ITEM 1. BUSINESS
Company overview
We are focused on
enhancing the way patients with cardiorenal and gastrointestinal, or GI, diseases are treated by using the gut as the gateway to delivering medicines that matter. We have pioneered the development of small molecule therapeutics that act
predominantly in the GI tract, thereby avoiding potentially negative side effects on the rest of the body.
Our strategy is to develop
therapeutics focused on addressing cardiorenal and gastrointestinal (GI) diseases. We utilize our proprietary drug discovery and design platform by integrating technology that emulates the human GI tract with our
gut-restriction
chemistry capabilities. We have discovered and developed multiple portfolios of unique,
gut-targeted
therapeutics.
We plan to evolve from
R&D-focused
to an integrated biotech company, by building cardiorenal and
GI businesses in the United States, while exploring a variety of strategic commercial options outside of the United States. Our ongoing pivotal Phase 3 clinical programs are focused on evaluating our potential products in the treatment of patients
with irritable bowel syndrome with constipation, or
IBS-C;
end-stage
renal disease, or ESRD, patients suffering from elevated phosphate, or hyperphosphatemia; and ESRD,
chronic kidney disease, or CKD, and/or heart failure patients with elevated potassium, or hyperkalemia.
Overview of Our Cardiorenal
Portfolio
Our cardiorenal portfolio is led by tenapanor for the treatment of hyperphosphatemia in ESRD patients on dialysis.
Tenapanor is a minimally-systemic small molecule that acts locally in the GI tract to inhibit the sodium transporter NHE3 and reduce sodium uptake from the gut. In human studies of orally-administered tenapanor, the drug was detected in the blood in
less than 1% of thousands of collected serum samples, and even in those, at very low levels (< 1.5 ng/mL). We have evaluated tenapanor across 18 clinical studies in over 2,000 individuals to date.
Tenapanor has been specifically designed to work exclusively within the GI tract, thereby significantly reducing the amount of drug that is
absorbed into the bloodstream and, we believe, reducing the potential side effects that could occur. When tenapanor blocks the NHE3 sodium transporter in the GI tract, thereby reducing the absorption of dietary sodium, there is a resulting increase
in the protons within the cells. The increase in protons causes a selective reduction in phosphate uptake by tightening junctions or pores that regulate phosphate homeostasis, which then limits the amount of dietary phosphate that can pass from the
gut into the blood. We have not observed this impact on other ions, nutrients or macromolecules in our clinical trials.
In February 2017,
we reported data from the first Phase 3 clinical trial evaluating tenapanor for the treatment of hyperphosphatemia in patients with ESRD on dialysis. The study demonstrated a statistically significant difference in serum phosphorus levels from the
end of the eight-week treatment period to the end of the four-week randomized withdrawal period between the tenapanor-treated group and the placebo-treated group in the responder patient population (mean -1.01 mg/dL, median of -1.3 mg/dL) and met
its primary endpoint (95% confidence interval, -1.44, -0.21, LSmean -0.82 mg/dL, p=0.01). The responder population (n=80 out of 164) had a mean reduction in serum phosphorus from baseline to the end of the eight-week treatment period of 2.56 mg/dL,
with a reduction of up to 5.7 mg/dL. Notably, in this group, 33 percent of patients had a reduction in serum phosphorus of greater than 3 mg/dL. Tenapanor was generally well-tolerated with only 7.8 percent of patients discontinuing treatment due to
GI side effects. We expect to begin a second Phase 3 clinical trial in this indication in mid-2017. If data from this second Phase 3 trial are positive, we intend to submit an NDA to the FDA requesting approval to market in the United States for
hyperphosphatemia. We intend to build our own sales and marketing organization to market and sell tenapanor for hyperphosphatemia in the United States. We believe that there are over 745,000 ESRD patients with hyperphosphatemia in major developed
countries.
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The second product candidate in our cardiorenal portfolio is RDX7675. RDX7675 is an oral,
non-absorbed,
potassium-binding polymer that is being evaluated for the treatment of hyperkalemia, a potentially severe condition that results from elevated blood potassium and is common in patients with CKD and
heart failure. We have developed RDX7675 as a patented improvement to sodium polystyrene sulfonate, or SPS, an
FDA-approved
polymer that has been the standard of care for the treatment of hyperkalemia for more
than 50 years. We have made several key physical and chemical modifications to this polymer to eliminate sodium, optimize binding capacity, improve mouth feel and develop formulations with a more pleasant taste that are easier to ingest.
In 2016, we announced positive results from a clinical study in healthy volunteers evaluating once daily, twice-daily and three-times-daily
doses of RDX7675. The study demonstrated that RDX7675 effectively binds potassium in the GI tract and that it is generally well-tolerated at all doses in the study. In addition, in the once-daily dose group we observed a very similar effect on
potassium binding as was seen in the two or three times daily dosing groups with the same total daily dose. Based on these data, we determined that once-daily dosing is the most appropriate dosing regimen for further evaluation in the treatment of
hyperkalemia in our Phase 3 clinical trial. A separate study was conducted in healthy volunteers to evaluate the palatability of oral formulations of RDX7675 compared to SPS. RDX7675 consistently outperformed SPS in all aspects of the taste
assessments, including mouth feel, texture and flavor.
We initiated a Phase 3 clinical trial of RDX7675 in late 2016. We also began an
onset of action clinical trial of RDX7675 in late 2016 and expect to have results in the first half of 2017. If data from these clinical trials are positive, we expect to rely on the 505(b)(2) regulatory pathway to request marketing approval in the
United States. We currently expect to establish our own cardiorenal sales and marketing organization to market and sell this product. We believe there are approximately two million people in the United States with CKD and/or heart failure who have
hyperkalemia.
Our RDX013 program is aimed at discovering and evaluating orally-administered small molecule therapeutic candidates that
modulate the transport of potassium in the GI tract. Our agents are designed to enhance potassium secretion in the colon to correct hyperkalemia in patients with CKD and/or heart failure. We have demonstrated
proof-of-concept
data with our RDX013 program molecules showing potassium secretion in preclinical models of disease.
RDX011 is our program focused on the discovery and development of second-generation NHE3 inhibitors. We have elucidated the mechanism of
action of tenapanor as it relates to the inhibition of the absorption of dietary phosphorus, and we intend to leverage this knowledge as we seek to develop new products with selective properties.
Overview of Our Gastrointestinal Portfolio
Our gastrointestinal, or GI, portfolio is led by tenapanor for the treatment of
IBS-C.
Tenapanor is a
minimally-systemic small molecule that acts locally in the GI tract to inhibit the sodium transporter NHE3 and reduce sodium uptake from the gut. We are currently evaluating tenapanor in two Phase 3 clinical trials in patients with
IBS-C,
T3MPO-1
and
T3MPO-2,
which were initiated in the fourth quarter of 2015. We expect to report results from
T3MPO-1,
a
12-week
clinical trial, in
mid-2017
and from
T3MPO-2,
a
six-month
clinical trial, in late 2017. We also expect to have results in late 2017 from
T3MPO-3,
a long-term safety study, which is enrolling patients who have completed
T3MPO-1
or
T3MPO-2.
We first reported positive data in October
2014 from the Phase 2b trial of tenapanor in patients with
IBS-C.
At the 50mg twice-daily dose, the study met its primary efficacy endpoint of a statistically significant increase in the complete spontaneous
bowel movement, or CSBM, responder rate. The study also demonstrated clinically meaningful improvements in pain and other measures of discomfort and that tenapanor was well-tolerated in this patient population.
If the Phase 3 clinical trials are positive, we expect to submit an NDA to the FDA to request marketing approval in the United States for
IBS-C.
We currently expect to establish our own sales and marketing
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organization to market and sell tenapanor for
IBS-C
in the United States. While estimates vary, it is projected that approximately 11 million people
in the United States suffer from
IBS-C.
A second candidate in our GI portfolio is RDX8940.
RDX8940 is a minimally absorbed, oral TGR5 agonist for which we submitted an investigational new drug application, or IND, in late 2016. TGR5 is an important receptor present on cells within the GI tract that is activated by the bile acids that the
body secretes in response to the food we ingest. As part of a normal physiological response, the binding of bile acids to TGR5 stimulates the production of critical metabolic hormones such as those involved in maintenance of the bodys reaction
to nutrients and the maintenance and care of the structural integrity of the gut. Based on the preclinical data we have generated to date, we currently are evaluating development of RDX8940 for the treatment of patients with nonalcoholic
steatohepatitis, or NASH. We are also evaluating the potential for RDX8940 in additional GI indications.
RDX011 is our second-generation
NHE3 inhibitor. We intend to leverage our knowledge of NHE3 inhibitors and their effect on sodium and phosphate management as we seek to develop novel products. We also intend to evaluate new indications for tenapanor and other NHE3 inhibitors to
exploit the unique capabilities and tools we have developed to modulate transport of ions and other processes in the gut.
The focus of
our RDX023 program is on the discovery and development of
gut-biased
farnesoid X receptor, or FXR, agonists for the treatment of GI and inflammatory diseases. FXR is expressed at high levels in the liver and
intestine and plays a central role in the regulation of bile acid and lipid homeostasis. Systemic FXR agonists appear to have limitations based on their potential to have undesirable and negative effects on multiple systems in the body. We are
evaluating our differentiated
gut-biased
RDX023 program molecules in animal models of NASH/nonalcoholic fatty liver disease, or NAFLD, bile acid diarrhea and other indications.
OUR PROPRIETARY DRUG DISCOVERY AND DESIGN PLATFORM
The emerging view of the GI tract is that it is a critical and active sentinel organ that transmits signals from the environment to instruct
other organs how to respond to a meal, the microbiome or even pathogens. We have created a unique discovery and design platform that permits us to discover targets found in the GI tract that regulate important processes in the body and design
products candidates that act upon those targets in the GI tract to take advantage of the guts ability to communicate with other organs. Our platform integrates two critical concepts: (i) our proprietary chemistry capabilities that enable
us to design and optimize
gut-restricted
compounds that can provide a higher margin of safety than systemically absorbed compounds, and (ii) our stem cell-based translational technology called the Ardelyx
Primary Enterocyte and Colonocyte Culture System, or APECCS, that enables us to discover targets in the GI tract which control health and disease processes, to optimize drug candidates and to understand their mechanisms of action. Our platform can
be applied across the entire GI tract, allowing for the broadest evaluation of disease targets to develop medicines optimized for specific diseases. The predictive ability of our platform enables us to better assess, at a very early stage, the
potential for small molecule compounds to treat specific diseases.
How Our Platform Works
We have developed several proprietary capabilities that allow us to discover and design new
gut-restricted
compounds, including the following:
1.
Gut-restriction
Chemistry
. Since our founding almost ten years ago, we have become experts in the development of
gut-restricted
small molecules. This has required the
development of new techniques to ensure that the small molecules are not absorbed.
Gut-restriction
chemistry includes a suite of proprietary techniques, technology and
know-how
that we have developed in order to restrict the mechanism of the drug to targets within the GI tract. Drugs that have minimal absorption have the potential to provide greater safety than drugs that
are absorbed.
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2.
Stem Cell Technology
. APECCS is an
in-vitro
capability we have developed and industrialized. We start with human stem cells obtained from biopsies from the intestinal tract of healthy or diseased patients. We grow these cells in conditions where
the resulting tissue mimics the key aspects of the area of the human gastrointestinal tract from where the stem cells were derived. We can also achieve this process with mouse cells, allowing us to make the connection between mouse and human
results. This, in turn, allows us to evaluate the potential efficacy of our drugs before we see their effects in humans.
OUR PRODUCT PIPELINE
The following table summarizes key information about our product candidates as of December 31, 2016:
Cardiorenal Portfolio
Our cardiorenal portfolio includes two Phase 3 clinical product candidates, tenapanor in Phase 3 clinical development for treating
hyperphosphatemia in ESRD patients on dialysis and RDX7675 in Phase 3 clinical development for treating hyperkalemia in CKD and heart failure patients. In addition to our two phase 3 product candidates, we have two programs that are in research
phase.
Tenapanor for Treating Hyperphosphatemia in ESRD Patients on Dialysis
The lead product candidate in our cardiorenal portfolio is tenapanor for the treatment of hyperphosphatemia, or high levels of blood
phosphorus, in ESRD patients on dialysis. Hyperphosphatemia is a significant problem among dialysis patients worldwide.
CKD is the
progressive deterioration of renal function that can occur over several months or years. The symptoms of worsening kidney function are nonspecific, and can include having less energy, reduced appetite, dry itchy skin, swollen feet and ankles or
generally just not feeling well. If the deterioration continues and is not halted by either changes in lifestyle or with the assistance of pharmacological intervention, the disease will likely cause significant cardiovascular morbidity, and can
progress to ESRD, the final stage of CKD, where kidney function will be lost entirely.
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Current management of ESRD includes hemodialysis and peritoneal dialysis as a means to filter
toxins from the blood once kidneys have failed. Unless this intervention occurs, kidney failure results in the accumulation of waste products that may ultimately cause death. Hemodialysis, the most common form of dialysis, generally requires a
patient to visit a dialysis center at least three times per week for a three- to five-hour session, significantly reducing quality of life.
Phosphorus, a vital element required for most cellular processes, is present in almost every food in the Western diet, and, in individuals
with normal kidney function, any excess dietary phosphorus is efficiently removed by the kidney and excreted in urine. In adults with functioning kidneys, normal serum phosphorus levels are 2.6 to 3.8 mg/dL. With kidney failure, elevated phosphorus
becomes harmful and is diagnosed as hyperphosphatemia when serum phosphorus levels are greater than 5.0 mg/dL. Although patients with ESRD rely on dialysis to eliminate harmful agents, phosphorus is not readily removed by the procedure and other
means of managing phosphorus levels must be employed.
In ESRD patients, excess levels of phosphorus has been shown to lead to an increase
in cardiovascular disease risk, as well as increases in serum
FGF-23,
an important regulator of phosphate and vitamin D metabolism. Highly elevated levels of FGF23 is an independent risk factor for adverse
cardiac clinical outcomes as well as the development of secondary hyperparathyroidism (SHPT), marked by elevated parathyroid hormone. SHPT is associated with renal osteodystrophy, a condition of abnormal bone growth characterized by brittle bones.
Since dialysis is unable to efficiently eliminate excess phosphorus, ESRD patients are put on restrictive low phosphorus diets and are
currently prescribed medications called phosphate binders, the only interventions currently marketed for the treatment of hyperphosphatemia. Phosphate binders act by binding dietary phosphorus and commonly need to be taken with meals and snacks.
They include calcium, iron or lanthanum, a rare-earth metal, which bind to and precipitate with dietary phosphate in the GI tract. The goal of these phosphorus binders is for patients to eliminate through their stool the precipitated phosphorus that
comes from the food they ingest. A limitation of this approach is the systemic excess absorption of calcium, iron or lanthanum, resulting in side effects and other unintended consequences for ESRD patients.
Safety and tolerability have been significant concerns with many approved phosphate binders. The more common side effects of approved
phosphate binders include long-term vascular calcification, nausea and vomiting, diarrhea or constipation and ileus or disruption of the normal propulsive ability of the GI tract.
ESRD patients, who generally are severely restricted in their fluid intake, are prescribed on average 19 oral pills per day, of which
approximately 50% comprise phosphate binders to reduce serum phosphorus. The amount of phosphorus a binder can remove is limited by its binding capacity, and therefore, increasing the dose, and hence the pill burden, of the binder is the only way to
increase the amount of phosphorus being bound and excreted. As a result of pill burden and mass, as well as a number of side effects, prescribed phosphate binder doses are intolerable for many patients.
We are developing tenapanor for the treatment of hyperphosphatemia in ESRD patients on dialysis. Tenapanor has the potential to be the first
small molecule approach to treating hyperphosphatemia, with a unique mechanism of action that acts by inhibiting, or blocking, the NHE3 transporter in the GI tract to reduce the absorption of dietary sodium. When tenapanor blocks the NHE3 sodium
transporter in the GI tract, thereby reducing the absorption of dietary sodium, there is a resulting increase in the protons within the cells. The increase in protons causes a selective reduction in phosphate uptake by tightening junctions or pores
that regulate phosphate homeostasis, which then limits the amount of dietary phosphate that can pass from the gut into the blood We have not observed this impact on other ions, nutrients or macromolecules in our clinical trials. We have submitted a
manuscript for publication of this mechanism in a scientific peer-reviewed journal. Tenapanor has been specifically designed to work exclusively within the GI tract, thereby significantly reducing the amount of drug that is absorbed into the
bloodstream and the potential side effects that could occur. In human studies of orally-administered tenapanor, the drug was detected in the blood in less than 1% in thousands of collected serum samples, and even in those, at very low levels (<
1.5 ng/mL). We have evaluated tenapanor across 18 clinical studies in over 2,000 individuals to date.
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Clinical data supporting tenapanor in hyperphosphatemia
In February 2017, we announced data from our first Phase 3 clinical trial evaluating tenapanor for the treatment of hyperphosphatemia in ESRD
patients on dialysis.
The Phase 3 trial was an eight-week, double-blind, randomized trial, with a four-week placebo-controlled randomized
withdrawal period. We enrolled a total of 219 ESRD patients with hyperphosphatemia who are on dialysis. Enrolled patients were randomized evenly into three arms, in which all groups received tenapanor for eight weeks. Tenapanor was administered at
doses of 3 mg or 10 mg twice-daily and in a dose-titration arm starting at 30 mg twice-daily with the option to down-titrate once a week during the first four weeks to 20, 15, 10 and 3 mg twice-daily, based on GI tolerability. After the end of the
eight-week treatment period, patients were re-randomized 1:1 to either remain on their current tenapanor dose or switch to placebo for a four-week, placebo-controlled, randomized withdrawal period.
The primary endpoint of the trial was the difference in change in serum phosphorus between the pooled tenapanor-treated patients and
placebo-treated patients from the end of the eight-week treatment period to the end of the four-week randomized withdrawal period, in the responder population. The responder population, which was reviewed by the U.S. Food and Drug Administration, is
defined as patients who demonstrate a greater than or equal to 1.2 mg/dL decrease in serum phosphorus from baseline during the initial eight-week treatment period.
The study demonstrated a statistically significant difference in serum phosphorus levels from the end of the eight-week treatment period to
the end of the four-week randomized withdrawal period between the tenapanor-treated group and the placebo-treated group in the responder patient population (mean -1.01 mg/dL, median of
-1.3
mg/dL) and met its
primary endpoint (95% confidence interval, -1.44, -0.21, LSmean -0.82 mg/dL, p=0.01). The responder population (n=80 out of 164) had a mean reduction in serum phosphorus from baseline to the end of the eight-week treatment period of 2.56 mg/dL, with
a reduction of up to 5.7 mg/dL. Notably, in this group, 33 percent of patients had a reduction in serum phosphorus of greater than 3 mg/dL.
Tenapanor was well-tolerated in the trial. In the eight-week treatment period, the only adverse event that affected more than five percent of
patients treated with tenapanor was diarrhea (39 percent), a patient-reported side effect of loosened stool or increased frequency in bowel movements regardless of magnitude. In the four-week randomized withdrawal period, there was a diarrhea rate
of 1.2 percent for patients treated with tenapanor compared with 2.4 percent on placebo. Treatment discontinuations due to diarrhea for patients on tenapanor was 7.8 percent (n=17). There were no discontinuations due to diarrhea in the randomized
withdrawal period.
In order to fully assess GI tolerability, patients used an eDiary to record the frequency of daily bowel habits, as
well as stool form using the Bristol Stool Form Scale, or BSFS. During the eight-week treatment period, there was a 0.4 per day increase in bowel movement frequency from baseline, and during the four-week randomized withdrawal period, there was a
0.29 per day increase as compared to placebo. Bowel movement frequency was within the normal range in all groups. During the eight-week treatment period, there was a 0.87 point increase in BSFS from a baseline score of 4.2, out of a maximum of
seven, where seven is liquid stool. During the four-week randomized withdrawal period, there was a 0.7 point difference in BSFS between placebo (4.4) and tenapanor treatment (5.1).
Based on the results from this trial, we intend to initiate a second Phase 3 study of tenapanor for the treatment of hyperphosphatemia in ESRD
patients on dialysis in mid-2017. We currently expect that this Phase 3 study will include a 26-week open-label treatment period, with a randomized withdrawal period followed by an additional 26-week long-term safety extension. We currently intend
to build our own sales and marketing organization to market and sell tenapanor for hyperphosphatemia in the United States.
The
hyperphosphatemia market
Phosphate binders are the only drugs marketed for the treatment of hyperphosphatemia in ESRD patients. The
various types of phosphate binders commercialized in the United States include the following:
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Calcium carbonate (many
over-the-counter
brands including Tums and Caltrate)
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Calcium acetate (several prescription brands including PhosLo and Phoslyra)
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Lanthanum carbonate (Fosrenol marketed by Shire)
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Sevelamer hydrochloride (Renagel, marketed by Sanofi)
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Sevelamer carbonate (Renvela, marketed by Sanofi)
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Sucroferric oxyhydroxide (Velphoro, marketed by Vifor Fresenius)
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Ferric citrate (Auryxia, marketed by Keryx)
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The hydrochloride form of sevelamer, Renagel, was
launched in the United States by Genzyme Corporation in 1998 prior to its acquisition by Sanofi, and the carbonate form, Renvela, was launched in 2008. Sanofi booked 935 million ($1.04 billion) in worldwide sales of sevelamer during 2015
and 687 million through September 30, 2016. Generic sevelamer was expected to enter the U.S. market in early 2014 after expiration of Sanofis patent, but as of 2017, no generic sevelamer has yet been approved in the United
States. Generic sevelamer was approved, however, in certain jurisdictions in Europe in 2015.
Each of these agents has various
limitations. Calcium carbonate and calcium acetate can cause long term vascular calcification. Lanthanum carbonate (Fosrenol) entered the market in 2004 as an alternative to calcium and aluminum based agents, but nephrologists concerns about
the long term toxicity from the absorption of metals such as lanthanum and its GI side effect profile have limited its market penetration. Sevelamer hydrochloride (Renagel) is an acidic formulation of sevelamer that has been linked with worsening of
metabolic acidosis in some patients. Sevelamer carbonate (Renvela) was developed as an improved formulation of sevelamer to reduce incidence of metabolic acidosis. The active ingredient of both products, sevelamer, is associated long-term with
vomiting (22%), nausea (20%), diarrhea (19%), dyspepsia (16%), abdominal pain (9%), and flatulence (8%). Ferric citrate (Auryxia), an iron-based phosphate binder, was approved by the FDA in September 2014. While iron is often deficient in ESRD
patients because of
CKD-associated
anemia and lack of sufficient dietary iron, the FDA has required Auryxia to add a warning of iron-overload in the label for use in ESRD.
In addition to the currently marketed phosphate binders, we are aware of at least two other binders in development, including fermagate
(Alpharen), an iron-based binder in Phase 3 being developed by Opko Health, Inc., and PT20, an iron-based binder in Phase 3 being developed by Shield Therapeutics.
According to the most recent data available from the U.S. Renal Data System, in 2014 there were 428,558 patients on hemodialysis in the United
States. Additionally, according to the European
ERA-EDTA
Registry 2012 Annual Report and a study in 2010 by the Japanese Society for Dialysis Therapy, there were approximately 280,000 patients on hemodialysis
in Europe and about 250,000 in Japan. We estimate, based on phosphate binder utilization, the only approved therapies for hyperphosphatemia, that there are approximately 300,000, 225,000 and 220,000 ESRD patients with hyperphosphatemia in the United
States, countries in Europe and Japan, respectively, resulting in approximately 745,000 ESRD patients with hyperphosphatemia in such countries.
Because many ESRD patients with hyperphosphatemia are unable to lower serum phosphorus levels to below 5.5 mg/dL with currently marketed
phosphate binders, we believe there is a significant medical need for new agents with new mechanisms, demonstrated efficacy, a strong safety profile, and significantly lower pill burden. We believe that tenapanor, if approved, has the potential to
have the lowest pill burden and mass among any currently marketed hyperphosphatemia products, with milligram rather than gram quantities. In addition, we may evaluate whether tenapanor has the potential to be used in combination with phosphate
binders for those patients who cannot achieve adequate phosphate control with a single agent.
RDX7675 for treating hyperkalemia
The second product candidate in our cardiorenal portfolio is RDX7675. RDX7675 is an oral,
non-absorbed,
potassium-binding polymer that is being evaluated for the treatment of hyperkalemia, a potentially severe
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condition that results from elevated blood potassium. Hyperkalemia is generally defined as the presence of blood potassium levels greater than 5.0 mEq/L. Normal levels are 3.5 to 5.0 mEq/L. When
hyperkalemia is severe, above 7.0 mEq/L, there is a significantly increased risk of death because of the potential for heart conductance problems.
Hyperkalemia can be caused by a variety of sources. Kidney disease can result in the elevation of potassium in the blood. Also, certain drugs
such as the common hypertension medications known as RAAS inhibitors, which inhibit the renin-angiotensin-aldosterone system, can cause hyperkalemia. As a result, the dosage of RAAS inhibitors must often be significantly reduced in patients whose
potassium levels are elevated (such as in those with CKD and heart failure) because of the fear that elevated potassium can cause significantly worse problems than hypertension including sudden cardiac arrest in severe cases. In fact, despite the
success of RAAS inhibitors in controlling blood pressure in these populations, several published guidelines have suggested that physicians should reduce and possibly discontinue RAAS inhibitors in order to manage the risk of hyperkalemia in CKD and
heart failure patients. The alternative medications used to control hypertension, including diuretics and calcium channel blockers, are significantly less effective than RAAS inhibitors, particularly in patients with failing kidneys and severe
hypertension. According to the publication Market Dynamix: Hyperkalemia released by Spherix Global Insights, U.S. cardiologists reported that of the patients who would benefit from RAAS inhibition, up to 38% of patients with heart failure and up to
55% of patients with both heart failure and CKD are being administered a
sub-optimal
dose or none at all, and nephrologists reported that at least
one-third
of patients
who would benefit from RAAS inhibition receive a
sub-optimal
dose or none at all. We believe there is a strong medical need for new medications that control hyperkalemia in order to allow for continued use of
RAAS inhibitors to control hypertension in these patient populations.
RDX7675 is an oral,
non-absorbed,
potassium-binding polymer that has demonstrated effective binding to potassium in pharmacodynamics studies in healthy volunteers. Using our unique chemistry, we have designed RDX7675 as a
patented improvement to sodium polystyrene sulfonate, or SPS, an FDA approved polymer that has been the
standard-of-care
for the treatment of hyperkalemia for more than
50 years. We made several key physical and chemical modifications to eliminate sodium and sorbitol, optimize binding capacity, greatly improve palatability and develop formulations that would taste pleasant and be easier to ingest. We believe these
improvements offer unique advantages for patients with hyperkalemia and could increase patient satisfaction and compliance.
Clinical
data supporting RDX7675 in hyperkalemia
In January 2016, we announced results from an open-label pharmacodynamic study of RDX7675 in
healthy adult volunteers. The study consisted of a
two-day
treatment-free baseline period and a
four-day
treatment period. The study included four cohorts, and in each
cohort 12 subjects received RDX7675 and three subjects received a similar dose of sodium polystyrene sulfonate, or SPS for a total of 60 subjects. RDX7675 was administered at 4.6 g BID (9.2 g/day), 6.9 g BID (13.8 g/day), 4.6 g TID (13.8 g/day) and
9.2 g TID (27.5 g/day), and resulted in a mean increase of fecal potassium from baseline of 888 mg/day, 1,791 mg/day, 1,408 mg/day, and 1,670 mg/day, respectively. RDX7675 was generally well-tolerated at all doses and demonstrated comparable results
to those observed with SPS. Other fecal electrolytes were monitored during the study and no unexpected changes were observed; in particular, fecal magnesium remained unchanged from baseline.
Sodium is currently used as a
counter-ion
in SPS products marketed in the United States and certain
other products under development. We formulated RDX7675 with a calcium
counter-ion,
rather than a sodium counter-ion, as adding sodium to the daily intake of the target patient population runs counter to best
clinical practice. In patients with CKD and/or heart failure, the standard of care is a
low-sodium
diet as sodium can contribute to fluid overload and edema, a common experience for these patients. In
addition, excess sodium diminishes the beneficial effects of blood pressure drugs such as RAAS inhibitors. We have also improved both the physical properties of polystyrene sulfonate and the formulation in a manner that we expect may lead to
improved patient adherence and compliance. Notably, in a single center, randomized, crossover study to evaluate
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various oral formulations of RDX7675 in healthy subjects, RDX7675 consistently outperformed SPS in all aspects of the taste assessments, including mouth feel, texture and flavor.
In December 2016, we initiated two clinical trials: an onset of action clinical trial and a Phase 3 clinical trial. The onset of action trial
is designed to evaluate the effect of RDX7675 on the rate of blood potassium lowering, along with safety and efficacy, in approximately 60 patients with hyperkalemia. Data from this trial are expected in the first half of 2017. This will mark the
first time we will have efficacy and safety data from RDX7675 in a patient population with hyperkalemia. The Phase 3 clinical trial will enroll patients with hyperkalemia who are taking RAAS inhibitor medications. The trial will include three parts:
Part A will be a single-blind study in which all subjects receive RDX7675 for four weeks; Part B will be an eight-week, double-blind, placebo controlled, randomized withdrawal study; and Part C is an open label long term safety study for subjects
from Parts A and B. The primary endpoint for Part A is serum potassium change from Part A baseline, and the primary endpoint for Part B is serum potassium change from Part B baseline (RDX7675 versus placebo). If these clinical trials are positive,
we would expect to submit an NDA to the FDA under the 505(b)(2) regulatory pathway to request marketing approval of RDX7675 for hyperkalemia in the United States. We currently expect to establish our own sales and marketing organization to sell this
product.
The hyperkalemia market
Based on various literature sources, we believe there are approximately 2 million people with CKD and/or heart failure in the United
States annually who also have occurrences of hyperkalemia. According to a retrospective observational study of a national cohort of 246,000 veterans cared for in the Veterans Health Administration, about 21% and 42% of patients with CKD Stage 3b and
Stage 4, respectively, had a hyperkalemic event during a
12-month
period, suggesting that hyperkalemia affects about 900,000 individuals with CKD Stage 3b or Stage 4 in the United States. According to the
United States Renal Data System 2014 Atlas of CKD & ESRD, over 50% of CKD Stage 3b and Stage 4 patients are prescribed RAAS inhibitors because of their efficacy in controlling hypertension and success in slowing the clinical course of CKD.
Additionally, according to the American Heart Association, 5.7 million Americans are living today with heart failure. Our proprietary research suggests that up to 16%, or approximately 900,000, of these patients had hyperkalemia during a
12-month
period. Over half of heart failure patients are prescribed RAAS inhibitors. Our proprietary research also suggests that up to 200,000 patients with ESRD could benefit from an agent that treats hyperkalemia.
We are aware of at least two drugs approaching or on the market for the treatment of hyperkalemia. Veltassa (patiromer FOS), an oral,
polymer-based potassium binder, was approved for marketing by the FDA in October 2015 and was commercially launched by Relypsa, which was acquired by Galenica AG for $1.5 billion in September 2016. Additionally, ZS Pharma submitted an NDA in
June 2015 for
ZS-9,
a sodium zirconium cyclosilicate-based oral potassium binder.
ZS-9
is expected to commercially launched by AstraZeneca, which acquired ZS Pharma in
December 2015 for $2.7 billion.
RDX013 Program: Small Molecule for Treating Hyperkalemia
Our RDX013 program is aimed at discovering and evaluating orally-administered small molecule therapeutic candidates that modulate the transport
of potassium in the GI tract. Our agents are designed to enhance potassium secretion in the colon to correct hyperkalemia in patients with CKD and/or heart failure. We have demonstrated
proof-of-concept
data with RDX013 showing potassium secretion in preclinical models of disease.
RDX011 Program: Second-Generation NHE3 Inhibitor
RDX011 is our program focuses on the discovery and development of second-generation NHE3 inhibitors. We have elucidated the mechanism of action
of tenapanor as it relates to inhibition of dietary phosphorus, and we intend to leverage this knowledge as we seek to develop new products with selective properties.
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Gastrointestinal Portfolio
Our gastrointestinal portfolio includes two product candidates, tenapanor in Phase 3 clinical development for treating
IBS-C
and RDX8940, a TGR5 agonist for which we have filed an IND in late 2016 to begin clinical studies, as well as two programs that are in the research phase.
Tenapanor: NHE3 Inhibitor for Treating
IBS-C
IBS-C
is a GI disorder in which abdominal pain or discomfort is associated with constipation, and which
significantly impacts the health and quality of life of affected patients. In a third-party study, over 50% of
IBS-C
patients rated their pain, constipation and straining as being extremely
bothersome. In the same study, GI symptoms led to an average 4.9 days of disrupted productivity and 0.8 days of missed work per month. There is no specific test or biomarker for
IBS-C
and therefore its presence is diagnosed by symptoms and by eliminating other disorders.
IBS-C
is very similar to chronic constipation and is clinically distinguished by a significant abdominal pain component.
Tenapanor is a minimally-systemic small molecule that acts locally in the GI tract to inhibit the sodium transporter NHE3 and reduce
sodium uptake from the gut. Part of its mechanism to treat
IBS-C
constipation is an osmotic effect in the intestines water follows salt and stool is gently loosened by the bodys own fluids. We are
also continuing to evaluate the mechanism that explains the effect of tenapanor on pain in
IBS-C.
In human studies of orally-administered tenapanor, the drug was detected in the blood in less than 1% in
thousands of collected serum samples, and even in those, at very low levels (< 1.5 ng/mL). We have evaluated tenapanor across 18 clinical studies in over 2,000 individuals to date.
Clinical data supporting tenapanor in
IBS-C
We conducted a Phase 2b clinical trial in
IBS-C
patients and announced results from that study in
October 2014. The clinical trial was a randomized, double blind, placebo-controlled, multi-center study to evaluate the safety and efficacy of three dose levels of tenapanor in 356 patients with
IBS-C
as
defined by the Rome III criteria and who had active disease as determined during a
two-week
screening period. Patients who qualified and who were randomized into the study received 5, 20, or 50 mg of tenapanor
or placebo twice daily for 12 consecutive weeks. At the end of this treatment period, patients were followed for an additional four weeks. The results were reported on an
intent-to-treat
basis.
The primary endpoint, CSBM
responder rate, was achieved in 60.7% of patients receiving tenapanor 50 mg twice daily versus 33.7% receiving placebo (p<0.001). A CSBM responder was defined as a patient who had an increase of greater than or equal to one CSBM from baseline
during six out of 12 weeks. We also measured a more stringent CSBM responder rate where a responder was defined as a patient who an increase of greater than or equal to one CSBM from baseline and had three or more CSBMs per week during nine out of
12 weeks. The CSBM nine of
12-week
responder rate was achieved in 23.8% of patients receiving tenapanor 50 mg twice daily versus 7.9% receiving placebo (p<0.004).
An abdominal pain responder was achieved in 65.5% of patients receiving tenapanor 50 mg twice daily versus 48.3% receiving placebo
(p<0.026). An abdominal pain responder was defined as a patient who experienced at least a 30% decrease in abdominal pain from baseline for six of 12 weeks. We also measured a more stringent abdominal pain responder rate where a responder was
defined as a patient who experienced at least a 30% decrease in abdominal pain from baseline for nine of 12 weeks. For this more stringent abdominal pain measurement, the abdominal pain nine of 12 responder rate was achieved in 48.8% of patients
receiving tenapanor 50 mg twice daily versus 31.5% receiving placebo (p<0.022).
The overall responder rate, or dual composite endpoint
percent, was achieved in 50% of patients receiving tenapanor 50 mg twice daily versus 23.6% receiving placebo (p<0.001). An overall responder was defined as a patient who was a CSBM responder and an abdominal pain responder during the same week
for six of 12 weeks. We also measured a more stringent overall responder rate where a responder was defined as a patient who was
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both a CSBM responder and an abdominal pain responder during the same week for nine of 12 weeks. The overall nine of
12-week
responder rate was achieved in
20.2% of patients receiving tenapanor 50 mg twice daily versus 6.7% receiving placebo (p<0.01).
Most other secondary endpoints
measured also demonstrated significant improvements for patients receiving 50 mg tenapanor twice daily compared to placebo-treated patients.
A dose response relationship among all doses was observed in the primary endpoint, as well as in most secondary endpoints, although
statistical significance was not achieved at the 5 mg or 20 mg doses. Additionally, the activity of tenapanor was maintained throughout the entire
12-week
treatment period.
Tenapanor was well-tolerated in these patients, and the safety results were consistent with those observed in previous tenapanor trials. The
most common adverse events at 50 mg twice daily (greater than or equal to 5%) that occurred more frequently in tenapanor-treated patients compared to placebo-treated patients were diarrhea at 11.2% vs. 0%, and urinary tract infections at 5.6% vs.
4.4%. Overall rates of discontinuation due to adverse events were 4.5% for the tenapanor-treated patients (50 mg twice daily) and 3.3% for the placebo-treated patients. Based on the analysis of plasma samples tested as part of the study, the
minimally-systemic nature of tenapanor was confirmed.
We are currently conducting two pivotal Phase 3 clinical trials in the United
States with tenapanor in
IBS-C
patients,
T3MPO-1
and
T3MPO-2.
T3MPO-1
is a
12-week
double-blind, placebo-controlled, multi-center, randomized trial with a
4-week,
placebo-controlled randomized withdrawal period.
T3MPO-2
is a
six-month,
double-blind, placebo-controlled multi-center, randomized trial. The primary endpoint in each of the trials is the six of
12-week
overall responder rate. An overall responder is defined as a weekly responder for six of 12 weeks where both the abdominal pain response and the CSBM response criteria are met during the same week. An
abdominal pain responder is defined as a patient with a 30% or greater reduction in average weekly worst abdominal pain compared to baseline during the week, and a CSBM responder is defined as a patient who has an increase of one or more in average
weekly CSBMs compared to baseline during the week. We are also evaluating other endpoints in these studies, including CSBM and abdominal pain responder rates for six of 12 weeks as well as for nine of 12 weeks, abdominal symptoms and other
clinically relevant endpoints. The
T3MPO-1
trial is fully enrolled with over 600 patients, and we expect to report trial results in
mid-2017.
The
T3MPO-2
trial fully enrolled with over 600 patients and with results from this trial by
year-end
2017. Patients completing
T3MPO-1
and
T3MPO-2
are eligible to enroll into
T3MPO-3,
an open-label, long-term safety study where patients can continue to receive tenapanor for up to one year. By
year-end
2017, we also expect to have
T3MPO-3
data from a sufficient number of patients required to support the NDA filing of tenapanor. If these trials are successful, we
currently expect to submit an NDA to the FDA in 2018 for marketing approval in the United States and we currently expect to commence a clinical program to evaluate tenapanor in patients with chronic idiopathic constipation (CIC).
The
IBS-C
market
Numerous treatments exist for the constipation component of
IBS-C,
many of which are
over-the-counter.
We are aware of two prescription products marketed for
IBS-C,
Linzess (linaclotide) marketed by Ironwood
Pharmaceuticals and Allergan and Amitiza (lubiprostone) marketed by Sucampo and Takeda. In two Phase 3 clinical trials of Linzess in
IBS-C
patients, the placebo-adjusted rate of
IBS-C
patients reaching the primary endpoint, overall responder rate, indicating a significant response during six out of 12 weeks of treatment, was 12.6% and 19.8%, respectively. In these studies, Linzess
caused diarrhea in up to 17% more patients than placebo. Trulance (plecanatide) was approved by the FDA in January 2017 for use in adults for treatment of CIC, and Synergy Pharmaceuticals, the drugs manufacturer, presented Phase 3 data from
two clinical studies of Trulance in
IBS-C
patients in December 2016. In one study, the placebo-adjusted rate of
IBS-C
patients reaching the primary endpoint, overall
responder rate, indicating a significant response during 6 out of 12 weeks of treatment, was 7.3% and 9.8% of patients receiving 3mg and 6mg, respectively. In the other study, the placebo-adjusted rate of
IBS-C
patients reaching the same primary endpoint was 12.4% and 11.7% of patients receiving
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3mg and 6mg, respectively. Synergy has stated its intent to submit an NDA for Trulance in
IBS-C
in the first quarter 2017.
We believe that tenapanor may offer a significant benefit over currently marketed drugs like Amitiza, Linzess and Trulance, in part because of
the efficacy and tolerance profile demonstrated in our Phase 2b clinical trial. Within the United States, there are approximately 11 million patients that suffer that suffer from
IBS-C.
There is
significant unmet need for prescription medications, where only 1 in 4 treated patients were very satisfied with the current FDA approved treatments in
IBS-C.
RDX8940: TGR5 Agonist
RDX8940 is a minimally absorbed, oral TGR5 agonist for which we submitted an IND in late 2016. In light of the
pre-clinical
data, we are evaluating the development of RDX8940 for the treatment of patients with NASH and other gastrointestinal indications.
TGR5 is an important receptor present on cells within the GI tract that is activated in response to the bile acids the body secretes in
response to the food we ingest. As part of a normal physiological response, the binding of bile acids to TGR5 stimulates the production of critical metabolic hormones such as glucagon-like peptides 1 and 2, or
GLP-1
and
GLP-2.
GLP-1
is involved in maintaining insulin sensitivity and in aiding glucose and lipid metabolism.
GLP-2
is involved in maintenance of the structural integrity of the gut as well as its growth.
We
believe that endogenous and local secretion of
GLP-1
and
GLP-2
triggered by the stimulation of TGR5 receptors by an oral TGR5 agonist may have significant therapeutic
potential for the treatment of several conditions. Injectable
GLP-1
analogs are being evaluated in the treatment of NASH because they are known to improve lipid metabolism in the liver. Injectable stabilized
GLP-1
analogs that are commercially available, such as exenatide (Byetta) and liraglutide (Victoza), are commonly used to treat type 2 diabetes, among other metabolic conditions. An injectable, stabilized form of
GLP-2,
called Gattex (teduglutide), is marketed for short bowel syndrome.
GLP-2
stimulates the repair of the gut and improves the structural integrity of gut wall that is
damaged in many disease conditions. A leaky gut, and the corresponding systemic inflammation, is also believed to be involved in the pathology of NASH. In all of these cases,
GLP-1
and
GLP-2
analogs are injectable thus we believe an oral agent that can emulate these effects would be welcome.
Historically one of the limitations for the development of TGR5 agonists has been the observation with systemic compounds that stimulation of
TGR5 in the gallbladder results in excess gallbladder filling, potentially increasing the risk of gallstones. Using our approach to design small molecules, we have created novel TGR5 agonist candidates that have extremely low systemic exposure and
we have shown that these agents do not result in excess gallbladder filling in preclinical animal models.
RDX8940 has demonstrated
proof-of-concept
in an animal efficacy model of NASH. We submitted an IND at
year-end
2016 to begin evaluation of RDX8940 in healthy
adult subjects. This study is designed to include a single dose evaluation of RDX8940 followed by a multiple ascending dose evaluation of RDX8940, with and without
DPP-IV
inhibitors. Results of this clinical
trial will provide important safety assessments, data regarding gut hormone responses such as
GLP-1
and
GLP-2
and any potential gallbladder effects, all of which will
inform our next steps for this program and its potential utility in NASH and other GI disorders.
RDX011 Program: Second-Generation
NHE3 Inhibitors
RDX011 is a program in our GI portfolio focused on leveraging our knowledge of NHE3 inhibitors and their effect on
sodium and phosphate management as we seek to develop novel products. We also intend to evaluate new indications for tenapanor and other NHE3 inhibitors in order to exploit the unique capabilities and tools we have developed to modulate transport of
ions and other processes in the gut.
RDX023 Program:
Gut-Biased
Farnesoid X Receptor
Agonists
The focus of our RDX023 program is on the discovery and development of
gut-biased
FXR agonists for the treatment of GI and inflammatory diseases. FXR is expressed at high levels in the intestine and liver and plays a
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central role in the regulation of bile acid and lipid homeostasis. Systemic FXR agonists appear to have limitations based on their potential to have undesirable and negative effects on multiple
systems in the body. We are evaluating our differentiated
gut-biased
RDX023 program molecules in animal models of NASH/nonalcoholic fatty liver disease, or NAFLD, irritable bowel disease, or IBD, bile acid
diarrhea and other indications.
We presented data at the American Association for the Study of Liver Diseases conference in November 2016
demonstrating proof of concept that a novel, orally administered, intestinal-selective FXR agonist reduced liver steatosis, or infiltration of liver cells with fat, in mice. We intend to designate a lead development candidate from this program in
2017.
INTELLECTUAL PROPERTY
Our
commercial success depends in part on our ability to obtain and maintain proprietary protection for our drug candidates, manufacturing and process discoveries, and other
know-how,
to operate without infringing
the proprietary rights of others and to prevent others from infringing our proprietary rights. Our policy is to seek to protect our proprietary position by, among other methods, filing U.S. and foreign patent applications related to our proprietary
technology, inventions and improvements that are important to the development and operation of our business. We also rely on trade secrets and careful monitoring of our proprietary information to protect aspects of our business that are not amenable
to, or that we do not consider appropriate for, patent protection.
As a normal course of business, we pursue
composition-of-matter
and
method-of-use
patents for our product candidates in key therapeutic
areas. We also seek patent protection for broader structural and functional attributes of our product candidates that enable a minimally-systemic or minimally-systemic profile.
The patent positions of biopharmaceutical companies like us are generally uncertain and involve complex legal, scientific and factual
questions. In addition, the coverage claimed in a patent application can be significantly reduced before the patent is issued, and its scope can be reinterpreted after issuance. Consequently, we do not know whether any of our product candidates will
be protectable or remain protected by enforceable patents. We cannot predict whether the patent applications we are currently pursuing will issue as patents in any particular jurisdiction or whether the claims of our issued patents will provide
sufficient proprietary protection from competitors. Any patents that we hold may be challenged, circumvented or invalidated by third parties. If third parties prepare and file patent applications in the United States that also claim technology or
therapeutics to which we have rights, we may have to participate in interference proceedings in the U.S. Patent and Trademark Office, or USPTO, to determine priority of invention, which would result in substantial costs to us even if the eventual
outcome is favorable to us.
The term of individual patents depends upon the legal term of the patents in countries in which they are
obtained. In most countries, including the United States, the patent term is generally 20 years from the earliest date of filing a
non-provisional
patent application in the applicable country. In the United
States, a patents term may, in certain cases, be lengthened by patent term adjustment, which compensates a patentee for administrative delays by the USPTO in examining and granting a patent, or may be shortened if a patent is terminally
disclaimed over a commonly owned patent or a patent naming a common inventor and having an earlier expiration date.
In addition, in the
United States, the Hatch-Waxman Act permits a patent term extension of up to five years beyond the expiration of a U.S. patent as partial compensation for the patent term lost during the FDA regulatory review process occurring while the patent is in
force. A patent extension cannot extend the remaining term of a patent beyond a total of 14 years from the date of product approval, and only one patent applicable to each regulatory review period may be extended and only those claims covering the
approved drug, a method for using it or a method for manufacturing it may be extended. Similar provisions are available in the European Union and certain other foreign jurisdictions to extend the term of a patent that covers an approved drug.
We may rely, in some circumstances, on trade secrets to protect our technology. Although we take steps to protect our proprietary information
and trade secrets, including through contractual means with our employees and
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consultants, third parties may independently develop substantially equivalent proprietary information and techniques or otherwise gain access to our trade secrets or disclose our technology.
Thus, we may not be able to meaningfully protect our trade secrets. It is our policy to require our employees, consultants, outside scientific collaboration partners, sponsored researchers and other advisors to execute confidentiality agreements
upon the commencement of employment or consulting relationships with us. These agreements provide that all confidential information concerning the business or financial affairs developed or made known to the individual during the course of the
individuals relationship with us is to be kept confidential and not disclosed to third parties except in specific circumstances. In the case of employees, the agreements provide that all inventions conceived by the individual, and which are
related to our current or planned business or research and development or made during the normal working hours, on our premises or using our equipment or proprietary information, are our exclusive property.
NHE3 patents
Our
NHE3 patent portfolio is wholly owned by us. This portfolio includes four issued U.S. patents, two issued Japanese patents, and one issued Mexican patent. These issued patents cover the composition and methods of using tenapanor and are predicted,
without extension or adjustment, to expire in 2029. We have related national patent applications pending in Europe, China, India, Israel and a number of other countries. Any patents issuing from these patent applications are also predicted without
extension or adjustment to expire in 2029.
Additional U.S. and international patent applications are pending covering additional methods
of using tenapanor, and composition of matter and methods of using compounds that we believe may be follow on compounds to tenapanor.
RDX7675
We have
an issued patent in the United States that covers the composition of matter of RDX7675, and we have additional patent applications pending in the U.S. and internationally covering the composition and methods of using RDX7675. Our issued patent will
provide coverage through 2035 without extensions or adjustments.
RDX8940
We have patent applications pending in the United States and internationally that cover the compositions and methods of using our TGR5
agonists.
MANUFACTURING
To date, we
have relied upon third-party contract manufacturing organizations, or CMOs, to manufacture both the active pharmaceutical ingredient and final drug product dosage forms of our potential drug candidates used as clinical trial material. We expect that
we will continue to rely upon CMOs for the manufacture of our clinical trial materials for our own internal programs.
GOVERNMENT REGULATION/FDA
The FDA and comparable regulatory authorities in state and local jurisdictions and in other countries impose substantial and
burdensome requirements upon companies involved in the clinical development, manufacture, marketing and distribution of drugs. These agencies and other federal, state and local entities regulate research and development activities and the testing,
manufacture, quality control, safety, effectiveness, labeling, storage, record keeping, approval, advertising and promotion, distribution, post-approval monitoring and reporting, sampling, and export and import of our product candidates.
In the United States, the FDA regulates drug products under the Federal Food, Drug, and Cosmetic Act, or FFDCA, and the FDAs
implementing regulations. If we fail to comply with applicable FDA or other requirements at any time during the drug development process, the approval process or after approval, we may become subject to administrative or judicial sanctions. These
sanctions could include the FDAs refusal to
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approve pending applications, license suspension or revocation, withdrawal of an approval, warning letters, product recalls, product seizures, total or partial suspension of production or
distribution, injunctions, fines, civil penalties or criminal prosecution. Any FDA enforcement action could have a material adverse effect on us. FDA approval is required before any new unapproved drug or dosage form, including a new use of a
previously approved drug, can be marketed in the United States.
The process required by the FDA before a drug may be marketed in the
United States generally involves:
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completion of extensive preclinical laboratory tests, preclinical animal studies and formulation studies, some performed in accordance with the FDAs current Good Laboratory Practice, or GLP, regulations;
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submission to the FDA of an Investigational New Drug, or IND, application which must become effective before human clinical trials in the United States may begin;
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approval by an independent institutional review board, or IRB, or ethics committee at each clinical trial site before each trial may be initiated;
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performance of adequate and well-controlled human clinical trials in accordance with Good Clinical Practice, or GCP, regulations to establish the safety and efficacy of the drug candidate for each proposed indication;
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submission to the FDA of a new drug application, or NDA;
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satisfactory completion of an FDA inspection of the manufacturing facility or facilities at which the drug is produced to assess compliance with current Good Manufacturing Practice, or cGMP, regulations;
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satisfactory completion of a potential review by an FDA advisory committee, if applicable; and
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FDA review and approval of the NDA prior to any commercial marketing, sale or commercial shipment of the drug.
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The preclinical and clinical testing and approval process requires substantial time, effort and financial resources, and we cannot be certain
that any approvals for our product candidates will be granted on a timely basis, if at all. Nonclinical tests include laboratory evaluation of product chemistry, formulation, stability and toxicity, as well as animal studies to assess the
characteristics and potential safety and efficacy of the product. The results of preclinical tests, together with manufacturing information, analytical data and a proposed clinical trial protocol and other information, are submitted as part of an
IND to the FDA. Some preclinical testing may continue even after the IND is submitted. The IND automatically becomes effective 30 days after receipt by the FDA, unless the FDA, within the
30-day
time period,
raises concerns or questions relating to the IND and places the clinical trial on a clinical hold, including concerns that human research subjects will be exposed to unreasonable health risks. In such a case, the IND sponsor and the FDA must resolve
any outstanding concerns before the clinical trial can begin. A separate submission to an existing IND must also be made for each successive clinical trial conducted during product development.
Clinical trials involve the administration of the investigational drug to human subjects under the supervision of qualified investigators.
Clinical trials are conducted under protocols detailing, among other things, the objectives of the clinical trial, the parameters to be used in monitoring safety and the effectiveness criteria to be used. Each protocol must be submitted to the FDA
as part of the IND.
An independent IRB or ethics committee for each medical center proposing to conduct a clinical trial must also review
and approve a plan for any clinical trial before it can begin at that center and the IRB must monitor the clinical trial until it is completed. The FDA, the IRB, or the sponsor may suspend or discontinue a clinical trial at any time on various
grounds, including a finding that the subjects are being exposed to an unacceptable health risk. Clinical testing also must satisfy extensive GCP requirements, including the requirements for informed consent.
All clinical research performed in the United States in support of an NDA must be authorized in advance by the FDA under the IND regulations
and procedures described above. However, a sponsor who wishes to conduct
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a clinical trial outside the United States may, but need not, obtain FDA authorization to conduct the clinical trial under an IND. If a foreign clinical trial is not conducted under an IND, the
sponsor may submit data from the clinical trial to the FDA in support of an NDA so long as the clinical trial is conducted in compliance with GCP and if the FDA is able to validate the data from the study through an onsite inspection, if necessary.
GCP includes review and approval by an independent ethics committee, such as an IRB, and obtaining and documenting the freely given informed consent of the subject before study initiation. If the applicant seeks approval of an NDA solely on the
basis of foreign data, the FDA will only accept such data if they are applicable to the U.S. population and U.S. medical practice, the studies have been performed by clinical investigators of recognized competence, and the data may be considered
valid without the need for an
on-site
inspection by the FDA, or if the FDA considers such an inspection to be necessary, the FDA is able to validate the data through an
on-site
inspection or through other appropriate means.
Clinical trials
The clinical investigation of a new drug is typically conducted in three or four phases, which may overlap or be combined, and generally
proceed as follows.
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Phase 1
: Clinical trials are initially conducted in a limited population of subjects to test the drug candidate for safety, dose tolerance, absorption, metabolism, distribution and excretion in healthy humans or,
on occasion, in patients with severe problems or life-threatening diseases to gain an early indication of its effectiveness.
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Phase 2
: Clinical trials are generally conducted in a limited patient population to evaluate dosage tolerance and appropriate dosage, identify possible adverse effects and safety risks, and evaluate preliminarily
the efficacy of the drug for specific targeted indications in patients with the disease or condition under study.
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Phase 3
: Clinical trials are typically conducted when Phase 2 clinical trials demonstrate that a dose range of the product candidate is effective and has an acceptable safety profile. Phase 3 clinical trials are
commonly referred to as pivotal studies, which typically denotes a study which presents the data that the FDA or other relevant regulatory agency will use to determine whether or not to approve a drug. Phase 3 clinical trials are
generally undertaken with large numbers of patients, such as groups of several hundred to several thousand, to further evaluate dosage, to provide substantial evidence of clinical efficacy and to further test for safety in an expanded and diverse
patient population at multiple, geographically-dispersed clinical trial sites.
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Phase 4
: In some cases, the FDA may condition approval of an NDA for a product candidate on the sponsors agreement to conduct additional clinical trials after NDA approval. In other cases, a sponsor may
voluntarily conduct additional clinical trials post approval to gain more information about the drug. Such post approval trials are typically referred to as Phase 4 clinical trials.
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In the case of a 505(b)(2) NDA, which is a marketing application in which sponsors may rely on investigations that were not conducted by or
for the applicant and for which the applicant has not obtained a right of reference or use from the person by or for whom the investigations were conducted, some of the abovementioned studies and preclinical studies may not be required or may be
abbreviated. Bridging studies may be needed, however, to demonstrate the applicability of the studies that were previously conducted by other sponsors to the drug that is the subject of the marketing application.
Concurrent with clinical trials, companies usually complete additional preclinical studies and must also develop additional information about
the chemistry and physical characteristics of the drug and finalize a process for manufacturing the drug in commercial quantities in accordance with GMP requirements. The manufacturing process must be capable of consistently producing quality
batches of the drug candidate and, among other things, the manufacturer must develop methods for testing the identity, strength, quality and purity of the final drug product. Additionally, appropriate packaging must be selected and tested and
stability studies must be conducted to demonstrate that the drug candidate does not undergo unacceptable deterioration over its shelf life.
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The FDA, the IRB or the clinical trial sponsor may suspend or terminate a clinical trial at any
time on various grounds, including a finding that the research subjects are being exposed to an unacceptable health risk.
Additionally,
some clinical trials are overseen by an independent group of qualified experts organized by the clinical trial sponsor, known as a data safety monitoring board or committee. This group provides authorization for whether or not a trial may move
forward at designated check points based on access to certain data from the study. We may also suspend or terminate a clinical trial based on evolving business objectives and/or competitive climate.
New drug applications
The results
of preclinical studies and of the clinical trials, together with other detailed information, including extensive manufacturing information and information on the composition of the drug, are submitted to the FDA in the form of an NDA requesting
approval to market the drug for one or more specified indications. The FDA reviews an NDA to determine, among other things, whether a drug is safe and effective for its intended use.
Under the Prescription Drug User Fee Act, the FDA has a goal of responding to standard review NDAs of new molecular entities within ten months
after the
60-day
filing review period, or six months after the
60-day
filing review period for priority review NDAs, but this timeframe is often extended by FDA requests
for additional information or clarification. The FDA may refer the application to an advisory committee for review, evaluation and recommendation as to whether the application should be approved. The FDA is not bound by the recommendation of an
advisory committee, but it generally follows such recommendations.
Before approving an application, the FDA will inspect the facility or
the facilities at which the finished drug product, and sometimes the active pharmaceutical ingredient, or API, is manufactured, and will not approve the drug unless cGMP compliance is satisfactory. The FDA may also inspect the sites at which the
clinical trials were conducted to assess their compliance, and will not approve the drug unless compliance with cGCP requirements is satisfactory.
After the FDA evaluates the NDA and conducts inspections of manufacturing facilities where the drug product and/or its API will be produced,
it may issue an approval letter or a Complete Response Letter. An approval letter authorizes commercial marketing of the drug with specific prescribing information for specific indications. A Complete Response Letter indicates that the review cycle
of the application is complete and the application is not ready for approval. A Complete Response Letter may require additional clinical data and/or an additional pivotal Phase 3 clinical trial(s), and/or other significant, expensive and
time-consuming requirements related to clinical trials, preclinical studies or manufacturing. Even if such additional information is submitted, the FDA may ultimately decide that the NDA does not satisfy the criteria for approval. The FDA could also
approve the NDA with a Risk Evaluation and Mitigation Strategy, or REMS, plan to mitigate risks, which could include medication guides, physician communication plans, or elements to assure safe use, such as restricted distribution methods, patient
registries and other risk minimization tools. The FDA also may condition approval on, among other things, changes to proposed labeling, development of adequate controls and specifications, or a commitment to conduct one or more post-market studies
or clinical trials. Such post-market testing may include Phase 4 clinical trials and surveillance to further assess and monitor the products safety and effectiveness after commercialization. The FDA has the authority to prevent or limit
further marketing of a drug based on the results of these post-marketing programs. Once the FDA approves an NDA, or supplement thereto, the FDA may withdraw the approval if ongoing regulatory requirements are not met or if safety problems are
identified after the drug reaches the market.
Drugs may be marketed only for the FDA approved indications and in accordance with the
provisions of the approved labeling. Further, if there are any modifications to the drug, including changes in indications, labeling, or manufacturing processes or facilities, the applicant may be required to submit and obtain FDA approval of a new
NDA or NDA supplement, which may require the applicant to develop additional data or conduct additional preclinical studies and clinical trials.
The testing and approval processes require substantial time, effort and financial resources, and each may take several years to complete. The
FDA may not grant approval on a timely basis, or at all. Even if we believe a
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clinical trial has demonstrated safety and efficacy of one of our drug candidates for the proposed indication, the results may not be satisfactory to the FDA. Nonclinical and clinical data may be
interpreted by the FDA in different ways, which could delay, limit or prevent regulatory approval. We may encounter difficulties or unanticipated costs in our efforts to secure necessary governmental approvals which could delay or preclude us from
marketing drugs. The FDA may limit the indications for use or place other conditions on any approvals that could restrict the commercial application of the drugs. After approval, certain changes to the approved drug, such as adding new indications,
manufacturing changes, or additional labeling claims are subject to further FDA review and approval. Depending on the nature of the change proposed, an NDA supplement must be filed and approved before the change may be implemented. For many proposed
post-approval changes to an NDA, but excluding efficacy supplements to an NDA, the FDA has up to 180 days to review the application. As with new NDAs, the review process is often significantly extended by the FDA requests for additional information
or clarification.
Other regulatory requirements
Any drugs manufactured or distributed by us or our collaboration partners pursuant to FDA approvals would be subject to continuing regulation
by the FDA, including recordkeeping requirements and reporting of adverse experiences associated with the drug. Drug manufacturers and their subcontractors are required to register their establishments with the FDA and certain state agencies, and
are subject to periodic announced and unannounced inspections by the FDA and certain state agencies for compliance with ongoing regulatory requirements, including cGMP, which impose certain procedural and documentation requirements upon us and our
third party manufacturers. Failure to comply with the statutory and regulatory requirements can subject a manufacturer to possible legal or regulatory action, such as warning letters, suspension of manufacturing, seizure of product, injunctive
action or possible civil penalties. We cannot be certain that we or our present or future third party manufacturers or suppliers will be able to comply with the cGMP regulations and other ongoing FDA regulatory requirements. If we or our present or
future third party manufacturers or suppliers are not able to comply with these requirements, the FDA may, among other things, halt our clinical trials, require us to recall a drug from distribution or withdraw approval of the NDA for that drug.
The FDA closely regulates the post-approval marketing and promotion of drugs, including standards and regulations for
direct-to-consumer
advertising,
off-label
promotion, industry-sponsored scientific and educational activities and promotional activities involving the Internet. A company can
make only those claims relating to safety and efficacy that are approved by the FDA. Failure to comply with these requirements can result in, among other things, adverse publicity, warning letters, corrective advertising and potential civil and
criminal penalties. Physicians may prescribe legally available drugs for uses that are not described in the products labeling and that differ from those tested by us and approved by the FDA. Such
off-label
uses are common across medical specialties. Physicians may believe that such
off-label
uses are the best treatment for many patients in varied circumstances.
The FDA does not regulate the behavior of physicians in their choice of treatments. The FDA does, however, impose stringent restrictions on manufacturers communications regarding
off-label
use.
Hatch-Waxman Act
Section 505
of the FFDCA describes three types of marketing applications that may be submitted to the FDA to request marketing authorization for a new drug. A Section 505(b)(1) NDA is an application that contains full reports of investigations of safety and
efficacy. A 505(b)(2) NDA is an application that contains full reports of investigations of safety and efficacy but where at least some of the information required for approval comes from investigations that were not conducted by or for the
applicant and for which the applicant has not obtained a right of reference or use from the person by or for whom the investigations were conducted. This regulatory pathway enables the applicant to rely, in part, on the FDAs prior findings of
safety and efficacy for an existing product, or published literature, in support of its application. Section 505(j) establishes an abbreviated approval process for a generic version of approved drug products through the submission of an Abbreviated
New Drug Application, or ANDA. An ANDA provides for marketing of a generic drug product that has the same active ingredients, dosage form, strength, route of administration, labeling, performance characteristics and intended
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use, among other things, to a previously approved product. ANDAs are termed abbreviated because they are generally not required to include preclinical (animal) and clinical (human)
data to establish safety and efficacy. Instead, generic applicants must scientifically demonstrate that their product is bioequivalent to, or performs in the same manner as, the innovator drug through in vitro, in vivo, or other testing. The generic
version must deliver the same amount of active ingredients into a subjects bloodstream in the same amount of time as the innovator drug and can often be substituted by pharmacists under prescriptions written for the reference listed drug. In
seeking approval for a drug through an NDA, applicants are required to list with the FDA each patent with claims that cover the applicants drug or a method of using the drug. Upon approval of a drug, each of the patents listed in the
application for the drug is then published in the FDAs Approved Drug Products with Therapeutic Equivalence Evaluations, commonly known as the Orange Book. Drugs listed in the Orange Book can, in turn, be cited by potential competitors in
support of approval of an ANDA or 505(b)(2) NDA.
Upon submission of an ANDA or a 505(b)(2) NDA, an applicant must certify to the FDA that
(1) no patent information on the drug product that is the subject of the application has been submitted to the FDA; (2) such patent has expired; (3) the date on which such patent expires; or (4) such patent is invalid or will not
be infringed upon by the manufacture, use or sale of the drug product for which the application is submitted. Generally, the ANDA or 505(b)(2) NDA cannot be approved until all listed patents have expired, except where the ANDA or 505(b)(2) NDA
applicant challenges a listed patent through the last type of certification, also known as a paragraph IV certification. If the applicant does not challenge the listed patents or indicates that it is not seeking approval of a patented method of use,
the ANDA or 505(b)(2) NDA application will not be approved until all of the listed patents claiming the referenced product have expired.
If the ANDA or 505(b)(2) NDA applicant has provided a Paragraph IV certification to the FDA, the applicant must send notice of the Paragraph
IV certification to the NDA and patent holders once the application has been accepted for filing by the FDA. The NDA and patent holders may then initiate a patent infringement lawsuit in response to the notice of the paragraph IV certification. If
the paragraph IV certification is challenged by an NDA holder or the patent owner(s) asserts a patent challenge to the paragraph IV certification, the FDA may not approve that application until the earlier of 30 months from the receipt of the notice
of the paragraph IV certification, the expiration of the patent, when the infringement case concerning each such patent was favorably decided in the applicants favor or settled, or such shorter or longer period as may be ordered by a court.
This prohibition is generally referred to as the
30-month
stay. In instances where an ANDA or 505(b)(2) NDA applicant files a paragraph IV certification, the NDA holder or patent owner(s) regularly take action
to trigger the
30-month
stay, recognizing that the related patent litigation may take many months or years to resolve. Thus, approval of an ANDA or 505(b)(2) NDA could be delayed for a significant period of
time depending on the patent certification the applicant makes and the reference drug sponsors decision to initiate patent litigation.
The Hatch-Waxman Act establishes periods of regulatory exclusivity for certain approved drug products, during which the FDA cannot approve (or
in some cases accept) an ANDA or 505(b)(2) application that relies on the branded reference drug. For example, the holder of an NDA, including a 505(b)(2) NDA, may obtain five years of exclusivity upon approval of a new drug containing new chemical
entities, or NCEs, that have not been previously approved by the FDA. A drug is a new chemical entity if the FDA has not previously approved any other new drug containing the same active moiety, which is the molecule or ion responsible for the
therapeutic activity of the drug substance. During the exclusivity period, the FDA may not accept for review an ANDA or a 505(b)(2) NDA submitted by another company that contains the previously approved active moiety. However, an ANDA or 505(b)(2)
NDA may be submitted after four years if it contains a certification of patent invalidity or
non-infringement.
The Hatch-Waxman Act also provides three years of marketing exclusivity to the holder of an NDA (including a 505(b)(2) NDA) for a particular
condition of approval, or change to a marketed product, such as a new formulation for a previously approved product, if one or more new clinical studies (other than bioavailability or bioequivalence studies) was essential to the approval of the
application and was conducted/sponsored by the applicant. This three-year exclusivity period protects against FDA approval of ANDAs and 505(b)(2) NDAs for the condition of the new drugs approval. As a general matter, the three-year exclusivity
does not prohibit the
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FDA from approving ANDAs or 505(b)(2) NDAs for generic versions of the original, unmodified drug product. Five-year and three-year exclusivity will not delay the submission or approval of a full
NDA; however, an applicant submitting a full NDA would be required to conduct or obtain a right of reference to all of the preclinical studies and adequate and well-controlled clinical trials necessary to demonstrate safety and efficacy.
Fraud and abuse laws
In the
United States, the research, manufacturing, distribution, sale and promotion of drug products and medical devices are potentially subject to regulation by various federal, state and local authorities in addition to the FDA, including the Centers for
Medicare & Medicaid Services, or CMS, other divisions of the U.S. Department of Health and Human Services (e.g., the Office of Inspector General), the U.S. Department of Justice, state Attorneys General, and other state and local government
agencies. These laws include but are not limited to, the Anti-Kickback Statute, the federal False Claims Act, the federal Physician Payments Sunshine Act, and other state and federal laws and regulations.
The Anti-Kickback Statute makes it illegal for any person, including a prescription drug manufacturer (or a party acting on its behalf) to
knowingly and willfully solicit, receive, offer, or pay any remuneration that is intended to induce the referral of business, including the purchase, order, or prescription of a particular drug, for which payment may be made under a federal
healthcare program, such as Medicare or Medicaid. Violations of this law are punishable by up to five years in prison, criminal fines, administrative civil money penalties, and exclusion from participation in federal healthcare programs. In
addition, the Affordable Care Act, among other things, amends the intent requirement of the federal Anti-Kickback Statute and federal criminal healthcare fraud statutes. A person or entity no longer needs to have actual knowledge of the statute or
specific intent to violate it. Moreover, the Affordable Care Act provides that the government may assert that a claim including items or services resulting from a violation of the federal anti-kickback statute constitutes a false or fraudulent claim
for purposes of the False Claims Act.
The federal False Claims Act prohibits anyone from knowingly presenting, or causing to be
presented, for payment to federal programs (including Medicare and Medicaid) claims for items or services, including drugs, that are false or fraudulent, claims for items or services not provided as claimed, or claims for medically unnecessary items
or services. Although we would not submit claims directly to payors, manufacturers can be held liable under these laws if they are deemed to cause the submission of false or fraudulent claims by, for example, providing inaccurate billing
or coding information to customers or promoting a product
off-label.
In addition, our future activities relating to the reporting of wholesaler or estimated retail prices for our products, the reporting of
prices used to calculate Medicaid rebate information and other information affecting federal, state, and third-party reimbursement for our products, and the sale and marketing of our products, are subject to scrutiny under this law. For example,
pharmaceutical companies have been prosecuted under the federal False Claims Act in connection with their
off-label
promotion of drugs. Penalties for a False Claims Act violation include three times the actual
damages sustained by the government, plus mandatory civil penalties of between $10,781 and $21,563 for each separate false claim, the potential for exclusion from participation in federal healthcare programs, and, although the federal False Claims
Act is a civil statute, conduct that results in a False Claims Act violation may also implicate various federal criminal statutes. If the government were to allege that we were, or convict us of, violating these false claims laws, we could be
subject to a substantial fine and may suffer a decline in our stock price. In addition, private individuals have the ability to bring actions under the federal False Claims Act and certain states have enacted laws modeled after the federal False
Claims Act.
In addition to the laws described above, the Patient Protection and Affordable Care Act, as amended by the Health Care and
Education Reconciliation Act, collectively known as the Affordable Care Act, also imposed new reporting requirements on drug manufacturers for payments made to physicians and teaching hospitals, as well as ownership and investment interests held by
physicians and their immediate family members. Failure to submit required information may result in civil monetary penalties of up to an aggregate of $150,000 per year (or up to an aggregate of $1 million per year for knowing
failures), for all payments, transfers of value or ownership or
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investment interests that are not timely, accurately and completely reported in an annual submission. Manufacturers must submit reports by the 90th day of each subsequent calendar year.
Many states have also adopted laws similar to the federal laws discussed above. Some of these state prohibitions apply to the referral of
patients for healthcare services reimbursed by any insurer, not just federal healthcare programs such as Medicare and Medicaid. There has also been a recent trend of increased regulation of payments made to physicians and other healthcare providers.
Certain states mandate implementation of compliance programs, impose restrictions on drug manufacturers marketing practices and/or require the tracking and reporting of pricing and marketing information as well as gifts, compensation and other
remuneration to physicians. Many of these laws contain ambiguities as to what is required to comply with such laws, which may affect our sales, marketing, and other promotional activities by imposing administrative and compliance burdens on us. In
addition, given the lack of clarity with respect to these laws and their implementation, our reporting actions could be subject to the penalty provisions of the pertinent state and perhaps federal, authorities.
Because we intend to commercialize products that could be reimbursed under a federal healthcare program and other governmental healthcare
programs, we plan to develop a comprehensive compliance program that establishes internal controls to facilitate adherence to the rules and program requirements to which we will or may become subject. Although compliance programs can mitigate the
risk of investigation and prosecution for violations of these laws, the risks cannot be entirely eliminated. Due to the breadth of these laws, the absence of guidance in the form of regulations or court decisions, and the potential for additional
legal or regulatory change in this area, it is possible that our future sales and marketing practices and/or our future relationships with physicians and other healthcare providers might be challenged under such laws. Any action against us for
violation of these laws, even if we successfully defend against it, could cause us to incur significant legal expenses and divert our managements attention from the operation of our business.
Third-party coverage and reimbursement
Sales of pharmaceutical products depend in significant part on the availability of coverage and adequate reimbursement by third-party payors,
such as state and federal governments, including Medicare and Medicaid, and commercial managed care providers. In the United States, no uniform policy of coverage and reimbursement for drug products exists among third-party payors. Accordingly,
decisions regarding the extent of coverage and amount of reimbursement to be provided for our product candidates, if approved, will be made on a payor by payor basis. As a result, the coverage determination process is often a time-consuming and
costly process that will require us to provide scientific and clinical support for the use of our product candidates to each payor separately, with no assurance that coverage and adequate reimbursement will be obtained. Third-party payors may limit
coverage to specific drug products on an approved list, or formulary, which might not include all of the
FDA-approved
drugs for a particular indication. A decision by a third-party payor not to cover our
product candidates could reduce physician utilization of our products once approved and have a material adverse effect on our future sales, results of operations and financial condition. Moreover, a payors decision to provide coverage for a
drug product does not imply that an adequate reimbursement rate will be approved. Adequate third-party reimbursement may not be available to enable us to maintain price levels sufficient to realize an appropriate return on our investment in product
development.
In addition, in July 2010, CMS released its final rule to implement a bundled prospective payment system for the treatment
of ESRD patients as required by the Medicare Improvements for Patients and Providers Act, or MIPPA. The bundled payment includes all renal dialysis services furnished for outpatient maintenance dialysis, including ESRD-related drugs and biologicals.
The final rule delayed the inclusion of oral medications without intravenous equivalents in the bundled payment until January 1, 2014 and in April 2014, and due to subsequent legislative amendments, such inclusion will remain delayed until
January 1, 2025. Unless additional Congressional action is taken, beginning in 2025 ESRD-related drugs will be included in the bundle and separate Medicare reimbursement will no longer be available for such drugs, as it is today under Medicare
Part D. While it is too early to project the full impact bundling may have on the phosphate binder industry, the impact could potentially cause dramatic price reductions for tenapanor, if approved.
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Healthcare reform
In March 2010, Congress passed and President Obama signed into law, the Patient Protection and Affordable Care Act, a healthcare reform
measure, often called, the Affordable Care Act. The Affordable Care Act substantially changes the way healthcare is financed by both governmental and private insurers, and significantly impacts the pharmaceutical industry.
The Affordable Care Act contains a number of provisions, including those governing enrollment in federal healthcare programs, reimbursement
changes and fraud and abuse measures, which impacted existing government healthcare programs and have resulted in the development of new programs, including Medicare payment for performance initiatives and improvements to the physician quality
reporting system and feedback program.
Additionally, the Affordable Care Act:
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increases the minimum level of Medicaid rebates payable by manufacturers of brand-name drugs from 15.1% to 23.1%;
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requires collection of rebates for drugs paid by Medicaid managed care organizations;
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expands eligibility criteria for Medicaid programs by, among other things, allowing states to offer Medicaid coverage to additional individuals and by adding new mandatory eligibility categories for certain individuals
with income at or below 133% of the federal poverty level, thereby potentially increasing a manufacturers Medicaid rebate liability;
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expands access to commercial health insurance coverage through new state-based health insurance marketplaces, or exchanges;
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requires manufacturers to participate in a coverage gap discount program, under which they must agree to offer 50 percent
point-of-sale
discounts off negotiated prices of applicable brand drugs to eligible beneficiaries during their coverage gap period, as a condition for the
manufacturers outpatient drugs to be covered under Medicare Part D, beginning January 2011; and
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imposes a
non-deductible
annual fee on pharmaceutical manufacturers or importers who sell branded prescription drugs to specified federal government programs.
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We expect that the new presidential administration and U.S. Congress will seek to modify, repeal, or otherwise invalidate
all or certain provisions of, the Affordable Care Act. Since taking office, President Trump has continued to support the repeal of all or portions of the Affordable Care Act. In January 2017, the House and Senate passed a budget resolution that
authorizes congressional committees to draft legislation to repeal all or portions of the Affordable Care Act and permits such legislation to pass with a majority vote in the Senate. President Trump has also recently issued an executive order in
which he stated that it is his administrations policy to seek the prompt repeal of the Affordable Care Act and directed executive departments and federal agencies to waive, defer, grant exemptions from, or delay the implementation of the
provisions of the Affordable Care Act to the maximum extent permitted by law. There is still uncertainty with respect to the impact President Trumps administration and the U.S. Congress may have, if any, and any changes will likely take time
to unfold, and could have an impact on coverage and reimbursement for healthcare items and services covered by plans that were authorized by the Affordable Care Act.
In addition, other legislative changes have been proposed and adopted in the United States since the Affordable Care Act was enacted. In August
2011, the Budget Control Act of 2011 among other things, created the Joint Select Committee on Deficit Reduction to recommend proposals in spending reductions to Congress. The Joint Select Committee did not achieve its targeted deficit reduction of
at least $1.2 trillion for the years 2013 through 2021, triggering the legislations automatic reduction to several government programs. This includes aggregate reductions to Medicare payments to providers of 2 percent per fiscal year,
which went into effect on April 1, 2013, and, due to subsequent legislative amendments, will remain in effect through 2025 unless additional Congressional action is taken. In January 2013, the American Taxpayer Relief Act was enacted,
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which, among other things, further reduced Medicare payments to several providers, including hospitals, imaging centers and cancer treatment centers, and increased the statute of limitations
period for the government to recover overpayments to providers from three to five years. Recently, there has also been heightened governmental scrutiny over the manner in which drug manufacturers set prices for their marketed products, which has
resulted in several Congressional inquiries and proposed bills designed to, among other things, bring more transparency to product pricing, review the relationship between pricing and manufacturer patient programs, and reform government program
reimbursement methodologies for drug products. These new laws and the regulations and policies implementing them, as well as other healthcare reform measures that may be adopted in the future, may have a material adverse effect on our industry
generally and on our ability to successfully develop and commercialize our products.
Other regulations
We are also subject to numerous federal, state and local laws relating to such matters as safe working conditions, manufacturing practices,
environmental protection, fire hazard control, and disposal of hazardous or potentially hazardous substances. We may incur significant costs to comply with such laws and regulations now or in the future.
EMPLOYEES
As of December 31, 2016,
we had 93 full-time employees, including a total of 23 employees with Ph.D. degrees. Within our workforce, 68 employees are engaged in research and development and the remaining 25 in general management and administration, including finance, legal,
and business development. None of our employees are represented by labor unions or covered by collective bargaining agreements. We believe that we maintain good relations with our employees.
RESEARCH AND DEVELOPMENT
Our research
and development costs were $94.2 million, $39.9 million and $25.9 million in the years 2016, 2015 and 2014, respectively. See
ITEM 7. MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
for additional detail regarding our research and development activities.
CORPORATE INFORMATION
We were incorporated in Delaware on October 17, 2007, under the name Nteryx and changed our name to Ardelyx, Inc. in June 2008. We operate
in only one business segment, which is the research, development and commercialization of biopharmaceutical products. See Note 1 to our financial statements included in this Annual Report on Form
10-K.
Our
principal offices are located at 34175 Ardenwood Blvd., Suite 200, Fremont, CA 94555, and our telephone number is (510)
745-1700.
Our website address is www.ardelyx.com.
We file electronically with the Securities and Exchange Commission, or SEC, our annual reports on
Form 10-K,
quarterly reports on Form
10-Q
and current reports on Form
8-K
pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended. We make available on our website at www.ardelyx.com, free of charge, copies of these reports, as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC.
The public may read or copy any materials we file with the SEC at the SECs Public Reference Room at 100 F Street NE, Washington, D.C. 20549. The public may obtain information on the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330.
The SEC maintains a website that contains reports, proxy and information statements, and other information regarding
issuers that file electronically with the SEC. The address of that website is www.sec.gov.
ITEM 1A. RISK FACTORS
Our business involves significant risks, some of which are described below. You should carefully consider these risks, as well as other information
in this Annual Report on Form
10-K,
including our financial statements and
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the related notes and Managements Discussion and Analysis of Financial Condition and Results of Operations. The occurrence of any of the events or developments described below
could harm our business, financial condition, results of operations, cash flows, the trading price of our common stock and our growth prospects. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may
also impair our business operations.
Risks Related to Our Limited Operating History, Financial Condition and Capital Requirements
We have a limited operating history, have incurred significant losses since our inception and we will incur losses in the future, which makes it
difficult to assess our future viability.
We are a clinical-stage biopharmaceutical company with a limited operating history.
Biopharmaceutical product development is a highly speculative undertaking and involves a substantial degree of risk. To date, we have focused substantially all of our efforts on our research and development activities, including developing our
clinical product candidates, tenapanor and RDX7675, and developing our proprietary drug discovery and design platform. To date, we have not commercialized any products or generated any revenue from the sale of products.
We are not profitable and have incurred losses in each year since our inception in October 2007, and we do not know whether or when we will
become profitable. We have only a limited operating history upon which to evaluate our business and prospects. We continue to incur significant research, development and other expenses related to our ongoing operations. As of December 31, 2016,
we had an accumulated deficit of $ 213.9 million.
We expect that our operating losses will substantially increase for the
foreseeable future as we prepare for the commercialization of tenapanor and RDX7675, incur manufacturing and development costs for tenapanor, RDX7675, and RDX8940, including costs associated with completing the
on-going
Phase 3 development of tenapanor in
IBS-C
and in hyperphosphatemia, completing the
on-going
onset-of-action
trial and the Phase 3 clinical trials for RDX7675, and commencing clinical development of RDX8940, and as we continue our discovery and research activities.
Our prior losses, combined with expected future losses, have had and will continue to have an adverse effect on our stockholders
equity and working capital. Further, the net losses we incur may fluctuate significantly from quarter to quarter and year to year, such that a
period-to-period
comparison of our results of operations may not be a good indication of our future performance.
We have substantial net operating loss
and tax credit carryforwards for Federal and California income tax purposes. Such net operating losses and tax credits carryforwards may be reduced as a result of certain intercompany restructuring transactions. In addition, the future utilization
of such net operating loss and tax credit carryforwards and credits may be subject to limitations, pursuant to Internal Revenue Code Sections 382 and 383, as a result of ownership changes that may have occurred previously or that could occur in the
future.
We have never generated any revenue from product sales and may never be profitable.
We have no products approved for sale and have never generated any revenue from product sales. Our ability to generate revenue from product
sales and achieve profitability depends on our ability to successfully complete the development of and obtain the regulatory and marketing approvals necessary to commercialize one or more of our product candidates. We do not anticipate generating
revenue from product sales for the foreseeable future. Our ability to generate future revenue from product sales or pursuant to milestone payments depends heavily on many factors, including but not limited to:
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the successful completion of nonclinical and clinical development of our product candidates;
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obtaining regulatory approvals for our product candidates, either on our own, or with one or more collaboration partners;
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our ability to successfully commercialize our product candidates, either on our own, or with one or more collaboration partners;
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developing a sustainable and scalable manufacturing process for any approved product candidates and establishing and maintaining supply and manufacturing relationships with third parties that can provide an adequate (in
amount and quality) supply of product to support clinical development and the market demand for our product candidates, if approved;
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obtaining market acceptance of our product candidates, if approved, as viable treatment options;
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addressing any competing technological and market developments;
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identifying, assessing, acquiring,
in-licensing
and/or developing new product candidates;
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negotiating favorable terms in any collaboration partnership, licensing or other arrangements into which we may enter;
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maintaining, protecting, and expanding our portfolio of intellectual property rights, including patents, trade secrets, and
know-how,
and our ability to develop, manufacture and
commercialize our product candidates and products without infringing intellectual property rights of others; and
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attracting, hiring, and retaining qualified personnel.
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In cases where we are successful in
obtaining regulatory approvals to market one or more of our product candidates, our revenue will be dependent, in part, upon the size of the markets in the territories for which regulatory approval is granted, the accepted price for the product, the
ability to get reimbursement at any price and whether we are commercializing the product or the product is being commercialized by a collaboration partner, and in such case, whether we have royalty and/or
co-promotion
rights for that territory. If the number of patients suitable for our product candidates is not as significant as we estimate, the indication approved by regulatory authorities is narrower than we
expect, or the reasonably accepted population for treatment is narrowed by competition, physician choice or treatment guidelines, we may not generate significant revenue from the sale of such products, even if approved. Even if we achieve
profitability in the future, we may not be able to sustain profitability in subsequent periods. Our failure to generate revenue from product sales would likely depress our market value and could impair our ability to raise capital, expand our
business, discover or develop other product candidates or continue our operations. A decline in the value of our common stock could cause our stockholders to lose all or part of their investment.
We will require substantial additional financing to achieve our goals, and a failure to obtain this necessary capital when needed on acceptable terms,
or at all, could force us to delay, limit, reduce or terminate our planned clinical programs for tenapanor, RDX7675, RDX8940 or our other product development and platform development activities.
Since our inception, most of our resources have been dedicated to our research and development activities, including developing our clinical
product candidates, tenapanor, RDX7675, and RDX8940, and developing our proprietary drug discovery and design platform. We believe that we will continue to expend substantial resources for the foreseeable future, including costs associated with
conducting the clinical programs for tenapanor, RDX7675, and RDX8940, research and development, conducting preclinical studies and clinical trials for our other programs, obtaining regulatory approvals, developing and maintaining scalable
manufacturing processes for our product candidates and sales and marketing. Because the outcome of any clinical trial and/or regulatory approval process is highly uncertain, we cannot reasonably estimate the actual amounts necessary to successfully
complete the development, regulatory approval process and commercialization or
co-promotion
of any of our product candidates. Our future funding requirements will depend on many factors, including, but not
limited to:
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the progress, timing, scope, results and costs of our clinical trial programs evaluating tenapanor in
IBS-C
and for the treatment of hyperphosphatemia in ESRD patients on dialysis
as well as our decision whether or not to pursue other indications for tenapanor;
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the progress, timing, scope, results and costs of our clinical program for RDX7675 and RDX8940;
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the time and cost necessary to obtain regulatory approvals for our product candidates and the costs of post-marketing studies that could be required by regulatory authorities;
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our ability to successfully commercialize our product candidates, either alone or with one or more collaboration partners;
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the manufacturing costs of our product candidates, and the availability of one or more suppliers for our product candidates at reasonable costs, both for clinical and commercial supply;
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the selling and marketing costs associated with product candidates, including the cost and timing of building our sales and marketing capabilities;
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our ability to establish and maintain collaboration partnerships,
in-license/out-license
or other similar arrangements and the financial
terms of such agreements;
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the timing, receipt, and amount of sales of, or royalties on, our future products, if any;
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the sales price and the availability of adequate third-party reimbursement for our product candidates;
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the cash requirements of any future acquisitions or discovery of product candidates;
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the number and scope of preclinical and discovery programs that we decide to pursue or initiate, and any clinical trials we decide to pursue for other product candidates;
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the time and cost necessary to respond to technological and market developments; and
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the costs of filing, prosecuting, maintaining, defending and enforcing any patent claims and other intellectual property rights, including litigation costs and the outcome of such litigation, including costs of
defending any claims of infringement brought by others in connection with the development, manufacture or commercialization of our product candidates.
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Additional funds may not be available when we need them on terms that are acceptable to us, or at all. If adequate funds are not available to
us on a timely basis, we may be required to delay the clinical development of tenapanor, RDX7675 or RDX8940, delay, limit, reduce or terminate our research activities, preclinical and clinical trials for our other product candidates and our
establishment and maintenance of sales and marketing capabilities or other activities that may be necessary to commercialize our product candidates, either alone or with a collaboration partner.
Risks Related to Our Business
We are substantially
dependent on the success of our lead product candidate, tenapanor, which may not be successful in nonclinical studies or clinical trials, receive regulatory approval or be successfully commercialized.
To date, we have invested a significant amount of our efforts and financial resources in the research and development of tenapanor, which is
currently our lead product candidate and one of only two product candidates in clinical trials. The clinical and commercial success of tenapanor will depend on a number of factors, including the following:
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our ability to, in a timely manner and under terms that are acceptable to us, to establish one or more collaborative relationships for the commercialization of tenapanor;
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the ability of the third-party manufacturers we contract with, to successfully execute and scale up the manufacturing processes for tenapanor, which has not yet been demonstrated, and to manufacture supplies of
tenapanor and to develop, validate and maintain commercially viable manufacturing processes that are compliant with cGMP, requirements;
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whether the FDA or foreign regulatory authorities require additional nonclinical and/or clinical studies, which could delay the commercialization of tenapanor;
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whether the FDA or foreign regulatory authorities require us to conduct clinical trials in addition to those anticipated prior to approval to market tenapanor;
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whether we will be required to conduct clinical trials in addition to those anticipated to obtain adequate commercial pricing;
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the prevalence and severity of adverse side effects of tenapanor;
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whether tenapanors safety and efficacy profile is satisfactory to the FDA and foreign regulatory authorities to gain marketing approval;
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the timely receipt of necessary marketing approvals from the FDA and foreign regulatory authorities;
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our ability, either alone, or with a collaboration partner, to successfully commercialize tenapanor, if approved for marketing and sale by the FDA or foreign regulatory authorities, including educating physicians and
patients about the benefits, administration and use of tenapanor;
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achieving and maintaining compliance with all regulatory requirements applicable to tenapanor;
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acceptance of tenapanor as safe, effective and well-tolerated by patients and the medical community;
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our ability to manage the complex pricing and reimbursement negotiations associated with marketing the same product at different doses for separate indications, if tenapanor is approved for marketing and sale by the FDA
or foreign regulatory authorities for both
IBS-C
and hyperphosphatemia in dialysis patients;
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the availability, perceived advantages, relative cost, relative safety and relative efficacy of alternative and competing treatments;
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obtaining and sustaining an adequate level of coverage and reimbursement for tenapanor by third-party payors;
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enforcing intellectual property rights in and to tenapanor;
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avoiding third-party interference, opposition, derivation or similar proceedings with respect to our patent rights, and avoiding other challenges to our patent rights and patent infringement claims; and
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a continued acceptable safety and tolerability profile of tenapanor following approval.
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As
tenapanor is a
first-in-class
drug, there is a higher likelihood that approval may not be attained as compared to a class of drugs with approved products. We cannot be
certain that tenapanor will be successful in
non-clinical
safety studies or clinical trials, or that it will receive regulatory approval. Further, it may not be possible or practicable to demonstrate, or if
approved, to market on the basis of, certain of the benefits we believe tenapanor possesses. For example, the reduction of serum phosphorus is currently an approvable endpoint in ESRD patients on dialysis, but not for the broader CKD patient
population in the United States. If the number of patients in the market for tenapanor or the price that the market can bear is not as significant as we estimate, we may not generate sufficient revenue from sales of tenapanor, if approved.
Accordingly, there can be no assurance that tenapanor will ever be successfully commercialized or that we will ever generate income from sales of tenapanor. If we are not successful in completing the development of, obtaining approval for, and
commercializing tenapanor, or are significantly delayed in doing so, our business will be materially harmed.
Clinical drug development involves a
lengthy and expensive process with an uncertain outcome, and we may encounter substantial delays in our clinical studies. Furthermore, results of earlier studies and trials may not be predictive of future trial results.
Before obtaining marketing approval from regulatory authorities for the sale of our product candidates, we must conduct extensive clinical
studies to demonstrate the safety and efficacy of the product candidates in humans. Clinical testing is expensive and can take many years to complete, and its outcome is inherently uncertain. Failure can occur at any time during the clinical trial
process. The results of preclinical and clinical studies of our product candidates may not be predictive of the results of later-stage clinical trials. An unexpected adverse event profile, or the results of drug-drug interaction studies, may present
challenges for the future development and commercialization of a product candidate for a particular condition despite receipt of positive efficacy data in a clinical study. Product candidates in later stages of clinical trials, such as tenapanor,
which is being evaluated in two Phase 3 clinical trial programs, may fail to show the desired safety and efficacy despite having progressed through preclinical studies and initial clinical trials. A number of companies in the
28
pharmaceutical, biopharmaceutical and biotechnology industries have suffered significant setbacks in advanced clinical trials for similar indications that we are pursuing due to lack of efficacy
or adverse safety profiles, notwithstanding promising results in earlier studies, and we cannot be certain that we will not face similar setbacks. Even if our clinical trials are completed, the results may not be sufficient to obtain regulatory
approval for our product candidates, or if such regulatory approval is obtained, the content of the label approved by regulatory authorities may materially and adversely impact our ability to commercialize the product.
We do not know whether future clinical trials will begin on time, or whether our ongoing or future clinical trials will need to be redesigned,
enroll an adequate number of patients on time or be completed on schedule, if at all. Clinical trials can be delayed or terminated for a variety of reasons, including delay or failure to:
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manufacture sufficient quantities of product candidate meeting specified quality standards for use in clinical trials;
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obtain regulatory approval to commence a trial, if applicable;
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reach agreement on acceptable terms with prospective contract research organizations, or CROs, and clinical trial sites, the terms of which can be subject to extensive negotiation and may vary significantly among
different CROs and trial sites;
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obtain institutional review board, or IRB, approval at each site;
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recruit suitable patients in a timely manner to participate in our trials;
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have patients complete a trial or return for post-treatment
follow-up;
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ensure that clinical sites observe trial protocol, comply with good clinical practices, or GCPs, or continue to participate in a trial;
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address any patient safety concerns that arise during the course of a trial;
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address any conflicts with new or existing laws or regulations; or
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initiate or add a sufficient number of clinical trial sites.
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Patient enrollment is a
significant factor in the timing of clinical trials and is affected by many factors, including the size and nature of the patient population, the proximity of patients to clinical sites, the eligibility criteria for the trial, the design of the
clinical trial, competing clinical trials and clinicians and patients perceptions as to the potential advantages of the drug being studied in relation to other available therapies, including any new drugs or treatments that may be
approved for the indications we are investigating.
We could also encounter delays if a clinical trial is suspended or terminated by us,
by the IRBs of the institutions in which such trials are being conducted, by an independent data safety monitoring board for such trial or by the FDA or other regulatory authorities. Such authorities may suspend or terminate a clinical trial due to
a number of factors, including failure to conduct the clinical trial in accordance with regulatory requirements or our clinical protocols, inspection of the clinical trial operations or trial site by the FDA or other regulatory authorities resulting
in the imposition of a clinical hold, unforeseen safety issues or adverse side effects, failure to demonstrate a benefit from using a drug, changes in governmental regulations or administrative actions or lack of adequate funding to continue the
clinical trial.
Further, if there are delays in the completion of, or termination of, any clinical trial of our product candidates, the
commercial prospects of our product candidates may be harmed, and our ability to generate revenue from product sales from any of these product candidates will be delayed. In addition, any delays in completing the clinical trials will increase costs,
slow down our product candidate development and approval process and jeopardize the ability to commence product sales and generate revenue from product sales. Any of these occurrences may significantly harm our business, financial condition and
prospects. In addition, many of the factors that cause, or lead to, a delay in the commencement or completion of clinical trials may also ultimately lead to the denial of regulatory approval of our product candidates.
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We intend to devote significant resources to the development of RDX7675 which may not be successful in
nonclinical studies or clinical trials, receive regulatory approval or be successfully commercialized.
With the advancement of
RDX7675 into both an
onset-of-action
clinical trial and a Phase 3 clinical trial for RDX7675 in the fourth quarter of 2016, we expect to invest a significant amount of
our efforts and financial resources in the development of RDX7675. We are pursuing a 505(b)(2) regulatory path for approval of RDX7675, which, among other things allows us to rely on the FDAs previous findings of safety and efficacy and may
eliminate the need to conduct certain nonclinical and clinical studies of our product candidate. This regulatory pathway, which can accelerate development, may not be available to us if a pharmaceutically equivalent product to RDX7675 were approved
prior to the approval of our 505(b)(2) application. If we are unable to rely upon a 505(b)(2) regulatory pathway for the approval of RDX7675, the development of RDX7675 may be substantially delayed or we may be required to abandon such development.
The clinical and commercial success of RDX7675 will depend on a number of factors, including the following:
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the ability of the third-party manufacturers we contract with, to successfully develop and scale up the manufacturing processes for RDX7675, which has not yet been demonstrated, to manufacture supplies of RDX7675 and to
develop, validate and maintain commercially viable manufacturing processes that are compliant with cGMP, requirements;
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the significant expansion of the market for the treatment of hyperkalemia beyond its currently limited size, including the success of commercial launches of new hyperkalemia products and the use of any such products by
nephrologists and cardiologists in the chronic setting;
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our ability to successfully obtain labeling claims necessary or desirable for the commercial success of RDX7675;
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the availability of, and the perceived advantages regarding the relative palatability, relative cost, relative safety, relative tolerance and relative efficacy of alternative and competing treatments;
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the strength and breadth of any intellectual property protection that we have or may be granted for RDX7675, and our enforcement of any intellectual property rights in RDX7675;
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the timely receipt of necessary marketing approvals and exclusivity periods, if any, from the FDA and foreign regulatory authorities;
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our ability to successfully commercialize RDX7675, if approved for marketing and sale by the FDA or foreign regulatory authorities, including educating physicians and patients about the benefits, administration and use
of RDX7675;
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obtaining and sustaining an adequate level of coverage and reimbursement for RDX7675 by third-party payors; and
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the effectiveness of our marketing, sales and distribution strategy and operations.
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We cannot
be certain that clinical trials evaluating RDX7675 will establish a safety and efficacy profile sufficient to enable RDX7675 to gain approval by the FDA, or if approved, compete effectively with alternative and competing treatments. Further, it may
not be possible or practicable to demonstrate, or if approved, to market on the basis of, certain of the benefits we believe RDX7675 may possess. Accordingly, there can be no assurance that RDX7675 will ever be successfully commercialized or that we
will ever generate revenue from sales of RDX7675. If we are not successful in completing the development of, obtaining approval for, and commercializing RDX7675, or are significantly delayed in doing so, our business will be materially harmed.
We may not be successful in our efforts to develop our product candidates that are at an early stage of development, including RDX8940 or expand our
pipeline of product candidates.
A key element of our strategy is to expand our pipeline of product candidates utilizing our
proprietary drug discovery and design platform and to advance such product candidates through clinical development. In
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December 2016, we filed an IND to commence clinical development of RDX8940 in the United States. This product candidate, and those product candidates that are in the discovery and lead
identification stages of preclinical development will require substantial preclinical and clinical development, testing and regulatory approval prior to commercialization. Of the large number of drugs in development, only a small percentage of such
drugs successfully complete the FDA regulatory approval process and are commercialized. Accordingly, even if we are able to continue to fund our research programs, there can be no assurance that any product candidates will reach the clinic or be
successfully developed or commercialized.
Research programs to identify product candidates require substantial technical, financial and
human resources, whether or not any product candidates are ultimately identified. Although our research and development efforts to date have resulted in several development programs, we may not be able to develop product candidates that are safe,
effective and well-tolerated. Our research programs may initially show promise in identifying potential product candidates, and we may select candidates for development, yet we may fail to yield product candidates for clinical development or
commercialization for many reasons, including the following:
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the research methodology used and our drug discovery and design platform may not be successful in identifying potential product candidates;
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competitors may develop alternatives that render our product candidates obsolete or less attractive;
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product candidates we develop may nevertheless be covered by third parties patents or other exclusive rights;
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the market for a product candidate may change during our program so that the continued development of that product candidate is no longer reasonable;
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a product candidate may on further study be shown to have harmful side effects or other characteristics that indicate it is unlikely to be effective, well-tolerated or otherwise does not meet applicable regulatory or
commercial criteria;
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a product candidate may not be capable of being produced in commercial quantities at an acceptable cost, or at all; and
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a product candidate may not be accepted as safe, effective and well-tolerated by patients, the medical community or third-party payors, if applicable.
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Even if we are successful in continuing to expand our pipeline, through our own research and development efforts or by pursuing
in-licensing
or acquisition of product candidates, the potential product candidates for which we identify or acquire rights may not be suitable for clinical development, including as a result of being shown to have
harmful side effects or other characteristics that indicate that they are unlikely to receive marketing approval and achieve market acceptance. If we do not successfully develop and commercialize a product pipeline, we may not be able to generate
revenue from product sales in future periods or ever achieve profitability.
Our proprietary drug discovery and design platform, and, in particular,
APECCS, is a new approach to the discovery, design and development of new product candidates and may not result in any products of commercial value.
We have developed a proprietary drug discovery and design platform to enable the identification, screening, testing, design and development of
new product candidates, and have developed APECCS as a component of this of this platform. We utilize APECCS in the design of our small molecules and to identify new and potentially novel targets in the GI tract. However, there can be no assurance
that APECCS will be able to identify new targets in the GI tract or that any of these potential targets or other aspects of our proprietary drug discovery and design platform will yield product candidates that could enter clinical development and,
ultimately, be commercially valuable.
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Although we expect to continue to enhance the capabilities of our APECCS system by advancing the
cell culture and screening process and/or acquiring new technologies to broaden the scope of APECCS, we may not be successful in any of our enhancement and development efforts. In addition, we may not be able to enter into agreements on suitable
terms to utilize technologies required to exploit certain capabilities of APECCS, and in such case, we may be forced to limit our use or further development of APECCS, or to modify APECCS for continued use. It may not be possible to modify APECCS in
manner that avoids the utilization of certain technologies, without materially and adversely affecting the performance of APECCS or without incurring substantial cost and delay in advancement of the system. If our enhancement or development efforts
are unsuccessful, or if we are forced to limit our use or further development of APECCS due to the inability to enter into agreements on suitable terms to permit the utilization of technologies required to exploit APECCS, we may not be able to
advance our drug discovery capabilities as quickly as we expect or identify as many potential drugable targets as we desire.
We rely on third
parties to conduct some of our nonclinical studies and all of our clinical trials. If these third parties do not successfully carry out their contractual duties or meet expected deadlines, we may be unable to obtain regulatory approval for or
commercialize our product candidates.
We do not have the ability to independently conduct clinical trials and, in some cases,
nonclinical studies. We rely on medical institutions, clinical investigators, contract laboratories, and other third parties, such as CROs, to conduct clinical trials on our product candidates. The third parties with whom we contract for execution
of the clinical trials play a significant role in the conduct of these trials and the subsequent collection and analysis of data. However, these third parties are not our employees, and except for contractual duties and obligations, we control only
certain aspects of their activities and have limited ability to control the amount or timing of resources that they devote to our programs. Although we rely, and will continue to rely, on these third parties to conduct some of our nonclinical
studies and all of our clinical trials, we remain responsible for ensuring that each of our studies and clinical trials is conducted in accordance with the applicable protocol, legal, regulatory and scientific standards and our reliance on third
parties does not relieve us of our regulatory responsibilities. We, and these third parties are required to comply with current GLPs for nonclinical studies, and good clinical practices, or GCPs, for clinical studies. GLPs and GCPs are regulations
and guidelines enforced by the FDA, the Competent Authorities of the Member States of the European Economic Area, or EEA, and comparable foreign regulatory authorities for all of our products in nonclinical and clinical development, respectively.
Regulatory authorities enforce GCPs through periodic inspections of trial sponsors, principal investigators and trial sites. If we or any of our third party contractors fail to comply with applicable regulatory requirements, including GCPs, the
clinical data generated in our clinical trials may be deemed unreliable and the FDA, the European Medicines Agency, or EMA, or comparable foreign regulatory authorities may require us to perform additional clinical trials before approving our
marketing applications. There can be no assurance that upon inspection by a given regulatory authority, such regulatory authority will determine that any of our clinical trials comply with GCP regulations. In addition, our clinical trials must be
conducted with product produced under cGMP regulations. Our failure to comply with these regulations may require us to repeat clinical trials, which would delay the regulatory approval process.
Even if our product candidates obtain regulatory approval, they may never achieve market acceptance or commercial success, which will depend, in part,
upon the degree of acceptance among physicians, patients, patient advocacy groups, health care payors and the medical community.
Even if our product candidates obtain FDA or other regulatory approvals, and are ultimately commercialized, our product candidates may not
achieve market acceptance among physicians, patients, third-party payors, patient advocacy groups, and the medical community. Market acceptance of our product candidates for which marketing approval is obtained depends on a number of factors,
including:
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the efficacy of the products as demonstrated in clinical trials;
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the prevalence and severity of any side effects and overall safety and tolerability profile of the product;
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the clinical indications for which the product is approved;
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advantages over new or traditional or existing therapies, including recently approved therapies or therapies that the physician community anticipate will be approved;
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acceptance by physicians, major operators of clinics and patients of the product as a safe, effective and well-tolerated treatment;
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relative convenience and ease of administration of our products;
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the potential and perceived advantages of our product candidates over current treatment options or alternative treatments, including future alternative treatments;
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the cost of treatment in relation to alternative treatments and willingness to pay for our products, if approved, on the part of physicians and patients;
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the availability of alternative products and their ability to meet market demand;
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the strength of our or our collaboration partners marketing and distribution organizations;
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the quality of our relationships with patient advocacy groups; and
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sufficient third-party coverage or reimbursement.
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Any failure by our product candidates that
obtain regulatory approval to achieve market acceptance or commercial success would adversely affect our results of operations.
Our product
candidates may cause undesirable side effects or have other properties that could delay our clinical trials, or delay or prevent regulatory approval, limit the commercial profile of an approved label, or result in significant negative consequences
following regulatory approval, if any. If any of our product candidates receives marketing approval and we or others later identify undesirable side effects caused by the product candidate, the ability to market the product candidates could be
compromised.
Undesirable side effects caused by our product candidates could cause us or regulatory authorities to interrupt,
delay or halt clinical trials, result in the delay or denial of regulatory approval by the FDA or other comparable foreign regulatory authorities or limit the commercial profile of an approved label. To date, patients treated with tenapanor have
experienced drug-related side effects including diarrhea, nausea, flatulence, abdominal discomfort, abdominal pain, abdominal distention and changes in electrolytes. In the event that trials conducted by us with tenapanor or trials we conduct with
our other product candidates, reveal an unacceptable severity and prevalence of these or other side effects, such trials could be suspended or terminated and the FDA or comparable foreign regulatory authorities could order us to cease further
development of or deny approval of tenapanor, or any such other product candidate, for any or all targeted indications. Additionally, despite a positive efficacy profile, the prevalence and/or severity of these or other side effects could cause us
to cease further development of a product candidate for a particular indication, or entirely. The drug-related side effects could affect patient recruitment or the ability of enrolled patients to complete the trial or result in potential product
liability claims. Any of these occurrences may harm our business, financial condition and prospects significantly.
In addition, in the
event that any of our product candidates receives regulatory approval and we or others later identify undesirable side effects caused by one of our products, a number of potentially significant negative consequences could occur, including:
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regulatory authorities may withdraw their approval of the product or seize the product;
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we may be required to recall the product;
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additional restrictions may be imposed on the marketing of the particular product or the manufacturing processes for the product or any component thereof, including the imposition of a Risk Evaluation and Mitigation
Strategies, or REMS, plan that may require creation of a Medication Guide outlining the risks of such side effects for distribution to patients, as well as elements to assure safe use of the product, such as a patient registry and training and
certification of prescribers;
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we may be subject to fines, injunctions or the imposition of civil or criminal penalties;
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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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we could be sued and held liable for harm caused to patients;
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the product may become less competitive; and
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our reputation may suffer
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Any of the foregoing events could prevent us from achieving or
maintaining market acceptance of a particular product candidate, if approved, and could result in the loss of significant revenue to us, which would materially and adversely affect our results of operations and business.
We face substantial competition and our competitors may discover, develop or commercialize products faster or more successfully than us.
The biotechnology and pharmaceutical industries are highly competitive, and we face significant competition from companies in the
biotechnology, pharmaceutical and other related markets that are researching and marketing products designed to address diseases that we are currently developing products to treat. If approved for marketing by the FDA or other regulatory agencies,
tenapanor and RDX7675, as well as our other product candidates, would compete against existing treatments.
For example, tenapanor will,
if approved, compete directly with phosphate binders for the treatment of hyperphosphatemia in ESRD patients on dialysis. The various types of phosphate binders commercialized in the United States include the following:
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Calcium carbonate (many
over-the-counter
brands including Tums and Caltrate)
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Calcium acetate (several prescription brands including PhosLo and Phoslyra)
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Lanthanum carbonate (Fosrenol marketed by Shire)
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Sevelamer hydrochloride (Renagel, marketed by Sanofi)
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Sevelamer carbonate (Renvela, marketed by Sanofi)
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Sucroferric oxyhydroxide (Velphoro, marketed by Vifor Fresenius)
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Ferric citrate (Auryxia, marketed by Keryx)
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The hydrochloride form of sevelamer, Renagel, was
launched in the United States by Genzyme Corporation in 1998 prior to its acquisition by Sanofi, and the carbonate form, Renvela, was launched in 2008. Sanofi booked 935 million ($1.04 billion) in worldwide sales of sevelamer during 2015
and 687 million through September 30, 2016. Generic sevelamer was expected to enter the U.S. market in early 2014 after expiration of Sanofis patent, but as of 2017, no generic sevelamer has yet been approved in the United
States. Generic sevelamer was approved, however, in certain jurisdictions in Europe in 2015. In addition to the currently marketed phosphate binders, we are aware of at least two other binders in development, including fermagate (Alpharen), an
iron-based binder in Phase 3 being developed by Opko Health, Inc., and PT20, an iron-based binder in Phase 3 being developed by Shield Therapeutics.
Numerous treatments exist for constipation and the constipation component of
IBS-C,
many of which are
over-the-counter.
These include psyllium husk (such as Metamucil), methylcellulose (such as Citrucel), calcium polycarbophil (such as FiberCon), lactulose (such as Cephulac),
polyethylene glycol (such as MiraLax), sennosides (such as Exlax), bisacodyl (such as Ducolax), docusate sodium (such as Colace), magnesium hydroxide (such as Milk of Magnesia), saline enemas (such as Fleet) and sorbitol. These agents are generally
inexpensive and work well to temporarily relieve constipation.
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We are also aware of two prescription products marketed for
IBS-C,
Linzess (linaclotide) marketed by Ironwood Pharmaceuticals and Allergan and Amitiza (lubiprostone) marketed by Sucampo and Takeda. In two Phase 3 clinical trials of Linzess in
IBS-C
patients, the placebo-adjusted rate of
IBS-C
patients reaching the primary endpoint, overall responder rate, indicating a significant response during 6 out of 12 weeks
of treatment, was 12.6% and 19.8%, respectively. In these studies, Linzess caused diarrhea in up to 17% more patients than placebo. Trulance (plecanatide) was approved by FDA in January 2017 for use in adults for treatment of chronic idiopathic
constipation, and Synergy Pharmaceuticals, the drugs manufacturer, presented Phase 3 data from two clinical studies of Trulance in
IBS-C
patients in December 2016. In one study, the placebo-adjusted rate
of
IBS-C
patients reaching the primary endpoint, overall responder rate, indicating a significant response during 6 out of 12 weeks of treatment, was 7.3% and 9.8% of patients receiving 3mg and 6mg,
respectively. In the other study, the placebo-adjusted rate of
IBS-C
patients reaching the same primary endpoint was 12.4% and 11.7% of patients receiving 3mg and 6mg, respectively. Synergy has stated their
intent to submit an NDA for plecanatide in
IBS-C
in the first quarter 2017.
Finally, we are aware
of at least two drugs approaching or on the market for the treatment of hyperkalemia. Veltassa (patiromer FOS), an oral, polymer-based potassium binder, was approved for marketing by the FDA in October 2015 and was commercially launched by Relypsa,
a company that was acquired by Galenica for $1.5 billion in September 2016. Additionally, ZS Pharma submitted an NDA in June 2015 for
ZS-9,
a sodium zirconium cyclosilicate-based oral potassium binder.
ZS-9
will be commercially launched by AstraZeneca, a company that acquired ZS Pharma in December 2015 for $2.7 billion.
It is possible that our competitors will develop and market drugs or other treatments that are less expensive and more effective than our
product candidates, or that will render our product candidates obsolete. It is also possible that our competitors will commercialize competing drugs or treatments before we, or our collaboration partners, can launch any products developed from our
product candidates. We also anticipate that we will face increased competition in the future as new companies enter into our target markets.
Many of our competitors have materially greater name recognition and financial, manufacturing, marketing, research and drug development
resources than we do. Additional mergers and acquisitions in the biotechnology and pharmaceutical industries may result in even more resources being concentrated in our competitors. Large pharmaceutical companies in particular have extensive
expertise in preclinical and clinical testing and in obtaining regulatory approvals for drugs. In addition, academic institutions, government agencies, and other public and private organizations conducting research may seek patent protection with
respect to potentially competitive products or technologies. These organizations may also establish exclusive collaboration partnerships or licensing relationships with our competitors.
We currently have no sales organization. If we are unable to establish sales capabilities on our own or through third parties, we may not be able to
commercialize tenapanor or any of our other product candidates.
We currently do not have a sales organization. In order to
commercialize or
co-promote
tenapanor, RDX7675 or any of our other product candidates, either alone, or with a collaboration partner, we must build our marketing, sales, distribution, managerial and other
non-technical
capabilities or make arrangements with third parties to perform these services, and we may not be successful in doing so. In order to commercialize tenapanor or RDX7675 outside of the United States, we
may enter into collaborative relationships with one or more third parties. There can be no assurances that we will be successful in establishing such relationships in a timely manner or on terms that are acceptable to us. If one or more of our
product candidates receives regulatory approval, we currently expect to establish appropriate sales organizations with technical expertise supporting distribution capabilities to commercialize our product candidates, which will be expensive and time
consuming. As a company, we have no prior experience in the marketing, sale and distribution of pharmaceutical products and there are significant risks involved in building and managing a sales organization, including our ability to hire, retain,
and incentivize qualified individuals, generate sufficient sales leads, provide adequate training to sales and marketing personnel, comply with regulatory requirements applicable to the marketing and sale of drug products and effectively manage a
geographically dispersed sales and marketing team. Any
35
failure or delay in the development of our internal sales, marketing and distribution capabilities would adversely impact the commercialization of these products.
We may choose to collaborate with third parties that have direct sales forces and established distribution systems, either to augment our own
sales force and distribution systems or in lieu of our own sales force and distribution systems. If we are unable to enter into such arrangements on acceptable terms or at all, we may not be able to successfully commercialize our product candidates.
We rely completely on third parties to manufacture our nonclinical and clinical drug supplies, and we intend to rely on third parties to produce
commercial supplies of any approved product candidate. Our business would be harmed if those third parties fail to obtain approval of the FDA, Competent Authorities of the Member States of the EEA or comparable regulatory authorities, fail to
provide us with sufficient quantities of drug product, or fail to do so at acceptable quality levels or prices.
We do not
currently have, nor do we plan to acquire, the infrastructure or capability internally to manufacture our drug supplies for use in the conduct of our nonclinical and clinical studies, and we lack the resources and the capability to manufacture any
of our product candidates on a clinical or commercial scale. The facilities used by our contract manufacturers to manufacture any drug products must be approved by the FDA pursuant to inspections that will be conducted after an NDA is submitted to
the FDA. We do not control the manufacturing process of our product candidates, and we are completely dependent on our contract manufacturing partners for compliance with the regulatory requirements, known as cGMPs, for manufacture of both active
drug substances and finished drug products.
If our contract manufacturers cannot successfully manufacture material that conforms to our
specifications and the strict regulatory requirements of the FDA or others, they will not be able to secure and/or maintain regulatory approval for their manufacturing facilities. In addition, we have no control over the ability of our contract
manufacturers to maintain adequate quality control, quality assurance and qualified personnel. If the FDA or a comparable foreign regulatory authority does not approve these facilities for the manufacture of our product candidates or if it withdraws
any such approval in the future, we may need to find alternative manufacturing facilities, which would significantly impact our ability to develop, obtain regulatory approval for or market our product candidates, if approved.
We rely on our manufacturers to purchase from third-party suppliers the materials necessary to produce our product candidates for our clinical
studies. There are a limited number of suppliers for raw materials that we use to manufacture our drugs, and there may be a need to identify alternate suppliers to prevent a possible disruption of the manufacture of the materials necessary to
produce our product candidates for our clinical studies, and, if approved, ultimately for commercial sale. We do not have any control over the process or timing of the acquisition of these raw materials by our manufacturers. Although we generally do
not begin a clinical study unless we believe we have on hand, or will be able to manufacture, a sufficient supply of a product candidate to complete such study, any significant delay or discontinuity in the supply of a product candidate, or the raw
material components thereof, for an ongoing clinical study due to the need to replace a third-party manufacturer could considerably delay completion of our clinical studies, product testing, and potential regulatory approval of our product
candidates, which could harm our business and results of operations.
Third-party payor coverage and reimbursement status of newly-approved products
is uncertain. Failure to obtain or maintain adequate coverage and reimbursement for our products, if approved, could limit our ability to market those products and decrease our ability to generate revenue.
The pricing, coverage and reimbursement of our product candidates, if approved, must be adequate to support a commercial infrastructure. The
availability and adequacy of coverage and reimbursement by governmental and private payors are essential for most patients to be able to afford treatments such as ours, assuming approval. Sales of our product candidates will depend substantially,
both domestically and abroad, on the extent to which the costs of our product candidates will be paid for by health maintenance, managed care,
36
pharmacy benefit, and similar healthcare management organizations, or reimbursed by government authorities, private health insurers, and other third-party payors. If coverage and reimbursement
are not available, or are available only to limited levels, we may not be able to successfully commercialize our product candidates. Even if coverage is provided, the approved reimbursement amount may not be high enough to allow us to establish or
maintain pricing sufficient to realize a return on our investment.
There is significant uncertainty related to the insurance coverage and
reimbursement of newly approved products. In the United States, the principal decisions about coverage and reimbursement for new drugs are typically made by the Centers for Medicare & Medicaid Services, or CMS, an agency within the U.S.
Department of Health and Human Services responsible for administering the Medicare program, as CMS decides whether and to what extent a
new drug will be covered and reimbursed under Medicare. Private payors tend to follow the coverage reimbursement policies established by CMS to a substantial degree. It is difficult to predict what CMS will decide with respect to reimbursement for
products such as ours.
In July 2010, CMS released its final rule to implement a bundled prospective payment system for the treatment of
ESRD patients as required by the Medicare Improvements for Patients and Providers Act, or MIPPA. The bundled payment covers a bundle of items and services routinely required for dialysis treatments furnished to Medicare beneficiaries in
Medicare-certified ESRD facilities or at their home, including the cost of certain routine drugs. The final rule delayed the inclusion of oral medications without intravenous equivalents in the bundled payment until January 1, 2014 and in April
2014, President Obama signed the Protecting Access to Medicare Act of 2014, which further extended this implementation date to January 1, 2024. Additionally, section 204 of the Stephen Beck, Jr., Achieving a Better Life Experience Act of 2014,
or ABLE, provides that payment for oral-only ESRD drugs cannot be made under the ESRD Prospective Payment System prior to January 1, 2025. As a result of the recent legislation, beginning in 2025, ESRD-related drugs may be included in the
bundle and separate Medicare reimbursement will no longer be available for such drugs, as it is today under Medicare Part D. While it is too early to project the full impact bundling may have on the industry, the impact could potentially cause
dramatic price reductions for tenapanor and RDX7675, if approved. We may be unable to sell tenapanor and/or RDX7675, if approved, to dialysis providers on a profitable basis if third-party payors reduce their current levels of payment, or if our
costs of production increase faster than increases in reimbursement levels.
Outside the United States, international operations are
generally subject to extensive governmental price controls and other market regulations, and we believe the increasing emphasis on cost-containment initiatives in Europe, Canada, Japan, China and other countries has and will continue to put pressure
on the pricing and usage of our product candidates. In many countries, the prices of medical products are subject to varying price control mechanisms as part of national health systems. Other countries allow companies to fix their own prices for
medicinal products, but monitor and control company profits. Additional foreign price controls or other changes in pricing regulation could restrict the amount that we are able to charge for our product candidates. Accordingly, in markets outside
the United States, the reimbursement for our products may be reduced compared with the United States and may be insufficient to generate commercially reasonable revenue and profits.
Moreover, increasing efforts by governmental and third-party payors in the United States and abroad to cap or reduce healthcare costs may
cause such organizations to limit both coverage and the level of reimbursement for new products approved and, as a result, these caps may not cover or provide adequate payment for our product candidates. We expect to experience pricing pressures in
connection with the sale of any of our product candidates due to the trend toward managed healthcare, the increasing influence of health maintenance organizations, and additional legislative changes. The downward pressure on healthcare costs in
general, particularly prescription drugs and surgical procedures and other treatments, has become very intense. As a result, increasingly high barriers are being erected to the entry of new products.
37
If product liability lawsuits are brought against us, we may incur substantial liabilities and may be
required to limit commercialization of our product candidates.
We face an inherent risk of product liability as a result of the
clinical testing of our product candidates and will face an even greater risk if we commercialize any products. For example, we may be sued if any product we develop allegedly causes injury or is found to be otherwise unsuitable during product
testing, manufacturing, marketing or sale. Any such product liability claims may include allegations of defects in manufacturing, defects in design, a failure to warn of dangers inherent in the product, negligence, strict liability, and a breach of
warranties. Claims could also be asserted under state consumer protection acts. If we cannot successfully defend ourselves against product liability claims, we may incur substantial liabilities or be required to limit commercialization of our
product candidates. Even successful defense would require significant financial and management resources. Regardless of the merits or eventual outcome, liability claims may result in:
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decreased demand for our product candidates;
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injury to our reputation;
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withdrawal of clinical trial participants;
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costs to defend the related litigation;
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a diversion of managements time and our resources;
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substantial monetary awards to trial participants or patients;
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regulatory investigations, product recalls or withdrawals, or labeling, marketing or promotional restrictions;
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the inability to commercialize or
co-promote
our product candidates.
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Our inability to obtain and maintain sufficient product liability insurance at an acceptable cost and scope of coverage to protect against
potential product liability claims could prevent or inhibit the commercialization of any products we develop. We currently carry product liability insurance covering use in our clinical trials in the amount of $10.0 million in the aggregate.
Although we maintain such insurance, any claim that may be brought against us could result in a court judgment or settlement in an amount that is not covered, in whole or in part, by our insurance or that is in excess of the limits of our insurance
coverage. Our insurance policies also have various exclusions and deductibles, and we may be subject to a product liability claim for which we have no coverage. We will have to pay any amounts awarded by a court or negotiated in a settlement that
exceed our coverage limitations or that are not covered by our insurance, and we may not have, or be able to obtain, sufficient capital to pay such amounts. Moreover, in the future, we may not be able to maintain insurance coverage at a reasonable
cost or in sufficient amounts to protect us against losses.
We are highly dependent on the services of our President and Chief Executive Officer,
Michael Raab, our Executive Vice President and Chief Operating Officer, Reginald Seeto, MBBS, our Chief Scientific Officer, Jeremy Caldwell, Ph.D., and our Chief Development Officer, David Rosenbaum, Ph.D. If we are not able to retain these members
of our management team, or recruit additional management, clinical and scientific personnel, our business will suffer.
Our success
depends in part on our continued ability to attract, retain and motivate highly qualified personnel. In particular, we are highly dependent upon Michael Raab, our President and Chief Executive Officer, Reginald Seeto, MBBS, Jeremy Caldwell, Ph.D.,
our Chief Scientific Officer and David Rosenbaum, Ph.D., our Chief Development Officer. The loss of services of any of these individuals could delay or impair the successful development of our product pipeline, completion of our planned clinical
trials or the commercialization of our product candidates. Although we have entered into employment agreements with our senior management team, including Mr. Raab and Drs. Seeto, Caldwell and Rosenbaum, these agreements are terminable at will
with or without notice and, therefore, we may not be able to retain their services as expected. Although we have not historically experienced unique difficulties
38
attracting and retaining qualified employees, we could experience such problems in the future. For example, competition for qualified personnel in the biotechnology and pharmaceuticals field is
intense due to the limited number of individuals who possess the skills and experience required by our industry. In addition to the competition for personnel, the San Francisco Bay area in particular is characterized by a high cost of living. As
such, we could have difficulty attracting experienced personnel to our company and may be required to expend significant financial resources in our employee recruitment and retention efforts.
We will need to continue to increase the size of our organization, and we may experience difficulties in managing growth.
We will need to continue to expand our clinical, managerial, operational, finance and other resources in order to manage our operations,
preclinical and clinical trials, research and development activities, regulatory filings, manufacturing and supply activities, and any marketing and commercialization activities. Our management, personnel, systems and facilities currently in place
may not be adequate to support this future growth. Our need to effectively execute our growth strategy requires that we:
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expand our general and administrative functions;
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establish and build a marketing and commercial organization;
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identify, recruit, retain, incentivize and integrate additional employees;
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manage our internal development efforts effectively while carrying out our contractual obligations to third parties; and
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continue to improve our operational, legal, financial and management controls, reporting systems and procedures.
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If we are not able to attract, retain and motivate necessary personnel to accomplish our business objectives, we may experience constraints
that will significantly impede the achievement of our development objectives, our ability to raise additional capital and our ability to implement our business strategy.
Significant disruptions of information technology systems or breaches of data security could adversely affect our business.
Our business is increasingly dependent on critical, complex and interdependent information technology systems to support business processes as
well as internal and external communications. The size and complexity of our computer systems make them vulnerable to breakdown, malicious intrusion and computer viruses. We have developed systems and processes that are designed to protect our
information and prevent data loss and other security breaches, including systems and processes designed to reduce the impact of a security breach; however, such measures cannot provide absolute security, and we have taken, and will take, additional
security measures to protect against any future intrusion. Any failure to protect against breakdowns, malicious intrusions and computer viruses may result in the impairment of production and key business processes. In addition, our systems are
potentially vulnerable to data security breaches, whether by employees or others, which may expose sensitive data to unauthorized persons. Such data security breaches could lead to the loss of trade secrets or other intellectual property, or could
lead to the public exposure of personal information of our employees, clinical trial patients, customers, and others. Such disruptions and breaches of security could expose us to liability and have a material adverse effect on the operating results
and financial condition of our business.
We incur significant costs as a result of operating as a public company, and our management will devote
substantial time to new compliance initiatives. We may fail to comply with the rules that apply to public companies, including Section 404 of the Sarbanes-Oxley Act of 2002, which could result in sanctions or other penalties that would harm our
business.
We incur significant legal, accounting and other expenses as a public company, including costs resulting from public
company reporting obligations under the Securities Exchange Act of 1934, as amended, or the
39
Exchange Act, and regulations regarding corporate governance practices. The listing requirements of The NASDAQ Global Market require that we satisfy certain corporate governance requirements
relating to director independence, distributing annual and interim reports, stockholder meetings, approvals and voting, soliciting proxies, conflicts of interest and a code of conduct. Our management and other personnel will need to devote a
substantial amount of time to ensure that we comply with all of these requirements. Moreover, the reporting requirements, rules and regulations will increase our legal and financial compliance costs and will make some activities more time consuming
and costly. Any changes we make to comply with these obligations may not be sufficient to allow us to satisfy our obligations as a public company on a timely basis, or at all. These reporting requirements, rules and regulations, coupled with the
increase in potential litigation exposure associated with being a public company, could also make it more difficult for us to attract and retain qualified persons to serve on our board of directors or board committees or to serve as executive
officers, or to obtain certain types of insurance, including directors and officers insurance, on acceptable terms.
In
addition, we are in the process of implementing an enterprise resource planning, or ERP, system for our company. An ERP system is intended to combine and streamline the management of our financial, accounting, human resources, sales and marketing
and other functions, enabling us to manage operations and track performance more effectively. However, an ERP system will require us to complete many processes and procedures for the effective use of the system or to run our business using the
system, which may result in substantial costs. Additionally, during the conversion process, we may be limited in our ability to convert any business that we acquire to the ERP. Any disruptions or difficulties in implementing or using an ERP system
could adversely affect our controls and harm our business, including our ability to forecast or make sales and collect our receivables. Moreover, such disruption or difficulties could result in unanticipated costs and diversion of management
attention.
We are subject to Section 404 of The Sarbanes-Oxley Act of 2002, or Section 404, and the related rules of the
Securities and Exchange Commission, or SEC, which generally require our management and independent registered public accounting firm to report on the effectiveness of our internal control over financial reporting. Section 404 requires an annual
management assessment of the effectiveness of our internal control over financial reporting. However, for so long as we remain an emerging growth company as defined in the Jumpstart Our Business Startups Act of 2012, or JOBS Act, we intend to take
advantage of certain exemptions from various reporting requirements that are applicable to public companies that are emerging growth companies, including, but not limited to, not being required to comply with the auditor attestation requirements of
Section 404. Once we are no longer an emerging growth company or, if prior to such date, we opt to no longer take advantage of the applicable exemption, we will be required to include an opinion from our independent registered public accounting
firm on the effectiveness of our internal controls over financial reporting. We will remain an emerging growth company until the earlier of (1) the last day of the fiscal year following the fifth anniversary of the completion of our IPO
(December 31, 2019), (2) the last day of the fiscal year in which we have total annual gross revenue of at least $1.0 billion, or (3) the last day of the fiscal year in which we are deemed to be a large accelerated filer, which means the
market value of our common stock that is held by
non-affiliates
exceeds $700 million as of the prior June 30
th
, and (4) the date on which we
have issued more than $1.0 billion in
non-convertible
debt during the prior three-year period.
During the course of our review and testing of our internal controls, we may identify deficiencies and be unable to remediate them before we
must provide the required reports. Furthermore, if we have a material weakness in our internal controls over financial reporting, we may not detect errors on a timely basis and our financial statements may be materially misstated. We or our
independent registered public accounting firm may not be able to conclude on an ongoing basis that we have effective internal control over financial reporting, which could harm our operating results, cause investors to lose confidence in our
reported financial information and cause the trading price of our stock to fall. In addition, as a public company we are required to file accurate and timely quarterly and annual reports with the SEC under the Exchange Act. Any failure to report our
financial results on an accurate and timely basis could result in sanctions, lawsuits, delisting of our shares from The NASDAQ Global Market or other adverse consequences that would materially harm our business.
40
We may form collaboration partnerships in the future, and we may not realize the benefits of such
collaborations.
We may form collaboration partnerships, create joint ventures or enter into licensing arrangements with third
parties that we believe will complement or augment our existing business. In particular, we expect to form one or more collaboration partnerships in connection with the commercialization of tenapanor outside of the United States, if approved. We
face significant competition in seeking appropriate collaboration partners, and the negotiation process to secure appropriate terms is time-consuming and complex. Any delays in identifying suitable collaboration partners and entering into agreements
to develop our product candidates could also delay the commercialization of our product candidates, which may reduce their competitiveness even if they reach the market. Moreover, we may not be successful in our efforts to establish such a
collaboration partnership for any future product candidates and programs on terms that are acceptable to us, or at all. This may be because our product candidates and programs may be deemed to be at too early of a stage of development for
collaborative effort, our research and development pipeline may be viewed as insufficient, and/or third parties may not view our product candidates and programs as having sufficient potential for commercialization, including the likelihood of an
adequate safety and efficacy profile. Even if we are successful in entering into a collaboration partnership or license arrangement, there is no guarantee that the collaboration partnership will be successful, or that any future collaboration
partner will commit sufficient resources to the development, regulatory approval, and commercialization effort for such products, or that such alliances will result in us achieving revenues that justify such transactions.
We may engage in strategic transactions that could impact our liquidity, increase our expenses and present significant distractions to our management.
We intend to consider strategic transactions, such as acquisitions of companies, asset purchases, and or
in-licensing
of products, product candidates or technologies. Additional potential transactions that we may consider include a variety of different business arrangements, including spin-offs, collaboration
partnerships, joint ventures, restructurings, divestitures, business combinations and investments. Any such transaction may require us to incur
non-recurring
or other charges, may increase our near- and
long-term expenditures and may pose significant integration challenges or disrupt our management or business, which could adversely affect our operations and financial results. For example, these transactions may entail numerous operational and
financial risks, including:
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up-front,
milestone and royalty payments, equity investments and financial support of new research and development candidates including increase of personnel, all of which may be
substantial;
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exposure to unknown liabilities;
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disruption of our business and diversion of our managements time and attention in order to develop acquired products, product candidates or technologies;
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incurrence of substantial debt or dilutive issuances of equity securities to pay for acquisitions;
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higher-than-expected acquisition and integration costs;
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write-downs of assets or goodwill or impairment charges;
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increased amortization expenses;
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difficulty and cost in combining the operations and personnel of any acquired businesses with our operations and personnel;
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impairment of relationships with key suppliers or customers of any acquired businesses due to changes in management and ownership; and
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inability to retain key employees of any acquired businesses.
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Accordingly, although there can
be no assurance that we will undertake or successfully complete any transactions of the nature described above, any transactions that we do complete may be subject to the foregoing
41
or other risks and could have a material adverse effect on our business, results of operations, financial condition and prospects.
If we seek and obtain approval to commercialize our product candidates outside of the United States, or otherwise engage in business outside of the
United States, a variety of risks associated with international operations could materially adversely affect our business.
We may
decide to seek marketing approval for certain of our product candidates outside the United States or otherwise engage in business outside the United States, including entering into contractual agreements with third-parties. We expect that we will be
subject to additional risks related to entering into these international business markets and relationships, including:
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different regulatory requirements for drug approvals in foreign countries;
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differing United States and foreign drug import and export rules;
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reduced protection for intellectual property rights in foreign countries;
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unexpected changes in tariffs, trade barriers and regulatory requirements;
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different reimbursement systems, and different competitive drugs;
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economic weakness, including inflation, or political instability in particular foreign economies and markets;
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compliance with tax, employment, immigration and labor laws for employees living or traveling abroad;
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foreign taxes, including withholding of payroll taxes;
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foreign currency fluctuations, which could result in increased operating expenses and reduced revenues, and other obligations incident to doing business in another country;
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workforce uncertainty in countries where labor unrest is more common than in the United States;
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production shortages resulting from any events affecting raw material supply or manufacturing capabilities abroad;
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potential liability resulting from development work conducted by these distributors; and
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business interruptions resulting from geopolitical actions, including war and terrorism, or natural disasters.
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Our business involves the use of hazardous materials and we and third-parties with whom we contract must comply with environmental laws and regulations,
which can be expensive and restrict how we do business.
Our research and development activities involve the controlled storage,
use and disposal of hazardous materials, including the components of our product candidates and other hazardous compounds. We and manufacturers and suppliers with whom we may contract are subject to laws and regulations governing the use,
manufacture, storage, handling and disposal of these hazardous materials. In some cases, these hazardous materials and various wastes resulting from their use are stored at our and our manufacturers facilities pending their use and disposal.
We cannot eliminate the risk of contamination, which could cause an interruption of our commercialization efforts, research and development efforts and business operations, environmental damage resulting in costly
clean-up
and liabilities under applicable laws and regulations governing the use, storage, handling and disposal of these materials and specified waste products. We cannot guarantee that the safety procedures
utilized by third-party manufacturers and suppliers with whom we may contract will comply with the standards prescribed by laws and regulations or will eliminate the risk of accidental contamination or injury from these materials. In such an event,
we may be held liable for any resulting damages and such liability could exceed our resources and state or federal or other applicable authorities may curtail our use of certain materials and/or interrupt our business operations. Furthermore,
environmental laws and regulations are complex, change
42
frequently and have tended to become more stringent. We cannot predict the impact of such changes and cannot be certain of our future compliance. We do not currently carry biological or hazardous
waste insurance coverage.
Our internal computer systems, or those of our CROs or other contractors or consultants, may fail or suffer security
breaches, which could result in a material disruption of our product development programs.
Despite the implementation of security
measures, our internal computer systems and those of our CROs and other contractors and consultants are vulnerable to damage from computer viruses, unauthorized access, natural disasters, terrorism, war and telecommunication and electrical failures.
While we have not experienced any such system failure, accident or security breach to date, if such an event were to occur and cause interruptions in our operations, it could result in a material disruption of our programs. For example, the loss of
clinical trial data from completed or ongoing clinical trials for any of our product candidates could result in delays in our regulatory approval efforts and significantly increase our costs to recover or reproduce the data. To the extent that any
disruption or security breach results in a loss of or damage to our data or applications, or inappropriate disclosure of confidential or proprietary information, we could incur liability and the further development of our product candidates could be
delayed.
We may be adversely affected by the current global economic environment.
Our ability to attract and retain collaboration partners or customers, invest in and grow our business and meet our financial obligations
depends on our operating and financial performance, which, in turn, is subject to numerous factors, including the prevailing economic conditions and financial, business and other factors beyond our control, such as the rate of unemployment, the
number of uninsured persons in the United States, presidential elections, other political influences and inflationary pressures. Our results of operations could be adversely affected by general conditions in the global economy and in the global
financial markets. The recent global financial crisis caused extreme volatility and disruptions in the capital and credit markets. We cannot anticipate all the ways in which the current global economic climate and global financial market conditions
could adversely impact our business.
We are exposed to risks associated with reduced profitability and the potential financial
instability of our collaboration partners or customers, many of which may be adversely affected by volatile conditions in the financial markets. For example, unemployment and underemployment, and the resultant loss of insurance, may decrease the
demand for healthcare services and pharmaceuticals. If fewer patients are seeking medical care because they do not have insurance coverage, our collaboration partners or customers may experience reductions in revenues, profitability and/or cash flow
that could lead them to reduce their support of our programs or financing activities. If collaboration partners or customers are not successful in generating sufficient revenue or are precluded from securing financing, they may not be able to pay,
or may delay payment of, accounts receivable that are owed to us. In addition, the volatility in the financial markets could cause significant fluctuations in the interest rate and currency markets. We currently do not hedge for these risks. The
foregoing events, in turn, could adversely affect our financial condition and liquidity. In addition, if economic challenges in the United States result in widespread and prolonged unemployment, either regionally or on a national basis, prior to the
effectiveness or after the repeal of certain provisions of the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act, collectively known as the Affordable Care Act, a substantial number of people
may become uninsured or underinsured. To the extent economic challenges result in fewer individuals pursuing or being able to afford our product candidates once commercialized, our business, results of operations, financial condition and cash flows
could be adversely affected.
We may be adversely affected by earthquakes or other natural disasters and our business continuity and disaster
recovery plans may not adequately protect us from a serious disaster.
Our corporate headquarters and other facilities are located
in the San Francisco Bay Area, which in the past has experienced severe earthquakes. We do not carry earthquake insurance. Earthquakes or other natural disasters
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could severely disrupt our operations, and have a material adverse effect on our business, results of operations, financial condition and prospects.
If a natural disaster, power outage or other event occurred that prevented us from using all or a significant portion of our headquarters,
that damaged critical infrastructure, such as our enterprise financial systems or manufacturing resource planning and enterprise quality systems, or that otherwise disrupted operations, it may be difficult or, in certain cases, impossible for us to
continue our business for a substantial period of time. The disaster recovery and business continuity plans we have in place currently are limited and are unlikely to prove adequate in the event of a serious disaster or similar event. We may incur
substantial expenses as a result of the limited nature of our disaster recovery and business continuity plans, which, particularly when taken together with our lack of earthquake insurance, could have a material adverse effect on our business.
Risks Related to Government Regulation
The
regulatory approval processes of the FDA and comparable foreign authorities are lengthy, time consuming and inherently unpredictable. If we are ultimately unable to obtain regulatory approval for our product candidates, our business will be
substantially harmed.
The research, testing, manufacturing, labeling, approval, selling, import, export, marketing and
distribution of drug products are subject to extensive regulation by the FDA and other regulatory authorities in the United States and other countries, which regulations differ from country to country. Neither we nor any of our collaboration
partners is permitted to market any drug product in the United States until we receive marketing approval from the FDA. We have not submitted an application or obtained marketing approval for any of our product candidates anywhere in the world.
Obtaining regulatory approval of a NDA can be a lengthy, expensive and uncertain process. In addition, failure to comply with FDA and other applicable United States and foreign regulatory requirements may subject us to administrative or judicially
imposed sanctions or other actions, including:
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civil and criminal penalties;
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withdrawal of regulatory approval of products;
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product seizure or detention;
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total or partial suspension of production; and
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refusal to approve pending NDAs or supplements to approved NDAs.
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Prior to obtaining approval
to commercialize a drug candidate in the United States or abroad, we or our collaboration partners must demonstrate with substantial evidence from well-controlled clinical trials, and to the satisfaction of the FDA or other foreign regulatory
agencies, that such drug candidates are safe and effective for their intended uses. The number of nonclinical studies and clinical trials that will be required for FDA approval varies depending on the drug candidate, the disease or condition that
the drug candidate is designed to address, and the regulations applicable to any particular drug candidate. Results from nonclinical studies and clinical trials can be interpreted in different ways. Even if we believe the nonclinical or clinical
data for our drug candidates are promising, such data may not be sufficient to support approval by the FDA and other regulatory authorities. Administering drug candidates to humans may produce undesirable side effects, which could interrupt, delay
or halt clinical trials and result in the FDA or other regulatory authorities denying approval of a drug candidate for any or all targeted indications.
The time required to obtain approval by the FDA and comparable foreign authorities is unpredictable, typically takes many years following the
commencement of clinical studies, and depends upon numerous factors.
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The FDA and comparable foreign authorities have substantial discretion in the approval process and we may encounter matters with the FDA or such comparable authorities that requires us to expend
additional time and resources and delay or prevent the approval of our product candidates. For example, the FDA may require us to conduct additional studies or trials for drug product either prior to or post-approval, such as additional drug-drug
interaction studies or safety or efficacy studies or trials, or it may object to elements of our clinical development program such as the number of subjects in our current clinical trials from the United States. In addition, approval policies,
regulations or the type and amount of clinical data necessary to gain approval may change during the course of a product candidates clinical development and may vary among jurisdictions, which may cause delays in the approval or result in a
decision not to approve an application for regulatory approval. Despite the time and expense exerted, failure can occur at any stage.
Applications for our product candidates could fail to receive regulatory approval for many reasons, including but not limited to the
following:
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the FDA or comparable foreign regulatory authorities may disagree with the design or implementation of our, or our collaboration partners, clinical studies;
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the population studied in the clinical program may not be sufficiently broad or representative to assure safety in the full population for which approval is sought;
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the FDA or comparable foreign regulatory authorities may disagree with the interpretation of data from preclinical studies or clinical studies;
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the data collected from clinical studies of our product candidates may not be sufficient to support the submission of a NDA or other submission or to obtain regulatory approval in the United States or elsewhere;
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we or our collaboration partners may be unable to demonstrate to the FDA or comparable foreign regulatory authorities that a product candidates risk-benefit ratio for its proposed indication is acceptable;
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the FDA or comparable foreign regulatory authorities may fail to approve the manufacturing processes, test procedures and specifications, or facilities of third-party manufacturers responsible for clinical and
commercial supplies; and
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the approval policies or regulations of the FDA or comparable foreign regulatory authorities may significantly change in a manner rendering our clinical data insufficient for approval.
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This lengthy approval process, as well as the unpredictability of the results of clinical studies, may result in our failure and/or that of
our collaboration partners to obtain regulatory approval to market any of our product candidates, which would significantly harm our business, results of operations, and prospects. Additionally, if the FDA requires that we conduct additional
clinical studies, places limitations in our label, delays approval to market our product candidates or limits the use of our products, our business and results of operations may be harmed.
In addition, even if we were to obtain approval, regulatory authorities may approve any of our product candidates for fewer or more limited
indications than we request, may not approve the price we intend to charge for our products, may grant approval contingent on the performance of costly post-marketing clinical trials, or may approve a product candidate with a label that does not
include the labeling claims necessary or desirable for the successful commercialization of that product candidate. Any of the foregoing scenarios could materially harm the commercial prospects for our product candidates.
Even if we receive regulatory approval for a product candidate, we will be subject to ongoing regulatory obligations and continued regulatory review,
which may result in significant additional expense. Additionally, any product candidates, if approved, could be subject to labeling and other restrictions and market
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withdrawal, and we may be subject to penalties if we fail to comply with regulatory requirements or experience unanticipated problems with our products.
Even if a drug is approved by the FDA or foreign regulatory authorities, the manufacturing processes, labeling, packaging, distribution,
adverse event reporting, storage, advertising, promotion and recordkeeping for the product will be subject to extensive and ongoing regulatory requirements. These requirements include submissions of safety and other post-marketing information and
reports, registration, as well as continued compliance with cGMPs and GCP regulations for any clinical trials that we conduct post-approval. As such, we and our third party contract manufacturers will be subject to continual review and periodic
inspections to assess compliance with regulatory requirements. Accordingly, we and others with whom we work must continue to expend time, money, and effort in all areas of regulatory compliance, including manufacturing, production, and quality
control. Regulatory authorities may also impose significant restrictions on a products indicated uses or marketing or impose ongoing requirements for potentially costly post-marketing studies. Furthermore, any new legislation addressing drug
safety issues could result in delays or increased costs to assure compliance.
We will also be required to report certain adverse
reactions and production problems, if any, to the FDA, and to comply with requirements concerning advertising and promotion for our products. Promotional communications with respect to prescription drugs are subject to a variety of legal and
regulatory restrictions and must be consistent with the information in the products approved label. As such, we may not promote our products for indications or uses for which they do not have FDA approval.
Later discovery of previously unknown problems with a product, including adverse events of unanticipated severity or frequency, or with our
third-party manufacturers or manufacturing processes, or failure to comply with regulatory requirements, may result in, among other things:
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warning letters, fines or holds on clinical trials;
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restrictions on the marketing or manufacturing of the product, withdrawal of the product from the market or voluntary or mandatory product recalls;
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injunctions or the imposition of civil or criminal penalties;
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suspension or revocation of existing regulatory approvals;
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suspension of any of our ongoing clinical trials;
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refusal to approve pending applications or supplements to approved applications submitted by us;
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restrictions on our or our contract manufacturers operations; or
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product seizure or detention, or refusal to permit the import or export of products.
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Any
government investigation of alleged violations of law could require us to expend significant time and resources in response, and could generate negative publicity. Any failure to comply with ongoing regulatory requirements may significantly and
adversely affect our ability to commercialize our product candidates. If regulatory sanctions are applied or if regulatory approval is withdrawn, the value of our company and our operating results will be adversely affected.
In addition, the FDAs policies may change and additional government regulations may be enacted that could prevent, limit or delay
regulatory approval of our product candidates. If we are slow or unable to adapt to changes in existing requirements or the adoption of new requirements or policies, or if we are not able to maintain regulatory compliance, we may lose any marketing
approval that we may have obtained, which would adversely affect our business, prospects and ability to achieve or sustain profitability.
We and
our contract manufacturers are subject to significant regulation with respect to manufacturing our product candidates. The manufacturing facilities on which we rely may not continue to meet regulatory requirements or may not be able to meet supply
demands.
All entities involved in the preparation of product candidates for clinical studies or commercial sale, including our
existing contract manufacturers for our product candidates are subject to extensive regulation.
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Components of a finished therapeutic product approved for commercial sale or used in late-stage clinical studies must be manufactured in accordance with cGMP regulations. These regulations govern
manufacturing processes and procedures (including record keeping) and the implementation and operation of quality systems to control and assure the quality of investigational products and products approved for sale. Poor control of production
processes can lead to the introduction of contaminants or to inadvertent changes in the properties or stability of our product candidates that may not be detectable in final product testing. We or our contract manufacturers must supply all necessary
documentation in support of an NDA or comparable regulatory filing on a timely basis and must adhere to cGMP regulations enforced by the FDA and other regulatory agencies through their facilities inspection programs. The facilities and quality
systems of some or all of our third-party contractors must pass a
pre-approval
inspection for compliance with the applicable regulations as a condition of regulatory approval of our product candidates. In
addition, the regulatory authorities may, at any time, audit or inspect a manufacturing facility involved with the preparation of our product candidates or our other potential products or the associated quality systems for compliance with the
regulations applicable to the activities being conducted. Although we oversee the contract manufacturers, we cannot control the manufacturing process of, and are completely dependent on, our contract manufacturing partners for compliance with the
regulatory requirements. If these facilities do not pass a
pre-approval
plant inspection, regulatory approval of the products may not be granted or may be substantially delayed until any violations are
corrected to the satisfaction of the regulatory authority, if ever. In addition, we have no control over the ability of our contract manufacturers to maintain adequate quality control, quality assurance and qualified personnel.
The regulatory authorities also may, at any time following approval of a product for sale, audit the manufacturing facilities of our
third-party contractors. If any such inspection or audit identifies a failure to comply with applicable regulations or if a violation of our product specifications or applicable regulations occurs independent of such an inspection or audit, we or
the relevant regulatory authority may require remedial measures that may be costly and/or time consuming for us or a third party to implement, and that may include the temporary or permanent suspension of a clinical study or commercial sales or the
temporary or permanent suspension of production or closure of a facility. Any such remedial measures imposed upon us or third parties with whom we contract could materially harm our business.
If we or any of our third-party manufacturers fail to maintain regulatory compliance, the FDA or other applicable regulatory authority can
impose regulatory sanctions including, among other things, refusal to approve a pending application for a new drug product, withdrawal of an approval, or suspension of production. As a result, our business, financial condition, and results of
operations may be materially harmed.
Additionally, if supply from one approved manufacturer is interrupted, an alternative manufacturer
would need to be qualified through an NDA, a supplemental NDA or equivalent foreign regulatory filing, which could result in further delay. The regulatory agencies may also require additional studies if a new manufacturer is relied upon for
commercial production. Switching manufacturers may involve substantial costs and is likely to result in a delay in our desired clinical and commercial timelines.
These factors could cause us to incur higher costs and could cause the delay or termination of clinical studies, regulatory submissions,
required approvals, or commercialization of our product candidates. Furthermore, if our suppliers fail to meet contractual requirements and we are unable to secure one or more replacement suppliers capable of production at a substantially equivalent
cost, our clinical studies may be delayed or we could lose potential revenue.
If we fail to comply or are found to have failed to comply with FDA
and other regulations related to the promotion of our products for unapproved uses, we could be subject to criminal penalties, substantial fines or other sanctions and damage awards.
The regulations relating to the promotion of products for unapproved uses are complex and subject to substantial interpretation by the FDA and
other government agencies. If tenapanor, RDX7675 or our other product candidates receive marketing approval, we and our collaborating partners, if any, will be restricted from
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marketing the product outside of its approved labeling, also referred to as
off-label
promotion. However, physicians may nevertheless prescribe an approved
product to their patients in a manner that is inconsistent with the approved label, which is an
off-label
use. We intend to implement compliance and training programs designed to ensure that our sales and
marketing practices comply with applicable regulations regarding
off-label
promotion. Notwithstanding these programs, the FDA or other government agencies may allege or find that our practices constitute
prohibited promotion of our product candidates for unapproved uses. We also cannot be sure that our employees will comply with company policies and applicable regulations regarding the promotion of products for unapproved uses.
Over the past several years, a significant number of pharmaceutical and biotechnology companies have been the target of inquiries and
investigations by various federal and state regulatory, investigative, prosecutorial and administrative entities in connection with the promotion of products for unapproved uses and other sales practices, including the Department of Justice and
various U.S. Attorneys Offices, the Office of Inspector General of the Department of Health and Human Services, the FDA, the Federal Trade Commission and various state Attorneys General offices. These investigations have alleged violations of
various federal and state laws and regulations, including claims asserting antitrust violations, violations of the Food, Drug and Cosmetic Act, the False Claims Act, the Prescription Drug Marketing Act, anti-kickback laws, and other alleged
violations in connection with the promotion of products for unapproved uses, pricing and Medicare and/or Medicaid reimbursement. Many of these investigations originate as qui tam actions under the False Claims Act. Under the False Claims
Act, any individual can bring a claim on behalf of the government alleging that a person or entity has presented a false claim, or caused a false claim to be submitted, to the government for payment. The person bringing a qui tam suit is entitled to
a share of any recovery or settlement. Qui tam suits, also commonly referred to as whistleblower suits, are often brought by current or former employees. In a qui tam suit, the government must decide whether to intervene and prosecute
the case. If it declines, the individual may pursue the case alone.
If the FDA or any other governmental agency initiates an enforcement
action against us or if we are the subject of a qui tam suit and it is determined that we violated prohibitions relating to the promotion of products for unapproved uses, we could be subject to substantial civil or criminal fines or damage awards
and other sanctions such as consent decrees and corporate integrity agreements pursuant to which our activities would be subject to ongoing scrutiny and monitoring to ensure compliance with applicable laws and regulations. Any such fines, awards or
other sanctions would have an adverse effect on our revenue, business, financial prospects and reputation.
If approved, tenapanor, RDX7675 and our
other product candidates may cause or contribute to adverse medical events that we are required to report to regulatory agencies and if we fail to do so we could be subject to sanctions that would materially harm our business.
Some participants in clinical studies of tenapanor have reported adverse effects after being treated with tenapanor, including diarrhea,
nausea, flatulence, abdominal discomfort, abdominal pain, abdominal distention and changes in electrolytes. If we are successful in commercializing any products, FDA and foreign regulatory agency regulations require that we report certain
information about adverse medical events if those products may have caused or contributed to those adverse events. The timing of our obligation to report would be triggered by the date we become aware of the adverse event as well as the nature of
the event. We may fail to report adverse events we become aware of within the prescribed timeframe. We may also fail to appreciate that we have become aware of a reportable adverse event, especially if it is not reported to us as an adverse event or
if it is an adverse event that is unexpected or removed in time from the use of our products. If we fail to comply with our reporting obligations, the FDA or a foreign regulatory agency could take action, including criminal prosecution, the
imposition of civil monetary penalties, seizure of our products or delay in approval or clearance of future products.
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Our employees, independent contractors, principal investigators, CROs, collaboration partners, consultants
and vendors may engage in misconduct or other improper activities, including noncompliance with regulatory standards and requirements.
We are exposed to the risk that our employees, independent contractors, principal investigators, CROs, collaboration partners, consultants and
vendors may engage in fraudulent conduct or other illegal activity. Misconduct by these parties could include intentional, reckless and/or negligent conduct or unauthorized activities that violate: (1) FDA regulations, including those laws that
require the reporting of true, complete and accurate information to the FDA; (2) manufacturing standards; (3) federal and state healthcare fraud and abuse laws and regulations; or (4) laws that require the reporting of true and
accurate financial information and data. Specifically, sales, marketing and business arrangements in the healthcare industry are subject to extensive laws and regulations intended to prevent fraud, kickbacks, self-dealing and other abusive
practices. These laws and regulations may restrict or prohibit a wide range of pricing, discounting, marketing and promotion, sales commission, customer incentive programs and other business arrangements. These activities also include the improper
use of information obtained in the course of clinical trials, which could result in regulatory sanctions and serious harm to our reputation. It is not always possible to identify and deter misconduct by employees and other third parties, and the
precautions we take to detect and prevent this activity may not be effective in controlling unknown or unmanaged risks or losses or in protecting us from governmental investigations or other actions or lawsuits stemming from a failure to be in
compliance with such laws or regulations. Additionally, we are subject to the risk that a person or government could allege such fraud or other misconduct, even if none occurred. If any such actions are instituted against us, and we are not
successful in defending ourselves or asserting our rights, those actions could have a significant impact on our business, including the imposition of significant civil, criminal and administrative penalties, damages, monetary fines, disgorgements,
possible exclusion from participation in Medicare, Medicaid and other federal healthcare programs, individual imprisonment, other sanctions, contractual damages, reputational harm, diminished profits and future earnings, and curtailment of our
operations, any of which could adversely affect our ability to operate our business and our results of operations.
Failure to obtain regulatory
approvals in foreign jurisdictions would prevent us from marketing our products internationally.
In order to market any product in
the EEA (which is composed of the 28 Member States of the European Union plus Norway, Iceland and Liechtenstein), and many other foreign jurisdictions, separate regulatory approvals are required. In the EEA, medicinal products can only be
commercialized after obtaining a Marketing Authorization, or MA. Before granting the MA, the EMA or the competent authorities of the Member States of the EEA make an assessment of the risk-benefit balance of the product on the basis of scientific
criteria concerning its quality, safety and efficacy.
The approval procedures vary among countries and can involve additional clinical
testing, and the time required to obtain approval may differ from that required to obtain FDA approval. Clinical trials conducted in one country may not be accepted by regulatory authorities in other countries. Approval by the FDA does not ensure
approval by regulatory authorities in other countries, and approval by one or more foreign regulatory authorities does not ensure approval by regulatory authorities in other foreign countries or by the FDA. However, a failure or delay in obtaining
regulatory approval in one country may have a negative effect on the regulatory process in others. The foreign regulatory approval process may include all of the risks associated with obtaining FDA approval. We may not be able to file for regulatory
approvals or to do so on a timely basis, and even if we do file we may not receive necessary approvals to commercialize our products in any market.
We and our collaboration partners, if any, may be subject to healthcare laws, regulation and enforcement; our failure or the failure of any such
collaboration partners to comply with these laws could have a material adverse effect on our results of operations and financial conditions.
Although we do not currently have any products on the market, once we begin commercializing our products, we and our collaboration partners, if
any, may be subject to additional healthcare statutory and regulatory
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requirements and enforcement by the federal government and the states and foreign governments in which we conduct our business. The laws that may affect our ability to operate as a commercial
organization include:
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the federal Anti-Kickback Statute, which prohibits, among other things, persons from knowingly and willfully soliciting, receiving, offering or paying remuneration, directly or indirectly, in exchange for or to induce
either the referral of an individual for, or the purchase, order or recommendation of, any good or service for which payment may be made under federal healthcare programs such as the Medicare and Medicaid programs;
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federal false claims laws which prohibit, among other things, individuals or entities from knowingly presenting, or causing to be presented, claims for payment from Medicare, Medicaid, or other third-party payors that
are false or fraudulent;
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federal criminal laws that prohibit executing a scheme to defraud any healthcare benefit program or making false statements relating to healthcare matters;
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the federal Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act, which governs the conduct of certain electronic healthcare
transactions and protects the security and privacy of protected health information;
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the federal physician sunshine requirements under the Affordable Care Act, which requires manufacturers of drugs, devices, biologics, and medical supplies to report annually to the CMS information related to payments
and other transfers of value to physicians, other healthcare providers, and teaching hospitals, and ownership and investment interests held by physicians and other healthcare providers and their immediate family members;
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state law equivalents of each of the above federal laws, such as anti-kickback and false claims laws which may apply to items or services reimbursed by any third-party payor, including commercial insurers;
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state laws that require pharmaceutical companies to comply with the pharmaceutical industrys voluntary compliance guidelines and the applicable compliance guidance promulgated by the federal government, or
otherwise restrict payments that may be made to healthcare providers and other potential referral sources;
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state laws that require drug manufacturers to report information related to payments and other transfers of value to physicians and other healthcare providers or pricing information and marketing expenditures; and state
laws governing the privacy and security of health information in certain circumstances, many of which differ from each other in significant ways, thus complicating compliance efforts; and
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European and other foreign law equivalents of each of the laws, including reporting requirements detailing interactions with and payments to healthcare providers.
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Because of the breadth of these laws and the narrowness of the statutory exceptions and safe harbors available, it is possible that some of
our business activities could be subject to challenge under one or more of such laws. The risk of our being found in violation of these laws is increased by the fact that many of them have not been fully interpreted by the regulatory authorities or
the courts, and their provisions are open to a variety of interpretations. Further, the Affordable Care Act, among other things, amends the intent requirement of the federal anti-kickback and criminal health care fraud statutes. A person or entity
no longer needs to have actual knowledge of this statute or specific intent to violate it. In addition, the Affordable Care Act provides that the government may assert that a claim including items or services resulting from a violation of the
federal anti-kickback statute constitutes a false or fraudulent claim for purposes of the false claims statutes. Any action against us for violation of these laws, even if we successfully defend against it, could cause us to incur significant legal
expenses and divert our managements attention from the operation of our business. If our operations are found to be in violation of any of the laws described above or any other governmental laws and regulations that apply to us, we may be
subject to penalties, including civil and criminal penalties, damages, fines, the curtailment
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or restructuring of our operations, the exclusion from participation in federal and state healthcare programs and imprisonment, any of which could adversely affect our ability to market our
products and adversely impact our financial results.
Legislative or regulatory healthcare reforms in the United States may make it more difficult
and costly for us to obtain regulatory clearance or approval of our product candidates and to produce, market and distribute our products after clearance or approval is obtained.
From time to time, legislation is drafted and introduced in Congress that could significantly change the statutory provisions governing the
regulatory clearance or approval, manufacture, and marketing of regulated products or the reimbursement thereof. In addition, FDA regulations and guidance are often revised or reinterpreted by the FDA in ways that may significantly affect our
business and our products. Any new regulations or revisions or reinterpretations of existing regulations may impose additional costs or lengthen review times of our product candidates. We cannot determine what effect changes in regulations,
statutes, legal interpretation or policies, when and if promulgated, enacted or adopted may have on our business in the future. Such changes could, among other things, require:
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additional clinical trials to be conducted prior to obtaining approval;
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changes to manufacturing methods;
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recall, replacement, or discontinuance of one or more of our products; and
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additional record keeping.
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Each of these would likely entail substantial time and cost and
could materially harm our business and our financial results. In addition, delays in receipt of or failure to receive regulatory clearances or approvals for any future products would harm our business, financial condition and results of operations.
In addition, the full impact of recent healthcare reform and other changes in the healthcare industry and in healthcare spending is
currently unknown, and may adversely affect our business model. In the United States, the Affordable Care Act was enacted in 2010 with a goal of reducing the cost of healthcare and substantially changing the way healthcare is financed by both
government and private insurers. The Affordable Care Act, among other things, increased the minimum Medicaid rebates owed by manufacturers under the Medicaid Drug Rebate Program and extended the rebate program to individuals enrolled in Medicaid
managed care organizations, established annual fees and taxes on manufacturers of certain branded prescription drugs, and created a new Medicare Part D coverage gap discount program, in which manufacturers must agree to offer 50%
point-of-sale
discounts off negotiated prices of applicable brand drugs to eligible beneficiaries during their coverage gap period as a condition for the manufacturers
outpatient drugs to be covered under Medicare Part D.
We expect that the new presidential administration and U.S. Congress will seek to
modify, repeal, or otherwise invalidate all, or certain provisions of, the Affordable Care Act. Since taking office, President Trump has continued to support the repeal of all or portions of the Affordable Care Act. In January 2017, the House and
Senate passed a budget resolution that authorizes congressional committees to draft legislation to repeal all or portions of the Affordable Care Act and permits such legislation to pass with a majority vote in the Senate. President Trump has also
recently issued an executive order in which he stated that it is his administrations policy to seek the prompt repeal of the Affordable Care Act and directed executive departments and federal agencies to waive, defer, grant exemptions from, or
delay the implementation of the provisions of the Affordable Care Act to the maximum extent permitted by law. There is still uncertainty with respect to the impact President Trumps administration and the U.S. Congress may have, if any, and any
changes will likely take time to unfold, and could have an impact on coverage and reimbursement for healthcare items and services covered by plans that were authorized by the Affordable Care Act. However, we cannot predict the ultimate content,
timing or effect of any healthcare reform legislation or the impact of potential legislation on us.
Other legislative changes have been
proposed and adopted in the United States since the Affordable Care Act was enacted. These new laws, among other things, included aggregate reductions of Medicare payments to
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providers of 2% per fiscal year that will remain in effect through 2025 unless additional action is taken by Congress, additional specific reductions in Medicare payments to several types of
providers, including hospitals, imaging centers and cancer treatment centers, and an increase in the statute of limitations period for the government to recover overpayments to providers from three to five years. Recently, there has also been
heightened governmental scrutiny over the manner in which drug manufacturers set prices for their marketed products, which has resulted in several Congressional inquiries and proposed bills designed to, among other things, bring more transparency to
product pricing, review the relationship between pricing and manufacturer patient programs, and reform government program reimbursement methodologies for drug products.
It is likely that federal and state legislatures within the United States and foreign governments will continue to consider changes to
existing healthcare legislation, and the current administration and United States Congress have expressed a desire to repeal and/or modify the Affordable Care Act. We cannot predict the reform initiatives that may be adopted in the future or whether
initiatives that have been adopted will be repealed or modified. The continuing efforts of the government, insurance companies, managed care organizations and other payors of healthcare services to contain or reduce costs of healthcare may adversely
affect the demand for any drug products for which we may obtain regulatory approval, our ability to set a price that we believe is fair for our products, our ability to obtain coverage and reimbursement approval for a product, our ability to
generate revenues and achieve or maintain profitability, and the level of taxes that we are required to pay.
Risks Related to Intellectual Property
We may become subject to claims alleging infringement of third parties patents or proprietary rights and/or claims seeking to invalidate
our patents, which would be costly, time consuming and, if successfully asserted against us, delay or prevent the development and commercialization of tenapanor, RDX7675 or our other product candidates, or prevent or delay the continued use of our
drug discovery and development platform, including APECCS.
There have been many lawsuits and other proceedings asserting
infringement or misappropriation of patents and other intellectual property rights in the pharmaceutical and biotechnology industries. There can be no assurances that we will not be subject to claims alleging that the manufacture, use or sale of
tenapanor, RDX7675 or any other product candidates, or that the use of our drug discovery and development platform, including APECCS, infringes existing or future third-party patents, or that such claims, if any, will not be successful. Because
patent applications can take many years to issue and may be confidential for 18 months or more after filing, and because pending patent claims can be revised before issuance, there may be applications now pending which may later result in issued
patents that may be infringed by the manufacture, use or sale of tenapanor, RDX7675 or other product candidates or by the use of APECCS. Moreover, we may face patent infringement claims from
non-practicing
entities that have no relevant product revenue and against whom our own patent portfolio may thus have no deterrent effect. We may be unaware of one or more issued patents that would be infringed by the manufacture, sale or use of tenapanor, RDX7675
or our other product candidates, or by the use of APECCS.
We may be subject to third-party patent infringement claims in the future
against us or our that would cause us to incur substantial expenses and, if successful against us, could cause us to pay substantial damages, including treble damages and attorneys fees if we are found to be willfully infringing a third
partys patents. We may be required to indemnify future collaboration partners against such claims. We are not aware of any threatened or pending claims related to these matters, but in the future litigation may be necessary to defend against
such claims. If a patent infringement suit were brought against us we 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. In addition, if a patent
infringement suit were brought against us regarding the use of APECCS, we could be forced to stop our use of APECCS or modify our processes to avoid infringement, which may not be possible at a reasonable cost, if at all, and which could result in
substantial delay in our use of APECCS for the discovery of new product candidates or potential targets. As a result of patent infringement claims, or in order to avoid potential claims, we 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
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royalties or both. These licenses may not be available on acceptable terms, or at all. Even if we were able to obtain a license, we may be unable to maintain such licenses and 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 forced to redesign it, or to cease our use of APECCS or some other aspect of our business
operations if, as a result of actual or threatened patent infringement claims, we are unable to enter into licenses on acceptable terms, or unable to maintain such licenses when granted. Even if we are successful in defending against such claims,
such litigation can be expensive and time consuming to litigate and would divert managements attention from our core business. Any of these events could harm our business significantly.
In addition to infringement claims against us, if third parties prepare and file patent applications in the United States that also claim
technology similar or identical to ours, we may have to participate in interference or derivation proceedings in the United States Patent and Trademark Office, or the USPTO, to determine which party is entitled to a patent on the disputed invention.
We may also become involved in similar opposition proceedings in the European Patent Office or similar offices in other jurisdictions regarding our intellectual property rights with respect to our products and technology. Since patent applications
are confidential for a period of time after filing, we cannot be certain that we were the first to file any patent application related to our product candidates.
If our intellectual property related to our product candidates is not adequate or if we are not able to protect our trade secrets or our confidential
information, we may not be able to compete effectively in our market.
We rely upon a combination of patents, trade secret
protection and confidentiality agreements to protect the intellectual property related to our product candidates, our drug discovery and development platform and our development programs. Any disclosure to 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.
The strength of patents in the biotechnology and pharmaceutical field involves complex legal and scientific questions and can be uncertain.
The patent applications that we own or license may fail to result in issued patents in the United States or in foreign countries. Additionally, our research and development efforts may result in product candidates for which patent protection is
limited or not available. Even if patents do successfully issue, third parties may challenge the validity, enforceability or scope thereof, which may result in such patents being narrowed, invalidated or held unenforceable. For example, U.S. patents
can be challenged by any person before the new USPTO Patent Trial and Appeals Board at any time before one year after that person is served an infringement complaint based on the patents. Patents granted by the European Patent Office may be
similarly opposed by any person within nine months from the publication of the grant. Similar proceedings are available in other jurisdictions, and in the United States, Europe and other jurisdictions third parties can raise questions of validity
with a patent office even before a patent has granted. Furthermore, even if they are unchallenged, our patents and patent applications may not adequately protect our intellectual property or prevent others from designing around our claims. For
example, a third party may develop a competitive product that provides therapeutic benefits similar to one or more of our product candidates but has a sufficiently different composition to fall outside the scope of our patent protection. If the
breadth or strength of protection provided by the patents and patent applications we hold or pursue with respect to our product candidates is successfully challenged, then our ability to commercialize such product candidates could be negatively
affected, and we may face unexpected competition that could have a material adverse impact on our business. Further, if we encounter delays in our clinical trials, the period of time during which we or our collaboration partners could market
tenapanor or other product candidates under patent protection would be reduced.
Even where laws provide protection, costly and
time-consuming litigation could be necessary to enforce and determine the scope of our proprietary rights, and the outcome of such litigation would be uncertain. If we or one of our collaboration partners were to initiate legal proceedings against a
third party to enforce a patent covering the product candidate, the defendant could counterclaim that our patent is invalid and/or unenforceable. In patent litigation in the United States, defendant counterclaims alleging invalidity and/or
unenforceability are
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commonplace. Grounds for a validity challenge could be an alleged failure to meet any of several statutory requirements, including lack of novelty, obviousness or
non-enablement.
Grounds for an unenforceability assertion could be an allegation that someone connected with prosecution of the patent withheld relevant information from the USPTO, or made a misleading
statement, during prosecution. The outcome following legal assertions of invalidity and unenforceability is unpredictable. With respect to validity, for example, we cannot be certain that there is no invalidating prior art, of which we and the
patent examiner were unaware during prosecution. If a defendant were to prevail on a legal assertion of invalidity and/or unenforceability against our intellectual property related to a product candidate, we would lose at least part, and perhaps
all, of the patent protection on such product candidate. Such a loss of patent protection would have a material adverse impact on our business. Moreover, our competitors could counterclaim that we infringe their intellectual property, and some of
our competitors have substantially greater intellectual property portfolios than we do.
We also rely on trade secret protection and
confidentiality agreements to protect proprietary
know-how
that may not be patentable, processes for which patents may be difficult to obtain and/or enforce and any other elements of our drug discovery and
development processes that involve proprietary
know-how,
information or technology that is not covered by patents. Although we require all of our employees, consultants, advisors and any third parties who have
access to our proprietary
know-how,
information or technology, to assign their inventions to us, and endeavor to execute confidentiality agreements with all such parties, we cannot be certain that we have
executed such agreements with all parties who may have helped to develop our intellectual property or who had access to our proprietary information, nor can we be certain that our agreements will not be breached by such consultants, advisors or
third parties, or by our former employees. The breach of such agreements by individuals or entities who are actively involved in the discovery and design of our potential drug candidates, or in the development of our discovery and design platform,
including APECCS, could require us to pursue legal action to protect our trade secrets and confidential information, which would be expensive, and the outcome of which would be unpredictable. If we are not successful in prohibiting the continued
breach of such agreements, our business could be negatively impacted. We cannot guarantee that our trade secrets and other confidential proprietary information 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 or in the same manner 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 prevent material disclosure of the intellectual property related to our technologies to third parties, we will not be able to establish or maintain a competitive advantage in our market, which could materially adversely affect our
business, results of operations and financial condition.
If we do not obtain patent term extension in the United States under the Hatch-Waxman Act
and in foreign countries under similar legislation, thereby potentially extending the term of marketing exclusivity for our product candidates, our business may be materially harmed.
Depending upon the timing, duration and specifics of FDA marketing approval of our product candidates, if any, one of the U.S. patents covering
each of such approved product(s) or the use thereof may be eligible for up to five years of patent term restoration under the Hatch-Waxman Act. The Hatch-Waxman Act allows a maximum of one patent to be extended per FDA approved product. Patent term
extension also may be available in certain foreign countries upon regulatory approval of our product candidates. Nevertheless, we may not be granted patent term extension either in the United States or in any foreign country because of, for example,
failing to apply within applicable deadlines, failing to apply prior to expiration of relevant patents or otherwise failing to satisfy applicable requirements. Moreover, the term of extension, as well as the scope of patent protection during any
such extension, afforded by the governmental authority could be less than we request.
If we are unable to obtain patent term extension or
restoration, or the term of any such extension is less than we request, the period during which we will have the right to exclusively market our product will be shortened
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and our competitors may obtain approval of competing products following our patent expiration, and our revenue could be reduced, possibly materially.
Changes in U.S. patent law could diminish the value of patents in general, thereby impairing our ability to protect our products.
As is the case with other biopharmaceutical companies, our success is heavily dependent on intellectual property, particularly patents.
Obtaining and enforcing patents in the biopharmaceutical industry involve both technological and legal complexity.
Therefore, obtaining
and enforcing biopharmaceutical patents is costly, time consuming and inherently uncertain. In addition, the United States has recently enacted and is currently implementing wide-ranging patent reform legislation, including the Leahy-Smith America
Invents Act signed into law on September 16, 2011. That Act includes a number of significant changes to U.S. patent law. These include provisions that affect the way patent applications are prosecuted and new venues and opportunities for
competitors to challenge patent portfolios. Because of that Act, the U.S. patent system is now a first to file system, which may make it more difficult to obtain patent protection for inventions and increase the uncertainties and costs
surrounding the prosecution of our or our collaboration partners patent applications and the enforcement or defense of our or our collaboration partners issued patents, all of which could materially adversely affect our business, results
of operations and financial condition. The United States Supreme Court has ruled on several patent cases in recent years, either narrowing the scope of patent protection available in certain circumstances or weakening the rights of patent owners in
certain situations. In addition to increasing uncertainty with regard to our ability to obtain patents in the future, this combination of events has created uncertainty with respect to the value of patents once obtained. Depending on future actions
by the U.S. Congress, the federal courts, and the USPTO, the laws and regulations governing patents could change in unpredictable ways that would weaken our ability to obtain new patents or to enforce our existing patents and patents that we might
obtain in the future.
Obtaining and maintaining our patent protection depends on compliance with various procedural, document submission, fee
payment and other requirements imposed by governmental patent agencies, and our patent protection could be reduced or eliminated for
non-compliance
with these requirements.
The USPTO and various foreign patent agencies require compliance with a number of procedural, documentary, fee payment and other provisions to
maintain patent applications and issued patents. Noncompliance with these requirements can result in abandonment or lapse of a patent or patent application, resulting in partial or complete loss of patent rights in the relevant jurisdiction. In such
an event, competitors might be able to enter the market earlier than would otherwise have been the case.
We may not be able to enforce our
intellectual property rights throughout the world.
The laws of some foreign countries do not protect intellectual property rights
to the same extent as the laws of the United States. Many companies have encountered significant problems in protecting and defending intellectual property rights in certain foreign jurisdictions. The legal systems of some countries, particularly
developing countries, do not favor the enforcement of patents and other intellectual property protection, especially those relating to life sciences. This could make it difficult for us to stop the infringement of our patents or the misappropriation
of our other intellectual property rights. For example, many foreign countries have compulsory licensing laws under which a patent owner must grant licenses to third parties.
Proceedings to enforce our patent rights in foreign jurisdictions, whether or not successful, could result in substantial costs and divert our
efforts and attention from other aspects of our business. Furthermore, while we intend to protect our intellectual property rights in our expected significant markets, we cannot ensure that we will be able to initiate or maintain similar efforts in
all jurisdictions in which we may wish to market our products. Accordingly, our efforts to protect our intellectual property rights in such countries may be inadequate. In addition, changes in the law and legal decisions by courts in the United
States and foreign countries may affect our ability to obtain and enforce adequate intellectual property protection for our technology.
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We may be subject to claims that we or our employees have misappropriated the intellectual property,
including
know-how
or trade secrets, of a third party, or claiming ownership of what we regard as our own intellectual property.
Many of our employees, consultants and contractors were previously employed at or engaged by other biotechnology or pharmaceutical companies,
including our competitors or potential competitors. Some of these employees, consultants and contractors, executed proprietary rights,
non-disclosure
and
non-competition
agreements in connection with such previous employment. Although we try to ensure that our employees, consultants and contractors do not use the intellectual property and other proprietary information or
know-how
or trade secrets of others in their work for us, and do not perform work for us that is in conflict with their obligations to another employer or any other entity, we may be subject to claims that we
or these employees, consultants and contractors have used or disclosed such intellectual property, including
know-how,
trade secrets or other proprietary information. In addition, an employee, advisor or
consultant who performs work for us may have obligations to a third party that are in conflict with their obligations to us, and as a result such third party may claim an ownership interest in the intellectual property arising out of work performed
for us. We are not aware of any threatened or pending claims related to these matters, but in the future litigation may be necessary to defend against such claims. If we fail in defending any such claims, in addition to paying monetary damages, we
may lose valuable intellectual property rights or personnel, or access to consultants and contractors. Even if we are successful in defending against such claims, litigation could result in substantial costs and be a distraction to management.
In addition, while we typically require our employees, consultants and contractors who may be involved in the development of intellectual
property to execute agreements assigning such intellectual property to us, we may be unsuccessful in executing such an agreement with each party who in fact develops intellectual property that we regard as our own, which may result in claims by or
against us related to the ownership of such intellectual property. If we fail in prosecuting or defending any such claims, in addition to paying monetary damages, we may lose valuable intellectual property rights. Even if we are successful in
prosecuting or defending against such claims, litigation could result in substantial costs and be a distraction to our management and scientific personnel.
Risks Related to Our Common Stock
Our stock price
may be volatile and our stockholders may not be able to resell shares of our common stock at or above the price they paid.
The
trading price of our common stock is highly volatile and could be subject to wide fluctuations in response to various factors, some of which are beyond our control. These factors include those discussed in this Risk Factors section and
others such as:
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results from, or any delays in, clinical trial programs relating to our product candidates, including the ongoing and planned clinical trials for tenapanor, RDX7675 and RDX8940;
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ability to commercialize or obtain regulatory approval for our product candidates, or delays in commercializing or obtaining regulatory approval;
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announcements of regulatory approval, a complete response letter or a refuse to file letter to tenapanor or RDX7675, or specific label restrictions or patient populations for its use, or changes or delays in the
regulatory review process;
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announcements relating to future collaboration partnerships;
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announcements of therapeutic innovations or new products by us or our competitors;
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adverse actions taken by regulatory agencies with respect to our clinical trials, manufacturing supply chain or sales and marketing activities;
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changes or developments in laws or regulations applicable to our product candidates;
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the success of our testing and clinical trials;
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failure to meet any of our projected timelines or goals with regard to the clinical development of any of our product candidates
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the success of our efforts to acquire or license or discover additional product candidates;
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any intellectual property infringement actions in which we may become involved;
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the success of our efforts to obtain adequate intellectual property protection for our product candidates;
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announcements concerning our competitors or the pharmaceutical industry in general;
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achievement of expected product sales and profitability;
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manufacture, supply or distribution shortages;
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actual or anticipated fluctuations in our operating results;
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FDA or other U.S. or foreign regulatory actions affecting us or our industry or other healthcare reform measures in the United States;
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changes in financial estimates or recommendations by securities analysts;
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trading volume of our common stock;
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sales of our common stock by us, our executive officers and directors or our stockholders in the future;
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general economic and market conditions and overall fluctuations in the United States equity markets; and
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the loss of any of our key scientific or management personnel.
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In addition, the stock markets
in general, and the markets for pharmaceutical, biopharmaceutical and biotechnology stocks in particular, have experienced extreme volatility that may have been unrelated to the operating performance of the issuer. These broad market fluctuations
may adversely affect the trading price or liquidity of our common stock. In the past, when the market price of a stock has been volatile, holders of that stock have sometimes instituted securities class action litigation against the issuer. If any
of our stockholders were to bring such a lawsuit against us, we could incur substantial costs defending the lawsuit and the attention of our management would be diverted from the operation of our business, which could seriously harm our financial
position. Any adverse determination in litigation could also subject us to significant liabilities.
One of our principal stockholders own a
significant percentage of our stock and, together with our management, will be able to exert significant control over matters subject to stockholder approval.
As of December 31, 2016, entities affiliated with New Enterprise Associates or NEA, a venture capital fund associated with one of our
directors, collectively beneficially hold approximately 31.8% of our capital stock, including warrants exercisable for shares of our common stock, and NEA together with our executive officers and directors beneficially owned approximately 33.7% of
our capital stock, including warrants and stock options exercisable for shares of our common stock within sixty (60) days of December 31, 2016. Therefore, these stockholders may be able to determine all matters requiring stockholder
approval, and the entities affiliated with New Enterprise Associates alone, will have significant ability to influence decisions through their ownership position. For example, these stockholders may be able to control elections of directors,
amendments of our organizational documents, or approval of any merger, sale of assets, or other major corporate transaction. This may prevent or discourage unsolicited acquisition proposals or offers for our common stock that certain stockholders
may feel are in their best interest as one of our stockholders.
If we sell shares of our common stock in future financings, stockholders may
experience immediate dilution and, as a result, our stock price may decline.
We may from time to time issue additional shares of
common stock at a discount from the current trading price of our common stock. As a result, our stockholders would experience immediate dilution upon the purchase
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of any shares of our common stock sold at such discount. In addition, as opportunities present themselves, we may enter into financing or similar arrangements in the future, including the
issuance of debt securities, preferred stock or common stock. If we issue common stock or securities convertible into common stock, our common stockholders would experience additional dilution and, as a result, our stock price may decline.
Sales of a substantial number of shares of our common stock in the public market could cause our stock price to fall.
If our existing stockholders sell, or indicate an intention to sell, substantial amounts of our common stock in the public market, the trading
price of our common stock could decline. As of December 31, 2016, we had 47,309,422 shares of common stock outstanding. Of those shares, approximately 14.3 million, were held by current directors, executive officers and other affiliates,
or may otherwise be subject to Rule 144 under the Securities Act of 1933, or the Securities Act.
In addition, as of December 31,
2016, approximately 2.7 million shares of common stock that are subject to outstanding options, were eligible for sale in the public market to the extent permitted by the provisions of various vesting schedules, and Rule 144 and Rule 701 under
the Securities Act. In addition, approximately 2.2 million shares that are subject to outstanding warrants are eligible for sale in the public market. If these additional shares of common stock are sold, or if it is perceived that they will be
sold, in the public market, the trading price of our common stock could decline.
The holders of approximately 5.6 million shares of
our outstanding common stock as of December 31, 2016, are entitled to rights with respect to the registration of their shares under the Securities Act. Registration of these shares under the Securities Act would result in the shares becoming
freely tradable without restriction under the Securities Act, except for shares purchased by affiliates. Any sales of securities by these stockholders could have a material adverse effect on the trading price of our common stock.
Provisions in our charter documents and under Delaware law could discourage a takeover that stockholders may consider favorable and may lead to
entrenchment of management.
Our amended and restated certificate of incorporation and amended and restated bylaws contain
provisions that could significantly reduce the value of our shares to a potential acquirer or delay or prevent changes in control or changes in our management without the consent of our board of directors. The provisions in our charter documents
include the following:
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a classified board of directors with three-year staggered terms, which may delay the ability of stockholders to change the membership of a majority of our board of directors;
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no cumulative voting in the election of directors, which limits the ability of minority stockholders to elect director candidates;
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the exclusive right of our board of directors to elect a director to fill a vacancy created by the expansion of the board of directors or the resignation, death or removal of a director, which prevents stockholders from
being able to fill vacancies on our board of directors;
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the required approval of at least 66
2
⁄
3
% of the shares entitled to vote to remove a director for cause, and the prohibition on
removal of directors without cause;
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the ability of our board of directors to authorize the issuance of shares of preferred stock and to determine the price and other terms of those shares, including preferences and voting rights, without stockholder
approval, which could be used to significantly dilute the ownership of a hostile acquiror;
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the ability of our board of directors to alter our bylaws without obtaining stockholder approval;
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the required approval of at least 66
2
⁄
3
% of the shares entitled to vote at an election of directors to adopt, amend or repeal
our bylaws or repeal the provisions of our amended and restated certificate of incorporation regarding the election and removal of directors;
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a prohibition on stockholder action by written consent, which forces stockholder action to be taken at an annual or special meeting of our stockholders;
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the requirement that a special meeting of stockholders may be called only by the chairman of the board of directors, the chief executive officer, the president or the board of directors, which may delay the ability of
our stockholders to force consideration of a proposal or to take action, including the removal of directors; and
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advance notice procedures that stockholders must comply with in order to nominate candidates to our board of directors or to propose matters to be acted upon at a stockholders meeting, which may discourage or
deter a potential acquiror from conducting a solicitation of proxies to elect the acquirors own slate of directors or otherwise attempting to obtain control of us.
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In addition, these provisions would apply even if we were to receive an offer that some stockholders may consider beneficial.
We are also subject to the anti-takeover provisions contained in Section 203 of the Delaware General Corporation Law. Under
Section 203, a corporation may not, in general, engage in a business combination with any holder of 15% or more of its capital stock unless the holder has held the stock for three years or, among other exceptions, the board of directors has
approved the transaction.
Claims for indemnification by our directors and officers may reduce our available funds to satisfy successful third-party
claims against us and may reduce the amount of money available to us.
Our amended and restated certificate of incorporation and
amended and restated bylaws provide that we will indemnify our directors and officers, in each case to the fullest extent permitted by Delaware law.
In addition, as permitted by Section 145 of the Delaware General Corporation Law, our amended and restated bylaws and our indemnification
agreements that we have entered into with our directors and officers provide that:
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We will indemnify our directors and officers for serving us in those capacities or for serving other business enterprises at our request, to the fullest extent permitted by Delaware law. Delaware law provides that a
corporation may indemnify such person if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the registrant and, with respect to any criminal proceeding, had no reasonable
cause to believe such persons conduct was unlawful.
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We may, in our discretion, indemnify employees and agents in those circumstances where indemnification is permitted by applicable law.
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We are required to advance expenses, as incurred, to our directors and officers in connection with defending a proceeding, except that such directors or officers shall undertake to repay such advances if it is
ultimately determined that such person is not entitled to indemnification.
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We will not be obligated pursuant to our amended and restated bylaws to indemnify a person with respect to proceedings initiated by that person against us or our other indemnitees, except with respect to proceedings
authorized by our board of directors or brought to enforce a right to indemnification.
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The rights conferred in our amended and restated bylaws are not exclusive, and we are authorized to enter into indemnification agreements with our directors, officers, employees and agents and to obtain insurance to
indemnify such persons.
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We may not retroactively amend our amended and restated bylaw provisions to reduce our indemnification obligations to directors, officers, employees and agents.
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We do not currently intend to pay dividends on our common stock, and, consequently, our stockholders ability to achieve a return on their
investment will depend on appreciation in the price of our common stock.
We do not currently intend to pay any cash dividends on
our common stock for the foreseeable future. We currently intend to invest our future earnings, if any, to fund our growth. Additionally, the terms of our loan and
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security agreements could restrict our ability to pay dividends. Therefore, our stockholders are not likely to receive any dividends on our common stock for the foreseeable future. Since we do
not intend to pay dividends, our stockholders ability to receive a return on their investment will depend on any future appreciation in the market value of our common stock. There is no guarantee that our common stock will appreciate or even
maintain the price at which our holders have purchased it.