they fail to devote sufficient time and
resources to our development programs with respect to Iluvien or
any of our other product candidates or if their performance is
substandard, it will delay the development and commercialization
of our product candidates. The parties with which we contract
for execution of clinical trials play a significant role in the
conduct of the trials and the subsequent collection and analysis
of data. Their failure to meet their obligations could adversely
affect clinical development of our product candidates. Moreover,
these parties may also have relationships with other commercial
entities, some of which may compete with us. If they assist our
competitors, it could harm our competitive position.
If we lose our relationship with any one or more of these
parties, we could experience a significant delay in identifying
another comparable provider and contracting for its services. We
may be unable to retain an alternative provider on reasonable
terms, if at all. Even if we locate an alternative provider,
this provider may need additional time to respond to our needs
and may not provide the same type or level of service as the
original provider. In addition, any provider that we retain will
be subject to current Good Laboratory Practices (cGLP) and
similar foreign standards, and we do not have control over
compliance with these regulations by these providers.
Consequently, if these practices and standards are not adhered
to by these providers, the development and commercialization of
our product candidates could be delayed.
Our
products could be subject to restrictions or withdrawal from the
market and we may be subject to penalties if we fail to comply
with regulatory requirements, or if we experience unanticipated
problems with our products, when and if any of them is
approved.
Any product for which we obtain marketing approval, along with
the manufacturing processes, post-approval pharmacovigilance,
advertising and promotional activities for such product, will be
subject to continual requirements, review and periodic
inspections by the FDA and other regulatory bodies. Even if
regulatory approval of a product is granted, the approval may be
subject to limitations on the indicated uses for which the
product may be marketed or to the conditions of approval, or
contain requirements for costly post-marketing testing and
surveillance to monitor the safety or efficacy of the product.
Later discovery of previously unknown problems with our
products, manufacturer or manufacturing processes, or failure to
comply with regulatory requirements, may result in:
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restrictions on such products or manufacturing processes;
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withdrawal of the products from the market;
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voluntary or mandatory recall;
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fines;
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suspension of regulatory approvals;
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product seizure; and
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injunctions or the imposition of civil or criminal penalties.
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We may be slow to adapt, or we may never adapt, to changes in
existing regulatory requirements or adoption of new regulatory
requirements or policies.
Failure
to obtain regulatory approval in foreign jurisdictions would
prevent us from marketing our products abroad.
We intend to market our products outside North America with one
or more commercial partners. In order to market our products in
foreign jurisdictions, we will be required to obtain separate
regulatory approvals and comply with numerous and varying
regulatory requirements. The approval procedure varies among
countries and jurisdictions and can involve additional testing,
and the time required to obtain approval may differ from that
required to obtain FDA approval. Additionally, the foreign
regulatory approval process may include all of the risks
associated with obtaining FDA approval. For all of these
reasons, we may not obtain foreign regulatory approvals on a
timely basis, if at all. Approval by the FDA does not ensure
approval by regulatory authorities in other countries or
jurisdictions, and approval by one foreign regulatory authority
does not ensure approval by regulatory authorities in other
foreign countries or jurisdictions or by the FDA. We may not be
able to file for regulatory approvals and may not receive
necessary approvals to commercialize our products in any market.
The failure to obtain these approvals could harm our business
materially.
Our
product candidates may cause undesirable side effects or have
other properties that could delay or prevent their regulatory
approval or limit their marketability.
Undesirable side effects caused by our product candidates could
interrupt, delay or halt clinical trials and could result in the
denial of regulatory approval by the FDA or other regulatory
authorities for any or all targeted indications, and in turn
prevent us from commercializing our product candidates and
generating revenues from their sale. Possible side effects of
Iluvien include, but are not limited to, extensive blurred
vision, cataracts, eye irritation, eye pain, increased IOP,
which may increase the risk of glaucoma, ocular discomfort,
reduced visual acuity, visual disturbance, endophthalmitis, or
long-standing vitreous floaters.
In addition, if any of our product candidates receives marketing
approval and we or others later identify undesirable side
effects caused by the product, we could face one or more of the
following consequences:
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regulatory authorities may require the addition of labeling
statements, such as a black box warning or a
contraindication;
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regulatory authorities may withdraw their approval of the
product;
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we may be required to change the way that the product is
administered, conduct additional clinical trials or change the
labeling of the product; and
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our reputation may suffer.
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Any of these events could prevent us from achieving or
maintaining market acceptance of the affected product or could
substantially increase the costs and expenses of commercializing
the product candidate, which in turn could delay or prevent us
from generating significant revenues from its sale.
Risks
Related to Intellectual Property and Other Legal
Matters
If we
or our licensors are unable to obtain and maintain protection
for the intellectual property incorporated into our products,
the value of our technology and products will be adversely
affected.
Our success will depend in large part on our ability or the
ability of our licensors to obtain and maintain protection in
the United States and other countries for the intellectual
property incorporated into our products. The patent situation in
the field of biotechnology and pharmaceuticals generally is
highly uncertain and involves complex legal and scientific
questions. We or our licensors may not be able to obtain
additional issued patents relating to our technology. Our
success will depend in part on the ability of our licensors to
36
obtain, maintain (including making periodic filings and
payments) and enforce patent protection for their intellectual
property, in particular, those patents to which we have secured
exclusive rights. Under our license with pSivida, pSivida
controls the filing, prosecution and maintenance of all patents.
Our licensors may not successfully prosecute or continue to
prosecute the patent applications to which we are licensed. Even
if patents are issued in respect of these patent applications,
we or our licensors may fail to maintain these patents, may
determine not to pursue litigation against entities that are
infringing these patents, or may pursue such litigation less
aggressively than we ordinarily would. Without protection for
the intellectual property that we own or license, other
companies might be able to offer substantially identical
products for sale, which could adversely affect our competitive
business position and harm our business prospects. Moreover, FA
is an off-patent active ingredient that is commercially
available in several forms including the extended release ocular
implant Retisert.
Even if issued, patents may be challenged, narrowed,
invalidated, or circumvented, which could limit our ability to
stop competitors from marketing similar products or limit the
length of term of patent protection that we may have for our
products. In addition, our patents and our licensors
patents may not afford us protection against competitors with
similar technology.
Litigation
or third-party claims of intellectual property infringement
would require us to divert resources and may prevent or delay
our development, regulatory approval or commercialization of our
product candidates.
We may not have rights under some patents or patent applications
that may be infringed by our products or potential products.
Third-parties may now or in the future own or control these
patents and patent applications in the United States and abroad.
These third-parties could bring claims against us or our
collaborators that would cause us to incur substantial expenses
or divert substantial employee resources from our business and,
if successful, could cause us to pay substantial damages or
prevent us from developing one or more product candidates.
Further, if a patent infringement suit were brought against us
or our collaborators, we or they could be forced to stop or
delay research, development, manufacturing or sales of the
product or product candidate that is the subject of the suit.
Several issued and pending U.S. patents claiming methods
and devices for the treatment of eye diseases, including through
the use of steroids, implants and injections into the eye,
purport to cover aspects of Iluvien. For example, one of our
potential competitors holds issued and pending U.S. patents
with claims covering devices for injecting an ocular implant
into a patients eye similar to the Iluvien inserter. There
is also an issued U.S. patent with claims covering
implanting a steroidal anti-inflammatory agent to treat an
inflammation-mediated condition of the eye. If these or any
other patents were held by a court of competent jurisdiction to
be valid and to cover aspects of Iluvien, then the owners of
such patents would be able to block our ability to commercialize
Iluvien unless and until we obtain a license under such patents
(which license might require us to pay royalties or grant a
cross-license to one or more patents that we own), until such
patents expire or unless we are able to redesign our product to
avoid any such valid patents.
As a result of patent infringement claims, or in order to avoid
potential claims, we or our collaborators may choose to seek, or
be required to seek, a license from the third-party and would
most likely be required to pay license fees or royalties or
both. These licenses may not be available on acceptable terms,
or at all. Even if we or our collaborators were able to obtain a
license, the rights may be nonexclusive, which would give our
competitors access to the same intellectual property.
Ultimately, we could be prevented from commercializing a
product, or be forced to cease some aspect of our business
operations if, as a result of actual or threatened patent
infringement claims, we or our collaborators are unable to enter
into licenses on acceptable terms. This could harm our business
significantly.
There has been substantial litigation and other proceedings
regarding patent and other intellectual property rights in the
pharmaceutical and biotechnology industries. In addition to
infringement claims against us, we may become a party to other
patent litigation and other proceedings, including interference
proceedings declared by the U.S. Patent and Trademark
Office and opposition proceedings in the European Patent Office,
regarding intellectual property rights with respect to our
products and technology. The cost to us of any
37
litigation or other proceeding, regardless of its merit, even if
resolved in our favor, could be substantial. Some of our
competitors may be able to sustain the costs of such litigation
or proceedings more effectively than we can because of their
substantially greater financial resources. Uncertainties
resulting from the initiation and continuation of patent
litigation or other proceedings could have a material adverse
effect on our ability to compete in the marketplace.
Intellectual property litigation and other proceedings may,
regardless of their merit, also absorb significant management
time and employee resources.
If we
fail to comply with our obligations in the agreements under
which we license development or commercialization rights to
products or technology from third-parties, we could lose license
rights that are important to our business.
Our licenses are important to our business, and we expect to
enter into additional licenses in the future. We hold a license
from pSivida under intellectual property relating to Iluvien.
This license imposes various commercialization, milestone
payment, profit sharing, insurance and other obligations on us.
We also hold a license from Dainippon Sumitomo Pharma Co., Ltd.
under patents relating to Iluvien. This license imposes a
milestone payment and other obligations on us. If we fail to
comply with these obligations, the licensor may have the right
to terminate the applicable license, in which event we would not
be able to market products, such as Iluvien, that may be covered
by such license.
If we
are unable to protect the confidentiality of our proprietary
information and know-how, the value of our technology and
products could be adversely affected.
In addition to patented technology, we rely upon unpatented
proprietary technology, processes, trade secrets and know-how.
Any involuntary disclosure or misappropriation by third-parties
of our confidential or proprietary information could enable
competitors to quickly duplicate or surpass our technological
achievements, thus eroding our competitive position in our
market. We seek to protect confidential or proprietary
information in part by confidentiality agreements with our
employees, consultants and third-parties. While we require all
of our employees, consultants, advisors and any third-parties
who have access to our proprietary know-how, information and
technology to enter into confidentiality agreements, we cannot
be certain that this know-how, information and technology will
not be disclosed or that competitors will not otherwise gain
access to our trade secrets or independently develop
substantially equivalent information and techniques. These
agreements may be terminated or breached, and we may not have
adequate remedies for any such termination or breach.
Furthermore, these agreements may not provide meaningful
protection for our trade secrets and know-how in the event of
unauthorized use or disclosure. To the extent that any of our
staff were previously employed by other pharmaceutical or
biotechnology companies, those employers may allege violations
of trade secrets and other similar claims in relation to their
drug development activities for us.
If our
efforts to protect the proprietary nature of the intellectual
property related to our products are not adequate, we may not be
able to compete effectively in our markets.
The strength of our patents in the biotechnology and
pharmaceutical field involves complex legal and scientific
questions and can be uncertain. In addition to the rights we
have licensed from pSivida relating to our product candidates,
we rely upon intellectual property we own relating to our
products, including patents, patent applications and trade
secrets. As of April 16, 2010, we owned one pending
non-provisional U.S. utility patent application, one issued
U.S. design patent and one patent Cooperation Treaty
Application, relating to our inserter system for Iluvien. Our
patent applications may be challenged or fail to result in
issued patents and our existing or future patents may be too
narrow to prevent third-parties from developing or designing
around these patents.
As of April 16, 2010, the patent rights relating to Iluvien
licensed to us from pSivida include three U.S. patents that
expire between March 2019 and April 2020 and counterpart filings
to these patents in a number of other jurisdictions. No patent
term extension will be available for any of these
U.S. patents or any of our licensed U.S. pending
patent applications. After these patents expire in April 2020,
we will not be able to block others from marketing FA in an
insert similar to Iluvien in the U.S. Moreover, it is
possible that a
38
third-party could successfully challenge the scope (i.e.,
whether a patent is infringed), validity and enforceability of
our licensed patents prior to patent expiration and obtain
approval to market a competitive product.
Further, the patent applications that we license or have filed
may fail to result in issued patents. Some claims in pending
patent applications filed or licensed by us have been rejected
by patent examiners. These claims may need to be amended and,
even after amendment, a patent may not be permitted to issue.
Further, the existing or future patents to which we have rights
based on our agreement with pSivida may be too narrow to prevent
third-parties from developing or designing around these patents.
Additionally, we may lose our rights to the patents and patent
applications we license in the event of a breach or termination
of the license agreement. Manufacturers may also seek to obtain
approval to sell a generic version of Iluvien prior to the
expiration of the relevant licensed patents. If the sufficiency
of the breadth or strength of protection provided by the patents
we license with respect to Iluvien or the patents we pursue
related to another product candidate is threatened, it could
dissuade companies from collaborating with us to develop, and
threaten our ability to commercialize Iluvien and our other
product candidates. Further, if we encounter delays in our
clinical trials, the period of time during which we could market
Iluvien and our other product candidates under patent protection
would be reduced. We rely on trade secret protection and
confidentiality agreements to protect certain proprietary
know-how that is not patentable, for processes for which patents
are difficult to enforce and for any other elements of our
development processes with respect to Iluvien and our other
product candidates that involve proprietary know-how,
information and technology that is not covered by patent
applications. While we require all of our employees,
consultants, advisors and any third-parties who have access to
our proprietary know-how, information and technology to enter
into confidentiality agreements, we cannot be certain that this
know-how, information and technology will not be disclosed or
that competitors will not otherwise gain access to our trade
secrets or independently develop substantially equivalent
information and techniques. Further, the laws of some foreign
countries do not protect proprietary rights to the same extent
as the laws of the United States. As a result, we may encounter
significant problems in protecting and defending our
intellectual property both in the United States and abroad. If
we are unable to protect or defend the intellectual property
related to our technologies, we will not be able to establish or
maintain a competitive advantage in our market.
Third-party
claims of intellectual property infringement may prevent or
delay our discovery, development and commercialization efforts
with respect to Iluvien and our other product
candidates.
Our commercial success depends in part on avoiding infringement
of the patents and proprietary rights of third-parties.
Third-parties may assert that we are employing their proprietary
technology without authorization. In addition, at least several
issued and pending U.S. patents claiming methods and
devices for the treatment of eye diseases, including through the
use of steroids, implants and injections into the eye, purport
to cover aspects of Iluvien.
Although we are not currently aware of any litigation or other
proceedings or third-party claims of intellectual property
infringement related to Iluvien, the pharmaceutical industry is
characterized by extensive litigation regarding patents and
other intellectual property rights. Other parties may in the
future allege that our activities infringe their patents or that
we are employing their proprietary technology without
authorization. We may not have identified all the patents,
patent applications or published literature that affect our
business either by blocking our ability to commercialize our
product, by preventing the patentability of one or more aspects
of our products or those of our licensors or by covering the
same or similar technologies that may affect our ability to
market our product. We cannot predict whether we would be able
to obtain a license on commercially reasonable terms, if at all.
Any inability to obtain such a license under the applicable
patents on commercially reasonable terms, or at all, may have a
material adverse effect on our ability to commercialize Iluvien
or other products until such patents expire.
In addition, third-parties may obtain patents in the future and
claim that use of our product candidates or technologies
infringes upon these patents. Furthermore, parties making claims
against us may obtain injunctive or other equitable relief,
which could effectively block our ability to further develop and
commercialize one or more of our product candidates. Defense of
these claims, regardless of their merit, would involve
substantial litigation expense and would be a substantial
diversion of employee resources from our business. In the event
39
of a successful claim of infringement against us, we may have to
pay substantial damages, obtain one or more licenses from
third-parties or pay royalties, or we may be enjoined from
further developing or commercializing our product candidates and
technologies. In addition, even in the absence of litigation, we
may need to obtain licenses from third-parties to advance our
research or allow commercialization of our product candidates,
and we have done so from time to time. We may fail to obtain
future licenses at a reasonable cost or on reasonable terms, if
at all. In that event, we may be unable to further develop and
commercialize one or more of our product candidates, which could
harm our business significantly.
We may
become involved in lawsuits to protect or enforce our patents or
the patents of our licensors, which could be expensive, time
consuming and unsuccessful.
Competitors may infringe our patents or the patents of our
licensors. To counter infringement or unauthorized use, we may
be required to file infringement claims, which can be expensive
and time consuming. In addition, in an infringement proceeding,
a court may decide that a patent of ours or our licensors is not
valid or is unenforceable, or may refuse to stop the other party
from using the technology at issue on the grounds that our
patents do not cover the technology in question. An adverse
result in any litigation or defense proceedings could put one or
more of our patents at risk of being invalidated or interpreted
narrowly and could put our patent applications at risk of not
issuing.
Interference proceedings brought by the U.S. Patent and
Trademark Office may be necessary to determine the priority of
inventions with respect to our patents and patent applications
or those of our collaborators or licensors. An unfavorable
outcome could require us to cease using the technology or to
attempt to license rights to it from the prevailing party. Our
business could be harmed if a prevailing party does not offer us
a license on terms that are acceptable to us. Litigation or
interference proceedings may fail and, even if successful, may
result in substantial costs and distraction of our management
and other employees. We may not be able to prevent, alone or
with our licensors, misappropriation of our proprietary rights,
particularly in countries where the laws may not protect those
rights as fully as in the United States.
Furthermore, because of the substantial amount of discovery
required in connection with intellectual property litigation,
there is a risk that some of our confidential information could
be compromised by disclosure during this type of litigation. In
addition, there could be public announcements of the results of
hearings, motions or other interim proceedings or developments.
If securities analysts or investors perceive these results to be
negative, it could have a substantial adverse effect on the
price of our common stock.
Product
liability lawsuits could divert our resources, result in
substantial liabilities and reduce the commercial potential of
our products.
The risk that we may be sued on product liability claims is
inherent in the development of pharmaceutical products. We face
a risk of product liability exposure related to the testing of
our product candidates in clinical trials and will face even
greater risks upon any commercialization by us of our product
candidates. We believe that we may be at a greater risk of
product liability claims relative to other pharmaceutical
companies because our products are inserted into the eye, and it
is possible that we may be held liable for eye injuries of
patients who receive our product. These lawsuits may divert our
management from pursuing our business strategy and may be costly
to defend. In addition, if we are held liable in any of these
lawsuits, we may incur substantial liabilities and may be forced
to limit or forego further commercialization of one or more of
our products. Although we maintain primary product liability
insurance and excess product liability insurance that cover our
clinical trials, our aggregate coverage limit under these
insurance policies is $10.0 million, and while we believe
this amount of insurance is sufficient to cover our product
liability exposure, these limits may not be high enough to fully
cover potential liabilities. In addition, we may not be able to
obtain or maintain sufficient insurance coverage at an
acceptable cost or otherwise to protect against potential
product liability claims, which could prevent or inhibit the
commercial production and sale of our products.
40
Legislative
or regulatory reform of the health care system in the United
States and foreign jurisdictions may adversely impact our
business, operations or financial results.
Our industry is highly regulated and changes in law may
adversely impact our business, operations or financial results.
The Patient Protection and Affordable Care Act of 2010, as
amended by the Health Care and Education Reconciliation Act of
2010, or PPACA, is a sweeping measure intended to expand
healthcare coverage within the U.S., primarily through the
imposition of health insurance mandates on employers and
individuals and expansion of the Medicaid program. Several
provisions of the new law, which have varying effective dates,
may affect us and will likely increase certain of our costs. For
example, an increase in the Medicaid rebate rate from 15.1% to
23.1% is effective as of January 1, 2010, and the volume of
rebated drugs has been expanded to include beneficiaries in
Medicaid managed care organizations, effective as of
March 23, 2010. The PPACA also imposes an annual fee on
pharmaceutical manufacturers beginning in 2011, based on the
manufacturers sale of branded pharmaceuticals and
biologics (excluding orphan drugs); expands the 340B drug
discount program (excluding orphan drugs) including the creation
of new penalties for non-compliance; and includes a 50% discount
on brand name drugs for Medicare Part D participants in the
coverage gap, or doughnut hole. The law also revises
the definition of average manufacturer price for
reporting purposes (effective October 1, 2010), which could
increase the amount of our drug rebates to states, once the
provision is effective. Substantial new provisions affecting
compliance also have been added, which may require us to modify
our business practices with health care practitioners.
The reforms imposed by the new law will significantly impact the
pharmaceutical industry; however, the full effects of the PPACA
cannot be known until these provisions are implemented and the
Centers for Medicare & Medicaid Services and other
federal and state agencies issue applicable regulations or
guidance. Moreover, in the coming years, additional changes
could be made to governmental healthcare programs that could
significantly impact the success of our products candidates. We
will continue to evaluate the PPACA, as amended, the
implementation of regulations or guidance related to various
provisions of the PPACA by federal agencies, as well as trends
and changes that may be encouraged by the legislation and that
may potentially impact on our business over time.
In addition, in September 2007, the Food and Drug Administration
Amendments Act of 2007 was enacted, giving the FDA enhanced
post-marketing authority, including the authority to require
post-marketing studies and clinical trials, labeling changes
based on new safety information, and compliance with risk
evaluations and mitigation strategies approved by the FDA. The
FDAs exercise of this authority could result in delays or
increased costs during product development, clinical trials and
regulatory review, increased costs to ensure compliance with
post-approval regulatory requirements, and potential
restrictions on the sale
and/or
distribution of approved products.
Further, in some foreign countries, including the European Union
and Canada, the pricing of prescription pharmaceuticals is
subject to governmental control. In these countries, pricing
negotiations with governmental authorities can take six to
12 months or longer after the receipt of regulatory
approval and product launch. To obtain reimbursement or pricing
approval in some countries, we may be required to conduct a
clinical trial that compares the cost-effectiveness of our
product candidate to other available therapies. Our business
could be materially harmed if reimbursement of our products is
unavailable or limited in scope or amount or if pricing is set
at unsatisfactory levels.
If we
use hazardous and biological materials in a manner that causes
injury or violates applicable law, we may be liable for
damages.
Our research and development activities involve the controlled
use of potentially hazardous substances, including chemical and
biological materials. In addition, our operations produce
hazardous waste products. Federal, state and local laws and
regulations in both the United States and Canada govern the use,
manufacture, storage, handling and disposal of hazardous
materials. Although we believe that our procedures for use,
handling, storing and disposing of these materials comply with
legally prescribed standards, we may incur significant
additional costs to comply with applicable laws in the future.
Also, even if we are in compliance with applicable laws, we
cannot completely eliminate the risk of contamination or injury
resulting
41
from hazardous materials and we may incur liability as a result
of any such contamination or injury. In the event of an
accident, we could be held liable for damages or penalized with
fines, and the liability could exceed our resources. We do not
have any insurance for liabilities arising from hazardous
materials. Compliance with applicable environmental laws and
regulations is expensive, and current or future environmental
regulations may impair our research, development and production
efforts, which could harm our business, operating results and
financial condition.
We
have incurred operating losses in each year since our inception
and expect to continue to incur substantial and increasing
losses for the foreseeable future.
We have a limited operating history. We are not currently
generating revenues and we cannot estimate with precision the
extent of our future losses. We do not currently have any
products that have been approved for commercial sale and we may
never generate revenue from selling products or achieve
profitability. We expect to continue to incur substantial and
increasing losses through the anticipated commercial launch of
Iluvien as early as the first quarter of 2011, particularly as
we increase our research, clinical development, administrative
and sales and marketing activities. As a result, we are
uncertain when or if we will achieve profitability and, if so,
whether we will be able to sustain it. As of March 31,
2010, we have accumulated a net deficit of $171.7 million.
Our ability to achieve revenue and profitability is dependent on
our ability to complete the development of our product
candidates, obtain necessary regulatory approvals, and have our
products manufactured and marketed. We cannot assure you that we
will be profitable even if we successfully commercialize our
products. Failure to become and remain profitable may adversely
affect the market price of our common stock and our ability to
raise capital and continue operations.
Risks
Relating to Our Financial Results and Need for
Financing
Fluctuations
in our quarterly operating results and cash flows could
adversely affect the price of our common stock.
We expect our operating results and cash flows to be subject to
quarterly fluctuations. The revenues we generate, if any, and
our operating results will be affected by numerous factors,
including, but not limited to:
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the commercial success of our product candidates;
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the emergence of products that compete with our product
candidates;
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the status of our preclinical and clinical development programs;
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variations in the level of expenses related to our existing
product candidates or preclinical and clinical development
programs;
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execution of collaborative, licensing or other arrangements, and
the timing of payments received or made under those arrangements;
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any intellectual property infringement lawsuits to which we may
become a party; and
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regulatory developments affecting our product candidates or
those of our competitors,
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If our quarterly operating results fall below the expectations
of investors or securities analysts, the price of our common
stock could decline substantially. Furthermore, any quarterly
fluctuations in our operating results and cash flows may, in
turn, cause the price of our stock to fluctuate substantially.
We believe that quarterly comparisons of our financial results
are not necessarily meaningful and should not be relied upon as
an indication of our future performance.
We may
need additional financing in the event that we do not receive
regulatory approval for Iluvien or the approval is delayed or,
if approved, the future sales of Iluvien do not generate
sufficient revenues to fund our operations. This financing may
be difficult to obtain.
Prior to our IPO, we funded our operations through the private
placement of common stock, preferred stock and convertible debt,
as well as by the sale of certain assets of the non-prescription
business in which
42
we were previously engaged. As of March 31, 2010, we had
$14.2 million in cash and cash equivalents. On a pro forma
as adjusted basis to give effect to our IPO, as of
March 31, 2010 we had approximately $65.4 million in
cash and cash equivalents, which we believe is sufficient to
fund our operations through the projected commercialization of
Iluvien and the expected generation of revenue in 2011. The
commercialization of Iluvien is dependent upon approval by the
FDA, however, and we cannot be sure that Iluvien will be
approved by the FDA in the fourth quarter of 2010, if at all, or
that, if approved, future sales of Iluvien will generate enough
revenue to fund our operations beyond its commercialization. In
the event additional financing is needed, we may seek to fund
our operations through the sale of equity securities, strategic
collaboration agreements and debt financing. We cannot be sure
that additional financing from any of these sources will be
available when needed or that, if available, the additional
financing will be obtained on terms favorable to us or our
stockholders. If we raise additional funds by issuing equity
securities, substantial dilution to existing stockholders would
likely result and the terms of any new equity securities may
have a preference over our common stock. If we attempt to raise
additional funds through strategic collaboration agreements and
debt financing, we may not be successful in obtaining
collaboration agreements, or in receiving milestone or royalty
payments under those agreements, or the terms of the debt may
involve significant cash payment obligations as well as
covenants and specific financial ratios that may restrict our
ability to commercialize our product candidates or operate as a
business.
Risks
Related to Our Common Stock
Our
existing stockholders have the ability to control the outcome of
matters submitted for stockholder approval and may have
interests that differ from those of our other
stockholders.
As of the closing of our IPO, our existing stockholders, which
include certain executive officers, key employees and directors
and their affiliates, beneficially owned, in the aggregate,
approximately 84.71% of our outstanding common stock. As a
result, these stockholders, if acting together, may be able to
exercise significant influence over all matters requiring
stockholder approval, including the election of directors and
the approval of significant corporate transactions, and this
concentration of voting power may have the effect of delaying or
impeding actions that could be beneficial to you, including
actions that may be supported by our board of directors.
The
price of our common stock may be volatile and fluctuate
substantially, which could result in substantial losses for
investors.
The realization of any of the risks described in these risk
factors or other unforeseen risks could have a dramatic and
adverse effect on the market price of our common stock. In
addition, the stock markets, and in particular Nasdaq, have
experienced extreme price and volume fluctuations that have
affected and continue to affect the market prices of equity
securities of many pharmaceutical companies. These broad market
and industry factors may materially harm the market price of our
common stock irrespective of our operating performance. In the
past, following periods of volatility in the overall market and
the market price of a companys securities, securities
class action litigation has often been instituted against these
companies. This litigation, if instituted against us, could
result in substantial costs and a diversion of our
managements attention and resources. The following
factors, in addition to the other risk factors described in this
section, may also have a significant impact on the market price
of our common stock:
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actual or anticipated fluctuations in our results of operations;
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changes in, or our failure to meet, securities analysts
expectations;
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conditions and trends in the markets we serve;
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announcements of significant new services or solutions by us or
our competitors, including technological innovations;
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additions to or changes in key personnel;
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the commencement or outcome of litigation;
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changes in market valuation or earnings of our competitors;
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the trading volume of our common stock;
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future sales of our equity securities;
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changes in the estimation of the future size and growth rate of
our markets;
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legislation or regulatory policies, practices or
actions; and
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general economic conditions.
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We
currently do not intend to pay dividends on our common stock
and, consequently, your only opportunity to achieve a return on
your investment is if the price of our common stock
appreciates.
We do not anticipate that we will pay any cash dividends on
shares of our common stock for the foreseeable future. Any
determination to pay dividends in the future will be at the
discretion of our board of directors and will depend on results
of operations, financial condition, contractual restrictions,
restrictions imposed by applicable law and other factors our
board of directors deems relevant. Accordingly, realization of a
gain on your investment will depend on the appreciation of the
price of our common stock, which may never occur.
Significant
sales of our common stock could depress or reduce the market
price of our common stock, or cause our shares of common stock
to trade below the prices at which they would otherwise trade,
or impede our ability to raise future capital.
The market price of our common stock could drop as a result of
sales in the market by our existing stockholders of substantial
amounts of our common stock or the perception that these sales
could occur. All of the shares of common stock sold in our IPO
are freely tradable without restrictions or further registration
under the Securities Act, as amended, except for any shares
purchased by our affiliates as defined in Rule 144 under
the Securities Act. Rule 144 defines an affiliate as a
person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under
common control with, us and would include persons such as our
directors and executive officers.
The holders of substantially all of our outstanding common stock
prior to our IPO, including our officers and directors, entered
into lock-up
agreements with the underwriters of our IPO that, among other
things, prohibit the sale of shares of our common stock during
the period ending 180 days after the completion of our IPO,
subject to certain exceptions, without the written consent of
Credit Suisse Securities (USA) LLC and Citigroup Global Markets
Inc. After these
lock-up
agreements expire, the shares subject to these
lock-up
agreements will also be eligible for sale in the public market,
subject in some cases to volume limitations and manner of sale
requirements.
Actual or perceived significant sales of our common stock could
depress or reduce the market price of our common stock, or cause
our shares of common stock to trade below the prices at which
they would otherwise trade, or impede our ability to raise
future capital.
Future
sales and issuances of our equity securities or rights to
purchase our equity securities, including pursuant to our equity
incentive plans, would result in dilution of the percentage
ownership of our stockholders and could cause our stock price to
fall.
To the extent we raise additional capital by issuing equity
securities, our stockholders may experience substantial
dilution. We may sell common stock, convertible securities or
other equity securities in one or more transactions at prices
and in a manner we determine from time to time. If we sell
common stock, convertible securities or other equity securities
in more than one transaction, investors may be diluted by
subsequent sales. Such sales may also result in material
dilution to our existing stockholders, and new investors could
gain rights superior to existing stockholders.
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Pursuant to our 2010 Equity Incentive Plan, our board of
directors is authorized to grant stock options to our employees,
directors and consultants. The number of shares available for
future grant under our 2010 Equity Incentive Plan increases each
year by an amount equal to the lesser of 4% of all shares of our
capital stock outstanding as of January 1st of each
year, 2,000,000 shares, or such lesser number as determined
by our board of directors.
Anti-takeover
provisions in our charter and bylaws and in Delaware law could
prevent or delay acquisition bids for us that you might consider
favorable and could entrench current management.
We are a Delaware corporation and the anti-takeover provisions
of the Delaware General Corporation Law may deter, delay or
prevent a change in control by prohibiting us from engaging in a
business combination with an interested stockholder for a period
of three years after the person becomes an interested
stockholder, even if a change in control would be beneficial to
our existing stockholders. In addition, our restated certificate
of incorporation and bylaws may discourage, delay or prevent a
change in our management or control over us that stockholders
may consider favorable. Our restated certificate of
incorporation and bylaws:
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Authorize the issuance of blank check preferred
stock that could be issued by our board of directors to thwart a
takeover attempt;
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Do not provide for cumulative voting in the election of
directors, which would allow holders of less than a majority of
our outstanding common stock to elect some directors;
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Establish a classified board of directors, as a result of which
the successors to the directors whose terms have expired will be
elected to serve from the time of election and qualification
until the third annual meeting following their election;
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Require that directors only be removed from office for cause;
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Provide that vacancies on the board of directors, including
newly created directorships, may be filled only by a majority
vote of directors then in office;
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Limit who may call special meetings of stockholders;
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Prohibit stockholder action by written consent, requiring all
actions to be taken at a meeting of the stockholders; and
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Establish advance notice requirements for nominating candidates
for election to the board of directors or for proposing matters
that can be acted upon by stockholders at stockholder meetings.
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If
securities or industry analysts do not publish research or
reports or publish unfavorable research or reports about our
business, our stock price and trading volume could
decline.
The trading market for our common stock depends in part on the
research and reports that securities or industry analysts
publish about us, our business, our market or our competitors.
If one or more of the analysts who covers us downgrades our
stock, our stock price would likely decline. If one or more of
these analysts ceases to cover us or fails to regularly publish
reports on us, interest in our stock could decrease, which could
cause our stock price or trading volume to decline.
Our
ability to use our net operating loss carry-forwards may be
limited.
At March 31, 2010, we had U.S. federal and state net
operating loss (NOL) carryforwards of approximately
$80.6 million and $63.8 million, respectively, which
expire at various dates beginning in 2018 through 2029.
Section 382 of the Internal Revenue Code limits the annual
utilization of NOL carryforwards and tax credit carryforwards
following an ownership change in our company. If it is
determined that significant ownership changes have occurred
since we generated these NOL carryforwards, we may be subject to
annual limitations on the use of these NOL carryforwards under
Internal Revenue Code Section 382 (or comparable provisions
of state law).
45
We
incur significant increased costs as a result of operating as a
public company, and our management is required to devote
substantial time to new compliance initiatives.
As a public company, we incur significant legal, accounting and
other expenses that we did not incur as a private company. The
Sarbanes-Oxley Act, as well as rules subsequently implemented by
the Securities and Exchange Commission and Nasdaq, have imposed
various new requirements on public companies, including
requiring establishment and maintenance of effective disclosure
and financial controls and changes in corporate governance
practices. Our management and other personnel are required to
devote a substantial amount of time to these new compliance
initiatives. Moreover, these rules and regulations have
increased our legal and financial compliance costs and have made
some activities more time consuming and costly. These rules and
regulations may make it more difficult and more expensive for us
to maintain our existing director and officer liability
insurance or to obtain similar coverage from an alternative
provider.
The Sarbanes-Oxley Act requires, among other things, that we
maintain effective internal controls for financial reporting and
disclosure controls and procedures. In particular, pursuant to
Section 404 of the Sarbanes-Oxley Act (Section 404), we will be
required to perform system and process evaluation and testing of
our internal controls over financial reporting to allow
management and our independent registered public accounting firm
to report, commencing in our annual report on
Form 10-K
for the year ending December 31, 2011, on the effectiveness
of our internal controls over financial reporting. Our testing,
or the subsequent testing by our independent registered public
accounting firm, may reveal deficiencies in our internal
controls over financial reporting that are deemed to be material
weaknesses. Our compliance with Section 404 will require
that we incur substantial accounting expense and expend
significant management efforts. We currently do not have an
internal audit group, and we will need to hire additional
accounting and financial staff. Moreover, if we are not able to
comply with the requirements of Section 404 in a timely
manner or if we or our independent registered public accounting
firm identifies deficiencies in our internal controls over
financial reporting that are deemed to be material weaknesses,
the market price of our stock could decline and we could be
subject to sanctions or investigations by Nasdaq, the SEC or
other regulatory authorities, which would require additional
financial and management resources.
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ITEM 2
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Unregistered
Sales of Equity Securities and Use of Proceeds
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On January 8, 2010 warrants to purchase shares of our
Series C-1
preferred stock were exercised resulting in $10.0 million
in gross proceeds and the issuance of 1,935,700 additional
shares of
Series C-1
preferred stock.
During the three months ended March 31, 2010, 39,688
warrants to purchase shares of our common stock were exercised
at a weighted average exercise price of $4.03 per share
resulting in gross proceeds of $148,000.
On April 21, 2010, our Registration Statement on
Form S-1
was declared effective by the SEC for our IPO, pursuant to which
we sold 6,550,000 shares of our common stock at a public
offering price of $11.00 per share. We received net proceeds of
approximately $68.4 million from this transaction, after
underwriting discounts and commissions. On April 27, 2010
we used $15.2 million of the proceeds to pSivida to satisfy
our $15.0 million note payable and accrued but unpaid
interest. We anticipate using the remaining net proceeds from
the exercise of warrants to purchase shares of our preferred
stock and common stock in part as follows:
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approximately $13.0 million to complete the clinical
development and registration of Iluvien for DME;
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$25.0 million to pay a milestone payment to pSivida upon
the FDA approval of Iluvien pursuant to our agreement with
pSivida; and
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to commence the commercial launch of Iluvien, to continue to
develop our product pipeline and for working capital and other
general corporate purposes.
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There have been no other material changes to our contractual
obligations and commitments outside the ordinary course of
business from those disclosed in our final prospectus filed
pursuant to Rule 424(b) under the Securities Act with the
Securities and Exchange Commission on April 22, 2010.
46
|
|
|
|
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Exhibit
|
|
|
Number
|
|
Description
|
|
|
31
|
.1
|
|
Certification of the Principal Executive Officer, as required by
Section 302 of the Sarbanes-Oxley Act of 2002.
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31
|
.2
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Certification of the Principal Financial Officer, as required by
Section 302 of the Sarbanes-Oxley Act of 2002.
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32
|
.1
|
|
Certification of the Chief Executive Officer and Chief Financial
Officer, as required by Section 906 of the Sarbanes-Oxley
Act of 2002.
|
The certification attached as Exhibit 32.1 that accompanies
this Quarterly Report on
Form 10-Q
is not deemed filed with the Securities and Exchange Commission
and is not to be incorporated by reference into any filing of
Alimera Sciences, Inc. under the Securities Act of 1933, as
amended, or the Securities Exchange Act of 1934, as amended,
whether made before or after the date of this Quarterly Report
on
Form 10-Q,
irrespective of any general incorporation language contained in
such filing.
47
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
Alimera Sciences, Inc.
C. Daniel Myers
Chief Executive Officer and President
(Principal executive officer)
June 7, 2010
/s/ Richard
S. Eiswirth, Jr.
Richard S. Eiswirth, Jr.
Chief Financial Officer
(Principal financial and accounting officer)
June 7, 2010
48
ALIMERA
SCIENCES, INC.
EXHIBIT INDEX
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
31
|
.1
|
|
Certification of the Principal Executive Officer, as required by
Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
31
|
.2
|
|
Certification of the Principal Financial Officer, as required by
Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
32
|
.1
|
|
Certification of the Chief Executive Officer and Acting Chief
Financial Officer, as required by Section 906 of the
Sarbanes-Oxley Act of 2002.
|
The certification attached as Exhibit 32.1 that accompanies
this Quarterly Report on
Form 10-Q
is not deemed filed with the Securities and Exchange Commission
and is not to be incorporated by reference into any filing of
Alimera Sciences, Inc. under the Securities Act of 1933, as
amended, or the Securities Exchange Act of 1934, as amended,
whether made before or after the date of this Quarterly Report
on
Form 10-Q,
irrespective of any general incorporation language contained in
such filing.
49