BAUDAX BIO, INC. The following Management's Discussion and Analysis of Financial Condition and Results of Operations should be read in conjunction with the interim unaudited financial statements contained in Part I, Item 1 of this Quarterly Report, and the audited financial statements and notes thereto for the year endedDecember 31, 2021 and the related Management's Discussion and Analysis of Financial Condition and Results of Operations, both of which are contained in our Annual Report on Form 10-K for the year endedDecember 31, 2021 , filed with theSEC onMarch 16, 2022 . As used in this Quarterly Report, unless the context suggests otherwise, "we," "us," "our," the "Company" or "Baudax Bio" refer toBaudax Bio, Inc. and its consolidated subsidiaries.
Overview
We are a pharmaceutical company primarily focused on innovative products for hospital and related acute care settings. We believe that we can bring valuable therapeutic options for patients, prescribers and payers to the hospital and related acute care markets. In mid-2020, we launched our first commercial product, ANJESO, inthe United States . ANJESO is the first and only 24-hour, intravenous, or IV, analgesia agent. ANJESO is a cyclooxygenase-2, or COX-2, preferential, non-steroidal anti-inflammatory, or NSAID, for the management of moderate to severe pain, which can be administered alone or in combination with other non-NSAID analgesics. We have successfully completed three Phase III clinical trials, including two pivotal efficacy trials, a large double-blind Phase III safety trial and two Phase IIIb programs evaluating ANJESO clinical safety and efficacy along with its health economic impacts in specific surgical settings. We utilize our internal field team and collaborate with contracted third parties, to market ANJESO to health care professionals at key targeted institutions for the commercialization of ANJESO inthe United States . TheCenters for Medicare and Medicaid Services , or CMS, established a unique J-code for ANJESO in the fourth quarter of 2020. ANJESO has transitional pass-through status under traditional Medicare plans for a period of 3 years, thereby providing separate reimbursement for ANJESO when used for surgical procedures in the outpatient setting. We have also entered into agreements with leading group purchasing organizations in theU.S. , includingVizient Inc. , Premier Inc. and HealthTrust, as well as one of the top three integrated delivery networks that serves over twelve million patients nationwide, for availability of ANJESO to their member institutions and with a leading operator of surgical facilities and ancillary services nationally, with over 150 locations nationwide. In addition, ANJESO is currently approved for use within theDepartment of Veterans Affairs , theDepartment of Defense ,Indian Health Service , 340B covered entities, and multiple state Medicaid programs. We are continuing to evaluate strategic partnerships for the commercialization of ANJESO both inthe United States and outsidethe United States . We have seen continued growth of ANJESO in the second quarter of 2022 through deepening usage at existing accounts, particularly in the hospital setting where we saw a growth of 12% in vials sold to hospitals compared to the first quarter of 2022. Further, this growth came through the addition of several new key accounts as well as a resurgence by some accounts that ordered early on in the commercialization of ANJESO. The second quarter of 2022 was our second best quarter since launch, a decrease of 9% from the first quarter of 2022, which was our strongest quarter to date. The number of vials sold to end-users increased approximately 67% in the second quarter of 2022 compared to the second quarter of prior year. Our costs consist primarily of expenses incurred in conducting our manufacturing, commercialization of ANJESO, public company and personnel costs, clinical trials and preclinical studies, and regulatory activities. We expect to incur operating losses for at least the next few years. We expect substantially all of our operating losses to result from costs incurred in connection with our commercialization activities, including manufacturing costs, and development programs, including our clinical, non-clinical and formulation development activities. Our expenses over the next several years are expected to primarily relate to commercialization activities and continuing to develop our other current and future product candidates. In addition, we may incur costs associated with the acquisition or in-license of products and successful commercialization of the acquired or in-licensed products.
Our pipeline also includes other early-stage product candidates, including two novel NMBs and a related proprietary chemical reversal agent and Dex-IN, a proprietary intranasal formulation of dexmedetomidine, or Dex, an alpha-2 adrenergic agonist that we are evaluating for possible partnering.
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--------------------------------------------------------------------------------COVID-19 Impact
Our efforts to commercialize ANJESO were impacted in 2020, 2021, and continue to impact us in 2022 on a variable basis depending on the timing, location and extent of the outbreaks. There may continue to be impact from the COVID-19 pandemic, particularly in light of the surge of new COVID-19 cases relating to new variants, and any new and potentially more virulent variants that may emerge. Intermittent impacts in the reduction of elective surgeries have occurred and this has had an impact in the recent quarter, especially in January and February. Overall, many centers have yet returned to pre-COVID levels of surgeries even where the impact of COVID-19 and its variants have not been as great. In addition, COVID-19 has impacted revenue for many hospitals, caused a reduction in hospital staffing, lead to a diversion in resources from other normal activities to patients suffering from COVID-19, and caused a limitation in hospital access for nonpatients, including our sales professionals, which we believe has impacted and will continue to impact our marketing and commercialization efforts. Further, hospitals and ambulatory surgical centers may experience staffing shortages as a result of employee non-compliance with government or employer mandated vaccination requirements, which could reduce the number of elective surgeries that can be performed at hospitals with staffing shortages. We believe a reduction in elective surgeries during the COVID-19 pandemic has impacted and may continue to impact demand for ANJESO. We anticipate that many hospitals and health care providers will continue to suffer negative financial consequences due to an increase in unexpected costs, including for personal protective equipment and ventilators, and this impact may result in ongoing decreased revenue. If fewer elective procedures are being performed, we believe this may negatively impact ANJESO growth rates. In addition, in some areas the absence of hospital formulary meetings where new drugs can be adopted has had ongoing variable impact on our efforts to commercialize ANJESO. Many hospital formularies have resumed meetings after a 6-month, or longer, absence. Despite the existence of a backlog of products scheduled to be reviewed, we believe we will make progress with having ANJESO added to additional hospital formularies over the near term. Due to the rapidly evolving environment, continued uncertainties from the impact of the COVID-19 global pandemic, and the recent regional outbreaks that are impacting the recovery, we cannot estimate the full extent to which our commercialization of ANJESO and financial results may be adversely impacted.
2022 Reduction in Force
Due to our current cash position, in March of 2022, we implemented a reduction in workforce by approximately 66 employees (representing approximately 80% of our total workforce), including 43 members of our sales force. The reorganization was substantially completed by the end of the second quarter and approximately$4.1 million of charges were incurred for severance and other related costs. The reduction in force was designed to substantially reduce our operational expenses and conserve cash resources.
Financial Overview
Revenue
We sell ANJESO in theU.S. through a single third-party logistics provider, or 3PL, which takes title to and control of the goods, and is considered our customer. We recognize revenue from ANJESO product sales at the point the title to the product is transferred to the customer and the customer obtains control of the product. The transaction price that is recognized as revenue for products includes an estimate of variable consideration for reserves, which result from discounts, returns, chargebacks, rebates, and other allowances that are offered within contracts between us and our end-user customers, wholesalers, group purchasing organizations and other indirect customers. Our estimates of variable consideration and determination of whether to include estimated amounts in the transaction price are based largely on an assessment of its anticipated performance and all information (historical, current and forecasted) that is reasonably available. These reserves reflect our best estimate of the amount of consideration to which we are entitled based on the terms of the contracts. The amount of variable consideration that is included in the transaction price may be constrained and is included in the net sales price only to the extent that is considered probable that a significant reversal in the amount of the cumulative revenue recognized will not occur in a future period. Actual amounts of consideration ultimately received may differ from our estimates. If actual results in the future vary from our estimates, we will adjust these estimates, which would affect net product revenue and earnings in the period such variances become known.
Cost of Sales
Cost of sales includes product costs, manufacturing costs, transportation and
freight, royalty expense, qualification costs for a secondary manufacturing
suite for increased available capacity and indirect overhead costs associated
with the manufacturing and distribution of ANJESO including supply chain and
quality personnel costs. Cost of sales may also include period costs related to
certain manufacturing services and inventory adjustment charges. We expensed a
significant portion of the cost of producing ANJESO that we are using in the
commercialization as research and development expense prior to the regulatory
approval of ANJESO. We expect that over time, product costs in cost of sales
will increase as sales increase and inventory associated with the units
manufactured prior to FDA approval are sold.
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--------------------------------------------------------------------------------Research and Development Expenses
Research and development expenses currently consist primarily of costs incurred in connection with the pediatric development of ANJESO and the NMB portfolio activities. These expenses consist primarily of:
•
expenses incurred under agreements with investigative sites, consultants and other service providers that conduct or support our clinical and pre-clinical trials;
•
the cost of acquiring and manufacturing clinical trial drug supply and related manufacturing services and pre-commercial product validation and inventory manufacturing expenses;
•
costs related to facilities, depreciation and other allocated expenses;
•
acquired in-process research and development;
•
costs associated with regulatory activities and responses to the FDA; and
•
salaries and related costs for personnel in research and development and pre-commercial regulatory functions.
The majority of our external research and development costs have related to clinical trials, manufacturing of drug supply for pre-commercial products, analysis and testing of product candidates and patent costs. We expense costs related to clinical inventory and pre-commercial inventory until we receive approval from the FDA to market a product, at which time we commence capitalization of costs relating to that product to inventory. Costs related to facilities, depreciation and support are not charged to specific programs. Subsequent to regulatory approval of ANJESO, we allocated or recategorized certain personnel and overhead expenses related to medical affairs, supply chain, quality and regulatory support functions that had previously been recorded within research and development, to cost of sales or selling, general and administrative expenses in support of the commercialization of ANJESO. Pre-commercial activities directly utilizing personnel and overhead expenses from the medical affairs, supply chain, quality and regulatory support function continue to be recorded within research and development.
The development of our other product candidates is highly uncertain and subject to a number of risks, including, but not limited to:
•
the costs, timing and outcome of regulatory review of a product candidate;
•
the duration of clinical trials, which varies substantially according to the type, complexity and novelty of the product candidate;
•
substantial requirements on the introduction of pharmaceutical products imposed by the FDA and comparable agencies in foreign countries, which require lengthy and detailed laboratory and clinical testing procedures, sampling activities and other costly and time-consuming procedures;
•
the possibility that data obtained from pre-clinical and clinical activities at any step in the testing process may be adverse and lead to discontinuation or redirection of development activity or may be susceptible to varying interpretations, which could delay, limit or prevent regulatory approval;
•
risk involved with development of manufacturing processes, FDA pre-approval inspection practices and successful completion of manufacturing batches for clinical development and other regulatory purposes;
•
the emergence of competing technologies and products, including obtaining and maintaining patent protections, and other adverse market developments, which could impede our commercial efforts; and
•
the other risks disclosed in the sections titled "Risk Factors" of our 2021 Annual Report and this Quarterly Report.
Development timelines, probability of success and development costs vary widely.
As a result of the uncertainties discussed above, we will assess our product
candidate's commercial potential and our available capital resources. As a
result of these uncertainties surrounding the timing and outcome of any
approval, we are currently unable to estimate precisely when, if ever, any of
our product candidates will generate revenues and cash flows.
We expect our research and development costs to relate to ANJESO, including
required pediatric post-marketing studies, as well as development and
commercialization scale-up of our other product candidates. We may elect to seek
collaborative relationships in order to provide us with a diversified revenue
stream and to help facilitate the development and commercialization of our
product candidate pipeline.
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--------------------------------------------------------------------------------Selling, General and Administrative Expenses
Selling, general and administrative expenses consist of sales and marketing expenses and general and administrative expenses.
Sales and marketing expenses primarily consist of compensation and benefits for our sales force and personnel that support our sales and marketing efforts as well as third party consulting costs for the promotion and sale of ANJESO. In addition, sales and marketing expenses include expenses related to communicating the clinical and economic benefits of ANJESO and educational programs for our indirect customers. General and administrative expenses consist principally of salaries and related costs for personnel in executive, finance and information technology functions, as well as the commercial portion of the medical affairs and regulatory functions. General and administrative expenses also include public company costs, directors and officer's insurance, professional fees for legal, including patent-related expenses, consulting, auditing, and tax services. Our selling, general and administrative expenses decreased in the quarter endedJune 30, 2022 as a result of a reduction in personnel and marketing costs, and we expect our selling, general and administrative expenses to remain relatively constant in the near term.
Change in Fair Value of Contingent Consideration
In connection with the Separation, we entered into an Assignment and a Partial Assignment, Assumption and Bifurcation Agreement, or the Alkermes Agreements, relating to the Purchase and Sale Agreement for the acquisition of certain assets, including the worldwide rights to injectable meloxicam and Societal CDMO's development, formulation and manufacturing business from Alkermes, or the Alkermes Transaction, as amended inDecember 2018 andAugust 2020 . Pursuant to the Alkermes Agreements, we are required to pay up to$140.0 million in milestone payments, including$10.0 million that was paid during 2019,$3.6 million paid in 2020, another$1.4 million paid in 2021, and$45.0 million over seven years beginning one year after approval, of which the first payment was made in the first quarter of 2021 and a partial payment was made on the second payment of$1.0 million , which was due in the first quarter of 2022, with monthly payments of$0.2 million paid thereafter until fully paid, as well as net sales milestones and a royalty percentage of future product net sales related to injectable meloxicam between 10% and 12% (subject to a 30% reduction when no longer covered by patent), which is paid quarterly. The estimated fair value of the initial$54.6 million payment obligation was recorded as part of the purchase price for the Alkermes Transaction. We have continued to reevaluate the fair value each subsequent period and as ofJune 30, 2022 recorded a$20.4 million payment obligation, representing the estimated probability adjusted fair value of the liability. Each reporting period, we revalue this estimated obligation with changes in fair value recognized as a non-cash operating expense or gain. As ofJune 30, 2022 , we have paid$22.4 million in milestone payments to Alkermes. Interest Expense Interest expense for the periods presented primarily includes interest expense incurred on our Credit Agreement with MAM Eagle Lender, the amortization of related financing costs, and interest expense on a promissory note with PNC Bank under the Paycheck Protection Program ("PPP") of the Coronavirus Aid, Relief and Economic Security Act of 2020 (the "CARES Act") administered by theSmall Business Administration (the "SBA"), which was fully forgiven during the year endedDecember 31, 2021 . Income Taxation
We maintained a valuation allowance against our deferred tax assets as of
34
--------------------------------------------------------------------------------Results of Operations
Comparison of the Three Months Ended
Three Months Ended June 30,
2022 2021
(amounts in thousands)
Revenue, net $ 300 $ 201
Operating expenses:
Cost of sales 361 586
Research and development 912 857
Selling, general and administrative 4,029 10,608
Amortization of intangible assets 644
644
Change in warrant valuation (1 ) (59 ) Change in contingent consideration valuation 1,327 3,881 Total operating expenses 7,272 16,517 Operating loss (6,972 ) (16,316 ) Other expense: Other expense, net (559 ) 987 Net loss$ (7,531 ) $ (15,329 ) Revenue, net. For the three months endedJune 30, 2022 and 2021, net product revenue was$0.3 million and$0.2 million , respectively, related to sales of ANJESO in theU.S. While utilizing the title model of distribution, product revenue is recognized as shipments are made to our 3PL provider. The increase of$0.1 million was attributable to securing additional formulary approvals and generating trial and adoption of ANJESO, as well as increased end-user demand leading to increased purchasing by direct customers. Cost of Sales. Our cost of sales was$0.4 million and$0.6 million for the three months endedJune 30, 2022 and 2021, respectively, and consists of product costs, royalty expense and certain fixed costs associated with the manufacturing of ANJESO, including supply chain and quality costs. We expensed costs associated with the manufacturing of our products as research and development prior to regulatory approval. Certain product costs of ANJESO units recognized as revenue during the three months endedJune 30, 2022 and 2021 were expensed prior to FDA approval of ANJESO inFebruary 2020 , and therefore are not included in cost of sales during the related periods. We expect that over time, product costs in cost of sales will increase as sales increase and inventory associated with the units manufactured prior to FDA approval are sold. The decrease of$0.2 million was primarily a result of the reduction in manufacturing costs, including production and storage costs, in the current year compared to the prior year of$0.2 million .
Research and Development. Our research and development expenses were
Selling, General and Administrative. Our selling, general and administrative expenses were$4.0 million and$10.6 million for the three months endedJune 30, 2022 and 2021, respectively. The decrease of$6.6 million was primarily a result of a reduction in personnel costs of$3.9 million , a decrease in marketing costs of$1.3 million , a decrease in public company costs of$1.0 million , and a decrease in both consulting and travel expenses of$0.2 million . Amortization of Intangible Assets. Amortization expense was$0.6 million for each of the three months endedJune 30, 2022 and 2021, which was related to the amortization of our intangible asset resulting from research and development activities over its estimated useful life. Change in Contingent Consideration Valuation. The change in contingent consideration valuation was an increase in value of$1.3 million for the three months endedJune 30, 2022 and an increase in value of$3.9 million for the three months endedJune 30, 2021 . The non-cash charge for contingent consideration in each period related to the revaluation of the probability-adjusted fair value of the Alkermes Transaction payment obligation. The increase in contingent consideration value for the three months endedJune 30, 2022 was primarily due to the time value of money as we progress closer to payment of the contingent consideration liability. The increase in contingent consideration valuation for the three months endedJune 30, 2021 was primarily due to the time value of money and change in interest rates. Other Expense, net. Other expense was$0.6 million for the three months endedJune 30, 2022 and other income was$1.0 million for the three months endedJune 30, 2021 , The change in other income (expense) of$1.6 million was primarily due to the gain on extinguishment of the PPP Loan of$1.6 million in the previous year upon the approval of our application for forgiveness. 35 --------------------------------------------------------------------------------
Comparison of the Six Months Ended
Six Months Ended June 30,
2022 2021
(amounts in thousands)
Revenue, net $ 722 $ 399
Operating expenses:
Cost of sales 1,009 1,407
Research and development 2,205 1,965
Selling, general and administrative 18,219 22,696
Amortization of intangible assets 1,288
1,288
Change in warrant valuation (6 ) (41 ) Change in contingent consideration valuation (2,476 ) 5,722 Total operating expenses 20,239 33,037 Operating loss (19,517 ) (32,638 ) Other expense: Other expense, net (823 ) 397 Net loss$ (20,340 ) $ (32,241 ) Revenue, net. For the six months endedJune 30, 2022 and 2021, net product revenue was$0.7 million and$0.4 million , respectively, related to sales of ANJESO in theU.S. While utilizing the title model of distribution, product revenue is recognized as shipments are made to our 3PL provider. The increase of$0.3 million was attributable to securing additional formulary approvals and generating trial and adoption of ANJESO, as well as increased end-user demand leading to increased purchasing by direct customers. Cost of Sales. Our cost of sales was$1.0 million and$1.4 million for the six months endedJune 30, 2022 and 2021, respectively, and consists of product costs, royalty expense and certain fixed costs associated with the manufacturing of ANJESO, including supply chain and quality costs. We expensed costs associated with the manufacturing of our products as research and development prior to regulatory approval. Certain product costs of ANJESO units recognized as revenue during the six months endedJune 30, 2022 and 2021 were expensed prior to FDA approval of ANJESO inFebruary 2020 , and therefore are not included in cost of sales during the related periods. We expect that over time, product costs in cost of sales will increase as sales increase and inventory associated with the units manufactured prior to FDA approval are sold. The decrease of$0.4 million was primarily a result of the reduction in scrap expense recorded in the current year compared to the prior year of$0.2 million and a decrease in manufacturing costs, including reductions in production and storage costs, of$0.2 million .
Research and Development. Our research and development expenses were
Selling, General and Administrative. Our selling, general and administrative expenses were$18.2 million and$22.7 million for the six months endedJune 30, 2022 and 2021, respectively. The decrease of$4.5 million was primarily a result of a reduction in personnel costs of$1.6 million , a decrease in public company costs of$1.4 million , a decrease in marketing costs of$1.1 million , and a decrease in consulting expenses of$0.4 million . Amortization of Intangible Assets. Amortization expense was$1.3 million for each of the six months endedJune 30, 2022 and 2021, which was related to the amortization of our intangible asset resulting from research and development activities over its estimated useful life. Change in Contingent Consideration Valuation. The change in contingent consideration valuation was a decrease in value of$2.5 million for the six months endedJune 30, 2022 and an increase in value of$5.7 million for the six months endedJune 30, 2021 . The non-cash charge for contingent consideration in each period related to the revaluation of the probability-adjusted fair value of the Alkermes Transaction payment obligation. The decrease in contingent consideration value for the six months endedJune 30, 2022 was primarily due to updated forecasts for ANJESO due to the significant reduction of our commercial team, partially offset by the increase for the time value of money. The increase in contingent consideration valuation for the six months endedJune 30, 2021 was primarily due to the time value of money and change in interest rates, partially offset by adjusted timing of estimated milestone and royalty payments due to updated forecasts reflecting an estimate of the launch trajectory of ANJESO. 36 -------------------------------------------------------------------------------- Other Expense, net. Other expense was$0.8 million for the six months endedJune 30, 2022 and other income was$0.4 million for the six months endedJune 30, 2021 . The change in other income (expense) of$1.2 million was primarily due to the gain on extinguishment of the PPP Loan of$1.6 million in the previous year upon the approval of our application for forgiveness, partially offset by other income in the current year for the settlement of a patent infringement claim of$0.3 million .
Liquidity and Capital Resources
As of
OnMay 17, 2022 , we closed a registered direct offering of 1,646,091 shares of our common stock, par value$0.01 per share, and in a concurrent private placements, warrants exercisable for up to an aggregate of 1,646,091 shares of common stock at a combined offering price of$1.215 per share and associated warrant. The warrants have an exercise price of$1.09 per share. Each warrant is exercisable for one share of common stock and was exercisable immediately upon issuance. The warrants have a term of five years from the issuance date. As compensation toH.C. Wainwright & Co., LLC as placement agent in connection with the offering, we agreed to pay to the placement agent a cash fee of 7.0% of the aggregate gross proceeds raised in the offering, plus a management fee equal to 1.0% of the gross proceeds raised in the offering and certain expenses. We also issued to designees of the placement agent warrants to purchase up to 6.0% of the aggregate number of shares of common stock sold in the transactions, or warrants to purchase up to 98,765 shares of common stock. The placement agent warrants have substantially the same terms as the warrants, except that the placement agent warrants have an exercise price equal to 125% of the offering price per share (or$1.5188 per share). The placement agent warrants will expire onMay 17, 2027 . Net proceeds, after deducting underwriting discounts and commissions and offering expenses, was$1.7 million . OnMarch 1, 2022 , we closed an underwritten public offering of 1,831,631 shares of common stock, pre-funded warrants to purchase 1,677,141 shares of common stock at an exercise price of$0.01 per share and warrants to purchase 3,508,772 shares of common stock at an exercise price of$3.25 per share, as well as up to 526,315 additional shares of common stock and/or additional warrants to purchase up to 526,315 shares of common stock which may be purchased pursuant to a 30-day option to purchase additional securities granted toH.C. Wainwright & Co., LLC (the "Underwriter") by us. The public offering price for each share of common stock and accompanying warrant to purchase one share of common stock was$2.85 , and the public offering price for each pre-funded warrant and accompanying warrant was$2.84 . As compensation to the Underwriter, we agreed to pay to the Underwriter a cash fee of 7.0% of the gross proceeds, plus a cash management fee equal to 1.0% of the gross proceeds and reimbursement of certain expenses and legal fees. We also issued to designees of the Underwriter warrants to purchase 210,526 shares of common stock at an exercise price of$3.5625 per share. OnFebruary 28, 2022 , the Underwriter partially exercised its option to purchase an additional 113,896 warrants. Net proceeds, after deducting underwriting discounts and commissions and offering expenses, was$8.8 million . OnDecember 28, 2021 , we closed a registered direct offering of 42,289.3 shares of Series A Preferred Stock, par value$0.01 per share, or the Preferred Stock, and warrants to purchase 362,479 shares of common stock, or theDecember 2021 Warrants, for net proceeds of$3.7 million . The shares of Preferred Stock will have a stated value of$100.00 per share and are convertible, on the date after the issuance thereof, into an aggregate of 483,306 shares of common stock at a conversion price of$8.75 per share. As compensation toH.C. Wainwright & Co., LLC , or the Placement Agent, we agreed to pay the Placement Agent a cash fee of 7.0% of the gross proceeds raised in theDecember 2021 Offering, plus a management fee equal to 1.0% of the gross proceeds raised in theDecember 2021 Offering and reimbursement of certain expenses and legal fees. We also issued to designees of the Placement Agent warrants to purchase 28,996 shares of common stock, or theDecember 2021 Placement Agent Warrants. TheDecember 2021 Warrants and theDecember 2021 Placement Agent Warrants have an exercise price of$11.20 per share and will be exercisable upon the six-month anniversary of their issuance. OnMay 31, 2021 , we closed a registered direct offering of 400,815 shares of common stock, or the May Offering, at an offering price of$29.75 per share and warrants to purchase 400,812 shares of common stock, or the May Warrants, at an exercise price of$0.90 per share, for net proceeds of$10.9 million . As compensation to the Placement Agent, we agreed to pay the Placement Agent a cash fee of 6.0% of the gross proceeds raised in the May Offering, plus a management fee equal to 1.0% of the gross proceeds raised in the May Offering and reimbursement of certain expenses and legal fees. We also issued to designees of the Placement Agent warrants to purchase 24,076 shares of common stock (the "May Placement Agent Warrants") at an exercise price of$37.1875 per share. The May Warrants and May Placement Agent Warrants were exercisable on the six-month anniversary of the closing date of the May Offering. OnFebruary 8, 2021 , we entered into an agreement to issue and sell 314,286 shares of common stock, or the February Offering, at an offering price of$56.00 per share, for net proceeds of$16.2 million . As compensation to the Placement Agent, we agreed to pay the Placement Agent a cash fee of 6.0% of the gross proceeds raised in the February Offering, plus a management fee equal to 1.0% of the gross proceeds raised in the February Offering and reimbursement of certain expenses and legal fees. We also issued to designees of the Placement Agent warrants to purchase up to 18,854 shares of common stock, or the February Placement Agent Warrants. The February Placement Agent Warrants have an exercise price of$70.00 per share. 37 -------------------------------------------------------------------------------- OnJanuary 21, 2021 , we entered into an agreement to issue and sell warrants exercisable for an aggregate of 294,298 shares of common stock, or the January Warrants, at an offering price of$4.375 per warrant in exchange for the exercise of the institutional investor's existing December Series A warrants that were issued to them onDecember 21, 2020 , at an exercise price of$41.30 per warrant. The January Warrants have an exercise price of$56.00 per share. The January Warrants are immediately exercisable and will expire five years from the issuance date. As compensation to the Placement Agent, we agreed to pay a cash fee of 6.0% of the aggregate gross proceeds raised in the January Offering (including the proceeds relating to the exercise of the December Series A Warrants), plus a management fee equal to 1.0% of the gross proceeds raised in the January Offering (including the proceeds relating to the exercise of the December Series A Warrants) and reimbursement of certain expenses and legal fees. We also issued to designees of the Placement Agent warrants to purchase up to 17654 shares of common stock, or the January Placement Agent Warrants. The January Placement Agent Warrants have substantially the same terms as the January Warrants, except that the January Placement Agent Warrants have an exercise price equal to$70.00 per share. OnMay 29, 2020 , we entered in a$50.0 million Credit Agreement with MAM Eagle Lender, pursuant to which we have drawn$10.0 million as of the date of this Quarterly Report and may draw upon four additional tranches of term loans. The Tranche Two Loans in an amount not to exceed$5.0 million may be drawn upon on or beforeAugust 29, 2021 provided that we generate at least$5.0 million in net revenue in the three consecutive calendar months immediately preceding the date such Tranche Two Loans are funded. The Tranche Two Loans may also be drawn on a subsequent date with the satisfaction of the conditions for the Tranche Three Loans, Tranche Four Loans, or Tranche Five Loans, as applicable, provided that the Tranche Two Loans may not be drawn more than once. The Tranche Three Loans in an amount not to exceed$5.0 million may be drawn upon on or beforeNovember 29, 2021 provided that we generate at least$10.0 million in net revenue in the three consecutive calendar months immediately preceding such date such Tranche Three Loans are funded. The Tranche Three Loans may also be drawn on a subsequent date with the satisfaction of the conditions for the Tranche Four Loans or Tranche Five Loans, as applicable, provided that the Tranche Three Loans may not be drawn more than once. The Tranche Four Loans in an amount not to exceed$10.0 million may be drawn upon, subject to the consent of the Lenders, on or beforeAugust 29, 2022 provided that we generate at least$20.0 million in net revenue in the three consecutive calendar months immediately preceding the date such Tranche Four Loans are funded. The Tranche Four Loans may also be drawn on a subsequent date with the satisfaction of the conditions for the Tranche Five Loans provided that the Tranche Four Loans may not be drawn more than once. The Tranche Five Loans in an amount not to exceed$20.0 million may be drawn upon, subject to the consent of the Lenders, on or beforeMarch 1, 2023 provided that we generate at least$100.0 million in net revenue in the twelve consecutive calendar months immediately preceding the date such Tranche Five Loans are funded. OnAugust 1, 2022 , we entered into Amendment No. 1 and Waiver to Credit Agreement, or the Amendment, with MAM Eagle Lender. Pursuant to the terms of the Amendment, the lenders waived any default under the credit agreement (including the imposition of a default interest rate with respect to the default) resulting from our failure to comply with the minimum cash covenant, or the Minimum Liquidity Covenant, which requires us to maintain at least$5.0 million in a liquidity account. In addition, the Amendment, among other items, (i) provides that 30% of any cash proceeds received by us from certain potential strategic licensing transactions shall be used to prepay amounts outstanding under the credit agreement; and (ii) decreases the amount of cash we are required to maintain pursuant to the Minimum Liquidity Covenant to$3.0 million for a period beginning onAugust 1, 2022 , and ending onAugust 31, 2022 , at which point the amount required pursuant to the Minimum Liquidity Covenant shall increase to$5.0 million . OnMay 8, 2020 , we entered into a promissory note for$1.5 million under the PPP of the CARES Act administered by the SBA. We have used the loan proceeds for covered payroll costs in accordance with the relevant terms and conditions of the CARES Act. This Loan may be partially or fully forgiven if we comply with the provisions of the CARES Act including the use of Loan proceeds for payroll costs, rent, utilities, and other expenses, and at least 60% of the loan proceeds must be for payroll costs as defined by the CARES Act. During the year endedDecember 31, 2021 , we received a Notice of PPP Forgiveness Payment from the SBA regarding the approval of our application for forgiveness of the PPP Loan of$1.5 million and accrued interest. As a result, we recognized a gain on extinguishment of the PPP Loan of$1.5 million during the year endedDecember 31, 2021 . We anticipate that our principal uses of cash in the future will be primarily to fund our operations, pipeline development activities, ongoing modest ANJESO commercialization, working capital needs, capital expenditures and other general corporate purposes. We expect to seek additional funding to sustain our future operations and while we have successfully raised capital in the past, the ability to raise capital in future periods is not assured. Based on our available cash as ofJune 30, 2022 , we will need to raise additional capital in the next twelve months to continue as a going concern. Sources and Uses of Cash Cash used in operations was$20.1 million and$24.1 million for the six months endedJune 30, 2022 and 2021, respectively, which represents our operating losses less our non-cash items including: stock-based compensation, non-cash interest expense, depreciation, amortization, changes in warrant valuations, and changes in fair value of contingent consideration, as well as changes in operating assets and liabilities. There was no significant cash used in investing activities for the six months endedJune 30, 2022 . Cash used in investing activities for the six months endedJune 30, 2021 was$12.2 million , which was primarily due to purchases of short-term investments in the current year. 38 -------------------------------------------------------------------------------- There was$9.5 million of cash provided by financing activities in the six months endedJune 30, 2022 consisting of net proceeds of$8.9 million from a public offering of common stock and warrants and$1.8 million of net proceeds from a registered direct offering of common stock and concurrent private placement of warrants, partially offset by a payment of contingent consideration of$1.0 million and payments on long-term debt of$0.2 million . There was$31.3 million of cash provided by financing activities for the six months endedJune 30, 2021 consisting of net proceeds of$27.1 million from registered direct offerings of common stock and warrants and net proceeds of$12.2 million from warrant exercises, partially offset by a payment of contingent consideration of$7.8 million .
Our future use of operating cash and capital requirements will depend on many forward-looking factors, including the following:
•
our relationships with third parties, licensors, collaborators, and our employees;
•
our ability to continue to operate as a standalone company and execute our strategic priorities;
•
potential indemnification liabilities we may owe to Societal CDMO;
•
the timing of the Alkermes Transaction milestone payments and other contingent consideration;
•
the costs of manufacturing and modest commercialization activities, for ANJESO;
•
the level of market acceptance of ANJESO;
•
the scope, progress, results, and costs of development for our other product candidates;
•
the cost, timing and outcome of regulatory review of our other product candidates;
•
the cost of manufacturing scale-up, acquiring drug product and other capital equipment for our other product candidates;
•
the extent to which we in-license, acquire or invest in products, businesses and technologies;
•
our ability to raise additional funds through equity or debt financings or the sale of certain assets;
•
our ability to comply with our debt covenants;
•
our ability to achieve certain milestones to access and draw down additional tranches of debt under the Credit Agreement;
•
the extent to which holders of our warrants exercise their warrants resulting in the payment of cash proceeds to us;
•
the costs of preparing, submitting and prosecuting patent applications and maintaining, enforcing and defending intellectual property claims; and
•
the effect of any changes in our effective tax rate due to changes in the mix of
earnings in countries with differing statutory tax rates, changes in the
valuation of deferred tax assets and liabilities, tax impacts and net operating
loss utilization related to the Separation and changes in tax laws.
We might use existing cash and cash equivalents on hand, debt, equity financing,
sale of assets or out-licensing revenue or a combination thereof to fund our
operations or product acquisitions. If we increase our debt levels, we might be
restricted in our ability to raise additional capital and might be subject to
financial and restrictive covenants. Our shareholders may experience dilution as
a result of the issuance of additional equity or debt securities. This dilution
may be significant depending upon the amount of equity or debt securities that
we issue and the prices at which we issue any securities.
39
--------------------------------------------------------------------------------Contractual Commitments
The table below reflects our contractual commitments as of
Payments Due by Period (in 000s)
Less than More than
Contractual Obligations Total 1 year 1-3 years 3-5 years 5 years
Debt Obligations (1):
Debt $ 9,722 $ 3,611 $ 6,111 $ - $ -
Interest on Debt 2,140 1,182 958 - -
Purchase Obligations (2): $ 4,621 $ 819 $ 126 $ 18 $ -
Operating Leases (3) 1,619 345 552 573 149
Other Long-Term Liabilities:
Other License Commitments and Milestone
payments (4), (5) 50,565 80 190 125 -
Alkermes Payments (6) 117,571 9,029 22,114 6,429 -
Employment Agreements (7) 927 618 309 - -
Total Contractual Obligations $ 187,165 $ 15,684 $ 30,360 $ 7,145 $ 149
(1)
Debt obligations consist of principal, an exit fee of 2.5% of that principal and
interest on the $9.7 million outstanding term loan under our Credit Agreement.
In accordance with U.S. GAAP, the future interest obligations are not recorded
on our Consolidated Balance Sheet. See Note 11 to the Consolidated Financial
Statements included in this Quarterly Report.
(2)
These obligations consist of cancelable and non-cancelable purchase commitments related to manufacturing and development activities and other goods or services. The timing of certain purchase commitments totaling$3,658 cannot be estimated in the table above as it is dependent on sales launch trajectory, development progression or the outcome of other strategic evaluations and as such is only included in the total. In accordance withU.S. GAAP, these obligations are not recorded on our Consolidated Balance Sheets. See Note 12(d) to the Consolidated Financial Statements included in this Quarterly Report.
(3)
We have become party to certain operating leases for the leased space inMalvern, Pennsylvania , andDublin, Ireland , as well as for office equipment, for which the minimum lease payments are presented. See Note 8 to the Consolidated Financial Statements included in this Quarterly Report.
(4)
We are party to exclusive licenses with Orion for the development and commercialization of certain pipeline product candidates, under which we may be required to make certain milestone and royalty payments to Orion. See Note 12(a) to the Consolidated Financial Statements included in the Quarterly Report. The amount reflects only payment obligations that are fixed and determinable that may arise based on meeting certain milestones. We are unable to reliably estimate the timing of these payments totaling$34,170 because they are dependent on the type and complexity of the clinical studies and intended uses of the products, which have not been established, and as such are only included in the total. In accordance withU.S. GAAP, these obligations are not recorded on our Consolidated Balance Sheets.
(5)
We license the neuromuscular blocking agents, or NMBs, fromCornell University pursuant to a license agreement under which we are obligated to make annual license maintenance fee payments, milestone payments and patent cost payments and to pay royalties on net sales of the NMBs. The amount reflects only payment obligations that are fixed and determinable. We are unable to reliably estimate the timing of certain of these payments totaling$16,000 because they are dependent on the type and complexity of the clinical studies and intended uses of the products, which have not been established, and as such are only included in the total. In accordance withU.S. GAAP, certain of these obligations are not recorded on our Consolidated Balance Sheets. See 12(a) to the Consolidated Financial Statements included in this Quarterly Report.
(6)
Pursuant to the purchase and sale agreement governing the Alkermes Transaction, we agreed to pay to Alkermes milestone and royalty payments. The amount reflects only payment obligations that are fixed and determinable and in some instances may only arise based on meeting certain commercial milestones. We are unable to reliably estimate the timing of these payments totaling$79,999 because they are in some instances, events that are not in our control and dependent on the commercial success of the product and as such are only included in the total. In accordance withU.S. GAAP, the fair value of these obligations is recorded as contingent consideration on our Consolidated Balance Sheets. See Note 12(b) to the Consolidated Financial Statements included in this Quarterly Report.
(7)
We have entered into an employment agreement with one of our named executive officers. As ofJune 30, 2022 , this employment agreement provided for, among other things, annual base salaries in an aggregate amount of not less than this amount, from that date throughDecember 2023 . In accordance withU.S. GAAP, these obligations are not recorded on our Consolidated Balance Sheets. See Note 12(e) to the Consolidated Financial Statements included in this Quarterly Report. 40 --------------------------------------------------------------------------------
Critical Accounting Policies and Estimates
Our critical accounting policies and estimates are disclosed in the
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" section of our 2021 Annual Report. In the six months ended
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